[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2009 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          49


          Parts 1 to 99

          Revised as of October 1, 2009


          Transportation
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

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

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                            Table of Contents



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

  Title 49:
          SUBTITLE A--Office of the Secretary of 
          Transportation                                             1
  Finding Aids:
      Table of CFR Titles and Chapters........................     681
      Alphabetical List of Agencies Appearing in the CFR......     701
      List of CFR Sections Affected...........................     711

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

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

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 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 vi]]

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

OBSOLETE PROVISIONS

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

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of 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 vii]]



REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

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register. The NARA site also contains links to GPO Access.

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







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                               THIS TITLE

    Title 49--Transportation is composed of nine volumes. The parts in 
these volumes are arranged in the following order: Parts 1-99, parts 
100-185, parts 186-199, parts 200-299, parts 300-399, parts 400-571, 
parts 572-999, parts 1000-1199, and part 1200 to end. The first volume 
(parts 1-99) contains current regulations issued under subtitle A--
Office of the Secretary of Transportation; the second volume (parts 100-
185) and the third volume (parts 186-199) contain the current 
regulations issued under chapter I--Pipeline and Hazardous Materials 
Safety Administration (DOT); the fourth volume (parts 200-299) contains 
the current regulations issued under chapter II--Federal Railroad 
Administration (DOT); the fifth volume (parts 300-399) contains the 
current regulations issued under chapter III--Federal Motor Carrier 
Safety Administration (DOT); the sixth volume (parts 400-571) contains 
the current regulations issued under chapter IV--Coast Guard (DHS), and 
some of chapter V--National Highway Traffic Safety Administration (DOT); 
the seventh volume (parts 572-999) contains the rest of the regulations 
issued under chapter IV, and the current regulations issued under 
chapter VI--Federal Transit Administration (DOT), chapter VII--National 
Railroad Passenger Corporation (AMTRAK), and chapter VIII--National 
Transportation Safety Board; the eighth volume (parts 1000-1199) 
contains the current regulations issued under chapter X--Surface 
Transportation Board and the ninth volume (part 1200 to end) contains 
the current regulations issued under chapter X--Surface Transportation 
Board, chapter XI--Research and Innovative Technology Administration, 
and chapter XII--Transportation Security Administration, Department of 
Transportation. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 2009.

    In the volume containing parts 100-185, see Sec.  172.101 for the 
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards 
appear in part 571.

    Redesignation tables for chapter III--Federal Motor Carrier Safety 
Administration, Department of Transportation and chapter XII--
Transportation Security Administration, Department of Transportation 
appear in the Finding Aids section of the fifth and ninth volumes.

    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 49--TRANSPORTATION




                   (This book contains parts 1 to 99)

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

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

[[Page 3]]



          Subtitle A--Office of the Secretary of Transportation




  --------------------------------------------------------------------
Part                                                                Page
1               Organization and delegation of powers and 
                    duties..................................           5
3               Official seal...............................          49
5               Rulemaking procedures.......................          50
6               Implementation of Equal Access to Justice 
                    Act in agency proceedings...............          53
7               Public availability of information..........          59
8               Classified information: Classification/
                    declassification/access.................          74
9               Testimony of employees of the Department and 
                    production of records in legal 
                    proceedings.............................          82
10              Maintenance of and access to records 
                    pertaining to individuals...............          86
11              Protection of human subjects................          99
15              Protection of sensitive security information         110
17              Intergovernmental review of Department of 
                    Transportation programs and activities..         116
18              Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............         120
19              Uniform administrative requirements for 
                    grants and agreements with institutions 
                    of higher education, hospitals, and 
                    other non-profit organizations..........         149
20              New restrictions on lobbying................         177
21              Nondiscrimination in federally-assisted 
                    programs of the Department of 
                    Transportation--Effectuation of Title VI 
                    of the Civil Rights Act of 1964.........         189
23              Participation of disadvantaged business 
                    enterprise in airport concessions.......         200
24              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally-assisted programs.............         220
25              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         268

[[Page 4]]

26              Participation by disadvantaged business 
                    enterprises in Department of 
                    Transportation financial assistance 
                    programs................................         284
27              Nondiscrimination on the basis of disability 
                    in programs or activities receiving 
                    Federal financial assistance............         344
28              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Transportation.......................         356
30              Denial of public works contracts to 
                    suppliers of goods and services of 
                    countries that deny procurement market 
                    access to U.S. contractors..............         364
31              Program fraud civil remedies................         369
32              Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         385
37              Transportation services for individuals with 
                    disabilities (ADA)......................         390
38              Americans with Disabilities Act (ADA) 
                    accessibility specifications for 
                    transportation vehicles.................         480
40              Procedures for transportation workplace drug 
                    and alcohol testing programs............         518
41              Seismic safety..............................         632
71              Standard time zone boundaries...............         634
79              Medals of honor.............................         640
80              Credit assistance for surface transportation 
                    projects................................         640
89              Implementation of the Federal Claims 
                    Collection Act..........................         646
91              International air transportation fair 
                    competitive practices...................         653
92              Recovering debts to the United States by 
                    salary offset...........................         655
93              Aircraft allocation.........................         664
95              Advisory committees.........................         665
98              Enforcement of restrictions on post-
                    employment activities...................         668
99              Employee responsibilities and conduct.......         670
Appendix to Subtitle A--United States Railway Association--
  Employee Responsibilities and Conduct.....................         673

[[Page 5]]



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




                            Subpart A_General

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

                    Subpart B_Office of the Secretary

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

                          Subpart C_Delegations

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

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

    Authority: 49 U.S.C. 322; 46 U.S.C. 2104(a); 28 U.S.C. 2672; 31 
U.S.C. 3711(a)(2); Pub. L. 101-552, 104 Stat. 2736; Pub. L. 106-159, 113 
Stat. 1748; Pub. L. 107-71, 115 Stat. 597; Pub. L. 107-295, 116 Stat. 
2064; Pub. L. 108-136, 117 Stat. 1392; Pub. L. 101-115, 103 Stat. 691; 
Pub. L. 108-293, 118 Stat. 1028; Pub. L. 109-364, 120 Stat. 2083; Pub. 
L. 110-140, 121 Stat. 1492; Pub. L. 110-432, 122 Stat. 4848.

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



                            Subpart A_General



Sec. 1.1  Purpose.

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

[74 FR 26982, June 5, 2009]



Sec. 1.2  Definitions.

    As used in this part, Administrator includes:
    (a) The Federal Aviation Administrator.

[[Page 6]]

    (b) The Federal Highway Administrator.
    (c) The Federal Railroad Administrator.
    (d) The National Highway Traffic Safety Administrator.
    (e) The Federal Transit Administrator.
    (f) The Administrator of the St. Lawrence Seaway Development 
Corporation.
    (g) The Pipeline and Hazardous Materials Safety Administrator.
    (h) The Maritime Administrator.
    (i) The Research and Innovative Technology Administrator.
    (j) The Federal Motor Carrier Safety Administrator.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 
FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28, 1981; Amdt. 
1-270, 60 FR 30196, June 8, 1995; 65 FR 221, Jan. 4, 2000; 66 FR 67118, 
Dec. 28, 2001; 67 FR 629, Jan. 4, 2002; 68 FR 34549, June 10, 2003; 70 
FR 8300, Feb. 18, 2005]



Sec. 1.3  Organization of the Department.

    (a) The Secretary of Transportation is the head of the Department.
    (b) The Department is comprised of the Office of the Secretary and 
the following operating elements, the heads of which report directly to 
the Secretary:
    (1) The Federal Aviation Administration, headed by the 
Administrator.
    (2) The Federal Highway Administration, headed by the Administrator.
    (3) The Federal Railroad Administration, headed by the 
Administrator.
    (4) The National Highway Traffic Safety Administration, headed by 
the Administrator.
    (5) The Federal Transit Administration, headed by the Administrator.
    (6) The St. Lawrence Seaway Development Corporation, headed by the 
Administrator.
    (7) The Pipeline and Hazardous Materials Safety Administration, 
headed by the Administrator.
    (8) The Maritime Administration, headed by the Administrator and 
including within it the Maritime Subsidy Board composed of the Maritime 
Administrator, the Deputy Maritime Administrator, and the Chief Counsel 
of the Maritime Administration.
    (9) The Research and Innovative Technology Administration, headed by 
the Administrator.
    (10) [Reserved]
    (11) The Federal Motor Carrier Safety Administration, headed by the 
Administrator.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 
FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28, 1981; Amdt. 
1-270, 60 FR 30196, June 8, 1995; 65 FR 221, Jan. 4, 2000; 66 FR 67118, 
Dec. 28, 2001; 68 FR 34549, June 10, 2003; 70 FR 8300, Feb. 18, 2005]



Sec. 1.4  General responsibilities.

    (a) Office of the Secretary. Provides for:
    (1) Leadership in formulating and executing well-balanced national 
and international transportation objectives, policies, and programs;
    (2) Stimulating and promoting research and development in all modes 
and types of transportation, with special emphasis on transportation 
safety;
    (3) Coordinating the various transportation programs of the Federal 
Government;
    (4) Encouraging maximum private development of transportation 
services;
    (5) Responsive, timely, and effective liaison with Congress, and 
public and private organizations on transportation matters;
    (6) Innovative approaches to urban transportation and environmental 
enhancement programs; and
    (7) Effective management of the Department as a whole.
    (b) The Federal Aviation Administration. Is responsible for:
    (1) Promulgating and enforcing regulations on all safety matters 
relating to the manufacture, operation, and maintenance of aircraft;
    (2) Registering aircraft and recording rights in aircraft;
    (3) Developing, modifying, testing, and evaluating systems, 
procedures, facilities, and devices needed for the safe and efficient 
navigation and traffic control of aircraft;
    (4) Locating, constructing or installing, maintaining, and operating 
Federal aids to air navigation, wherever necessary;

[[Page 7]]

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

[[Page 8]]

    (2) Administering a national program of safety, including security, 
in multi-modal hazardous materials transportation including identifying 
hazardous materials safety concerns, developing uniform safety 
standards, and promulgating and enforcing safety and security 
regulations.
    (i) The Maritime Administration. Is responsible for:
    (1) Fostering the development and maintenance of an American 
merchant marine sufficient to meet the needs of the national security 
and of the domestic and foreign commerce of the United States;
    (2) Awarding and administering construction-differential subsidy 
contracts and operating-differential subsidy contracts to aid the 
American merchant marine, and trade-in allowances for new ship 
construction;
    (3) Entering into and administering agreements for capital 
contruction funds (excepting fishing vessels) and construction reserve 
funds;
    (4) Providing insurance on construction loans and ship mortgages or 
guarantees on ship financing obtained from private sources for ship 
construction and reconstruction (excepting fishing vessels);
    (5) Providing assistance to the shipping industry to generate 
increased trade and cargo shipments on U.S. flag ships;
    (6) Promoting development of ports and intermodal transportation 
systems;
    (7) Promoting development of the domestic waterborne commerce of the 
United States;
    (8) Overseeing the administration of cargo preference statutes;
    (9) Entering into and administering charters and general agency 
agreements for operation of Government-owned merchant ships;
    (10) Maintaining custody of, and preserving, ships in the National 
Defense Reserve Fleet;
    (11) Selling surplus Government-owned ships;
    (12) Supervising design and construction of ships for Government 
account;
    (13) Furnishing war risk insurance on privately owned merchant 
ships;
    (14) Administering the foreign transfer program regarding ships and 
other maritime properties;
    (15) Training merchant marine officers;
    (16) Conducting research and development to improve and promote the 
waterborne commerce of the United States; and
    (17) Issuing rules and regulations with respect to the foregoing 
functions.
    (j) The Maritime Subsidy Board (within the Maritime Administration). 
Is responsible for:
    (1) Making, amending, and terminating subsidy contracts, which shall 
be deemed to include, in the case of construction-differential subsidy: 
(i) The contract for the construction, reconstruction, or reconditioning 
of a vessel, and (ii) the contract for the sale of the vessel to the 
subsidy applicant or the contract to pay a construction-differential 
subsidy and the cost of the national defense features, and, in the case 
of operating-differential subsidy, the contract with the subsidy 
applicant for the payment of the subsidy.
    (2) Conducting hearings and making determinations antecedent to 
making, amending, and terminating subsidy contracts, under the 
provisions of titles V, VI, and VII, and sections 301 (except 
investigations, hearings, and determinations, including changes in 
determinations, with respect to minimum manning scales, minimum wage 
scales, and minimum working conditions), 708, 805(a), and 805(f) of the 
Merchant Marine Act, 1936, as amended (the ``Act'').
    (3) Approving the sale, assignment, or transfer of any operating 
subsidy contract under section 608 of the Act.
    (4) Performing so much of the functions with respect to adopting 
rules and regulations, subpoenaing witnesses, administering oaths, 
taking evidence, and requiring the production of books, papers, and 
documents, under sections 204 and 214 of the Act, as they relate to the 
functions of the Board.
    (5) Performing as much of the functions specified in section 12 of 
the Shipping Act, 1916, as amended, as the same relate to the functions 
of the Board under paragraphs (k) (1) through (4) of this section.

[[Page 9]]

    (k) The Research and Innovative Technology Administration. Is 
responsible for:
    (1) Coordinating, facilitating, and reviewing the Department's 
research and development programs and activities, except as limited by 
section 4(b)(1) of the Norman Y. Mineta Research and Special Programs 
Improvement Act (Pub. L. 108-426, 118 Stat. 2423 (November 30, 2004)).
    (2) After consultation with modal and OST offices, making 
recommendations to the Secretary on all modal and OST research budgets.
    (3) Serving as the focal point for Departmental research, 
development, and technology endeavors, in coordination with the Under 
Secretary for Policy.
    (4) Planning, developing, initiating and managing programs in 
transportation research and development. Programs undertaken by RITA 
shall not be duplicative of similar programs undertaken by any modal or 
OST office. Maintaining the capability to perform research, development, 
and analysis in transportation planning and socio-economic effects, 
program management, and provide advice on technology in DOT policy 
development. Particular efforts will be made on analyzing transportation 
systems problems and developing innovative research products, processes 
and applications to solve them, advanced transportation concepts, and 
multimodal transportation. RITA will develop and maintain vital 
statistics and related transportation information databases.
    (5) Providing leadership on technical, navigation, communication, 
and systems engineering activities.
    (6) Providing a point of contact for the Department with the 
academic community to encourage transportation research.
    (7) Providing university transportation research grants.
    (8) Managing a Transportation Safety Institute which designs and 
conducts training programs responsive to the requirements of Government 
and industry as expressed by the operating administrations of the 
Department.
    (9) Carrying out comprehensive transportation statistics research, 
analysis, and reporting.
    (10) Providing oversight of the activities of the Bureau of 
Transportation Statistics.
    (11) Providing oversight of the activities of the Volpe National 
Transportation Systems Center.
    (12) Coordinating intermodal research initiatives and planning 
activities.
    (13) Serving as a focal point within the Federal government for 
coordination of intermodal transportation research and development 
policy, in coordination with the Under Secretary for Policy.
    (l) The Federal Motor Carrier Safety Administration. Is responsible 
for:
    (1) Managing program and regulatory activities, including 
administering laws and promulgating and enforcing regulations on safety 
matters relating to motor carrier safety;
    (2) Carrying out motor carrier registration and authority to 
regulate household goods transportation;
    (3) Developing strategies for improving commercial motor vehicle, 
operator, and carrier safety;
    (4) Inspecting records and equipment of commercial motor carriers, 
and investigating accidents and reporting violations of motor carrier 
safety regulations; and
    (5) Carrying out research, development, and technology transfer 
activities to promote safety of operation and equipment of motor 
vehicles for the motor carrier transportation program.

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

    Editorial Note: For Federal Register citations affecting Sec. 1.4, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



                    Subpart B_Office of the Secretary



Sec. 1.21  Purpose.

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

[[Page 10]]



Sec. 1.22  Structure.

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

[Amdt. 1-261, 59 FR 10061, Mar. 3, 1994, as amended by Amdt.1-268, 60 FR 
14226, Mar. 16, 1995; Amdt. 1-269, 60 FR 15877, Mar. 28, 1995; Amdt. 1-
274, 60 FR 62762, Dec. 7, 1995; Amdt. 1-290, 62 FR 51804, Oct. 3, 1997; 
68 FR 34549, June 10, 2003; 70 FR 8300, Feb. 18, 2005]



Sec. 1.23  Spheres of primary responsibility.

    (a) Secretary and Deputy Secretary. Overall planning, direction, and 
control of departmental affairs including civil rights, contract 
appeals, small and disadvantaged business participation in departmental 
programs, transportation research and technology, commercial space 
transportation, intelligence and security, and public affairs.
    (b) The Under Secretary for Policy. Provides leadership in the 
development of policy for the Department, supervises the policy 
activities of Assistant Secretaries with primary responsibility for 
aviation, international, and other transportation policy development and 
carries out other powers and duties prescribed by the Secretary. Assists 
the Secretary and Deputy Secretary in carrying out a variety of 
executive and managerial policies, programs and initiatives. Serves as 
the focal point within the Federal Government for coordination of 
intermodal transportation policy which brings together departmental 
intermodal perspectives, advocates intermodal interests, and provides 
secretarial leadership and visibility on issues that involve or affect 
more than one operating administration.
    (c) General Counsel. Legal services as the chief legal officer of 
the Department, legal advisor to the Secretary and the Office of the 
Secretary; final authority within the Department on questions of law; 
professional supervision, including coordination and review, over the 
legal work of the legal offices of the Department; drafting of 
legislation and review of legal aspects of legislative matters; point of 
coordination for the Office of the Secretary and Department Regulations 
Council;

[[Page 11]]

advice on questions of international law; advice and assistance with 
respect to uniform time matters; ensures uniform departmental 
implementation of the Freedom of Information Act (5 U.S.C. 552); 
responds to requests for records of the Office of the Secretary 
including the Office of the Inspector General, under that statute; 
review and final action on applications for reconsideration of initial 
decisions not to disclose unclassified records of the Office of the 
Secretary requested under 5 U.S.C. 552(a)(3); promotion and coordination 
of efficient use of Department legal resources; recommendation, in 
conjunction with the Assistant Secretary for Administration, of legal 
career development programs within the Department.
    (d) Assistant Secretary for Transportation Policy. Principal policy 
advisor to the Secretary and the Deputy Secretary. Public policy 
development, coordination, and evaluation for all aspects of 
transportation, with the goal of making the Nation's transportation 
resources function as an integrated national system; evaluation of 
private transportation sector operating and economic issues; evaluation 
of public transportation sector operating and economic issues; 
regulatory and legislative initiatives and review; energy, 
environmental, disability, and safety policy and program development and 
review; and transportation infrastructure assessment and review.
    (e) Assistant Secretary for Aviation and International Affairs. 
Public policy assessment and review; private sector evaluation; 
international transportation and transport-related trade policy and 
issues; regulatory and legislative initiatives and review of maritime/
shipbuilding policies and programs; transport-related trade promotion; 
coordination of land transport relations with Canada and Mexico; 
technical assistance and science and technology cooperation; 
international visitors' programs; economic regulation of the airline 
industry; and essential air service program.
    (f) Assistant Secretary for Budget and Programs. Preparation, review 
and presentation of Department budget estimates; liaison with OMB and 
Congressional Budget and Appropriations Committees; departmental 
financial plans, apportionments, reapportionments, reprogrammings, and 
allotments; program and systems evaluation and analysis; program 
evaluation criteria; program resource plans; analysis and review of 
legislative proposals and one-time reports and studies required by the 
Congress; budgetary and selected debt and administrative matters 
relating to the Office of the Secretary.
    (g) Assistant Secretary for Governmental Affairs. Coordination of 
legislative and non-legislative relationships; congressional affairs; 
communications and coordination with Federal, State and local 
governments, industry and labor, and with citizens and organizations 
representing consumers.
    (h) Deputy Assistant Secretary for Tribal Government Affairs. Plan, 
coordinate and implement the Department's policies and programs with 
respect to Indian tribes and tribal organizations. Coordinate intra-
Departmental tribal transportation programs and activities. Serve as the 
Department's primary point of contact in relationships with public and 
private organizations and groups related to Indian tribes and tribal 
organizations. Participate in any negotiated rulemaking relating to, or 
having an impact on, projects, programs, or funding associated with the 
tribal transportation program.
    (i) Assistant Secretary for Administration. Organization; 
delegations of authority; personnel ceiling control; management studies; 
personnel management; acquisition and grant management (except for the 
responsibility listed for the Office of Small and Disadvantaged Business 
Utilization in this section); information resource management; financial 
management; development and implementation of a Departmental Accounting 
and Financial Information System (DAFIS); property management 
information; security; computer support; telecommunications; and 
administrative support services for the Office of the Secretary and 
certain other components of the Department.
    (j) Inspector General. Conduct, supervise, and coordinate audits and 
investigations, review existing and proposed legislation and make 
recommendations

[[Page 12]]

to the Secretary and Congress (Semiannual reports) concerning their 
impact on the economy and efficiency of program administration, or the 
prevention and detection of fraud and abuse; recommend policies for and 
conduct, supervise, or coordinate other activities of the Department for 
the purpose of promoting economy and efficiency in program 
administration, or preventing and detecting fraud and abuse.
    (k) Executive Secretary. Central facilitative staff for the 
Immediate Office of the Secretary and the Secretarial Officers.
    (l) Board of Contract Appeals. Conducts trials and issues final 
decisions, which are appealable to the United States Court of Appeals 
for the Federal Circuit, on appeals from contracting officer decisions 
under contracts awarded by the Department and its constituent 
administrations in accordance with the Contract Disputes Act of l978, 41 
U.S.C. 601 et seq.; sits as the Contract Adjustment Board with plenary 
authority to grant extraordinary contractual relief in accordance with 
50 U.S.C. 1431-1435 and Executive Order 10789 (3 CFR, 1954-1958 comp., 
p. 426), as amended; hears and decides all contractor and subcontractor 
debarment, suspension, or ineligibility cases pursuant to the Federal 
Acquisition Regulation, 48 CFR 9.402; judges serve as ``neutrals'' under 
the Administrative Dispute Resolution Act, 5 U.S.C. 581 et seq., in 
contract-related matters; and performs such other adjudicatory functions 
assigned by the Secretary as are consistent with the duties and 
responsibilities of the Board as set forth in 41 U.S.C. 601 et seq.
    (m) Departmental Office of Civil Rights. The Director of the 
Departmental Office of Civil Rights serves as the Department's Equal 
Employment Opportunity (EEO) Officer and Title VI Coordinator. The 
Director also serves as principal advisor to the Secretary and the 
Deputy Secretary on the civil rights and nondiscrimination statutes, 
regulations, and executive orders applicable to the Department, 
including titles VI and VII of the Civil Rights Act of 1964, as amended, 
the Age Discrimination in Employment Act of 1967, as amended, the Age 
Discrimination Act of 1975, as amended, section 504 of the 
Rehabilitation Act of 1973, as amended, the Americans with Disabilities 
Act of 1990, and the Equal Pay Act of 1963. The Office of Civil Rights 
also provides policy guidance to the operating administrations and 
Secretarial officers on these matters. Also, the Office periodically 
reviews and evaluates the civil rights programs of the operating 
administrations to ensure that recipients of DOT funds meet applicable 
Federal civil rights requirements.
    (n) Office of Small and Disadvantaged Business Utilization. 
Responsible for the Department's implementation and execution of the 
functions and duties under sections 8 and 15 of the Small Business Act, 
as amended, (15 U.S.C. 637 and 644), and for other departmental small 
and disadvantaged business policy direction.
    (o) [Reserved]
    (p) Office of Intelligence, Security and Emergency Response. 
Responsible for intelligence and security matters within the Department 
of Transportation that affect the safety of the traveling public, and 
for emergency preparedness and response functions and activities within 
the Department and operation of the Department's Crisis Management 
Center.
    (q) Office of Public Affairs. Focal point for public information and 
departmental relations with the news media, the general public, and 
selected special publics.
    (r) Office of the Chief Information Officer. Serves as principal 
advisor to the Secretary on matters involving information resources and 
information systems management.

[Amdt. 1-261, 59 FR 10062, Mar. 3, 1994, as amended by Amdt. 265, 60 FR 
2891, Jan. 12, 1995; Amdt. 1-274, 60 FR 62762, Dec. 7, 1995; Amdt. 1-
290, 62 FR 51804, Oct. 3, 1997; 68 FR 34549, June 10, 2003; 69 FR 44972, 
July 28, 2004; 70 FR 7670, Feb. 15, 2005; 70 FR 8300, Feb. 18, 2005; 71 
FR 30830, May 31, 2006; 73 FR 57269, Oct. 2, 2008]



Sec. 1.24  Authority.

    (a) The Deputy Secretary: (1) May exercise the authority of the 
Secretary, except where specifically limited by law, order, regulation, 
or instructions of the Secretary; and (2) serves as the Chief 
Acquisition Officer.

[[Page 13]]

    (b) Acting in his or her own name and title, each Assistant 
Secretary, the Inspector General, or the General Counsel, within his or 
her sphere of responsibility, is authorized to identify and define the 
requirements for, and to recommend to the Secretary, new or revised 
Departmental policies, plans, and proposals. Each of these officers is 
authorized to issue Departmental standards, criteria, systems and 
procedures that are consistent with applicable laws, Executive Orders, 
Government-wide regulations and policies established by the Secretary, 
and to inspect, review, and evaluate Departmental program performance 
and effectiveness and advise the Secretary regarding the adequacy 
thereof.
    (c) Except for nondelegable statutory duties, including those which 
devolve as a result of succession to act as Secretary of Transportation, 
each Deputy Assistant Secretary, the Deputy Inspector General, and the 
Deputy General Counsel is authorized to act for and perform the duties 
of his or her principal in the absence or disability of the principal 
and as otherwise directed by the principal.
    (d) Inspector General. The Inspector General shall report to and be 
under the general supervision of the Secretary and Deputy Secretary. In 
accordance with the statutory intent of the Inspector General Act to 
create an independent and objective unit, the Inspector General is 
authorized to make such investigations and reports relating to the 
administration of the programs and operations of the Department as are, 
in the judgment of the Inspector General, necessary and desirable. 
Neither the Secretary nor the Deputy Secretary shall prevent or prohibit 
the Inspector General from initiating, carrying out, or completing any 
audit or investigation, or from issuing any subpoena during the course 
of any audit or investigation.

[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 
FR 83404, Dec. 18, 1980; 69 FR 60563, Oct. 12, 2004]



Sec. 1.25  Relationships.

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

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

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



Sec. 1.26  Secretarial succession.

    (a) The following officials, in the order indicated, shall act as 
Secretary of Transportation, in case of the absence or disability of the 
Secretary, until the absence or disability ceases, or in the case of a 
vacancy, until a successor is appointed. Notwithstanding

[[Page 14]]

the provisions of this section, the President retains discretion, to the 
extent permitted by the law, to depart from this order in designating an 
acting Secretary of Transportation.
    (1) Deputy Secretary.
    (2) Under Secretary of Transportation for Policy.
    (3) General Counsel.
    (4) Assistant Secretary for Budget and Programs.
    (5) Assistant Secretary for Transportation Policy.
    (6) Assistant Secretary for Governmental Affairs.
    (7) Assistant Secretary for Aviation and International Affairs.
    (8) Assistant Secretary for Administration.
    (9) Federal Aviation Administrator.
    (10) Federal Aviation Administration Regional Administrator, 
Southwest Region.
    (11) Federal Aviation Administration Regional Administrator, Great 
Lakes Region.
    (b) Without regard to the foregoing, a person directed to perform 
the duties of the Secretary pursuant to 5 U.S.C. 3347 shall act as 
Secretary of Transportation.

[Amdt. 1-157, 45 FR 83405, Dec. 18, 1980, as amended by Amdt. 1-184, 48 
FR 44079, Sept. 27, 1983; Amdt. 1-261, 59 FR 10063, Mar. 3, 1994; Amdt. 
1-291, 62 FR 55357, Oct. 24, 1997; 68 FR 35184, June 12, 2003; 73 FR 
14728, Mar. 19, 2008]



                          Subpart C_Delegations



Sec. 1.41  Purpose.

    (a) Except as provided in paragraph (b) of this section, this 
subpart provides for the exercise of the powers and performance of the 
duties vested in the Secretary of Transportation by law.
    (b) For delegations of authority vested in the Secretary by 
Executive Order 11652 originally to classify documents as secret or 
confidential, see Sec. 8.11 of this subtitle.



Sec. 1.42  Exercise of authority.

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

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



Sec. 1.43  General limitations and reservations.

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

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

[[Page 15]]



Sec. 1.44  Reservation of authority.

    The delegations of authority in Sec. Sec. 1.45 through 1.53 and 
Sec. Sec. 1.66 and Sec. 1.67 do not extend to the following actions, 
authority for which is reserved to the Secretary or the Secretary's 
delegatee within the Office of the Secretary:
    (a) General transportation matters. (1) Transportation leadership 
authority under section 4(a) of the Department of Transportation Act (49 
U.S.C. 1653(a)).
    (2) Functions relating to transportation activities, plans, and 
programs under section 4(g) of the Department of Transportation Act (49 
U.S.C. 1653(g)).
    (3) Authority to develop, prepare, coordinate, transmit, and revise 
transportation investment standards and criteria under section 7 of the 
Department of Transportation Act (49 U.S.C. 1656).
    (4) Authority relating to standard time zones and advanced 
(daylight) time (15 U.S.C. 260 et seq.).
    (5) Authority related to national transportation policy under 
section 3 of the Airport and Airway Development Act of 1970 (84 Stat. 
219).
    (b) Legislation and reports. (1) Submission to the President, the 
Director of the Office of Management and Budget, or the Congress of 
proposals or recommendations for legislation, Executive orders, 
proclamations or reorganization plans or other Presidential action.
    (2) Submission to Congress or the President of any report or any 
proposed transportation policy or investment standards or criteria, 
except with the prior written approval of the Secretary.
    (3) Submission of the annual statement on systems of internal 
accounting and administrative control under the Federal Managers' 
Financial Integrity Act of 1982 (Pub. L. 97-255).
    (c) Budget and finance. (1) Approval and submission to the Office of 
Management and Budget of original or amended budget estimates or 
requests for allocations of personnel ceiling (31 U.S.C. 22-24).
    (2) Approval of requests for legislation which, if enacted, would 
authorize subsequent appropriations for the Department (31 U.S.C. 581b).
    (3) Transfer of the balance of an appropriation from one operating 
element to another within the Department (31 U.S.C. 581c).
    (4) Submission to the Director of the Office of Management and 
Budget of requests for the transfer of the balance or portions of an 
appropriation from one element to another within the Department (31 
U.S.C. 665).
    (d) Interventions and appearances. Except with respect to 
proceedings relating to safety fitness of an applicant (49 U.S.C. 
1653(e)), the making of decisions on requests to intervene or appear 
before courts and administrative agencies to present the views of the 
Department.
    (e) Personnel. (1) Recommendations to the Civil Service Commission 
of the allocation of a position to GS-16, 17, or 18 or an equivalent 
level (5 U.S.C. 5108).
    (2) Recommendations to the Civil Service Commission of approval of 
the qualifications of any candidate for a position at grade GS-16, 17, 
or 18 or an equivalent level (5 U.S.C. 3324), or to an executive level 
position.
    (3) Recommendations to the Civil Service Commission of a Lump-Sum 
Incentive Award in Excess of $5,000 (5 U.S.C. 4502).
    (4) Approval of the following actions relating to Schedules A, B, 
and C and noncareer executive assignment positions or incumbents, except 
for actions under Schedules A and B limited to one year or less at grade 
GS-9 or lower, or an equivalent level:
    (i) Establishment or abolition of positions;
    (ii) Hires;
    (iii) Promotions other than quality and periodic within-grade 
promotions;
    (iv) Transfer of personnel to Schedule A, B, or C positions or non-
career executive assignment positions, either permanently or on detail; 
and
    (v) Transfer of personnel from Schedule A, B, or C or non-career 
executive assignment positions to career Civil Service positions.
    (5) Approval of employment of experts or consultants.
    (6) Authority relating to scientific and professional positions 
under section 6(a) (5) of the Department of Transportation Act (49 
U.S.C. 1655(a)(5)).
    (7) Authority to determine the maximum limit of age for appointment 
of

[[Page 16]]

air traffic controllers as provided by 5 U.S.C. 3307(b) (86 Stat. 141).
    (8) Authority to develop, coordinate, and issue wage schedules under 
the Federal Wage system.
    (f) Security. (1) Suspension or removal of an employee from a 
position in the Department for security reasons under Executive Order 
10450 (3 CFR, 1949-53 Comp., p. 936) or the employment in the Department 
of a person who was previously separated for security reasons from any 
Federal agency.
    (2) Authorizing the filling of a critical-sensitive position for a 
limited period by a person on whom a preappointment full field 
investigation has not been completed (Executive Order 10450).
    (3) Requesting Presidential approval of a claim of executive 
privilege with respect to information requested by a congressional 
committee or Member of Congress.
    (4) Making determinations prescribed by sections 4(a)(2)(B), 
4(b)(3), 5(b), and 9 of Executive Order 10865 (3 CFR, 1959-63 Comp., p. 
398) relating to the adjudication and final denial of access to 
classified information to industry personnel.
    (5) Making those determinations or delegations prescribed by 
sections 2(B) (3), 5(E) (1) and (2) of Executive Order 11652 (37 FR 
5209, March 10, 1972) which are reserved to the head of the Department.
    (g) Procurement. Exercise of the extraordinary authority for defense 
contracts provided for in Public Law 85-804 (50 U.S.C. 1431-1435), and 
considerations and decisions on contract appeals and other matters 
pursuant to the Department of Transportation Contract Appeals 
Regulations (41 CFR part 12-60).
    (h) Printing. Requesting approval of the Joint Committee on Printing 
for any procurement or other action requiring Committee approval.
    (i) Interagency agreements. Execution of any written 
interdepartmental or interagency agreement with the head of another 
executive department or agency.
    (j) Withholding of funds. Withholding or suspension of Federal-Aid 
Highway funds on a state-wide basis and the waiver or compromise of such 
withholding or suspension, except for the administration of 23 U.S.C. 
141 and 154, which are specifically delegated in Sec. 1.48(b) (23) and 
(28) and in Sec. 1.50(i) (1) and (2).
    (k) Alaska Railroad. Extension or abandonment of railroad service.
    (l) National Highway Safety Advisory Committee. Directing the 
National Highway Safety Advisory Committee to meet (23 U.S.C. 404(c)).
    (m) Automatic data processing. Approval authority relating to 
automatic data processing equipment and services as delimited by DOT 
1370.2A, Procurement of Automatic Data Processing Equipment and 
Services, of 7.22.70.
    (n) Deepwater ports. The authority to issue, transfer, or amend a 
license for the construction and operation of a deepwater port (33 
U.S.C. 1503(b)).
    (o) Deepwater ports. Repealed.
    (p) Review and finality of actions by Maritime Subsidy Board. (1) 
Review of any decision, report, and/or order of the Maritime Subsidy 
Board, as described in 46 CFR part 202, as amended.
    (q) Approval of cash purchases of passenger transportation. The 
authority under FPMR G-72, as amended, to authorize and approve cash 
purchases for emergency passenger transportation services costing more 
than $100.

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

    Editorial Note: For Federal Register citations affecting Sec. 1.44, 
see the List of CFR Sections Affected which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 1.45  Delegations to all Administrators.

    (a) Except as prescribed by the Secretary of Transportation, each 
Administrator is authorized to:
    (1) Exercise the authority of the Secretary over and with respect to 
any personnel within their respective organizations.
    (2) Exercise the authority of the Secretary as executive head of a 
department, under any statute, Executive order or regulation.
    (3) Request the Attorney General to approve the award, compromise, 
or settlement of any tort claim for an amount exceeding $100,000 
(excluding interest) (28 U.S.C. 2672).
    (4) Carry out the functions vested in the Secretary concerning 
environmental enhancement by 49 U.S.C. 303.

[[Page 17]]

    (5) Carry out the emergency preparedness functions assigned to the 
Secretary by Executive Order 12656 and by the Federal Emergency 
Management Agency, General Services Administration (FEMA/GSA) as they 
pertain to his administration, including those relating to continuity of 
operations, emergency resource management, associated Federal claimant 
procedures, facilities protection and warfare effects monitoring and 
reporting, research, stockpiling, financial aid, and training.
    (6) Enter into inter- and intradepartmental reimbursable agreements 
other than with the head of another department or agency (31 U.S.C. 
686). This authority may be redelegated only to Office Directors, 
Regional Directors, District Commanders or other comparable levels and 
Contracting Officers.
    (7) Determine the existence and amount of indebtedness and the 
method of collecting repayments from employees and members within their 
respective administrations and collect repayments accordingly, as 
provided by 5 U.S.C. 5514. Redelegation of this authority may be made 
only to the principal officials responsible for financial management or 
such officials' principal assistants.
    (8) Waive claims and make refunds in connection with claims of the 
United States for erroneous payment of pay and allowances or of travel, 
transportation, and relocation expenses and allowances in amounts 
aggregating not more than $1,500 without regard to any repayments, and 
deny requests for waiver of such claims regardless of the aggregate 
amount of the claim, as provided by 4 CFR parts 91, 92, and 93. 
Redelegation of this authority may be made only to the level of Regional 
Director or District Commander.
    (9) Settle and pay claims by employees for personal property losses 
as provided by 31 U.S.C. 3721. This authority may be redelegated only to 
Office Directors, Regional Directors, District Commanders, or other 
comparable levels and to those individuals that report to the above 
officials.
    (10) Exercise the authority of the Secretary to resolve informal 
allegations of discrimination arising in or relating to their respective 
organizations through Equal Employment Opportunity counseling or the 
Alternative Dispute Resolution process and to develop and implement 
affirmative action and diversity plans within their respective 
organizations. With regard to external civil rights programs, each 
Administrator exercises authority pursuant to statutes, regulations, 
executive orders, or delegations in subpart C of this part to carry out 
these programs, under the general policy guidance of the Director of the 
Departmental Office of Civil Rights, including conducting compliance 
reviews and other activities relating to the enforcement of these 
statutes, regulations, and executive orders.
    (11) Review and approve for payment any voucher for $25 or less the 
authority for payment of which is questioned by a certifying or 
disbursing officer.
    (12) Authorize and approve official non-foreign travel and 
transportation for themselves, their subordinates, and others performing 
services for, or in cooperation with, their operating administrations. 
Additionally, heads of operating administrations, through a redelegation 
from the Deputy Secretary, may authorize and approve routine operational 
foreign travel, as defined in DOT 1500.6A, Travel Manual, of 1-2-85. 
These authorities may be redelegated in accordance with regulations 
issued by the Assistant Secretary for Administration.
    (13) Exercise the authority of the Secretary to make certifications, 
findings and determinations under the Regulatory Flexibility Act (Pub. 
L. 96-354) with regard to any rulemaking document for which issuance 
authority is delegated by other sections in this part. This authority 
may be redelegated to those officials to whom document issuance 
authority has been delegated.
    (14) Carry out the functions vested in the Secretary by section 2 of 
the Federal Technology Transfer Act of 1986, (Pub. L. No. 99-502; 15 
U.S.C. 3710a), which authorizes agencies to permit their laboratories to 
enter into cooperative research and development agreements.
    (15) Compromise, suspend collection action on, or terminate claims 
of the United States not exceeding $100,000

[[Page 18]]

(excluding interest) that are referred to, or arise out of the 
activities of, his or her Operating Administration;
    (16) Compromise, suspend collection action on, or terminate claims 
against the United States not exceeding $100,000 (excluding interest) 
that are referred to, or arise out of the activities of, his or her 
Operating Administration; provided that when the Administrator believes 
that a claim against the United States presents a novel question of law 
or of policy, he or she shall obtain the advice of the Assistant 
Attorney General in charge of the Civil Division; and provided further 
that whenever he or she settles any administrative claim against the 
United States for an amount in excess of $50,000, the Administrator 
shall prepare a memorandum fully explaining the basis for the action 
taken and send a copy of the memorandum to the Director, Federal Torts 
Claims Act Staff, Torts Branch of the Civil Division, U.S. Department of 
Justice.
    (17) Enter into memoranda of understanding with the Occupational 
Safety and Health Administration (OSHA) in regard to setting and 
enforcing occupational safety or health standards for employees in DOT-
regulated industries. The General Counsel shall concur in each 
memorandum of understanding with OSHA prior to its execution by the 
Administrator of the operating administration concerned.
    (18) Exercise the authority vested in the Secretary by Section 329A 
of the Department of Transportation and Related Agencies Appropriations 
Act, 1995, Pub. L. No. 103-331, Sec. 329A, 108 Stat. 2471, 2493 
(September 30, 1994), to enter into grants, cooperative agreements, and 
other transactions with any person, agency, or instrumentality of the 
United States, any unit of state or local government, any educational 
institution, and any other entity in execution of the Technology 
Reinvestment Project authorized under the Defense Conversion, 
Reinvestment, and Transition Assistance Act of 1992, Pub. L. No. 102-
484, 106 Stat. 2658 (October 23, 1992), and related legislation.
    (19) Carry out the functions vested in the Secretary by 49 U.S.C. 
40119(b), as implemented by 49 CFR part 15, relating to the 
determination that information is Sensitive Security Information within 
their respective organizations.
    (b) Except as otherwise specifically provided, each official to whom 
authority is granted by Sec. 1.45 through 1.53, 1.66, 1.68, and 1.73 
may redelegate and authorize successive redelegations of that authority 
within the organization under that official's jurisdiction.
    (c) Except as provided in Sec. Sec. 1.48 and 1.59 and 49 CFR 
25.302, the functions, powers, and duties of the Secretary of 
Transportation, with respect to the Uniform Relocation Assistance and 
Real Property Acquisition Act of 1970, Public Law 91-646, 84 Stat. 1984, 
are delegated to:
    (1) The head of each of the following Operating Administrations with 
respect to programs administered by their respective organizations:
    (i) Federal Aviation Administration;
    (ii) Federal Highway Administration;
    (iii) Federal Railroad Administration;
    (iv) Federal Transit Administration;
    (v) National Highway Traffic Safety Administration;
    (vi) St. Lawrence Seaway Development Corporation;
    (vii) Maritime Administration; and
    (viii) Federal Motor Carrier Safety Administration.
    (2) [Reserved]
    (d) Each office to whom authority is delegated by either Sec. 
1.45(c) or Sec. 1.59(p) may redelegate and authorize successive 
redelegations of that authority within the organization under the 
Administrators' or Assistant Secretary for Administration's 
jurisdiction.
    (e) Each office to whom authority is delegated by either Sec. 
1.45(c) or Sec. 1.59(p) may prescribe additional procedures, 
requirements and regulations that are appropriate to the particular 
programs administered by the preparing official's organization, 
provided:
    (1) Any such additional guidance is not inconsistent with the Act, 
49 CFR part 25 or subpart C of this manual;
    (2) Any such additional guidance is approved prior to issuance by 
the Federal government's designated lead agency, the Federal Highway 
Administration (see Sec. 1.48(cc)), in coordination with the Assistant 
Secretary for Transportation Policy.

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

[[Page 19]]


    Editorial Note: For Federal Register citations affecting Sec. 1.45, 
see the List of CFR Sections Affected which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 1.46  Delegations to the Administrator of the Research and Innovative
Technology Administration.

    The Administrator of the Research and Innovative Technology 
Administration is delegated authority for the following:
    (a) Coordination of Departmental research and development programs 
and activities. (1) Coordinate, facilitate, and review all Departmental 
research and development programs and activities, except as limited by 
section 4(b)(1) of the Norman Y. Mineta Research and Special Programs 
Improvement Act (Pub. L. 108-426, 118 Stat. 2423).
    (2) After consultation with modal and OST offices, RITA shall make 
recommendations to the Secretary on all modal and OST research budgets.
    (b) Science and technology. (1) With respect to scientific and 
technological matters, serve as principal advisor to the Secretary and 
representative of the Department to the academic community, the private 
sector, professional organizations, and other Government agencies.
    (2) Serve as principal liaison official for the Department of 
Transportation with the Office of Science and Technology Policy in the 
Executive Office of the President, the National Science and Technology 
Council, and the President's Committee of Advisors on Science and 
Technology.
    (3) Serve as primary official responsible for coordination and 
oversight of the Department's implementation of section 2 of the Federal 
Technology Transfer Act of 1986 (15 U.S.C. 3710a), relating to the 
transfer of Federal technology to the marketplace; and section 12(d) of 
the National Technology Transfer and Advancement Act of 1996 (Pub. L. 
104-113), as implemented by OMB Circular A-119: Federal Participation in 
the Development and Use of Voluntary Consensus Standards and in 
Conformity Assessment Activities.
    (4) Serve as Chair and Executive Secretary of the Department of 
Transportation's Research, Development and Technology Planning Council.
    (5) Serve as Chair and Executive Secretary of the Department of 
Transportation Research, Development and Technology Planning Team.
    (6) Carry out the functions vested in the Secretary by section 5108 
of the Transportation Equity Act for the 21st Century (23 U.S.C. 508), 
as extended by the Surface Transportation Extension Act of 2004, Part V, 
Public Law 108-310, September 30, 2004, 118 Stat. 1144.
    (7) Advocate Department of Transportation policy and program 
coordination efforts associated with transportation research.
    (8) Represent the Department of Transportation on departmental, 
national and international committees and meetings dealing with 
transportation R&D.
    (9) Manage the strategic planning process for transportation R&D 
across the Department of Transportation and, through the National 
Science and Technology Council, across the Federal Government.
    (10) Conduct transportation system-level assessments and policy 
research.
    (11) Facilitate the creation of transportation public/private 
partnerships.
    (12) Foster innovation in the transportation sector.
    (13) Disseminate information on departmental, national, and 
international transportation R&D activities.
    (14) Manage and coordinate a nationwide program of transportation 
research, education and technology transfer through grants to university 
transportation centers and foster university participation in the 
planning, conduct and analysis of transportation research.
    (15) Manage department- and government-wide (inter/multimodal) 
transportation R&D programs.
    (16) Oversee advisory boards that deal with transportation system-
level R&D assessments and issues, such as the National Research Council 
Committee on the Federal Transportation R&D Strategic Planning Process.
    (c) Advanced vehicle technology. Carry out the functions vested in 
the Secretary by section 5111 of the Transportation Equity Act for the 
21st Century

[[Page 20]]

(49 U.S.C. 5506), as extended by the Surface Transportation Extension 
Act of 2004, Part V, Public Law 108-310, September 30, 2004, 118 Stat. 
1144, and section 5513(j) of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users, Title V, Subtitle E, 
Public Law 109-59, August 10, 2005, 119 Stat. 1144.
    (d) Remote sensing technology. Carry out the functions vested in the 
Secretary by section 5113 of the Transportation Equity Act for the 21st 
Century (23 U.S.C. 502 Note), as extended by the Surface Transportation 
Extension Act of 2004, Part V, Public Law 108-310, September 30, 2004, 
118 Stat. 1144, and section 5506 of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users, Title V, 
Subtitle E, Public Law 109-59, August 10, 2005, 119 Stat. 1144.
    (e) University transportation research. Carry out the functions 
vested in the Secretary by section 5110 of the Transportation Equity Act 
for the 21st Century (49 U.S.C. 5505), as extended by the Surface 
Transportation Extension Act of 2004, Part V, Public Law 108-310, 
September 30, 2004, 118 Stat. 1144, and sections 5401 and 5402 of the 
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users, Title V, Subtitle D, Public Law 109-59, August 10, 
2005, 119 Stat. 1144.
    (f) Volpe National Transportation Systems Center. Exercise the 
authority vested in the Secretary with respect to the activities of the 
Volpe National Transportation Systems Center and carry out the functions 
vested in the Secretary by 49 U.S.C. 328 with respect to the working 
capital fund for financing the activities of the Volpe National 
Transportation Systems Center.
    (g) Transportation Safety Institute. Exercise authority over the 
Transportation Safety Institute.
    (h) Transportations Statistics. Exercise the authority and carry out 
the functions vested in the Secretary by 49 U.S.C. 112(d)(1)(C) relating 
to transportation statistics, analysis, and reporting.
    (i) Intermodalism. Carry out the functions vested in the Secretary 
by 49 U.S.C. 5503(d) and Section 4149 of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users, Title 
IV, Subtitle A and Section 5209, Title V, Subtitle B, Public Law 109-59, 
August 10, 2005, 119 Stat. 1144.
    (j) Aviation information. (1) Carry out the functions vested in the 
Secretary by 49 U.S.C. 329(b)(1) relating to the collection and 
dissemination of information on civil aeronautics.
    (2) Carry out the functions vested in the Secretary by section 
4(a)(7) of the Civil Aeronautics Board Sunset Act of 1984 (October 4, 
1984; Pub. L. 98-443) relating to the reporting of the extension of 
unsecured credit to political candidates (section 401, Federal Election 
Campaign Act of 1971; 2 U.S.C. 451), in conjunction with the General 
Counsel and the Assistant Secretary for Aviation and International 
Affairs.
    (3) Carry out the functions vested in the Secretary by: 49 U.S.C. 
40113 (relating to taking such actions and issuing such regulations as 
may be necessary to carry out responsibilities under the Act), 49 U.S.C. 
41702 (relating to the duty of carriers to provide safe and adequate 
service), 49 U.S.C. 41708 and 41709 (relating to the requirement to keep 
information and the forms in which it is to be kept), and 49 U.S.C. 
41701 (relating to establishing just and reasonable classifications of 
carriers and rules to be followed by each) as appropriate to carry out 
the responsibilities under this paragraph in conjunction with the 
General Counsel and the Assistant Secretary for Aviation and 
International Affairs.
    (k) Hazardous materials information. In coordination with the Under 
Secretary for Transportation Policy, work with the Operating 
Administrations to determine data needs, collection strategies, and 
analytical techniques appropriate for implementing 49 U.S.C. 5101 et 
seq.
    (l) Research grants. Carry out the functions vested in the Secretary 
by section 5513(c), (d), (g), (h), (i), (l), and (m) (as (m) relates to 
(c), (d), (g), (h), (i), (j), and (l)) of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users, Title 
V, Subtitle E, Public Law 109-59, August 10, 2005, 119 Stat. 1144.
    (m) Biobased transportation research. Carry out the functions vested 
in the Secretary by section 5201(m) of the

[[Page 21]]

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users, Title V, Subtitle B, Public Law 109-59, August 10, 
2005, 119 Stat. 1144.
    (n) Transportation research and development strategic planning. 
Carry out the function vested in the Secretary by Section 5208 of Public 
Law 109-59, 119 Stat. 1144 (Aug. 10, 2005).

[70 FR 8300, Feb. 18, 2005, as amended at 71 FR 30830, May 31, 2006; 71 
FR 52753, Sept. 7, 2006]



Sec. 1.47  Delegations to Federal Aviation Administrator.

    The Federal Aviation Administrator is delegated authority to:
    (a) Carry out the powers and duties transferred to the Secretary of 
Transportation by, or subsequently vested in the Secretary by virtue of, 
section 6(c)(1) of the Department of Transportation Act (49 U.S.C. 
1655(c)(1)), including those pertaining to aviation safety (except those 
related to transportation, packaging, marking, or description of 
hazardous materials) and vested in the Secretary by section 308(b) of 
title 49 U.S.C. and sections 306-309, 312-314, 1101, 1105, and 1111 and 
titles VI, VII, IX (excluding section 902(h)), and XII of the Federal 
Aviation Act of 1958, as amended.
    (b) Carry out title XIII of the Federal Aviation Act of 1958, as 
amended (72 Stat. 800; 49 U.S.C. 1531 et seq.), relating to aviation 
insurance.
    (c) Carry out the functions vested in the Secretary by the Act of 
September 7, 1957 (71 Stat. 629; 49 U.S.C. 1324 note), as amended by 
section 6(a)(3)(B) of the Department of Transportation Act, relating to 
the guarantee of aircraft purchase loans, and those functions which 
relate to the issuance of obligations to finance the expenses of such 
guarantees.
    (d) Administer Executive Orders 11419 and 11322 relating to 
prohibited aviation operations and the prohibited carriage of 
commodities and products to and from Southern Rhodesia. Carry out the 
functions vested in the Secretary by Executive Order 12183.
    (e) Provide certain facilities and services to FAA employees and 
their dependents at remote locations (49 U.S.C. 1659).
    (f) Carry out the functions vested in the Secretary by:
    (1) The Airport and Airway Development Act of 1970, as amended (49 
U.S.C. 1701 et seq.), except sections 3 and 4 (49 U.S.C. 1702, 1703).
    (2) Sections 208 and 209 of the Airport and Airway Revenue Act of 
1970, as amended (49 U.S.C. 1742, 1742 note); and
    (3) Sections 21, 22, 23(b), 24, and 25 of the Airport and Airway 
Development Act Amendments of 1976 (49 U.S.C. 1346(a), 1348 note, 1713 
note, 1356a, 1704).
    (g) Carry out the functions vested in the Secretary by part B of 
title II of the Clean Air Act, as amended (84 Stat. 1703), and by 40 CFR 
part 87 as it relates to exemptions from aircraft air pollution 
standards.
    (h) Carry out the functions of the Secretary under section 208 of 
the Appalachian Regional Development Act of 1965 (85 Stat. 168; 40 
U.S.C. App. 208).
    (i) Carry out the functions vested in the Secretary by section 
902(h)(2) of the Federal Aviation Act of 1958, as amended, as it relates 
to enforcement of hazardous materials regulations as they apply to the 
transportation or shipment of such materials by air.
    (j)(1) Except as delegated by Sec. 1.74(a), carry out the functions 
vested in the Secretary by 49 U.S.C. 5121(a), (b), (c), and (d), 5122, 
5123, and 5124, with particular emphasis on the transportation or 
shipment of hazardous materials by air.
    (2) Carry out the functions vested in the Secretary by 49 U.S.C. 
5114 as it relates to the establishment of procedures for monitoring and 
enforcing provisions of regulations with respect to the transportation 
of radioactive materials on passenger-carrying aircraft.
    (k) [Reserved]
    (l) Serve, or designate a representative to serve, as Vice Chairman 
and alternate Department of Transportation member of the Interagency 
Group on International Aviation (IGIA) pursuant to interagency agreement 
of December 9, 1960, and Executive Order 11382, and provide for the 
administrative operation of the IGIA Secretariat.
    (m) Carry out the functions vested in the Secretary by sections 4(a) 
and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, Aug. 
20, 1981) (delegating sections 107(c)(1)(c) and 108(b),

[[Page 22]]

respectively, of the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1981, Pub. L. 96-510), insofar as they relate to 
aircraft.
    (n) Carry out the functions vested in the Secretary by section 3(d) 
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it 
relates to ships owned or operated by the Federal Aviation 
Administration when engaged in noncommercial service.
    (o) [Reserved]
    (p) Carry out the functions vested in the Secretary by:
    (1) Section 553(b) of Public Law 99-83 (99 Stat. 226), which relates 
to the authority of Federal Air Marshals to carry firearms and make 
arrests, in coordination with the General Counsel; and
    (2) The following subsections of section 1115 of the Federal 
Aviation Act of 1958, as amended, which relates to the security of 
foreign airports: Subsection 1115(a), in coordination with the General 
Counsel and the Assistant Secretary for Aviation and International 
Affairs; subsection 1115(b), in coordination with the Assistant 
Secretary for Aviation and International Affairs; and subsection 
1115(e)(2)(A)(ii), in coordination with the General Counsel and the 
Assistant Secretary for Aviation and International Affairs.
    (q) Carry out all of the functions vested in the Secretary under 
section 404(d) of the Federal Aviation Act of 1958 (49 U.S.C. 1374(d)), 
as amended by section 328(a) of the Department of Transportation and 
Related Agencies Appropriations Act of 1988 (Pub. L. 100-202).
    (r) Carry out the functions vested in the Secretary by the Airport 
Safety and Capacity Expansion Act of 1990, title IX, subtitle B of the 
Omnibus Budget Reconciliation Act of 1990, Public Law 101-508 (except 
those functions vested in the Secretary by sections 9113, 9125, 9127 and 
9130).
    (s) Carry out functions vested in the Secretary by Airport Noise and 
Capacity Act of 1990, title IX, subtitle D of the Omnibus Budget 
Reconciliation Act of 1990, Public Law 101-508.
    (t) Carry out the functions vested in the Secretary by sections 321 
and 410 of the Federal Aviation Act, as amended by the Aviation Security 
Improvement Act of 1990, Public Law 101-604, November 16, 1990.
    (u) Carry out the functions assigned to the Secretary by Executive 
Order 12465 (February 24, 1984) (3 CFR, 1984 Comp., p. 163) relating to 
commercial expendable launch vehicle activities.
    (v) Carry out the functions vested in the Secretary by 49 U.S.C. 
Subtitle IX.
    (w) Carry out the functions vested in the Secretary by the National 
Aeronautics and Space Administration Authorization Act, Fiscal Year 1993 
(Pub. L. 102-588, 106 Stat 5119, November 4, 1992).

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

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

    Editorial Note: For Federal Register citations affecting Sec. 1.47, 
see the List of CFR Sections Affected which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 1.48  Delegations to Federal Highway Administrator.

    (a) Unless otherwise provided, the Federal Highway Administrator may 
further delegate authority provided under this section.
    (b) The Federal Highway Administrator is delegated authority to 
administer the following provisions of title 23, Highways, U.S.C.:
    (1) Chapter 1, Federal-Aid Highways, except for sections 142 (as it 
relates to matters within the primary responsibility of the Federal 
Transit Administrator), 153, 154, 158, 159, 161, and 164.
    (2) Chapter 2, Other Highways.
    (3) Chapter 3, General Provisions, except for section 322.
    (4) Section 409 of chapter 4, Highway Safety.
    (5) Chapter 5, Research, Technology, and Education, except for 
sections 508 and 509.
    (6) Chapter 6, Infrastructure Finance.
    (c) The Federal Highway Administrator is delegated authority to 
administer the following laws relating generally to highways:
    (1) Section 502(c) of the General Bridge Act of 1946, as amended (60 
Stat. 847, 33 U.S.C. 525(c)).
    (2) Reorganization Plan No. 7 of 1949 (63 Stat. 1070).

[[Page 23]]

    (3) The Federal-Aid Highway Act of 1954, as amended (Pub. L. 83-350, 
68 Stat. 70).
    (4) The Federal-Aid Highway Act of 1956, as amended (Pub. L. 84-627, 
70 Stat. 374).
    (5) The Highway Revenue Act of 1956, as amended (Pub. L. 84-627, 70 
Stat. 374, 387, 23 U.S.C.A. 120 note).
    (6) The Alaska Omnibus Act, as amended (Pub. L. 86-70, 73 Stat. 141, 
48 U.S.C.A. 21 note.).
    (7) The Act of September 26, 1961, as amended (Pub. L. 87-307, 75 
Stat. 670).
    (8) The Act of April 27, 1962 (Pub. L. 87-441, 76 Stat. 59).
    (9) The Federal-Aid Highway Act of 1962, as amended (Pub. L. 87-866, 
76 Stat. 1145).
    (10) The Joint Resolution of August 28, 1965, as amended (Pub. L. 
89-139, 79 Stat. 578, 23 U.S.C.A. 101 et seq., notes).
    (11) The Highway Beautification Act of 1965, as amended (Pub. L. 89-
285, 79 Stat. 1028, 23 U.S.C.A. 131 et seq., notes).
    (12) The Federal-Aid Highway Act of 1966, as amended (Pub. L. 889-
574, 80 Stat. 766).
    (13) The Federal-Aid Highway Act of 1968, as amended (Pub. L. 90-
495, 82 Stat. 815).
    (14) The Federal-Aid Highway Act of 1970, as amended (except section 
118) (Pub. L. 91-605, 84 Stat. 1713).
    (15) Sections 103, 104, 111(b), 128(b), 131, 135, 136, 141, 147, 
149, 154, 158 through 161, 163, 203, 206, 401, and 402 of the Federal-
Aid Highway Act of 1973, as amended (Pub. L. 93-87, 87 Stat. 250; Pub. 
L. 93-643, 88 Stat. 2281).
    (16) Sections 102(b) (except subparagraph (2)) and (c); 105 (b)(1) 
and (c); 141; 146; 147; and 152 of the Federal-Aid Highway Act of 1976 
(Pub. L. 94-280, 90 Stat. 425).
    (17) Sections 105, 107(c) through (e), 123(a) and (b), 124(c), 
126(d) through (g), 138(c), 140, 142 through 145, 147 through 154, 167, 
and 171, title IV, as amended (as it relates to matters within the 
primary responsibility of the Federal Highway Administrator), and 
sections 502-504 of title V of the Surface Transportation Assistance Act 
of 1978 (Pub. L. 95-599, 92 Stat. 2689).
    (18) The Federal-Aid Highway Act of 1982 (Pub. L. 97-327, 96 Stat. 
1611), except section 6 as it relates to matters within the primary 
responsibility of the Federal Transit Administrator.
    (19) The Surface Transportation Assistance Act of 1982, as amended, 
(Pub. L. 97-424, 96 Stat. 2097) except,
    (i) Sections 165 and 531 as they relate to matters within the 
primary responsibility of the Federal Transit Administrator;
    (ii) Sections 105(f), 413; 414(b) (2); 421, 426, and title III; and
    (iii) Section 414(b)(1), unless with the concurrence of the National 
Highway Traffic Safety Administrator.
    (20) Sections 103(e), 105(a) through (g), 106(a), and (b), 110(b), 
114(d), 117(f), 120(c) and (d), 123(g) and (i), 133(f), 134, 136, 137, 
139 through 145, 146(b), 147(c), 149(a) through (f), (h), (i), (k), 151 
through 157, 164, and 208 of the Surface Transportation and Uniform 
Relocation Assistance Act of 1987 (Pub. L. 100-17, 101 Stat. 132).
    (21) Sections 1002(c) and (e), 1003(c), 1004, 1006(h), 1009(c), 
1012(b) and (d) through (f), 1013(c), 1014(c), 1015, 1016(g), 1017(c), 
1021(c) and (d), 1022(c), 1023(f) through (g), 1029(c), (f), and (g), 
1032(d) and (e), 1038 through 1042, 1044, 1045, 1046(d), 1047, 1049, 
1050, 1051, 1054, 1057 through 1063, 1065, 1067, 1069, 1072, 1073, 1074, 
1076, 1077, 1086, 1088 through 1092, 1097, 1099 through 1108, 6012, and 
6014 through 6016 of the Intermodal Surface Transportation Efficiency 
Act of 1991 (Pub. L. 102-240, 105 Stat. 1914).
    (22) Sections 201 through 205, 327 through 336, 339, 340, 349, 352, 
353, and 408 of the National Highway System Designation Act of 1995 
(Pub. L. 104-59, 109 Stat. 568).
    (23) Sections 1101(a), 1102, 1103(m) and (n), 1106(a) and (d), 
1107(c), 1108(f) and (g), 1110(d)(2) and (e), 1112(c) and (e), 1117(a), 
(b), and (d), 1118, 1119, 1202(b) and (e), 1204(i), 1207(c), 1210, 
1211(i) and (l), 1212 (b), (e) through (j), (l), (m), (o), and (q) 
through (t), 1213(c), and (f) through (j), 1214, 1215, 1216, 1217, 1220, 
1223, 1224, 1225, 1307(d) through (f), 1308, 1309, 1311, 1402, 1511, 
5001, 5112, 5116 through 5118, and 5203 through 5212 of the 
Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 
Stat. 107).
    (24) Sections 1102, 1105(f), 1109(f), 1111(b)(4), 1112, 1115(c), 
1116(a) and (b), 1117, 1119(n), 1120(c), 1201, 1301, 1302, 1303, 1304, 
1305, 1306, 1308, 1310, 1401(e),

[[Page 24]]

1402, 1403, 1404, 1405, 1408, 1409(a) and (b), 1410, 1411, 1502, 1603, 
1604, 1801 (d), 1803, 1804, 1805, 1807, 1808(g) through (k), 1907, 1908, 
1910, 1911, 1914, 1916, 1917, 1918, 1919, 1923, 1924, 1925, 1927, 1928, 
1934, 1935, 1936, 1937, 1939, 1940, 1941, 1943, 1944, 1945, 1948, 1949, 
1950, 1952, 1957, 1958, 1959, 1961, 1962, 1964, 2003(e), 4112, 4141, 
4404 (as it relates to matters within the primary responsibility of the 
Federal Highway Administrator), 5101(b), 5202(b)(3)(B), (c), and (d), 
5203(e) and (f), 5204(g) and (i), 5304, 5305, 5306, 5307, 5308, 5309 
(except (c)(4)), 5501, 5502, 5504, 5507, 5508, 5511, 5512, 5513(b), (f), 
(k), and (m) (as (m) relates to (b), (f), and (k)), 5514, 6001(b), 
6002(b), 6009(b) and (c) (as they relate to matters within the primary 
responsibility of the Federal Highway Administrator), 6010 (as it 
relates to matters within the primary responsibility of the Federal 
Highway Administrator), 6017, 6018, 10210, and 10212 of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for 
Users (Pub. L. 109-59, 119 Stat. 1144).
    (d) The Federal Highway Administrator is delegated authority to:
    (1) Carry out the functions vested in the Secretary of 
Transportation by section 601 of the Pipeline Safety Act of 1992 (Pub. 
L. 102-508, 106 Stat. 3289) relating to construction of the Page Avenue 
Extension Project in Missouri.
    (2) Carry out the functions of the Secretary under the Appalachian 
Regional Development Act of 1965 (Pub. L. 89-4, 79 Stat. 5, 40 U.S.C. 
Subtitle IV) except section 208.
    (3) Carry out the Act of September 21, 1966, Public Law 89-599, 
relating to certain approvals concerned with a compact between the 
States of Missouri and Kansas.
    (4) Carry out the law relating to the Chamizal border highway (Pub. 
L. 89-795, 80 Stat. 1477).
    (5) Carry out the Highway Safety Act of 1966, as amended (Pub. L. 
89-564, 80 Stat. 731) and chapter 4 of title 23 U.S.C. as amended by 
section 207 of the Surface Transportation Assistance Act of 1978 for 
highway safety programs, research and development relating to highway 
design, construction and maintenance, traffic control devices, 
identification and surveillance of accident locations, and highway-
related aspects of pedestrian and bicycle safety.
    (6) Exercise the authority vested in the Secretary by 49 U.S.C. 
20134(a) with respect to the laws administered by the Federal Highway 
Administrator pertaining to highway safety and highway construction.
    (7) Carry out the functions vested in the Secretary by section 5 (as 
it relates to bridges, other than railroad bridges, not over navigable 
waters), and section 8(a) (as it relates to all bridges other than 
railroad bridges) of the International Bridge Act of 1972 (Pub. L. 92-
434, 86 Stat. 731).
    (8) Exercise the authority vested in the Secretary by sections 101, 
118, 120(b), 123 and 124 of the Federal-Aid Highway Amendments of 1974 
(Pub. L. 93-643, January 4, 1975, 88 Stat. 2281).
    (9) Carry out the functions vested in the Secretary by section 118 
of the National Visitor Center Facilities Act of 1968 (Pub. L. 90-264, 
82 Stat. 43), as added by the Union Station Redevelopment Act of 1981 
(Pub. L. 97-125; 95 Stat. 1672), with respect to the completion of the 
parking facility and associated ramps at Union Station in Washington, DC 
(40 U.S.C. 818).
    (10) Carry out the functions vested in the Secretary by Public Law 
98-229, 98 Stat. 55, insofar as it relates to apportioning certain funds 
for construction of the Interstate Highway System in Fiscal Year 1985, 
apportioning certain funds for Interstate substitute highway projects, 
and increasing amounts available for emergency highway relief.
    (11) Prescribe regulations, as necessary, at parts 24 and 25 of this 
title, to implement Public Law 91-646, 84 Stat. 1894, and any amendments 
thereto, as appropriate, in coordination with the Assistant Secretary 
for Transportation Policy, and carry out all other functions vested in 
the Secretary by the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970, Public Law 91-646, 84 Stat. 1894, and 
any amendments thereto.
    (12) Carry out the functions vested in the Secretary of 
Transportation by section 114 of Part C of the Paperwork Reduction 
Reauthorization Act of 1986 (contained in the Act Making Continuing 
Appropriations for Fiscal Year 1987 and for Other Purposes, Public

[[Page 25]]

Law 99-591, 100 Stat. 3341, 2241-349), relating to construction of 
Interstate Highway H-3 in Hawaii.
    (13) Carry out all of the functions vested in the Secretary under 
section 324 of the Fiscal Year 1986 Department of Transportation 
Appropriations Act (Pub. L. 99-190, 99 Stat. 1288), notwithstanding the 
reservation of authority under Sec. 1.44(j) of this part.
    (14) Carry out the functions vested in the Secretary of 
Transportation by section 505 of the Railroad Revitalization and 
Regulatory Reform Act of 1976, as amended, (Pub. L. 94-210, 90 Stat. 31) 
relating to the Alameda Corridor Project in consultation with the 
Federal Railroad Administrator.
    (15) Carry out the function of acting as the lead DOT agency in 
matters relating to the National Environmental Policy Act pertinent to 
the authority vested in the Secretary to establish, operate, and manage 
the Nationwide Differential Global Positioning System (NDGPS) by section 
346 of the Department of Transportation and Related Agencies 
Appropriations Act, 1998 (Pub. L. 105-66, 111 Stat. 1425).
    (16) Exercise the responsibilities of the Secretary under 49 U.S.C. 
303 as it relates to matters within the primary responsibility of the 
Federal Highway Administrator.
    (17) Exercise the responsibilities of the Secretary under the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
other Federal laws related to programs, projects, and activities 
administered by the Federal Highway Administration.
    (18) Exercise the responsibilities of the Secretary under section 
176(c) of the Clean Air Act (42 U.S.C. 7506(c)), as amended by section 
6011 of the Safe, Accountable, Flexible, Efficient Transportation Equity 
Act: A Legacy for Users (Pub. L. 109-59, 119 Stat. 1144), as it relates 
to matters within the primary responsibility of the Federal Highway 
Administrator.
    (19) Exercise the responsibilities of the Secretary under 49 U.S.C. 
309.

[71 FR 30830, May 31, 2006]



Sec. 1.49  Delegations to Federal Railroad Administrator.

    The Federal Railroad Administrator is delegated authority to:
    (a) Investigate and report on safety compliance records of 
applicants seeking railroad operating authority from the Interstate 
Commerce Commission, and to intervene and present evidence concerning 
applicants' fitness in Commission proceedings under 49 U.S.C. 1653(e), 
relating to railroads.
    (b) Carry out the Act of September 30, 1965, as amended (79 Stat. 
893, 49 U.S.C. 1631 et seq.), relating generally to high speed ground 
transportation, except issuance of reports required by section 13(c) (49 
U.S.C. 1643(c)).
    (c) Carry out the following laws relating generally to safety 
appliances and equipment on railroad engines and cars, and protection of 
employees and travelers:
    (1) The Act of March 2, 1893, as amended (27 Stat. 531, 45 U.S.C. 1 
et seq.);
    (2) The Act of March 2, 1903, as amended (32 Stat. 943, 45 U.S.C. 8 
et seq.);
    (3) The Act of April 14, 1910, as amended (36 Stat. 298, 45 U.S.C. 
11 et seq.);
    (4) The Act of May 30, 1908, as amended (35 Stat. 476, 45 U.S.C. 17 
et seq.);
    (5) The Act of February 17, 1911, as amended (36 Stat. 913, 45 
U.S.C. 22 et seq.);
    (6) The Act of March 4, 1915, as amended (38 Stat. 1192, 45 U.S.C. 
30);
    (7) Reorganization Plan No. 3 of 1965 (79 Stat. 1320, 45 U.S.C. 22 
note);
    (8) Joint Resolution of June 30, 1906, as amended (34 Stat. 838, 45 
U.S.C. 35);
    (9) The Act of May 27, 1908, as amended (35 Stat. 325, 45 U.S.C. 36 
et seq.);
    (10) The Act of March 4, 1909, as amended (35 Stat. 965, 45 U.S.C. 
37); and
    (11) The Act of May 6, 1910, as amended (36 Stat. 350, 45 U.S.C. 38 
et seq.).
    (d) Carry out the Act of March 4, 1907, as amended (34 Stat. 1415, 
45 U.S.C. 61 et seq.), relating generally to hours of service of 
railroad employees.
    (e) Carry out the functions vested in the Secretary by section 5 of 
the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to 
railroad bridges not over navigable waterways.
    (f) Carry out section 25 of the Interstate Commerce Act, as amended 
(49 U.S.C. 26), relating generally to railroad safety appliances, 
methods, and systems.

[[Page 26]]

    (g) Exercise the administrative powers under the Interstate Commerce 
Act with respect to powers and duties pertaining to railroad safety 
transferred to the Secretary (49 U.S.C. 1655(f)).
    (h) Operate and administer the Alaska Railroad under the Act of 
March 12, 1914, as amended (38 Stat. 305), and Executive Order 11107 (28 
FR 4225 (1963)).
    (i) Make individual and general changes in freight rates and 
passenger fares for the Alaska Railroad, without power to redelegate 
authority for general changes in freight rates and passenger fares.
    (j) Promote and undertake research and development relating to rail 
matters generally (49 U.S.C. 1653(a), 1657(e)(1), 1657(n)(1), and 
1657(q)(1)).
    (k) Carry out the functions vested in the Secretary by subtitle B of 
the National Visitor Center Facilities Act of 1968, as added by the 
Union Station Redevelopment Act of 1981 (Pub. L. 97-125; 95 Stat. 1667) 
except section 114(e) and such parts of section 118 as provided for the 
completion of the parking facility and associated ramps at Union Station 
in Washington, DC.
    (l) Exercise the authority vested in the Secretary by the Emergency 
Rail Services Act of 1970 (Pub. L. 91-663) except the authority to make 
findings required by section 3(a) of that Act and the authority to sign 
guarantees of certificates issued by trustees.
    (m) Carry out the functions vested in the Secretary by the Federal 
Railroad Safety Act of 1970 (title II of Pub. L. 91-458); 84 Stat. 971, 
45 U.S.C. 421 et. seq.), except section 204(b) (84 Stat. 972, 45 U.S.C. 
433(b)) with respect to highway, traffic, and motor vehicle safety and 
highway construction.
    (n) Carry out the functions vested in the Secretary by the Emergency 
Rail Facilities Restoration Act of 1972 (Pub. L. 92-591).
    (o) Carry out the functions vested in the Secretary by subsection 
(b) (except as it relates to conducting consultations with the 
Administrator of the Environmental Protection Agency) and (c) of section 
17 of the Noise Control Act of 1972 (Pub. L. 92-574).
    (p) Carry out the functions vested in the Secretary by sections 
201(i)(3); 202(b)(7); 203, except authority to issue subpoenas; 210; 
212; 213; 215; 402; 403; and 601 of the Regional Rail Reorganization Act 
of 1973 (Pub. L. 93-236) as amended by the Rail Transportation 
Improvement Act (Pub. L. 94-555).
    (q) Carry out the functions vested in the Secretary by subsections 4 
(h) and (i) of the Department of Transportation Act, as amended (49 
U.S.C. 1653(h), (i)).
    (r) [Reserved]
    (s) Except as delegated by Sec. 1.74(a), carry out the functions 
vested in the Secretary by 49 U.S.C. 5121(a), (b), (c) and (d), 5122, 
5123, and 5124, with particular emphasis on the transportation or 
shipment of hazardous materials by railroad.
    (t) Carry out the functions vested in the Secretary by sections 
204(c); except authority to issue subpoenas; 402; 403; 502; 503; 504; 
505; 506, except (c); 507; 508; 511; 512; 513; 515; 517; 606; 610; 703; 
704, except (c)(1); and 705; 707; 901; 905, as applicable, of the 
Railroad Revitalization and Regulatory Reform Act of 1976, as amended, 
section 5 of the Department of Transportation Act (49 U.S.C. 1654), 
except authority to issue subpoenas.
    (u) Carry out functions vested in the Secretary by sections 17(a) 
and (b) (as they relate to consultations with the Administrator of the 
Environmental Protection Agency) of the Noise Control Act of 1972 (Pub. 
L. 92-574, 49 U.S.C. 1431).
    (v) Carry out the functions vested in the Secretary by the Rock 
Island Railroad Transition and Employee Assistance Act (title I of Pub. 
L. 96-254) and by section 18 of the Milwaukee Railroad Restructuring Act 
(49 U.S.C. 916).
    (w) Carry out the functions vested in the Secretary by section 305 
of the Regional Rail Reorganization Act of 1973, as amended (45 U.S.C. 
745).
    (x) Carry out the functions vested in the Secretary by sections 4(a) 
and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, Aug. 
20, 1981) (delegating sections 107(c)(1)(c) and 108(b), respectively, of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1981, Pub. L. 96-510), insofar as they relate to rolling stock.
    (y) Carry out the functions vested in the Secretary by the Northeast 
Rail Service Act of 1981 (Pub. L. 97-35).

[[Page 27]]

    (z) Carry out the functions vested in the Secretary by section 3 of 
the Bridge Act of 1906, as amended (33 U.S.C. 493), relating to disputes 
over the terms and compensation for use of railroad bridges built under 
the Act.
    (aa) Carry out the functions vested in the Secretary by titles II 
through VII of the Rail Safety and Service Improvement Act of 1982 (Pub. 
L. 97-468), which relates to rail safety, rail finances, and the 
transfer of The Alaska Railroad to the State of Alaska.
    (bb) Carry out the functions vested in the Secretary by section 4031 
of the Budget Reconciliation Act of 1986 (Pub. L. 99-509), which relates 
to the abolition of the United States Railway Association, and the 
execution of the functions and duties of the Association transferred to 
the Secretary, effective April 1, 1987.
    (cc) Carry out the functions vested in the Secretary by section 18 
(g) and (h) of the Rail Safety Improvement Act of 1988 (Pub. L. 100-
342).
    (dd) Carry out the function vested in the Secretary by section 1163 
of the Bankruptcy Code (11 U.S.C. 1163), which relates to the nomination 
of trustee for rail carriers in reorganization, with the concurrence of 
the Office of the General Counsel.
    (ee) Carry out the functions vested in the Secretary by section 5701 
of title 49 of the United States Code, with respect to transportation by 
railroad.
    (ff) Exercise the authority vested in the Secretary by the Crime 
Control Act of 1990 (Pub. L. 101-647) as it relates to a railroad police 
officer's authority to enforce the laws of any jurisdiction in which the 
police officer's rail carrier employer owns property.
    (gg) Carry out the functions vested in the Secretary by sections 16 
and 21 of the Hazardous Materials Transportation Uniform Safety Act of 
1990 (Pub. L. 101-615; 104 Stat. 3244 (49 App. U.S.C. 1813 note and 1817 
note)).
    (hh) Exercise the authority vested in the Secretary by Section 601 
(d) and (e) of the National and Community Service Act of 1990 (45 U.S.C. 
546 note) as it relates to the discharge of human waste from railroad 
passenger cars.
    (ii) Carry out the functions and exercise the authority delegated to 
the Secretary in section 2(d)(2) of Executive Order 12777 (3 CFR, 1991 
Comp.; 56 FR 54757), with respect to rail transportation, relating to 
the approval of means to ensure the availability of private personnel 
and equipment to remove, to the maximum extent practicable, a worst case 
discharge, the review and approval of response plans, and the 
authorization of railroads, subject to the Federal Water Pollution 
Control Act (33 U.S.C. 1321), to operate without approved response 
plans, except as delegated in Sec. 1.46(m).
    (jj) Exercise the authority vested in the Secretary by the Swift 
Rail Development Act of 1994, being Title I--High-Speed Rail of Public 
Law 103-440 (108 Stat. 4615), as it relates to the provision of 
financial assistance for high-speed rail corridor planning and 
technology improvements, the promulgation of necessary safety 
regulations, and the redemption of outstanding obligations and 
liabilities with respect to the Columbus and Greenville Railway under 
Sections 505 and 511 of the Railroad Revitalization and Regulatory 
Reform Act of 1976 (45 U.S.C. 825 and 831, respectively).
    (kk) Carry out the functions and exercise the authority vested in 
the Secretary by 23 U.S.C. 322, titled the Magnetic Levitation 
Transportation Technology Deployment Program.
    (ll) Carry out the function of determining the Federal requirements 
for the Nationwide Differential Global Positioning System (NDGPS) as a 
necessary part of the Secretary's authority to establish, operate, and 
manage the NDGPS granted by Section 346 of Public Law 105-66, titled the 
Department of Transportation and Related Agencies Appropriations Act, 
1998.
    (mm) Carry out the functions and exercise the authority vested in 
the Secretary by sections 1307, 1946, 9004, 9006, and 9007 of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for 
Users (Pub. L. No. 109-59, 119 Stat. 1144) as they relate to deployment 
of magnetic levitation transportation projects, the Gateway Rural 
Improvement Pilot Program, a study of the impact of public safety of 
train travel in communities without grade separation, capital grants to 
the Alaska Railroad, and a study of rail transportation and regulation.

[[Page 28]]

    (nn) Carry out the functions and exercise the authority vested in 
the Secretary by section 20154 of title 49, United States Code relating 
to capital grants for rail line relocation projects.
    (oo) Carry out the functions and exercise the authority vested in 
the Secretary by the Rail Safety Improvement Act of 2008 (Pub. L. 110-
432, Div. A, 122 Stat. 4848).
    (pp) Carry out the functions and exercise the authority vested in 
the Secretary by the Passenger Rail Investment and Improvement Act of 
2008 (Pub. L. 110-432, Div. B, 122 Stat. 4907), except Title VI (122 
Stat. 4968) as it relates to capital and preventive maintenance projects 
for the Washington Metropolitan Area Transit Authority.

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

    Editorial Note: For Federal Register citations affecting Sec. 1.49, 
see the List of CFR Sections Affected which appears in the Finding Aids 
section of the printed volume and on GPO Access.



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

    The National Highway Traffic Safety Administrator is delegated 
authority to:
    (a) Carry out the National Traffic and Motor Vehicle Safety Act of 
1966, as amended (15 U.S.C. 1381 et seq.).
    (b) Carry out the Highway Safety Act of 1966, as amended (23 U.S.C. 
401 et seq.), except for highway safety programs, research and 
development relating to highway design, construction and maintenance, 
traffic control devices, identification and surveillance of accident 
locations, and highway-related aspects of pedestrian and bicycle safety.
    (c) Exercise the authority vested in the Secretary by section 210(2) 
of the Clean Air Act, as amended (42 U.S.C. 7544(2)).
    (d) Exercise the authority vested in the Secretary by section 204(b) 
of the Federal Railroad Safety Act of 1970 (45 U.S.C. 433(b)) with 
respect to laws administered by the National Highway Traffic Safety 
Administrator pertaining to highway, traffic and motor vehicle safety.
    (e) Carry out the Act of July 14, 1960, as amended (23 U.S.C. 313 
note) and the National Driver Register Act of 1982 (23 U.S.C. 401 note).
    (f) Carry out the functions vested in the Secretary by the Motor 
Vehicle Information and Cost Savings Act of 1972, as amended (15 U.S.C. 
1901 et seq.), except section 512.
    (g) Administer the following sections of title 23, United States 
Code, with the concurrence of the Federal Highway Administrator:
    (1) 141, as it relates to certification of the enforcement of speed 
limits;
    (2) 154 (a), (b), (d), (e), (f), (g) and (h); and
    (3) 158.
    (h) Carry out the consultation functions vested in the Secretary by 
Executive Order 11912, as amended.
    (i) Carry out section 209 of the Surface Transportation Assistance 
Act of 1978, as amended (23 U.S.C. 401 note) and section 165 of the 
Surface Transportation Assistance Act of 1982, as amended (23 U.S.C. 101 
note), with respect to matters within the primary responsibility of the 
National Highway Traffic Safety Administrator.
    (j) Administer section 414(b)(1) of the Surface Transportation 
Assistance Act of 1982, as amended (49 U.S.C. 2314) with the concurrence 
of the Federal Highway Administrator, and section 414(b)(2).
    (k) Carry out section 2(c) of the Truth in Mileage Act of 1986 (15 
U.S.C. 1988 note).
    (l) Carry out section 204(b) of the Surface Transportation and 
Uniform Relocation Assistance Act of 1987, Public Law 100-17 (101 Stat. 
132) with the coordination of the Federal Highway Administrator.
    (m) Carry out the functions vested in the Secretary by section 15(f) 
of the Sanitary Food Transportation Act of 1990 (Pub. L. 101-500; 104 
Stat. 1213).
    (n) Carry out, in coordination with the Federal Motor Carrier Safety 
Administrator, the authority vested in the Secretary by subchapter III 
of chapter 311 and section 31502 of title 49, U.S.C., to promulgate 
safety standards for commercial motor vehicles and equipment subsequent 
to initial manufacture when the standards are based upon and similar to 
a Federal Motor Vehicle Safety Standard promulgated,

[[Page 29]]

either simultaneously or previously, under chapter 301 of title 49, 
U.S.C.
    (o) Carry out the functions and exercise the authority vested in the 
Secretary under 23 U.S.C. 406 (e)(3), as added by section 2005(a) of 
SAFETEA-LU, Public Law 109-59, to engage in activities with States and 
State legislators to consider proposals related to safety belt use laws. 
The National Highway Traffic Safety Administrator may further delegate 
this authority, including to other modal Administrators within the 
Department of Transportation.
    (p) Carry out the functions and exercise the authority vested in the 
Secretary under the ``Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users'' or ``SAFETEA-LU'' (Pub. 
L. 109-59; August 10, 2005), as it relates to:
    (1) Section 1906, the grant program to prohibit racial profiling;
    (2) Section 2001(d), transfers;
    (3) Section 2003(c), on-scene motor vehicle collision causation;
    (4) Section 2003(d), research on distracted, inattentive, and 
fatigued drivers;
    (5) Section 2003(f), refusal of intoxication testing;
    (6) Section 2003(g), impaired motorcycle driving;
    (7) Section 2003(h), reducing impaired driving recidivism;
    (8) Section 2009(f), annual evaluation, in regard to high visibility 
enforcement program;
    (9) Section 2010, motorcyclist safety;
    (10) Section 2011, child safety and child booster seat incentive 
grants;
    (11) Section 2012, safety data;
    (12) Section 2013, drug-impaired driving enforcement;
    (13) Section 2014, first responder vehicle safety program;
    (14) Section 2015, driver performance study;
    (15) Section 2016, rural state emergency medical services 
optimization pilot program;
    (16) Section 2017, older driver safety; law enforcement training;
    (17) Section 5513(e), automobile accident injury research;
    (18) Section 5513(m) as it relates to section 513(e);
    (19) Section 10202, emergency medical services;
    (20) Section 10302, side-impact crash protection rulemaking;
    (21) Section 10303, tire research;
    (22) Section 10305(b), publication of nontraffic incident data 
collection;
    (23) Section 10306, study of safety belt use technologies;
    (24) Section 10307(b), regulations, in regard to safety labeling 
requirements;
    (25) Section 10308, power window switches; and
    (26) Section 10309(a), testing, in regard to 15-passenger van 
safety.
    (q) Carry out the functions and exercise the authority vested in the 
Secretary under the ``Energy Independence and Security Act of 2007'' 
(Public Law 110-140; December 19, 2007), as it relates to:
    (1) Section 106, Continued Applicability of Existing Standards;
    (2) Section 107, National Academy of Sciences Studies;
    (3) Section 108, National Academy of Sciences Study of Medium-Duty 
and Heavy-Duty Truck Fuel Economy;
    (4) Section 110, Periodic Review of Accuracy of Fuel Economy 
Labeling;
    (5) Section 113, Exemption from Separate Calculation Requirement;
    (6) Section 131(b)(2) and (c)(1), Plug-in Electric Drive Vehicle 
Program;
    (7) Section 225(a), Study of Optimization of Flexible Fueled 
Vehicles to Use E-85 Fuel;
    (8) Section 227(a), Study of Optimization of Biogas Used in Natural 
Gas Vehicles;
    (9) Section 242(a), Renewable Fuel Dispenser Requirements; and
    (10) Section 248(a), Biofuels Distribution and Advanced Biofuels 
Infrastructure.

[Amdt. 1-226, 53 FR 23122, June 20, 1988, as amended by Amdt. 1-239, 56 
FR 6810, Feb. 20, 1991; 65 FR 41015, July 3, 2000; 71 FR 11541, Mar. 8, 
2006; 71 FR 30832, May 31, 2006; 73 FR 20001, Apr. 14, 2008]



Sec. 1.51  Delegations to Federal Transit Administrator.

    The Federal Transit Administrator is delegated authority to exercise 
the functions vested in the Secretary by:
    (a) The Urban Mass Transportation Act of 1964, as amended (78 Stat. 
302, 49 U.S.C. 1601 et seq.).

[[Page 30]]

    (b) Section 1 of Reorganization Plan No. 2 of 1968 (5 U.S.C. app. 
1).
    (c) Section 10 of the Urban Mass Transportation Assistance Act of 
1970, Public Law 91-453, 84 Stat. 962, 968).
    (d) Sections 3 and 9 through 15 of the National Capital 
Transportation Assistance Act of 1969, as amended (D.C. Code, Sec. 1-
2441 et seq).
    (e) The following sections of title 23, United States Code:
    (1) 103 as it involves the withdrawal of Interstate routes and the 
substitution of non-highway public mass transit projects authorized by 
subsection (e)(4);
    (2) 101(a) as it involves approval of boundaries of urban and 
urbanized areas, 104(f)(4), 105(d), 106(b) as it involves the Federal-
aid urban system, and 134; and
    (3) 101 (b), (c), (d), and (e); 105 (a) and (g); 106 (a), (c) and 
(d); 108; 109 (a), (g), and (h); 110; 112; 113; 114; 116 (a) and (c); 
117; 121; 122; 124; 128; 140(a); 142; and 145 as they involve mass 
transportation projects authorized by sections 103(e)(4), 142(a)(2), or 
142(c).
    (f) Title II of the National Mass Transportation Assistance Act of 
1974 (Pub. L. 93-503, November 26, 1974), except sections 204 and 205.
    (g) Title 49 United States Code, chapter 53 as amended by the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for 
Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005).
    (h) 49 U.S.C. 303 as it involves public (mass) transportation 
projects.
    (i) Sections 3040, 3041, 3044, 3045, 3046, 3048, 3049, and 3050 of 
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (Pub. L. 109-59, 119 Stat.1144); sections 6009 (b) and 
(c) and 6010 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users as they relate to public 
(mass) transit projects; and the following provisions as amended by 
SAFETEA-LU and as related to public (mass) transportation projects:
    (1) 23 U.S.C. 139, 326, and 502(h); and
    (2) 42 U.S.C. 7506(c).
    (j) Title VI of the Passenger Rail Investment and Improvement Act of 
2008 (Pub. L. 110-432, Div. B, 122 Stat. 4968).

[Amdt. 1-157, 45 FR 83408, Dec. 18, 1980, as amended by Amdt. 1-168, 47 
FR 16632, Apr. 19, 1982; Amdt. 1-180, 48 FR 15476, Apr. 11, 1983; Amdt. 
1-187, 48 FR 52678, Nov. 21, 1983; Amdt. 1-191, 49 FR 6908, Feb. 24, 
1984; Amdt. 1-203, 50 FR 30275, July 25, 1985; 68 FR 34550, June 10, 
2003; 71 FR 30832, May 31, 2006; 74 FR 26982, June 5, 2009]



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

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

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



Sec. 1.53  Delegations to the Administrator of the Pipeline and Hazardous
Materials Safety Administration.

    The Administrator of the Pipeline and Hazardous Materials Safety 
Administration is delegated authority for the following:
    (a) Pipelines. (1) Exercise the authority and carry out the 
functions vested in the Secretary by the Federal pipeline safety laws 
(49 U.S.C. 60101 et seq.).
    (2) Exercise the authority and carry out the functions vested in the 
Secretary under section 28 of the Mineral Leasing Act, as amended (30 
U.S.C. 185).

[[Page 31]]

    (3) Exercise the authority and carry out the functions vested in the 
Secretary under section 21 of the Deepwater Port Act of 1974, as amended 
(33 U.S.C. 1520) relating to the establishment, enforcement and review 
of regulations concerning the safe construction, operation or 
maintenance of pipelines on Federal lands and the Outer Continental 
Shelf.
    (4) Exercise the authority and carry out the functions vested in the 
Secretary under section 5 of the International Bridge Act of 1972 (33 
U.S.C. 535) as it relates to pipelines not over navigable waterways.
    (5) Exercise the authority and carry out the functions vested in the 
Secretary under the Outer Continental Shelf Lands Act, as amended (43 
U.S.C. 1331 et seq.) with respect to the establishment, enforcement and 
review of regulations concerning pipeline safety.
    (6) Exercise the authority and carry out the functions delegated to 
the Secretary under sections 4(a) and 5(c) of Executive Order 12316 (46 
FR 42237, Aug. 20, 1981) (delegating sections 107(c)(1)(c) and 108(b), 
respectively, of the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1981, as amended (42 U.S.C. 9601 et seq.)) as they 
relate to pipelines.
    (7) Exercise the authority and carry out the functions vested in the 
Secretary by section 7005 of the Consolidated Omnibus Budget 
Reconciliation Act of 1985 (recodified at 49 U.S.C. 60301 by Pub. L. 
103-272) as they relate to pipeline safety user fees.
    (8) Exercise the authority and carry out the functions vested in the 
Secretary by 49 U.S.C. 6101 et seq. as they relate to pipeline damage 
prevention One Call programs.
    (9) Exercise the authority and carry out the functions vested in the 
Secretary by the Pipeline Safety Improvement Act of 2002 (Pub. L. 107-
355, 116 Stat. 2985).
    (b) Hazardous materials. Except as delegated by Sec. 1.74(a):
    (1) Carry out the functions vested in the Secretary by 49 U.S.C. 
5121(a), (b), (c), (d) and (e), 5122, 5123, and 5124, with particular 
emphasis on the shipment of hazardous materials and the manufacture, 
fabrication, marking, maintenance, reconditioning, repair or test of 
multi-modal containers that are represented, marked, certified, or sold 
for use in the transportation of hazardous materials; and
    (2) Carry out the functions vested in the Secretary by all other 
provisions of the Federal hazardous material transportation law (49 
U.S.C. 5101 et seq.) except as delegated by Sec. Sec. 1.47(j)(2) and 
1.73(d)(2) of this chapter and by paragraph 2(99) of Department of 
Homeland Security Delegation No. 0170.
    (c) Carry out the functions vested in the Secretary by section 4(e) 
of the International Safe Container Act (46 U.S.C. 1503(e)).
    (d) Exercise the authority and carry out the functions delegated to 
the Secretary in the following sections of Executive Order 12777 (56 FR 
54757, Oct. 22, 1991):
    (1) Section 2(b)(2) relating to the establishment of procedures, 
methods, equipment and other requirements to prevent discharges from, 
and to contain oil and hazardous substances in, pipelines, motor 
carriers, and railroads; and
    (2) Section 2(d)(2) relating to the issuance of regulations 
requiring the owners or operators of pipelines, motor carriers, and 
railroads, subject to the Federal Water Pollution Control Act (33 U.S.C. 
1321 et seq.), to prepare and submit response plans. For pipelines 
subject to the Federal Water Pollution Control Act, this authority 
includes the approval of means to ensure the availability of private 
personnel and equipment to remove, to the maximum extent practicable, a 
worst case discharge, the review and approval of response plans, and the 
authorization of pipelines to operate without approved response plans.

[70 FR 8301, Feb. 18, 2005, as amended at 71 FR 30833, May 31, 2006; 71 
FR 52753, Sept. 7, 2006]



Sec. 1.54  Delegations to all Secretarial Officers.

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

[[Page 32]]

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

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

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



Sec. 1.55  Delegations to Deputy Secretary.

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

[[Page 33]]

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

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



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

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

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



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

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

[[Page 34]]

    (a) Represent the Secretary of Transportation on various interagency 
boards, committees, and commissions to include the Trade Policy Review 
Group and the Trade Policy Staff Committee.
    (b) Except with respect to proceedings under section 4(e) of the 
Department of Transportation Act (49 U.S.C. 307) relating to safety 
fitness of an applicant, decide on requests to intervene or appear 
before administrative agencies to present the views of the Department 
subject to concurrence by the General Counsel.
    (c) Carry out the functions of the Secretary pertaining to aircraft 
with respect to Transportation Orders T-1 and T-2 (44 CFR chapter IV) 
under the Act of September 8, 1950, as amended (50 U.S.C. app. 2061 et 
seq.) and Executive Order No. 10480 (3 CFR, 1949-1953 comp., p. 962), as 
amended.
    (d) Serve as Department of Transportation member of the Interagency 
Group on International Aviation, and pursuant to Executive Order No. 
11382 (3 CFR, 1966-1970 comp., p. 691), as amended, serve as Chair of 
the Group.
    (e) Serve as second alternate representing the Secretary of 
Transportation to the Trade Policy Committee as mandated by 
Reorganization Plan No. 3 of 1979 (5 U.S.C. app. at 1381 (1988)) and 
Executive Order No. 12188 (3 CFR, 1980 comp., p. 131), as amended.
    (f)(1) As supplemented by 14 CFR part 385, as limited by paragraph 
(f)(2) of this section, and except as provided in Sec. Sec. 1.53(g), 
1.57(a), and 1.57(s) of this title, carry out the functions transferred 
to the Department from the Civil Aeronautics Board under the following 
statutes:
    (i) 49 U.S.C. app. 1551(b); and
    (ii) Section 4(a)(1) through (4), (6), and (8) through (10) of the 
Civil Aeronautics Board Sunset Act of 1984 (49 U.S.C. app. 1553(a)(1) 
through (4), (6), and (8) through (10)).
    (2) Insofar as the delegation in this paragraph (f) authorizes 
review of decisions of the Designated Senior Career Official in the 
Office of the Assistant Secretary for Aviation and International Affairs 
under Sec. 1.56b of this title, the authority is limited to approving 
any such decision or remanding it for reconsideration by the Designated 
Senior Career Official, with a full written explanation of the basis for 
the remand.
    (g) Carry out the functions vested in the Secretary by the following 
subsections of section 1115 of the Federal Aviation Act of 1958, as 
amended, which relates to the security of foreign airports:
    (1) Subsection 1115(e)(1), in coordination with the General Counsel, 
and the Federal Aviation Administrator; and
    (2) Subsection 1115(e)(3), in coordination with the General Counsel, 
the Federal Aviation Administrator, the Assistant Secretary for 
Governmental Affairs, and the Assistant Secretary for Administration.
    (h) Carry out the following statutory provisions relating to 
consumer protection:
    (1) Section 4(a)(5) of the Civil Aeronautics Board Sunset Act of 
1984 (49 U.S.C. app. 1553(a)(5)) relating to enforcement of the Consumer 
Credit Protection Act;
    (2) Sections 101(3) (relating to relieving certain carriers from 
provisions of the Federal Aviation Act), 204 (relating to taking such 
actions and issuing such regulations as may be necessary to carry out 
responsibilities under the Act), 404 (relating to enforcing the duty of 
carriers to provide safe and adequate service), 407(a) (relating to 
requiring the production of information), 407(e) (relating to entering 
carrier property, and inspecting records), 411 (relating to determining 
whether any carrier or ticket agent is engaged in unfair or deceptive 
practices or unfair methods of competition), and 416 (relating to 
establishing just and reasonable classifications of carriers and rules 
to be followed by each) of the Federal Aviation Act of 1958, as amended, 
(49 U.S.C. 1301(3), 1324, 1374, 1377 (a) and (e), 1381, and 1386) as 
appropriate to the consumer protection functions in this paragraph.
    (i) Carry out the functions of the Secretary pertaining to a 
determination of whether a fee imposed upon one or more air carriers by 
the owner or operator of an airport is reasonable under section 113 of 
the Federal Aviation Administration Authorization Act of 1994 (August 
23, 1994; Pub. L. 103-305; 108 Stat. 1577-1579).

[[Page 35]]

    (j) Carry out section 101(a)(2) of the Air Transportation Safety and 
System Stabilization Act (Public Law 107-42, 115 Stat. 230), as 
delegated to the Secretary of Transportation by the President pursuant 
to a Presidential Memorandum dated September 25, 2001.

[Amdt. 1-261, 59 FR 10063, Mar. 3, 1994, as amended by Amdt. 1-266, 60 
FR 11046, Mar. 1, 1995; Amdt. 1-269, 60 FR 15877, Mar. 28, 1995; 66 FR 
55599, Nov. 2, 2001]



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

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

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



Sec. 1.57  Delegations to General Counsel.

    The General Counsel is delegated authority to:
    (a) Conduct all rule-making proceedings, except the issuance of 
final rules, under specific laws relating generally to standard time 
zones and daylight saving (advanced standard) time.
    (b) Determine the practicability of applying the standard time of 
any standard time zone to the movements of any common carrier engaged in 
interstate or foreign commerce and issue operating exceptions in any 
case in which the General Counsel determines that it is impractical to 
apply the standard time.
    (c) Provide and coordinate the Department's counseling service to 
employees on questions of conflict of interest and other matters of 
legal import covered by Departmental regulations on employee 
responsibility and conduct. Assure that counseling and interpretations 
on these matters are available to designated Deputy Counselors of the 
Department. Serve as the Department's designee to the Civil Service 
Commission on these matters.
    (d) Serve as the alternate representative of the Secretary on the 
Board of Directors of the National Railroad Passenger Corporation when 
so designated by the Secretary or Deputy Secretary and carry out the 
functions vested in the Secretary as a member of the board by section 
303 of the Rail Passenger Service Act of 1970 (84 Stat. 1330).
    (e) Grant permission, under specific circumstances, to deviate from 
a policy or procedure prescribed by part 9 of the regulations of the 
Office of the Secretary (part 9 of this subtitle) with respect to 
testimony of OST employees as witnesses in legal proceedings, the 
serving of legal process and pleadings in legal proceedings involving 
the Secretary or his Office, and the production of records of that 
Office pursuant to subpoena.
    (f) Prepare proposed Executive orders and proclamations (including 
transmittal documents), effect appropriate Departmental coordination, 
and determine whether the transmittal to the Office of Management and 
Budget should be submitted over the Secretary's signature or the General 
Counsel's.
    (g) Emboss and affix the official Departmental seal to appropriate 
documents and other materials, for all purposes for which authentication 
by seal is required.
    (h) Except with respect to proceedings under section 4(e) of the 
Department of Transportation Act (80 Stat. 934) relating to safety 
fitness of an applicant, decide on requests to intervene or appear 
before courts or agencies to present the views of the Department, 
subject to the concurrence of other interested staff elements in the 
Office of the Secretary.
    (i) Exercise the authority delegated to the Department by the 
Assistant Attorney General, Land and Natural Resources Division, in his 
order of October 2, 1970, to approve the sufficiency of the title to 
land being acquired by purchase or condemnation by the United States for 
the use of the Department.

[[Page 36]]

Redelegation and successive redelegations of this authority may only be 
made to attorneys within the Department.
    (j) Issue regulations making editorial changes or corrections in the 
Regulations of the Office of the Secretary.
    (k) Review and take final action on applications for reconsideration 
of initial decisions not to disclose unclassified records of the Office 
of the Secretary requested under 5 U.S.C. 552(a)(3).
    (l) Consider, ascertain, adjust, determine, compromise, and settle 
for an amount not exceeding $25,000, any tort claim arising from the 
activities of any employee of the Office of the Secretary. Request the 
approval of the Attorney General for any such award, compromise, or 
settlement in excess of $25,000 (28 U.S.C. 2672).
    (m) Conduct coordination with foreign governments under section 118 
of the Deep Seabed Hard Mineral Resources Act (June 21, 1980).
    (n) Grant or deny petitions for extension of time to file a document 
under part 202 of title 46.
    (o) Deny petitions for rulemaking or petitions for exemptions in 
accordance with Sec. 5.13(c) of this title, and notify petitioners of 
denials in accordance with Sec. 5.13(d) of this title.
    (p) Exercise the review authority delegated to the Secretary by the 
President in Executive Order 12597 of May 13, 1987.
    (q) Assist and protect consumers in their dealings with the air 
transportation industry and assist state and local organizations in 
handling airline consumer complaints. Carry out 49 U.S.C. 40113 and 
41771 as appropriate to those functions.
    (r)-(s) [Reserved]
    (t) Carry out the functions vested in the Secretary by 49 U.S.C. 
40119(b), as implemented by 49 CFR part 15, relating to the 
determination that information is Sensitive Security Information.

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

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

    Editorial Note: For Federal Register citations affecting Sec. 1.57, 
see the List of CFR Sections Affected which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 1.57a  Delegations to Deputy General Counsel.

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

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



Sec. 1.57b  Delegations to the Assistant General Counsel for Operations.

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

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



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

    The Assistant Secretary for Budget and Programs is delegated 
authority to:

[[Page 37]]

    (a) Exercise day-to-day operating management responsibility over the 
Office of Programs and Evaluation and the Office of Budget.
    (b) Direct and manage the Departmental planning, evaluation, and 
budget activities.
    (c) Request apportionment or reapportionment of funds by the Office 
of Management and Budget, provided that no request for apportionment or 
reapportionment which anticipates the need for a supplemental 
appropriation shall be submitted to the Office of Management and Budget 
without appropriate certification by the Secretary.
    (d) Issue allotments or allocations of funds to components of the 
Department.
    (e) Authorize and approve official travel and transportation for 
staff members of the Immediate Office of the Secretary including 
authority to sign and approve related travel orders and travel vouchers, 
but not including requests for overseas travel.
    (f) Issue monetary authorizations for use of reception and 
representation funds.
    (g) Act for the Secretary and Deputy Secretary with respect to 
certain budgetary and administrative matters relating to the Immediate 
Office of the Secretary.
    (h) Provide Congressional Notification for Energy Savings 
Performance Contracts (ESPCs) with cancellation ceilings in excess of 
$750,000, pursuant to the National Energy Conservation Policy Act, as 
amended, 42 U.S.C. 8287 et seq.
    (i) In accordance with the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890), as amended by 
the Debt Collection Improvement Act of 1996 (Pub. L. 104-134, 110 Stat. 
1321), review, on an annual basis, each of the Department's civil 
penalty provisions, determine whether adjustment is required, calculate 
the necessary adjustment, and coordinate with the relevant Operating 
Administration to ensure that the requisite regulation making the 
adjustment is issued.
    (j) Exercise the Secretary's authority under 31 U.S.C. 3711 to 
collect, compromise, suspend collection action on, or terminate claims 
of the United States not exceeding $100,000 (excluding interest) which 
are referred to, or arise out of the activities of, the Office of the 
Secretary (excluding claims pertaining to the Working Capital Fund).

[Amdt. 1-130, 42 FR 58754, Nov. 11, 1977. Redesignated by Amdt. 1-157, 
45 FR 83409, Dec. 18, 1980, as amended by Amdt. 1-293, 63 FR 33589, June 
19, 1998; 68 FR 12834, Mar. 18, 2003; 73 FR 57269, Oct. 2, 2008]



Sec. 1.59  Delegations to the Assistant Secretary for Administration.

    The Assistant Secretary for Administration is delegated authority 
for the following:
    (a) Acquisition. (1) Exercise procurement authority with respect to 
requirements of the Office of the Secretary.
    (2) Make the required determinations with respect to mistakes in 
bids relative to sales of personal property conducted by the Office of 
the Secretary without power of redelegation.
    (3) Carry out the functions vested in the Secretary by sections 3 
and 4(b) (as appropriate) of Executive Order 11912.
    (4) Carry out the functions delegated to the Secretary from time to 
time by the Administrator of General Services to lease real property for 
Department use.
    (5) Carry out the duties and responsibilities of agency head for 
departmental procurement within the meaning of the Federal Acquisition 
Regulation. This authority as agency head for departmental procurement 
excludes duties, responsibilities, and powers expressly reserved for the 
Secretary of Transportation.
    (6) Serve as Deputy Chief Acquisition Officer.
    (b) Personnel. (1) Conduct a personnel management program for the 
Office of the Secretary with authority to take, direct others to take, 
recommend or approve any personnel action with respect to such 
authority.
    (2) Serve as Vice Chairman of the Departmental Executive Resources 
Board and its Executive Resources Review Committee.
    (3) Exercise emergency authority to hire without the prior approval 
of the Deputy Secretary normally required by

[[Page 38]]

Departmental procedures implementing general employment limitations when 
in the judgment of the Assistant Secretary immediate action is necessary 
to effect the hire and avoid the loss of a well-qualified job applicant, 
and for similar reasons.
    (4) Review proposals of the Office of the Secretary for each new 
appointment or transfer to:
    (i) Verify the essentiality of the position, and
    (ii) [Reserved]
    (5) Approve employment of experts and consultants in accordance with 
5 U.S.C. 3109.
    (6) Serve as Vice Chairman of the Departmental Executive Personnel 
Board and its Executive Committee.
    (7) Issue final interpretations for the Department and its 
administrations on matters arising under section 7117 of title VII of 
the Civil Service Reform Act of 1978.
    (8) Develop, coordinate, and issue wage schedules for Department 
employees under the Federal Wage System, except as delegated to the 
Commandant of the Coast Guard at Sec. 1.46.
    (c) Finance. (1) Administer the financial and fiscal affairs of the 
Office of the Secretary (other than those for which the Assistant 
Secretary for Budget and Programs is responsible), in accordance with 31 
U.S.C. 3512.
    (2) Designate to the Treasury Department certifying officers and 
designated agents for the Office of the Secretary and imprest fund 
cashiers for the Departmental headquarters. (Redelegation to the 
Director of Financial Management is contained in subpart C, Sec. 
1.59a.)
    (3) In accordance with 31 U.S.C. 3527, grant or recommend relief 
from accountability for losses or deficiencies of disbursing officers, 
cashiers, or other accountable officers as follows:
    (i) Grant relief for losses or deficiencies of less than $500 for 
which charges or exceptions have not been raised by the General 
Accounting Office.
    (ii) Recommend relief by the Comptroller General for all other 
losses or deficiencies.
    (4) Settle and pay claims by employees of the Office of the 
Secretary, except at the Transportation System Center, for personal 
property losses, as provided by 31 U.S.C. 241(b).
    (5) Waive claims and make refunds in connection with claims of the 
United States for erroneous payment of pay and allowances or of travel, 
transportation, and relocation expenses and allowances to an employee of 
the Office of the Secretary in amounts aggregating not more than $1,500 
without regard to any repayments, and deny requests for waiver of such 
claims regardless of the aggregate amount of the claim, as provided by 4 
CFR parts 91, 92, and 93. This authority may be redelgated only to the 
Director of Financial Management.
    (6) Compromise, suspend collection action on, or terminate claims of 
the United States not exceeding $100,000 (excluding interest) which are 
referred to, or arise out of the activities of, the Working Capital 
Fund.
    (7) Determine the existence and amount of indebtedness and the 
method of collecting repayments from employees of the Office of the 
Secretary and collect repayments accordingly, as provided by 5 U.S.C. 
5514. This authority may be redelegated only to the Director of 
Financial Management.
    (8) Develop, coordinate, and issue wage schedules for Department 
employees under the Federal Wage System.
    (9) Review and approve for payment any voucher for $25 or less the 
authority for payment of which is questioned by a certifying or 
disbursing officer. (Redelegation to the Director of Financial 
Management is contained in subpart C, Sec. 1.59a.)
    (10) Approve cash purchases of emergency passenger transportation 
services costing over $100 under FPMR G-72, as amended.
    (11) Perform accounting and related functions in support of the 
essential air service program.
    (12) Carry out the functions and obligations assigned to the 
Secretary with respect to the Prompt Payment Act, Public Law 97-177.
    (13) Carry out the functions and duties assigned to the Secretary 
with respect to the Debt Collection Act of 1982, Public Law 97-365.
    (d) Special funds. Except as otherwise delegated, establish or 
operate, or

[[Page 39]]

both, such special funds as may be required by statute or by 
administrative determination. This excludes the Working Capital Fund (49 
U.S.C. 327).
    (e) Security. (1) Represent the Secretary on the National 
Communications Security Committee and Interdepartmental Committee on 
Internal Security.
    (2) Issue identification media ``by direction of the Secretary''.
    (3) Classify information in the interests of national defense.
    (4) Take certain classified actions on behalf of the Department in 
connection with counter-audio programs.
    (5) Authorize exceptions to investigative standards for National 
Defense Executive Reservists.
    (6) Determine when emergencies, other than attack on the United 
States, justify activation of Personnel Security Regulations issued by 
the Secretary.
    (7) Approve exceptions to the Personnel Security regulations issued 
by the Secretary.
    (8) Request the Office of Personnel Management to modify 
investigative requirements in other areas.
    (9) Ensure Department-wide compliance with Executive Orders 10450, 
12829, 12958, 12968, and related regulations and issuances.
    (f) Printing. (1) Request approval of the Joint Committee on 
Printing, Congress of the United States, for any procurement or other 
action requiring Committee approval.
    (2) Certify the necessity for Departmental periodicals and request 
approval of the Director of the Office of Management and Budget (OMB 
Circular No. A-3 Revised as of Sept. 8, 1960).
    (g) Document authentication. Emboss and affix the official 
Departmental seal to appropriate documents and other materials, for all 
purposes for which authentication by seal is required.
    (h) Foreign travel. Review written requests for modification to the 
Department's foreign travel plan approved by the Office of Management 
and Budget.
    (i) Gifts and bequests. Carry out the functions vested in the 
Secretary by section 9(m) of the Department of Transportation Act (Pub. 
L. 89-670).
    (j) Building management. Carry out the functions vested in the 
Secretary by sections 1(b) and 4(b) (as appropriate) of Executive Order 
11912.
    (k) Privacy. Issue notices of Department of Transportation systems 
of records as required by the Privacy Act of 1974 (5 U.S.C. 552a(e)(4), 
(11)).
    (l) Hearings. Provide logistical and administrative support to the 
Department's Office of Hearings.
    (m) Paperwork reduction. Carry out the functions and 
responsibilities assigned to the Secretary with respect to the Paperwork 
Reduction Act of 1980, Public Law 96-511.
    (n) Federal real property management. Carry out the functions 
assigned to the Secretary with respect to Executive Order 12512 of April 
28, 1985.
    (o) The Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970, Public Law 91-646, 84 Stat. 1894. Except as 
provided in Sec. Sec. 1.45, 1.48 and 49 CFR 25.302, the functions, 
powers, and duties of the Secretary of Transportation, with respect to 
the Uniform Relocation Assistance and Real Property Acquisition Policies 
Act of 1970, are delegated to the Assistant Secretary for Administration 
with respect to programs administered by the Office of the Secretary. 
This authority is subject to the requirements listed in Sec. 1.45 that 
govern all Operating Administrations' authority with respect to the 
Uniform Relocation Assistance and Real Property Acquisition Policies Act 
of 1970.
    (p) Regulations. Issue Department of Transportation procurement 
regulations, subject to the following limitation:
    (1) Coordination. The views of the General Counsel, the interested 
administrations and other offices will be solicited in the development 
of the procurement regulations. In commenting upon proposed provisions 
for the procurement regulations, the administrations will indicate the 
nature and purpose of any additional implementing or supplementing 
policy guidances which they propose to issue at the administration 
level.
    (2) [Reserved]

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

    Editorial Note: For Federal Register citations affecting Sec. 1.59, 
see the List of CFR

[[Page 40]]

Sections Affected which appears in the Finding Aids section of the 
printed volume and on GPO Access.



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

    (a) The Assistant Secretary for Administration has re-delegated to 
the Director, Office of the Senior Procurement Executive the authority 
to:
    (1) carry out the duties and responsibilities of agency head for 
departmental procurement within the meaning of the Federal Acquisition 
Regulation except for those duties expressly reserved for the Secretary 
of Transportation.
    (2) carry out the functions of the Chief Acquisition Officer except 
for those functions specifically reserved for the Deputy Secretary.
    (3) procure and authorize payment for property and services for the 
Office of the Secretary, with power to re-delegate and authorize 
successive re-delegations.
    (b) The Assistant Secretary for Administration has redelegated to 
the Director of Personnel authority to:
    (1) Conduct a personnel management program for the Office of the 
Secretary with authority to take, direct others to take, recommend or 
approve any personnel action with respect to such authority.
    (2) Develop, coordinate, and issue wage schedules for Department 
employees under the Federal Wage System, except as delegated to the 
Commandant of the Coast Guard at Sec. 1.46 of this part.
    (c) The Assistant Secretary for Administration has redelegated to 
the Director of Financial Management authority to:
    (1) Designate to the Treasury Department certifying officers and 
designated agents for the Office of the Secretary and imprest fund 
cashiers for the Departmental Headquarters.
    (2) Certify to the validity of obligations as required by 31 U.S.C. 
200 and to the adequacy of bond coverage for the designations under 
section 160(c)(2).
    (3) Sign reports on Budget Execution as required by OMB Circular A-
34 (Revised).
    (4) Review and approve for payment any voucher for $25 or less the 
authority for payment of which is questioned by a certifying or 
disbursing officer.
    (5) Process essential air service payments.
    (6) Approve claims of OST employees allowable under 31 U.S.C. 3721 
for amounts of $500 or less.

[Amdt. 1-209, 51 FR 29233, Aug. 15, 1986, as amended by Amdt. 1-232, 54 
FR 46616, Nov. 6, 1989; 69 FR 60563, Oct. 12, 2004]



Sec. 1.60  Delegations to the Inspector General.

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

[Amdt. 1-199, 49 FR 50997, Dec. 31, 1984, as amended at 69 FR 60563, 
Oct. 12, 2004]



Sec. 1.61  Delegations to Assistant Secretary for Governmental Affairs.

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

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



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

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

[[Page 41]]

Railroad Revitalization and Regulatory Reform Act of 1976 (Pub. L. 94-
210), as amended.

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



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

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

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



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

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

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



Sec. 1.65  Authority to classify information.

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

[[Page 42]]

as Secret and Confidential are hereby rescinded.

[Amdt. 1-195, 49 FR 26594, June 28, 1984, as amended by Amdt. 1-261, 59 
FR 10061, 10064, Mar. 3, 1994; 68 FR 34550, June 10, 2003]



Sec. 1.66  Delegations to Maritime Administrator.

    With the exception of those authorities delegated to the Maritime 
Subsidy Board in Sec. 1.67 of this title, the Maritime Administrator is 
delegated authority to:
    (a) Carry out sections 9, 12, 14a, 21a, 37, 38, 40, 41, and 42 of 
the Shipping Act, 1916, as amended (46 App. U.S.C. 801 et seq.);
    (b) Carry out the Merchant Marine Act, 1920, as amended (46 App. 
U.S.C. 861 et seq.), including the Ship Mortgage Act, 1920, as amended 
(46 App. U.S.C. 921 et seq.);
    (c) Carry out the Merchant Marine Act, 1928, as amended (46 App. 
U.S.C. 891 et seq.);
    (d) Carry out section 7 of the Intercoastal Shipping Act, 1933, as 
amended (46 App. U.S.C. 843 et seq.);
    (e) Carry out the Merchant Marine Act, 1936, as amended (46 App. 
U.S.C. 1101 et seq.); except the authority delegated to the 
Administrator of the National Oceanic and Atmospheric Administration 
relating to the establishment of capital construction fund agreements 
under section 607 thereof and the granting of financing guarantees under 
title XI thereof, with respect to vessels in the fishing trade or 
industry;
    (f) Carry out the Merchant Ship Sales Act of 1946, as amended (50 
U.S.C. App. 1735 et seq.);
    (g) Carry out the Suits in Admiralty Act (1920), as amended (46 App. 
U.S.C. 741 et seq.);
    (h) Carry out the Civilian Nautical School Act, 1940 (46 App. U.S.C. 
1331 et seq.);
    (i) Carry out the Act of June 2, 1951 (46 App. U.S.C. 1241a) 
regarding the ``Vessel Operations Revolving Fund'';
    (j) Carry out the Act of August 9, 1954 (50 U.S.C. 196 et seq.) 
commonly called the Emergency Foreign Vessels Acquisition Act;
    (k) Carry out the Merchant Marine Decorations and Medals Act of 1988 
(46 App. U.S.C. 2001 et seq.);
    (l) Carry out the Maritime Academy Act of 1958, as amended (46 App. 
U.S.C. 1381 et seq.);
    (m) Carry out the Act of May 16, 1972, as amended (86 Stat. 140) 
authorizing sale or purchase of certain passenger vessels;
    (n) Carry out the Act of August 22, 1972 (86 Stat. 618) authorizing 
sale of Liberty ships for use as artificial reefs;
    (o) Carry out section 717 of the Act of October 26, 1972 (86 Stat. 
1184) commonly known as the Department of Defense Appropriations Act, 
1973, and similar subsequent enactments, with respect to transferring or 
otherwise making available vessels under the jurisdiction of the 
Maritime Administration to another Federal agency or, similarly, 
accepting vessels from another Federal agency;
    (p) Carry out the provisions of sections 10 through 13 of Public Law 
103-451, the National Maritime Heritage Act of 1994, 108 Stat. 4769, 
4778-4782;
    (q) Exercise the authority vested in the Administrator of General 
Services by the Act of June 1, 1948, Public Law 80-566, 62 Stat. 281, 40 
U.S.C. 318-318c and the Federal Property and Administrative Services Act 
of 1949, as amended, 63 Stat. 377, and delegated to the Secretary of 
Transportation by the Administrator of General Services on March 23, 
2000, relating to the enforcement of laws for the protection of property 
and persons at the United States Merchant Marine Academy, located in 
Kings Point, New York. This may be accomplished through appointment of 
uniformed personnel as special police, establishment of rules and 
regulations governing conduct on the affected property, and execution of 
agreements with other Federal, State, or local authorities.
    (r) Carry out the responsibilities of the National Shipping 
Authority (initially established by the Secretary of Commerce effective 
March 13, 1951) in the capacity of Director, National Shipping 
Authority;
    (s) Carry out the Maritime Education and Training Act of 1980 (46 
App. U.S.C. 1295), as amended;
    (t) Carry out all other activities previously vested in the 
Secretary of Commerce and transferred pursuant to Public Law 97-31;

[[Page 43]]

    (u) Carry out the functions vested in the Secretary by section 3(d) 
of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it 
relates to ships owned or operated by the Maritime Administration when 
engaged in noncommercial service;
    (v) Carry out the responsibilities and exercise the authorities of 
the Secretary of Transportation under the Maritime Security Act of 1996, 
Public Law 104-239;
    (w) Carry out the provisions of subtitle B of Public Law 101-624;
    (x) Carry out the responsibilities and exercise the authorities of 
the Secretary of Transportation under sections 1008, 1009, and 1013 of 
Public Law 104-324;
    (y) Carry out the functions vested in the Secretary by the Oil 
Pollution Act of 1990 (August 18, 1990; Pub. L. 101-380; 104 Stat. 484) 
in sections 4115(f) relating to vessel financing and 4117 relating to a 
feasibility study of an oil pollution prevention program. (See 49 CFR 
1.46 and 1.53).
    (z) Carry out the functions vested in the Secretary by Section 2927, 
Title XXIX of the National Defense Authorization Act of 1994 (Public Law 
103-160; November 30, 1993) relating to authority to convey surplus real 
property to public entities for use in the development or operation of 
port facilities.
    (aa) Carry out the following powers and duties vested in the 
Secretary by the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-
1524):
    (1) The authority to issue, transfer, amend, or reinstate a license 
for the construction and operation of a deepwater port (33 U.S.C. 
1503(b)).
    (2) The authority to process applications for the issuance, 
transfer, amendment, or reinstatement of a license for the construction 
and operation of a deepwater port (33 U.S.C. 1503(b)), as amended, in 
coordination with the Commandant of the Coast Guard.
    (3) Approval of fees charged by adjacent coastal States for use of a 
deepwater port and directly related land-based facilities (33 U.S.C. 
1504(h)(2)).
    (4) In collaboration with the Assistant Secretary for Aviation and 
International Affairs and the Assistant Secretary for Transportation 
Policy, consultation with the Secretary of State relating to 
international actions and cooperation in the economic, trade and general 
transportation policy aspects of the ownership and operation of 
deepwater ports (33 U.S.C. 1510).
    (5) Submission of notice of the commencement of a civil suit (33 
U.S.C. 1515(b)(2)).
    (6) Intervention in any civil action to which the Secretary is not a 
party (33 U.S.C. 15150).
    (7) Authority to request the Attorney General to seek the suspension 
or termination of a deepwater port license and to initiate a proceeding 
before the Surface Transportation Board (33 U.S.C. 1507, 1511(a)).
    (bb) Carry out the functions and exercise the authorities vested in 
the Secretary by sections 202(b), 203(b), 203(g), and 213(g) of division 
c, title II, Public Law 105-277, which relate to ownership and control 
requirements for vessel fishery endorsements for vessels measuring 100 
feet and greater.
    (cc) Exercise the authority vested in the Secretary of 
Transportation by section 408(a) of Public Law 105-383 approved November 
13, 1998, (112 Stat. 3411 and 3430), 46 U.S.C. 2302(e), relating to the 
enforcement of the prohibition of shipment of Government-impelled 
cargoes on vessels if (1) the vessel has been detained and determined to 
be substandard by the Secretary of Transportation for violation of an 
international safety convention to which the United States is a party; 
or (2) the operator of the vessel has on more than one occasion had a 
violation of an international safety convention to which the United 
States is a party. The term ``Government-impelled cargo'' means cargo 
for which a Federal agency contracts directly for shipping by water or 
for which (or the freight of which) a Federal agency provides financing, 
including financing by grant, loan, or loan guarantee, resulting in 
shipment of the cargo by water.
    (dd) Carry out the functions and exercise the authority vested in 
the Secretary by section 109 of the Maritime Transportation Security Act 
of 2002, Public Law 107-295, 116 Stat. 2064, provide training for 
maritime security professionals. This authority may be redelegated.

[[Page 44]]

    (ee) Carry out the functions and exercise the authorities vested in 
the Secretary by section 3517 of Title XXXV of Public Law 108-136 which 
relates to the Maintenance and Repair Reimbursement Pilot Program.
    (ff) Carry out the functions and exercise the authorities vested in 
the Secretary by Subtitle V of title 46 United States Code, which 
establishes the Maritime Security Fleet.
    (gg) Carry out the functions and exercise the authorities vested in 
the Secretary by Subtitle D of Title XXXV of Public Law 108-136, which 
relates to the National Defense Tank Vessel Construction Assistance 
Program.
    (hh) Carry out the functions and exercise the authorities vested in 
the President by section 1019 of Pub. L. 109-364 and delegated to the 
Secretary by the President.
    (ii) Carry out the functions and exercise the authorities vested in 
the Secretary of Transportation under Title 46, Chapter 556, of the 
United States Code, except for those found in 46 U.S.C. 55601(c) and 
(d).

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

    Editorial Note: For Federal Register citations affecting Sec. 1.66, 
see the List of CFR Sections Affected which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 1.67  Delegations to Maritime Subsidy Board.

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

[[Page 45]]

as Chairperson of the Board. The concurring votes of two members shall 
be sufficient for the disposition of any matter which may come before 
the Board.
    (d) The Chairperson of the Maritime Subsidy Board may make use of 
officers and employees of the Maritime Administration to perform 
activities for the Board. Employees of the Maritime Administration may 
be designated as the Secretary or Assistant Secretaries of the Board.

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



Sec. 1.68  Delegations to the Under Secretary of Transportation for
Security for the Transportation Security Administration.

    (a) Carry out the functions vested in the Secretary by 49 U.S.C. 
5103a relating to security risk determinations for the issuance of 
licenses to operate motor vehicles transporting hazardous materials in 
commerce.
    (b) [Reserved]

[68 FR 10989, Mar. 7, 2003]



Sec. 1.69  Delegations to the Director of Intelligence, Security, 
and Emergency Response.

    The Director of Intelligence, Security, and Emergency Response is 
delegated authority for the following:
    (a) Intelligence and Security. Carry out the functions assigned to 
the Secretary by the Aviation Security Improvement Act of 1990, section 
101 (Pub. L. 101-508; November 16, 1990) relating to intelligence and 
security matters in all modes of transportation.
    (b) Emergency preparedness and response. Carry out the functions 
related to emergency preparedness vested in the Secretary by 49 U.S.C. 
101 and 301 or delegated to the Secretary by or through the Defense 
Production Act of 1950, 50 U.S.C. App. 2061 et seq.; Executive Order 
10480, as amended; Executive Order 12148; Executive Order 12656; 
Executive Order 12742; Executive Order 12919, as amended; Reorganization 
Plan No. 3 or 1978; and such other statutes, executive orders, and other 
directives as may pertain to emergency preparedness.

[70 FR 7670, Feb. 15, 2005]



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

    The Director of the Departmental Office of Civil Rights is delegated 
authority to conduct all stages of the formal internal discrimination 
complaint process (including the acceptance or rejection of complaints); 
to provide policy guidance to the operating administrations and 
Secretarial officers concerning the implementation and enforcement of 
all civil rights laws, regulations and executive orders for which the 
Department is responsible; to otherwise perform activities to ensure 
compliance with external civil rights programs; and to review and 
evaluate the operating administrations' enforcement of these 
authorities.
    These authorities include:
    (a) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 
2000e et seq.
    (b) Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 
2000d et seq.
    (c) Section 504 of the Rehabilitation Act of 1973, as amended, 29 
U.S.C. 794 and 794a.
    (d) Section 501 of the Rehabilitation Act of 1973, as amended, 29 
U.S.C. 791.
    (e) Age Discrimination in Employment Act of 1967, as amended, 29 
U.S.C. 621 et seq.
    (f) Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101.
    (g) Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 
104 Stat. 327 (1990) (codified at 42 U.S.C. 12101-121213).
    (h) Equal Pay Act of 1963 (enacted as section 6(d) of the Fair Labor 
Standards Act of 1938, 29 U.S.C. 206(d)).
    (i) Alcohol, Drug Abuse, and Mental Health Administration 
Reorganization Act, 42 U.S.C. 290dd(b).
    (j) 29 CFR Parts 1600 through 1691 (Equal Employment Opportunity 
Commission Regulations).
    (k) Title VIII of the Civil Rights Act of 1968, as amended, 42 
U.S.C. 3601 et seq. (fair housing provisions).
    (l) The Federal Property and Administrative Services Act of 1949, 40 
U.S.C. 476.

[[Page 46]]

    (m) Title IX of the Education Amendments Act of 1972, 20 U.S.C. 
1681.
    (n) Executive Order No. 12898, Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations. (In coordination with the Assistant Secretary for 
Transportation Policy.)
    (o) 49 U.S.C. 47113, 47107, and 47123 (formerly sections 505(f), 
511(a)(17), and 520 of the Airport and Airway Improvement Act of 1982, 
as amended).
    (p) 49 U.S.C. 41705 (formerly the Air Carrier Access Act of 1986, as 
amended).
    (q) The Federal-Aid Highway Act, as amended, 23 U.S.C. 140 and 324.
    (r) 49 U.S.C. 306.
    (s) 49 U.S.C. 5310, 5332 (formerly sections 16 and 19 of the Federal 
Transit Act, as amended).
    (t) The Intermodal Surface Transportation Efficiency Act of 1991, 
Pub. L. 102-240, 105 Stat. 1919, section 1003.
    (u) The Highway Safety Act of 1966, as amended, 23 U.S.C. 
402(b)(1)(D).

[Amdt. 265, 60 FR 2891, Jan. 12, 1995, as amended at 68 FR 34550, June 
10, 2003]



Sec. 1.71  [Reserved]



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

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

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



Sec. 1.73  Delegation to the Administrator of the Federal Motor Carrier
Safety Administration.

    The Administrator of the Federal Motor Carrier Safety Admnistration 
is delegated authority to:
    (a) Carry out the functions and exercise the authority vested in the 
Secretary by 49 U.S.C., Subtitle IV, part B:
    (1) Chapter 131, relating to general provisions on transportation 
policy;
    (2) Chapter 133, relating to administrative provisions;
    (3) Chapter 135, relating to jurisdiction;
    (4) Chapter 137, sections 13702(a), 13702(c)(1), 13702(c)(2), 
13702(c)(3), 13704, 13707, and 13708, relating to rates, routes, and 
services;
    (5) Chapter 139, relating to registration and financial 
responsibility requirements;
    (6) Chapter 141, subchapter I and sections 14121 and 14122 of 
subchapter II, relating to operations of motor carriers;
    (7) Chapter 145, sections 14501, 14502, 14504, and 14504a relating 
to Federal-State relations, and section 14506 relating to identification 
of vehicles;
    (8) Chapter 147, sections 14701 through 14708, 14710, and 14711, 
relating to enforcement remedies, investigations and motor carrier 
liability; and
    (9) Chapter 149, sections 14901 through 14912 and 14915 relating to 
civil and criminal penalties for violations of 49 U.S.C. subtitle IV, 
part B.
    (b) Carry out the functions and exercise the authority vested in the 
Secretary by sections 104, 403(a), and 408 of the ICC Termination Act of 
1995, Public Law 104-88, 109 Stat. 803, relating to miscellaneous motor 
carrier provisions, railroad-highway grade crossing regulation and 
fatigue-related issues pertaining to commercial motor vehicle safety.
    (c) Carry out the functions vested in the Secretary by 42 U.S.C. 
4917 relating to procedures for the inspection, surveillance and 
measurement of commercial motor vehicles for compliance with interstate 
motor carrier noise emission standards and related enforcement 
activities including the promulgation of necessary regulations.
    (d)(1) Except as delegated by Sec. 1.74(a), carry out the functions 
vested in the

[[Page 47]]

Secretary by 49 U.S.C. 5121(a), (b), (c), and (d), 5122, 5123, and 5124, 
with particular emphasis on the transportation or shipment of hazardous 
materials by highway.
    (2) Carry out the functions vested in the Secretary by 49 U.S.C. 
5112 relating to highway routing of hazardous materials; 49 U.S.C. 5109 
relating to motor carrier safety permits, except subsection (f); 49 
U.S.C. 5113 relating to unsatisfactory safety ratings of motor carriers; 
49 U.S.C. 5125(a) and (c)-(f), relating to preemption determinations or 
waivers of preemption of hazardous materials highway routing 
requirements; 49 U.S.C. 5105(e) relating to inspections of motor 
vehicles carrying hazardous material; and 49 U.S.C. 5119 relating to 
uniform forms and procedures.
    (e) Carry out the functions vested in the Secretary by:
    (1) 49 U.S.C. chapter 313 relating to commercial motor vehicle 
operators, including the requirement of section 31305(a)(5)(C) that 
States issue a hazardous materials endorsement to a commercial driver's 
license only after being informed pursuant to 49 U.S.C. 5103a that the 
applicant does not pose a security risk warranting denial of the 
license; and
    (2) Section 4123(c), (d) and (e) of Public Law 109-59, 119 Stat. 
1735 (Aug. 10, 2005) relating to grants, funding, and contract authority 
and availability, respectively, for commercial driver's license 
information system modernization.
    (f) Carry out the functions vested in the Secretary by 49 U.S.C. 
13906, 31138 and 31139 relating to financial responsibility requirements 
for motor carriers, brokers, and freight forwarders.
    (g) Carry out the functions vested in the Secretary by subchapters 
I, III, and IV of chapter 311, title 49, U.S.C., relating to commercial 
motor vehicle programs, safety regulation, and international activities, 
except that the authority to promulgate safety standards for commercial 
motor vehicles and equipment subsequent to initial manufacture is 
limited to standards that are not based upon and similar to a Federal 
Motor Vehicle Safety Standard promulgated under chapter 301 of title 49, 
U.S.C.
    (h) Carry out the functions vested in the Secretary by 49 U.S.C. 
5701 relating to food transportation inspections of commercial motor 
vehicles; and 5113 and 31144 relating to safety fitness of owners and 
operators.
    (i) Carry out the functions vested in the Secretary by 49 U.S.C. 
5118 relating to the use of inspectors to promote safety in the highway 
transportation of radioactive material; and 49 U.S.C. 31142(f) relating 
to application of State regulations to government-leased vehicles and 
operators.
    (j) Carry out the functions and exercise the authority delegated to 
the Secretary in section 2(d)(2) of Executive Order 12777 (3 CFR, 1992 
Comp., p. 351), with respect to highway transportation, relating to the 
approval of means to ensure the availability of private personnel and 
equipment to remove, to the maximum extent practicable, a worst case 
discharge, the review and approval of response plans, and the 
authorization of motor carriers, subject to the Federal Water Pollution 
Control Act (33 U.S.C. 1321), to operate without approved response 
plans, except as delegated in 49 CFR 1.46(m).
    (k) Carry out 49 U.S.C. 31503 as it relates to investigation of the 
need for regulation of qualifications and maximum hours of service of 
employees of motor carriers and motor private carriers.
    (l) Carry out 49 U.S.C. 31502 relating generally to qualifications 
and maximum hours of service of employees and safety of operation and 
equipment of motor carriers, motor private carriers and motor carriers 
of migrant workers, except that the authority to promulgate safety 
standards for commercial motor vehicles and equipment subsequent to 
initial manufacture is limited to standards that are not based upon and 
similar to a Federal Motor Vehicle Safety Standard promulgated under 
chapter 301 of title 49, U.S.C.
    (m) Carry out 49 U.S.C. 503 and 31504 relating generally to service 
of process, designation of agents to receive service of process, and 
identification of interstate motor vehicles so far as they pertain to 
motor private carriers of property and motor carriers of migrant

[[Page 48]]

workers (except motor contract carriers).
    (n) Carry out 49 U.S.C. 502, 504, 506, and 523 to the extent they 
relate to motor carriers, motor carriers of migrant workers, and motor 
private carriers; 49 U.S.C. 507 to the extent it relates to motor 
carriers, motor carries of migrant workers, motor private carriers, or 
freight forwarders; and 49 U.S.C. 505, 508, and 521(b)(1), (2), (3), 
(4), (5), and (7).
    (o) Carry out the functions and exercise the authority vested in the 
Secretary by 23 U.S.C. 502(a)(1)(A).
    (p) Carry out the functions vested in the Secretary by 49 U.S.C. 
14123, relating to the collection and dissemination of information on 
motor carriers.
    (q) Carry out the functions vested in the Secretary by the following 
sections of Public Law 109-59, 119 Stat. 1144 (Aug. 10, 2005):
    (1) Section 4105(b)(1) relating to the study concerning predatory 
tow truck operations;
    (2) Section 4126 relating to the commercial vehicle information 
systems and networks program;
    (3) Section 4128 relating to grants under the safety data 
improvement program;
    (4) Section 4129 relating to the operation of commercial motor 
vehicles by individuals who use insulin to treat diabetes mellitus;
    (5) Section 4130 relating to the operators of vehicles transporting 
agricultural commodities and farm supplies;
    (6) Section 4131 relating to the maximum hours of service for 
operators of ground water well drilling rigs;
    (7) Section 4132 relating to hours of service for operators of 
utility service vehicles;
    (8) Section 4133 relating to hours of service rules for operators 
providing transportation to movie production sites;
    (9) Section 4134 relating to the grant program for persons to train 
operators of commercial motor vehicles;
    (10) Section 4135 relating to the task force concerning commercial 
driver's license program;
    (11) Section 4139(a)(1) relating to the training of and outreach to 
State personnel; section (b)(1) relating to a review of Canadian and 
Mexican compliance with Federal motor vehicles safety standards; and the 
first sentence of section (b)(2) relating to the report concerning the 
findings and conclusions of the review required by section (b)(1);
    (12) Section 4146 relating to an hours-of-service exception during 
harvest periods;
    (13) Section 4147 relating to emergency conditions requiring 
immediate response;
    (14) Section 4213 relating to the establishment of a working group 
for the development of practices and procedures to enhance Federal-State 
relations;
    (15) Section 4214 relating to consumer complaint information;
    (16) Section 5503 relating to the motor carrier efficiency study; 
and
    (17) Section 5513(a), under the condition of section (m), relating 
to the research grant for a thermal imaging inspection system 
demonstration project.

[64 FR 56270, Oct. 19, 1999, as amended at 64 FR 58357, Oct. 29, 1999; 
65 FR 221, Jan. 4, 2000; 65 FR 41015, July 3, 2000; 65 FR 49765, Aug. 
15, 2000; 67 FR 11582, Mar. 15, 2002; 68 FR 10989, Mar. 7, 2003; 69 FR 
51010, Aug. 17, 2004; 71 FR 30833, May 31, 2006; 71 FR 52753, Sept. 7, 
2006]



Sec. 1.74  Delegations to the Under Secretary for Transportation Policy.

    The Under Secretary for Transportation Policy is delegated authority 
to:
    (a) Lead the development of transportation policy and serve as the 
principal adviser to the Secretary on all transportation policy matters.
    (b) Carry out the functions and exercise the authority vested in the 
Secretary by section 11143 of Public Law 109-59, Stat. 1144, titled 
``Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users'' to manage the day-to-day activities associated with 
implementation of section 11143 regarding tax-exempt financing of 
highway projects and rail-truck facilities. The Under Secretary of 
Transportation for Policy may further delegate this authority.

[71 FR 30833, May 31, 2006, as amended at 71 FR 52754, Sept. 7, 2006]

[[Page 49]]



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

    1. Director of Budget. The Assistant Secretary for Budget and 
Programs has redelegated to the Director of Budget authority to:
    (a) Request apportionment and reapportionment of funds by the Office 
of Management and Budget, provided that no request for apportionment or 
reapportionment which anticipates the need for a supplemental 
appropriation shall be submitted to the Office of Management and Budget 
without appropriate certification by the Secretary.
    (b) Issue allotments or allocations of funds to components of the 
Department.
    2. Chief Counsels. The General Counsel has delegated to the Chief 
Counsels the authority delegated to the General Counsel by Amendment 1-
41 to part 1 of title 49, Code of Federal Regulations, 35 FR 17653, 
November 17, 1970, as follows:
    Section 855 of the Revised Statutes, as amended by Public Law 91-
393, 84 Stat. 835 (40 U.S.C. 255) authorizes the Attorney General to 
delegate to other departments and agencies his authority to give written 
approval of the sufficiency to the title to land being acquired by the 
United States. The Attorney General has delegated to the Assistant 
Attorney General in charge of the Land and Natural Resources Division 
the authority to make delegations under that law to other Federal 
departments and agencies (35 FR 16084; 28 CFR 0.66). The Assistant 
Attorney General, Land and Natural Resources Division, has further 
delegated certain responsibilities in connection with the approval of 
the sufficiency of the title to land to the Department of Transportation 
as follows:

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

    Pursuant to the provision of Public Law 91-393, approved September 
1, 1970, 84 Stat. 835, amending R.S. 355 (40 U.S.C. 255), and acting 
under the provisions of Order No. 440-70 of the Attorney General, dated 
October 2, 1970, the responsibility for the approval of the sufficiency 
of the title to land for the purpose for which the property is being 
acquired by purchase or condemnation by the United States for the use of 
your Department is, subject to the general supervision of the Attorney 
General and to the following conditions, hereby delegated to your 
Department.
    This delegation of authority is further subject to:
    1. Compliance with the regulations issued by the Assistant Attorney 
General on October 2, 1970, a copy of which is enclosed.
    2. This delegation is limited to:
    (a) The acquisition of land for which the title evidence, prepared 
in compliance with these regulations, consists of a certificate of 
title, title insurance policy, or an owner's duplicate Torrens 
certificate of title.
    (b) The acquisition of lands valued at $100,000 or less, for which 
the title evidence consists of abstracts of title or other types of 
title evidence prepared in compliance with said regulations.
    As stated in the above-mentioned Act, any Federal department or 
agency which has been delegated the responsibility to approve land 
titles under the Act may request the Attorney General to render his 
opinion as to the validity of the title to any real property or interest 
therein, or may request the advice or assistance of the Attorney General 
in connection with determinations as to the sufficiency of titles.
    The Chief Counsels of the Federal Aviation Administration, Federal 
Highway Administration, Federal Railroad Administration, National 
Highway Traffic Safety Administration, Federal Transit Administration, 
the St. Lawrence Seaway Development Corporation, Maritime 
Administration, and Research and Special Programs Administration are 
hereby authorized to approve the sufficiency of the title to land being 
acquired by purchase of condemnation by the United States for the use of 
their respective organizations. This delegation is subject to the 
limitations imposed by the Assistant Attorney General, Land and Natural 
Resources Division, in his delegation to the Department of 
Transportation. Redelegation of this authority may only be made by the 
Chief Counsels to attorneys within their respective organizations.
    If his organization does not have an attorney experienced and 
capable in the examination of title evidence, a Chief Counsel may, with 
the concurrence of the General Counsel, request the Attorney General to 
(1) furnish an opinion as to the validity of a title to real property or 
interest therein, or (2) provide advice or assistance in connection with 
determining the sufficiency of the title.

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

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

    Editorial Note: For Federal Register citations affecting appendix A 
to part 1, see the List of CFR Sections Affected which appears in the 
Finding Aids section of the printed volume and on GPO Access.



PART 3_OFFICIAL SEAL--Table of Contents




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

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

[[Page 50]]



Sec. 3.1  Description.

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



PART 5_RULEMAKING PROCEDURES--Table of Contents




                            Subpart A_General

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

            Subpart B_Petitions for Rulemaking or Exemptions

5.11 Filing of petitions.
5.13 Processing of petitions.

                          Subpart C_Procedures

5.21 General.
5.23 Contents of notices.
5.25 Petitions for extension of time to comment.
5.27 Consideration of comments received.
5.29 Additional rulemaking proceedings.
5.31 Hearings.
5.33 Adoption of final rules.
5.35 Procedures for direct final rulemaking.

Appendix A to Part 5

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

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



                            Subpart A_General



Sec. 5.1  Applicability.

    (a) This part prescribes general rulemaking procedures that apply to 
the issuance, amendment, and repeal of rules of the Office of the 
Secretary of Transportation. It does not apply to rules issued by the 
Federal Aviation Administration, Federal Highway Administration, Federal 
Railroad Administration, Federal Transit Administration, Maritime 
Administration, National Highway Traffic Safety Administration, Research 
and Special Programs Administration, St. Lawrence Seaway Development 
Corporation, or Federal Motor Carrier Safety Administration.
    (b) For the purposes of this part, Secretary means the Secretary of 
Transportation or the Under Secretary of Transportation, or any of the 
following to whom the Secretary has delegated authority to conduct 
rulemaking proceedings:
    (1) Any Assistant Secretary.
    (2) The General Counsel.

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

[32 FR 10363, July 14, 1967, as amended by Amdt. 5-2, 35 FR 5331, Mar. 
31, 1970; Amdt. 5-3, 36 FR 430, Jan. 13, 1971; 69 FR 4457, Jan. 30, 
2004]



Sec. 5.3  Initiation of rulemaking.

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

[[Page 51]]

of the United States and of other interested persons.



Sec. 5.5  Participation by interested persons.

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



Sec. 5.7  Regulatory docket.

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



            Subpart B_Petitions for Rulemaking or Exemptions



Sec. 5.11  Filing of petitions.

    (a) Any person may petition the Secretary to issue, amend, or repeal 
a rule, or for a permanent or temporary exemption from any rule.
    (b) Each petition filed under this section must:
    (1) Be submitted in duplicate to the Docket Clerk, Office of the 
General Counsel, Department of Transportation, Washington, DC 20590;
    (2) Set forth the text or substance of the rule or amendment 
proposed, or of the rule from which the exemption is sought, or specify 
the rule that the petitioner seeks to have repealed, as the case may be;
    (3) Explain the interest of the petitioner in the action requested 
including, in the case of a petition for an exemption, the nature and 
extent of the relief sought and a description of the persons to be 
covered by the exemption;
    (4) Contain any information and arguments available to the 
petitioner to support the action sought; and
    (5) In the case of a petition for exemption, unless good cause is 
shown in that petition, be submitted at least 60 days before the 
proposed effective date of the exemption.



Sec. 5.13  Processing of petitions.

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



                          Subpart C_Procedures



Sec. 5.21  General.

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

[[Page 52]]

    (c) In his discretion, the Secretary may invite interested persons 
to participate in the rulemaking proceedings described in Sec. 5.29 of 
this subpart.
    (d) For rules for which the Secretary determines that notice is 
unnecessary because no adverse public comment is anticipated, the direct 
final rulemaking procedure described in Sec. 5.35 of this subpart may 
be followed.

[32 FR 10363, July 14, 1967, as amended at 69 FR 4458, Jan. 30, 2004]



Sec. 5.23  Contents of notices.

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



Sec. 5.25  Petitions for extension of time to comment.

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



Sec. 5.27  Consideration of comments received.

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



Sec. 5.29  Additional rulemaking proceedings.

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



Sec. 5.31  Hearings.

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



Sec. 5.33  Adoption of final rules.

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



Sec. 5.35  Procedures for direct final rulemaking.

    (a) Rules that the Secretary judges to be noncontroversial and 
unlikely to result in adverse public comment may be published as direct 
final rules. These include noncontroversial rules that:
    (1) Affect internal procedures of the Office of the Secretary, such 
as filing requirements and rules governing inspection and copying of 
documents,

[[Page 53]]

    (2) Are nonsubstantive clarifications or corrections to existing 
rules,
    (3) Update existing forms,
    (4) Make minor changes in the substantive rules regarding statistics 
and reporting requirements,
    (5) Make changes to the rules implementing the Privacy Act, and
    (6) Adopt technical standards set by outside organizations.
    (b) The Federal Register document will state that any adverse 
comment or notice of intent to submit adverse comment must be received 
in writing by the Office of the Secretary within the specified time 
after the date of publication and that, if no written adverse comment or 
written notice of intent to submit adverse comment is received, the rule 
will become effective a specified number of days after the date of 
publication.
    (c) If no written adverse comment or written notice of intent to 
submit adverse comment is received by the Office of the Secretary within 
the specified time of publication in the Federal Register, the Office of 
the Secretary will publish a notice in the Federal Register indicating 
that no adverse comment was received and confirming that the rule will 
become effective on the date that was indicated in the direct final 
rule.
    (d) If the Office of the Secretary receives any written adverse 
comment or written notice of intent to submit adverse comment within the 
specified time of publication in the Federal Register, a notice 
withdrawing the direct final rule will be published in the final rule 
section of the Federal Register and, if the Office of the Secretary 
decides a rulemaking is warranted, a notice of proposed rulemaking will 
be published in the proposed rule section of the Federal Register.
    (e) An ``adverse'' comment for the purpose of this subpart means any 
comment that the Office of the Secretary determines is critical of the 
rule, suggests that the rule should not be adopted, or suggests a change 
that should be made in the rule. A comment suggesting that the policy or 
requirements of the rule should or should not also be extended to other 
Departmental programs outside the scope of the rule is not adverse.

[69 FR 4458, Jan. 30, 2004]



                        Sec. Appendix A to Part 5

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

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



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




                      Subpart A_General Provisions

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

             Subpart B_Information Required from Applicants

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

            Subpart C_Procedures for Considering Applications

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


[[Page 54]]


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

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



                      Subpart A_General Provisions



Sec. 6.1  Purpose of these rules.

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

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



Sec. 6.3  Applicability.

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

[62 FR 19233, Apr. 21, 1997]



Sec. 6.5  Proceedings covered.

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

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



Sec. 6.7  Eligibility of applications.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party to an adversary 
adjudication for which it seeks an award. The term ``party'' is defined 
in 5 U.S.C. 504(b)(1)(B). The applicant must show that it meets all

[[Page 55]]

conditions of eligibility set out in this subpart and in paragraph (b) 
of this section.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $2 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $7 million, including both personal and business 
interests, and not more than 500 employees.
    (3) A charitable or other tax-exempt organization as described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with a net worth of not 
more than $5 million and not more than 500 employees.
    (5) Any other partnership, corporation, association, or public or 
private organization with a net worth of not more than $7 million and 
not more than 500 employees.
    (6) For the purposes of Sec. 6.9(b), eligible applicants include 
small entities as defined in 5 U.S.C. 601.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
proceeding was designated.
    (d) An applicant who owns an unincorporated business will be 
considered an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The number of employees of an applicant includes all persons who 
regularly perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
part, unless the administrative law judge determines that such treatment 
would be unjust and contrary to the purposes of the Act in light of the 
actual relationship between the affiliated entities. In addition, the 
administrative law judge may determine that financial relationships of 
the applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.
    (g) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.
    (h) An applicant who appears pro se in a proceeding is ineligible 
for award of attorney fees. However, eligibility for other expenses is 
not affected by pro se representation.

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



Sec. 6.9  Standards for awards.

    (a) An eligible applicant may receive an award for fees and expenses 
incurred by that party in connection with a decision in favor of the 
applicant in a proceeding covered by this Part, unless the position of 
the Department over which the applicant has prevailed was substantially 
justified or special circumstances make the award sought unjust. The 
burden of proof that an award should not be made to an eligible 
applicant is on the Department where it has initiated the proceeding. No 
presumption arises that the Department's position was not substantially 
justified simply because the Department did not prevail. Whether or not 
the position of the Department was substantially justified shall be 
determined on the basis of the administrative record, as a whole, in the 
adversary adjudication for which fees and other expenses are sought. The 
``position of the Department'' means, in addition to the position taken 
by the agency in the adversary adjudication, the action or failure to 
act by the Department upon which the adversary adjudication may be 
based.

[[Page 56]]

    (b) In the context of a Departmental proceeding to enforce a party's 
compliance with a statutory or regulatory requirement, if the demand by 
the Department is substantially in excess of the amount awarded to the 
government pursuant to the decision of the adjudicative officer and is 
unreasonable when compared with such decision, under the facts and 
circumstances of the case, the adjudicative officer shall award to an 
eligible applicant party the fees and expenses related to defending 
against the excessive demand, unless the applicant party has committed a 
willful violation of law or otherwise acted in bad faith, or special 
circumstances make an award unjust. Fees and expenses awarded under this 
paragraph shall be paid only as a consequence of appropriations provided 
in advance. As used in this section, ``demand'' means the express demand 
of the Department which led to the adversary adjudication, but does not 
include a recitation by the Department of the maximum statutory penalty
    (i) In the administrative complaint, or
    (ii) Elsewhere when accompanied by an express demand for a lesser 
amount.
    (c) The decision of the Department on the application for fees and 
other expenses shall be the final administrative decision under this 
section.
    (d) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding.

[62 FR 19234, Apr. 21, 1997]



Sec. 6.11  Allowable fees and expenses.

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

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



Sec. 6.13  Delegations of authority.

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



             Subpart B_Information Required from Applicants



Sec. 6.17  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of an agency or agencies in the proceeding that 
the applicant alleges was not substantially justified. Unless the 
applicant is an individual, the application shall also state that it did 
not have more than 500 employees at

[[Page 57]]

the time the proceeding was initiated, giving the number of employees of 
the applicant and describing briefly the type and purpose of its 
organization or business.
    (b) The application shall also include a statement that the 
applicant's net worth does not exceed $1 million (if an individual) or 
$5 million (for all other applicants, including their affiliates). 
However, an applicant may omit this statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114j(a)).
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application may also include any other matters that the 
applicant wishes this agency to consider in determining whether and in 
what amount an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or under penalty 
of perjury that the information provided in the application is true and 
correct.
    (f) If the applicant is a partnership, corporation, association, or 
organization, or a sole owner of an unincorporated business, the 
application shall state that it did not have more than 500 employees at 
the time the proceeding was initiated, giving the number of its 
employees and describing briefly the type and purpose of its 
organization or business.



Sec. 6.19  Net worth exhibit.

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



Sec. 6.21  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
the fees and expenses, including the cost of any study, analysis, 
engineering report, test, project or similar matter, for which an award 
is sought.
    (b) The documentation shall include an affidavit from any attorney, 
agent, or expert witness representing or appearing in behalf of the 
party, stating the actual time expended and the rate at which fees and 
other expenses were computed and describing the specific services 
performed.
    (1) The affidavit shall state the services performed. In order to 
establish the hourly rate, the affidavit shall state the hourly rate 
which is billed

[[Page 58]]

and paid by the majority of clients during the relevant time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide information about 
two attorneys or agents with similar experience, who perform similar 
work, stating their hourly rate.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The administrative law judge may require the applicant to 
provide vouchers, receipts, or other substantiation for any expenses 
claimed.
    (e) The administrative law judge may, within his or her discretion, 
make a determination as to whether a study, conducted by the applicant, 
was necessary to the preparation of the applicant's case.



            Subpart C_Procedures for Considering Applications



Sec. 6.23  Filing and service of documents.

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



Sec. 6.25  Answer to application.

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

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



Sec. 6.27  Comments by other parties.

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



Sec. 6.29  Settlement.

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



Sec. 6.31  Further proceedings.

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

Such further proceedings shall be held only when necessary for full and 
fair resolution of the issues arising from the application, and shall be 
conducted as promptly as possible.
    (b) A request that the administrative law judge order further 
proceedings under this section shall specifically

[[Page 59]]

identify the information sought or the disputed issues and shall explain 
why the additional proceedings are necessary to resolve the issues.



Sec. 6.33  Decision.

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



Sec. 6.35  Agency review.

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



Sec. 6.37  Judicial review.

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



Sec. 6.39  Payment of award.

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



PART 7_PUBLIC AVAILABILITY OF INFORMATION--Table of Contents




                      Subpart A_General Provisions

Sec.
7.1 General.
7.2 Definitions.

         Subpart B_Information Required To Be Made Public by DOT

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

Subpart C_Availability of Reasonably Described Records Under the Freedom 
                           of Information Act

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

  Subpart D_Procedures for Appealing Decisions Not To Disclose Records 
                            and/or Waive Fees

7.21 General.

                          Subpart E_Time Limits

7.31 Initial determinations.
7.32 Final determinations.
7.33 Extension.

                             Subpart F_Fees

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

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

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

[[Page 60]]



                      Subpart A_General Provisions



Sec. 7.1  General.

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



Sec. 7.2  Definitions.

    Unless the context requires otherwise, the following definitions 
apply in this part:
    Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as 
amended.
    Administrator means the head of each component of DOT and includes 
the Under Secretary for Security, the Commandant of the Coast Guard, the 
Inspector General, and the Director of the Bureau of Transportation 
Statistics.
    Concurrence means that the approval of the person being consulted is 
required in order for the subject action to be taken.
    Consultation means that the approval of the person being consulted 
is not required in order for the subject action to be taken.
    Department means the Department of Transportation, including the 
Office of the Secretary, the Office of Inspector General, and the 
following DOT components, all of which may be referred to as DOT 
components. Means of contacting each of these DOT components appear in 
Sec. 7.15. This definition specifically excludes the Surface 
Transportation Board, which has its own FOIA regulations (49 CFR Part 
1001):
    (1) Federal Aviation Administration,
    (2) Federal Highway Administration,
    (3) Federal Motor Carrier Safety Administration,
    (4) Federal Railroad Administration,
    (5) National Highway Traffic Safety Administration,
    (6) Federal Transit Administration,
    (7) Saint Lawrence Seaway Development Corporation,
    (8) Maritime Administration,
    (9) Pipeline and Hazardous Materials Safety Administration, and
    (10) Research and Innovative Technology Administration.
    Primary Electronic Access Facility means the electronic docket 
facility in the DOT Headquarters Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590.
    Reading room records are those records required to be made available 
to the public under 5 U.S.C. 552(a)(2) as described in Sec. 7.5 of 
Subpart B of this part. These records are made available through DOT's 
Primary Electronic Access Facility. Other records may also be made 
available at DOT's discretion at DOT inspection facilities, including 
DOT's Primary Electronic Access Facility.
    Record includes any writing, drawing, map, recording, tape, film, 
photograph, or other documentary material by which information is 
preserved. The term also includes any such documentary material stored 
by computer.
    Responsible DOT official means the head of the DOT component 
concerned, or the General Counsel or the Inspector General, as the case 
may be, or the designee of any of them, authorized to take an action 
under this part.
    Secretary means the Secretary of Transportation or any person to 
whom the Secretary has delegated authority in the matter concerned.

[Amdt. 1, 63 FR 38331, July 16, 1998, as amended at 67 FR 54746, Aug. 
26, 2002; 73 FR 33328, June 12, 2008]

[[Page 61]]



         Subpart B_Information Required To Be Made Public by DOT



Sec. 7.3  Publication in the Federal Register.

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



Sec. 7.4  Publication required.

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



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

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

[[Page 62]]

on, or used as precedent by DOT to affect any member of the public 
adversely unless the person to whose detriment it is relied on, used, or 
cited has had actual timely notice of the material.
    (c) This section does not apply to material that is published in the 
Federal Register or covered by subpart C of this part.



Sec. 7.6  Deletion of identifying detail.

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



Sec. 7.7  Access to materials and indices.

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



Sec. 7.8  Copies

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



Sec. 7.9  Protection of records.

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



Sec. 7.10  Public records.

    Publicly available records are located in DOT's Primary Electronic 
Access Facility at 1200 New Jersey Avenue, SE., Washington, DC 20590.
    (a) The Primary Electronic Access Facility maintains materials for 
the Office of the Secretary, including former Civil Aeronautics Board 
material, and materials for the DOT components. This facility is located 
at Room W94-128, and the hours of operation are 10:00-17:00 eastern 
time.
    (b) Certain DOT components also maintain public record units at 
regional offices. These facilities are open to the public Monday through 
Friday except Federal holidays, during regular working hours. The Saint 
Lawrence Seaway Development Corporation has facilities at 180 Andrews 
Street, Massena, New York 13662-0520.
    (c) Operating Administrations may have separate facilities for 
manual records. Additional information on the location and hours of 
operations for inspection facilities can be obtained through DOT's 
Primary Electronic Access Facility, at (202) 366-9322.

[73 FR 33328, June 12, 2008]

[[Page 63]]



Subpart C_Availability of Reasonably Described Records Under the Freedom 
                           of Information Act



Sec. 7.11  Applicability.

    (a) This subpart implements 5 U.S.C 552(a)(3), and prescribes the 
regulations governing public inspection and copying of reasonably 
described records under FOIA.
    (b) This subpart does not apply to:
    (1) Records published in the Federal Register, opinions in the 
adjudication of cases, statements of policy and interpretations, and 
administrative staff manuals that have been published or made available 
under subpart B of this part.
    (2) Records or information compiled for law enforcement purposes and 
covered by the disclosure exemption described in Sec. 7.13(c)(7) if--
    (i) The investigation or proceeding involves a possible violation of 
criminal law; and
    (ii) There is reason to believe that--
    (A) The subject of the investigation or proceeding is not aware of 
its pendency, and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.
    (3) Informant records maintained by a criminal law enforcement 
component of DOT under an informant's name or personal identifier, if 
requested by a third party according to the informant's name or personal 
identifier, unless the informant's status as an informant has been 
officially confirmed.



Sec. 7.12  Administration of subpart.

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



Sec. 7.13  Records available.

    (a) Policy. It is DOT policy to make its records available to the 
public to the greatest extent possible, in keeping with the spirit of 
FOIA. This includes providing reasonably segregable information from 
documents that contain information that may be withheld.
    (b) Statutory disclosure requirement. FOIA requires that DOT, on a 
request from a member of the public submitted in accordance with this 
subpart, make requested records available for inspection and copying.
    (c) Statutory exemptions. Exempted from FOIA's statutory disclosure 
requirement are matters that are:
    (1)(i) Specifically authorized under criteria established by 
Executive Order to be kept secret in the interest of national defense or 
foreign policy, and
    (ii) In fact properly classified pursuant to such Executive order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from mandatory disclosure by statute 
(other than the Privacy Act or the Government in the Sunshine Act), 
provided that such statute--
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave not any discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular criteria for withholding or refers to particular types of 
matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency;

[[Page 64]]

    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings,
    (ii) Would deprive a person of a right to a fair or an impartial 
adjudication,
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy,
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, Tribal, or foreign agency 
or authority or any private institution that furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source,
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (d) Deleted information. The amount of information deleted from 
frequently-requested electronic records that are available in a public 
reading room will be indicated on the released portion of the record, 
unless doing so would harm an interest protected by the exemption 
concerned. If technically feasible, the amount of information deleted 
will be indicated at the place in the record where the deletion is made.



Sec. 7.14  Requests for records.

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

[[Page 65]]

or include a request for a fee waiver, and
    (iii) A request seeking a fee waiver shall, to the extent possible, 
address why the requestor believes that the criteria for fee waivers set 
out in Sec. 7.44(f) are met.
    (3) Requesters are advised that the time for responding to requests 
set forth in subpart E will not begin to run--
    (i) If a requestor has not sufficiently identified the fee category 
applicable to the request,
    (ii) If a requestor has not stated a willingness to pay fees as high 
as anticipated by DOT,
    (iii) If a fee waiver request is denied and the requestor has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by DOT, or
    (iv) If a fee waiver request does not address fee waiver criteria.
    (d) Creation of records. A request may seek only records that are in 
existence at the time the request is received. A request may not seek 
records that come into existence after the date on which it is received 
and may not require that new records be created in response to the 
request by, for example, combining or compiling selected items from 
manual files, preparing a new computer program, or calculating 
proportions, percentages, frequency distributions, trends, or 
comparisons. In those instances where DOT determines that creating a new 
record will be less burdensome than disclosing large volumes of 
unassembled material, DOT may, in its discretion, agree to creation of a 
new record as an alternative to disclosing existing records. Records 
will be provided in the form or format sought by the requestor if the 
record is readily reproducible in the requested format.
    (e) Search for records. (1) Each record made available under this 
subpart will be made available for inspection and copying during regular 
business hours at the place where it is located, or photocopying may be 
arranged with the copied materials being mailed to the requestor upon 
payment of the appropriate fee. Original records ordinarily will be 
copied except in this instance where, in DOT's judgment, copying would 
endanger the quality of the original or raise the reasonable possibility 
of irreparable harm to the record. In these instances, copying of the 
original would not be in the public interest. In any event, original 
records will not be released from DOT custody. Original records, 
regardless of format, may be returned to agency service upon provision 
of a copy of the record to the requestor, or, in the case of a denial, 
upon creation and retention of a copy of the original for purposes of 
FOIA processing.
    (2) DOT will make a reasonable effort to search for requested 
records in electronic form or format, unless doing so would 
significantly interfere with operation of the affected automated 
information system.
    (f) If a requested record is known not to exist in the files of the 
agency, or to have been destroyed or otherwise disposed of, the 
requestor will be so notified.
    (g) Fees will be determined in accordance with subpart F of this 
part.
    (h) Notwithstanding paragraphs (a) through (g) of this section, 
informational material, such as news releases, pamphlets, and other 
materials of that nature that are ordinarily made available to the 
public as a part of any information program of the Government will be 
available upon oral or written request. A fee will be not be charged for 
individual copies of that material so long as the material is in supply. 
In addition DOT will continue to respond, without charge, to routine 
oral or written inquiries that do not involve the furnishing of records.



Sec. 7.15  Contacts for records requested under the FOIA.

    Each person desiring a record under this subpart should submit a 
request in writing (via paper, facsimile, or electronic mail) to the DOT 
component where the records are located:
    (a) FOIA Offices at 1200 New Jersey Avenue, SE., Washington, DC 
20590:
    (1) Office of the Secretary of Transportation, Room W94-122.
    (2) Office of Inspector General, Room W73-407.
    (3) Federal Highway Administration, Room E64-302.

[[Page 66]]

    (4) Federal Motor Carrier Safety Administration, Room W66-458.
    (5) Federal Railroad Administration, Room W33-437.
    (6) Federal Transit Administration, Room E42-315.
    (7) National Highway Traffic Safety Administration, Room W41-311.
    (8) Pipeline and Hazardous Materials Safety Administration, Room 
E26-109.
    (9) Research and Innovative Technology Administration, Room E35-330.
    (10) Maritime Administration, Room W24-233.
    (b) Federal Aviation Administration, 800 Independence Avenue, S.W., 
Room 906A, Washington, DC 20591.
    (c) United States Coast Guard, 2100 2nd Street, S.W., Room 6106, 
Washington, DC 20593-0001.
    (d) Director, Office of Finance, Saint Lawrence Seaway Development 
Corporation, 180 Andrews Street, P.O. Box 520, Massena, New York 13662-
0520.
    (e) Federal Railroad Administration, 1120 Vermont Avenue NW, 7th 
Floor, Washington, DC. (Mailing address: 400 Seventh St., SW, 
Washington, DC 20590.)
    (f) Transportation Security Administration, 301 Seventh Street, SW. 
(General Services Administration Regional Office Building), Room 3624, 
Washington, DC (Mailing address: 400 Seventh Street, SW., Washington, DC 
20590).
    (g) Certain DOT components also maintain FOIA contacts at regional 
offices and at the offices of the Commandant and District Commanders of 
the United States Coast Guard. Additional information on the location of 
these offices can be obtained through the FOIA contact offices listed in 
this section.
    (h) If the person making the request does not know where in DOT the 
record is located, he or she may make an inquiry to the Chief, FOIA 
Division, Office of the General Counsel (voice: 202.366.4542; facsimile: 
202.366.8536).
    (i) Requests for records under this part, and Freedom of Information 
Act inquiries generally, may be made by accessing the DOT Home Page on 
the Internet (www.dot.gov) and clicking on the Freedom of Information 
Act link (www.dot.gov/foia).

[Amdt. 1, 63 FR 38331, July 16, 1998, 67 FR 54746, Aug. 26, 2002; 73 FR 
33328, June 12, 2008]



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

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



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

    (a) If a request is received for information that has been 
designated by the submitter as confidential commercial information, or 
which DOT has some other reason to believe may contain information of 
the type described in Sec. 7.13(c)(4), the submitter of such 
information will, except as is provided in paragraphs (c) and (d) of 
this section, be notified expeditiously and asked to submit any written 
objections to release. At the same time, the requestor will be notified 
that notice and an opportunity to comment are being provided to the 
submitter. The submitter will, to the extent permitted by law, be 
afforded a reasonable period of time within which to provide a detailed 
statement of any such objections. The submitter's statement shall 
specify all grounds for withholding any of the information. The burden 
shall be on the submitter to identify all information

[[Page 67]]

for which exempt treatment is sought and to persuade the agency that the 
information should not be disclosed.
    (b) The responsible DOT component will, to the extent permitted by 
law, consider carefully a submitter's objections and specific grounds 
for nondisclosure prior to determining whether to disclose business 
information. Whenever a decision is made to disclose such information 
over the objection of a submitter, the office responsible for the 
decision will forward to the submitter a written notice of intent to 
disclose that will, to the extent permitted by law, be forwarded to the 
submitter a reasonable number of days prior to the specified date upon 
which disclosure is intended. At the same time the submitter is 
notified, the requestor will be notified of the decision to disclose 
information. The written notice will include:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not accepted;
    (2) A description of the business information to be disclosed; and
    (3) A specific disclosure date.
    (c) The notice requirements of this section will not apply if:
    (1) The office responsible for the decision determines that the 
information should not be disclosed;
    (2) The information lawfully has been published or otherwise made 
available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).
    (d) The procedures established in this section will not apply in the 
case of:
    (1) Business information submitted to the National Highway Traffic 
Safety Administration and addressed in 49 CFR Part 512.
    (2) Information contained in a document to be filed or in oral 
testimony that is sought to be withheld pursuant to Rule 39 of the Rules 
of Practice in Aviation Economic Proceedings (14 CFR 302.39).
    (e) Whenever a requestor brings suit seeking to compel disclosure of 
confidential commercial information, the responsible DOT component will 
promptly notify the submitter.



  Subpart D_Procedures for Appealing Decisions Not To Disclose Records 
                            and/or Waive Fees



Sec. 7.21  General.

    (a) Each officer or employee of DOT who, upon a request by a member 
of the public for a record under this part, makes a determination that 
the record is not to be disclosed, either because it is subject to an 
exemption or not in DOT's custody and control, will give a written 
statement of the reasons for that determination to the person making the 
request; and indicate the names and titles or positions of each person 
responsible for the initial determination not to comply with such 
request, and the availability of an appeal within DOT. The denial letter 
will include an estimate of the volume of records or information 
withheld, in number of pages or in some other reasonable form of 
estimation. This estimate does not need to be provided if the volume is 
otherwise indicated through deletions on records disclosed in part, or 
if providing an estimate would harm an interest protected by an 
applicable exemption. Records disclosed in part will be marked or 
annotated to show both the amount and the location of the information 
deleted whenever practicable.
    (b) When a request for a waiver of fees pursuant to Sec. 7.44 has 
been denied in whole or in part, the requestor may appeal the denial.
    (c) Any person to whom a record has not been made available within 
the time limits established by Sec. 7.31 and any person who has been 
given a determination pursuant to paragraph (a) of this section that a 
record will not be disclosed may appeal to the responsible DOT official. 
Any person who has not received an initial determination on his or her 
request within the time limits established by Sec. 7.31 can seek 
immediate judicial review, which may be sought without the need first to 
submit an administrative appeal. Judicial review may be sought in the 
United States District Court for the judicial district in which the 
requestor resides or has his or her principal place of business, the 
judicial district in which

[[Page 68]]

the records are located, or in the District of Columbia. A determination 
that a record will not be disclosed and/or that a request for a fee 
waiver or reduction will not be granted does not constitute final agency 
action for the purposes of judicial review unless:
    (1) It was made by the responsible DOT official; or
    (2) The applicable time limit has passed without a determination on 
the initial request or the appeal, as the case may be, having been made.
    (d) Each appeal must be made in writing within thirty days from the 
date of receipt of the original denial and should include the DOT file 
or reference number assigned to the request and all information and 
arguments relied upon by the person making the request. (Appeals may be 
submitted via facsimile and conventional mail, but not via electronic 
mail.) Such letter should indicate that it is an appeal from a denial of 
a request made under FOIA. The envelope in which a mailed appeal is sent 
should be prominently marked: ``FOIA Appeal.'' If these requirements are 
not met, the twenty-day limit described in Sec. 7.32 will not begin to 
run until the appeal has been identified, or would have been identified 
with the exercise of due diligence, by a DOT employee as an appeal under 
FOIA, and has been received by the appropriate office.
    (e) Whenever the responsible DOT official determines it necessary, 
he/she may require the requestor to furnish additional information, or 
proof of factual allegations, and may order other proceedings 
appropriate in the circumstances; in any case in which a request or 
order is made, DOT's time for responding ceases to count while the 
requestor responds to the request or order. The decision of the 
responsible DOT official as to the availability of the record or the 
appropriateness of a fee waiver or reduction constitutes final agency 
action for the purpose of judicial review.
    (f) The decision of the responsible DOT official not to disclose a 
record under this part or not to grant a request for a fee waiver or 
reduction is considered to be a denial by the Secretary for the purpose 
of 5 U.S.C. 552(a)(4)(B).
    (g) Any final determination by the head of an DOT component not to 
disclose a record under this part, or not to grant a request for a fee 
waiver or reduction, is subject to concurrence by a representative of 
the General Counsel.
    (h) Upon a determination that an appeal will be denied, the 
requestor will be informed in writing of the reasons for the denial of 
the request and the names and titles or positions of each person 
responsible for the determination, and that judicial review of the 
determination is available in the United States District Court for the 
judicial district in which the requestor resides or has his or her 
principal place of business, the judicial district in which the 
requested records are located, or the District of Columbia.



                          Subpart E_Time Limits



Sec. 7.31  Initial determinations.

    An initial determination whether to release a record requested 
pursuant to subpart C of this part will be made within twenty Federal 
working days after the request is received by the appropriate office in 
accordance with Sec. 7.14, except that this time limit may be extended 
by up to ten Federal working days in accordance with Sec. 7.33. The 
person making the request will be notified immediately of such 
determination. If the determination is to grant the request, the desired 
record will be made available as promptly as possible. If the 
determination is to deny the request, the person making the request will 
be notified in writing, at the same time he or she is notified of such 
determination, of the reason for the determination, the right of such 
person to appeal the determination, and the name and title of each 
person responsible for the initial determination to deny the request.
    (a) In general. Components ordinarily will respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) A component may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request, or on the number of pages involved.

[[Page 69]]

    (2) A component using multitrack processing may provide requesters 
in its slower track(s) with an opportunity to limit the scope of their 
requests in order to qualify for faster processing within the specified 
limits of the component's faster track(s). A component doing so will 
contact the requestor either by telephone, letter, facsimile, or 
electronic mail, whichever is most efficient in each case.
    (c) Expedited processing. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever a compelling need is 
demonstrated and it is determined that the compelling need involves:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) Requests made by a person primarily engaged in disseminating 
information, with an urgency to inform the public of actual or alleged 
Federal Government activity.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing must be received by 
the proper component. Requests must be submitted to the component that 
maintains the records requested.
    (3) A requestor who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requestor within the category in 
paragraph (c)(1)(ii) of this section, if not a full-time member of the 
news media, must establish that he or she is a person whose main 
professional activity or occupation is information dissemination, though 
it need not be his or her sole occupation. A requestor within the 
category in paragraph (c)(1)(ii) of this section also must establish a 
particular urgency to inform the public about the government activity 
involved in the request, beyond the public's right to know about 
government activity generally. The formality of certification may be 
waived as a matter of discretion.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the proper component will decide whether to grant it and 
will notify the requestor of the decision. If a request for expedited 
treatment is granted, the request will be given priority and will be 
processed as soon as practicable. If a request for expedited processing 
is denied, any appeal of that decision will be acted on expeditiously.



Sec. 7.32  Final determinations.

    (a) A determination with respect to any appeal made pursuant to 
Sec. 7.21 will be made within twenty Federal working days after receipt 
of such appeal except that this time limit may be extended by up to ten 
Federal working days in accordance with Sec. 7.33. The person making 
the request will be notified immediately of such determination pursuant 
to Sec. 7.21.
    (b) In general. Components ordinarily will respond to appeals 
according to their order of receipt.
    (c) Multitrack processing. (1) A component may use two or more 
processing tracks by distinguishing between simple and more complex 
appeals based on the amount of work and/or time needed to process the 
appeal, or on the number of pages involved.
    (2) A component using multitrack processing may provide persons 
making appeals in its slower track(s) with an opportunity to limit the 
scope of their appeals in order to qualify for faster processing within 
the specified limits of the component's faster track(s). A component 
doing so will contact the person making the appeal either by telephone, 
letter, facsimile, or electronic mail, whichever is most efficient in 
each case.
    (d) Expedited processing. (1) An appeal will be taken out of order 
and given expedited treatment whenever a compelling need is demonstrated 
and it is determined that the compelling need involves:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) A request made by a person primarily engaged in disseminating 
information, with an urgency to inform the

[[Page 70]]

public of actual or alleged Federal Government activity.
    (2) A request for expedited processing may be made at the time of 
the appeal or at any later time. For a prompt determination, a request 
for expedited processing must be received by the proper component, which 
is the component that is processing the appeal for the records 
requested.
    (3) A requestor who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requestor within the category in 
Sec. 7.31(c)(1)(ii), if not a full-time member of the news media, must 
establish that he or she is a person whose main professional activity or 
occupation is information dissemination, though it need not be his or 
her sole occupation. A requestor within the category in Sec. 
7.31(c)(1)(ii) also must establish a particular urgency to inform the 
public about the government activity involved in the request, beyond the 
public's right to know about government activity generally. The 
formality of certification may be waived as a matter of discretion. A 
person who was granted expedited processing under Sec. 7.31 need merely 
certify that the same circumstances apply.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the proper component will decide whether to grant it and 
will notify the requestor of the decision. If a request for expedited 
treatment is granted, the appeal will be given priority and will be 
processed as soon as practicable. If a request for expedited processing 
of an appeal is denied, no further administrative recourse is available.



Sec. 7.33  Extension.

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



                             Subpart F_Fees



Sec. 7.41  General.

    (a) This subpart prescribes fees for services performed for the 
public under subparts B and C of this part by DOT.
    (b) All terms defined by FOIA apply to this subpart, and the term 
``hourly rate'' means the actual hourly base pay for a civilian 
employee.
    (c) This subpart applies to all employees of DOT, including those of 
non-

[[Page 71]]

appropriated fund activities of the Maritime Administration.
    (d) This subpart does not apply to any special study, special 
statistical compilation, table, or other record requested under 49 
U.S.C. 329(c). The fee for the performance of such a service is the 
actual cost of the work involved in compiling the record. All such fees 
received by DOT in payment of the cost of such work are deposited in a 
separate account administered under the direction of the Secretary, and 
may be used for the ordinary expenses incidental to providing the 
information.
    (e) This subpart does not apply to requests from record subjects for 
records about themselves in DOT systems of records, which are determined 
in accordance with the Privacy Act, as implemented by DOT regulations 
(49 CFR part 10).

[Amdt. 1, 63 FR 38331, July 16, 1998, as amended at 73 FR 33328, June 
12, 2008]



Sec. 7.42  Payment of fees.

    (a) The fees prescribed in this subpart may be paid by check, draft, 
or money order, payable to the DOT component where fees were incurred, 
for deposit in the General Fund of the Treasury of the United States, 
e.g. DOT/FAA.
    (b) Charges may be assessed by DOT for time spent searching for 
requested records even if the search fails to locate records or the 
records located are determined to be exempt from disclosure. In 
addition, if records are requested for commercial use, DOT may assess a 
fee for time spent reviewing any responsive records located to determine 
whether they are exempt from disclosure.
    (c) When it is estimated that the search charges, review charges, 
duplication fees, or any combination of fees that could be charged to 
the requestor will likely exceed US $25, the requestor will be notified 
of the estimated amount of the fees, unless the requestor has indicated 
in advance his or her willingness to pay fees as high as those 
anticipated. In cases where a requestor has been notified that actual or 
estimated fees may amount to more than US $25, the request will be 
deemed not to have been received until the requestor has agreed to pay 
the anticipated total fee. The notice will also inform the requestor how 
to consult with the appropriate DOT officials with the object of 
reformulating the request to meet his or her needs at a lower cost.
    (d) Payment of fees may be required prior to actual duplication or 
delivery of any releasable records to a requestor. However, advance 
payment, i.e., before work is commenced or continued on a request, may 
not be required unless:
    (1) Allowable charges that a requestor may be required to pay are 
likely to exceed US $250; or
    (2) The requestor has failed to pay within 30 days of the billing 
date fees charged for a previous request to any part of DOT.
    (e) When paragraph (d)(1) of this section applies, the requestor 
will be notified of the likely cost and, where he/she has a history of 
prompt payment of FOIA fees, requested to furnish satisfactory assurance 
of full payment of FOIA fees. Where the requestor does not have any 
history of payment, he or she may be required to make advance payment of 
any amount up to the full estimated charges.
    (f) When paragraph (d)(2) of this section applies, the requestor 
will be required to demonstrate that the fee has, in fact, been paid or 
to pay the full amount owed, including any applicable interest, late 
handling charges, and penalty charges as discussed in paragraphs (g) and 
(h) of this section. The requestor will also be required to make an 
advance payment of the full amount of the estimated fee before 
processing of a new request or continuation of a pending request is 
begun.
    (g) DOT will assess interest on an unpaid bill starting on the 31st 
day following the day on which the notice of the amount due is first 
mailed to the requestor. Interest will accrue from the date of the 
notice of amount due and will be at the rate prescribed in 31 U.S.C. 
3717. Receipt by DOT of a payment for the full amount of the fees owed 
within 30 calendar days after the date of the initial billing will stay 
the accrual of interest, even if the payment has not been processed.
    (h) If payment of fees charged is not received within 30 calendar 
days after the date the initial notice of the

[[Page 72]]

amount due is first mailed to the requestor, an administrative charge 
will be assessed by DOT to cover the cost of processing and handling the 
delinquent claim. In addition, a penalty charge will be applied with 
respect to any principal amount of a debt that is more than 90 days past 
due. Where appropriate, other steps permitted by Federal debt collection 
statutes, including disclosure to consumer reporting agencies and use of 
collection agencies, will be used by DOT to encourage payment of amounts 
overdue.
    (i) Notwithstanding any other provision of this subpart, when the 
total amount of fees that could be charged for a particular request (or 
aggregation of requests) under subpart C of this part, after taking into 
account all services that must be provided free of, or at a reduced, 
charge, is less than US $10.00 DOT will not make any charge for fees.



Sec. 7.43  Fee schedule.

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

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

    (a) The standard fee for a manual search to locate a record 
requested under subpart C of this part, including making it available 
for inspection, will be determined by multiplying the searcher's rate as 
calculated from the chart in this section and the time spent conducting 
the search.
    (b) The standard fee for a computer search for a record requested 
under subpart C of this part is the actual cost. This includes the cost 
of operating the central processing unit for the time directly 
attributable to searching for records responsive to a FOIA request and 
the operator/programmer's rate as calculated from the chart for costs 
apportionable to the search.
    (c) The standard fee for review of records requested under subpart C 
of this part is the reviewer's rate as calculated from the chart 
multiplied by the time he/she spent determining whether the requested 
records are exempt from mandatory disclosure.
    (d) The standard fee for duplication of a record requested under 
subpart C of this part is determined as follows:
    (1) Per copy of each page (not larger than 8.5x14 inches) reproduced 
by photocopy or similar means (includes costs of personnel and 
equipment)--US $0.10.
    (2) Per copy prepared by computer such as tapes or printout--actual 
costs, including operator time.
    (3) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (e) Depending upon the category of requestor, and the use for which 
the records are requested, in some cases the fees computed in accordance 
with the standard fee schedule in paragraph (d) of this section will 
either be reduced or not charged, as prescribed by other provisions of 
this subpart.
    (f) The following special services not required by FOIA may be made 
available upon request, at the stated fees: Certified copies of 
documents, with DOT or DOT component seal (where authorized)--US $4.00; 
or true copy, without seal--US $2.00.



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

    (a) A fee is not to be charged to any requestor making a request 
under subpart C of this part for the first two hours of search time 
unless the records are requested for commercial use. For purposes of 
this subpart, when a computer search is required two hours of search 
time will be considered spent when the hourly costs of operating the 
central processing unit used to perform the search added to the computer 
operator's salary cost (hourly rate plus 16 percent) equals two hours of 
the computer operator's salary costs (hourly rate plus 16 percent).
    (b) A fee is not to be charged for any time spent searching for a 
record requested under subpart C if the records are not for commercial 
use and the requestor is a representative of the news media, an 
educational institution

[[Page 73]]

whose purpose is scholarly research, or a non-commercial scientific 
institution whose purpose is scientific research.
    (c) A fee is not to be charged for duplication of the first 100 
pages (standard paper, not larger than 8.5x14 inches) of records 
provided to any requestor in response to a request under Subpart C 
unless the records are requested for commercial use.
    (d) A fee is not to be charged to any requestor under subpart C to 
determine whether a record is exempt from mandatory disclosure unless 
the record is requested for commercial use. A review charge may not be 
charged except with respect to an initial review to determine the 
applicability of a particular exemption to a particular record or 
portion of a record. A review charge may not be assessed for review at 
the administrative appeal level. When records or portions of records 
withheld in full under an exemption that is subsequently determined not 
to apply are reviewed again to determine the applicability of other 
exemptions not previously considered, this is considered an initial 
review for purposes of assessing a review charge.
    (e) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
disclosure of the information is in the public interest because it is 
likely to contribute significantly to public understanding of the 
operations or activities of the government and is not primarily in the 
commercial interest of the requestor.
    (f) Factors to be considered by DOT officials authorized to 
determine whether a waiver or reduction of fees will be granted include:
    (1) Whether the subject matter of the requested records concerns the 
operations or activities of the Federal government;
    (2) Whether the disclosure is likely to contribute to an 
understanding of Federal government operations or activities;
    (3) Whether disclosure of the requested information will contribute 
to the understanding of the public at large, as opposed to the 
individual understanding of the requestor or a narrow segment of 
interested persons;
    (4) Whether the contribution to public understanding of Federal 
government operations or activities will be significant;
    (5) Whether the requestor has a commercial interest that would be 
furthered by the requested disclosure; and
    (6) Whether the magnitude of any identified commercial interest to 
the requestor is sufficiently large in comparison with the public 
interest in disclosure that disclosure is primarily in the commercial 
interest of the requestor.
    (g) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
the request concerns records related to the death of an immediate family 
member who was, at the time of death, a DOT employee.
    (h) Documents will be furnished without charge or at a reduced 
charge if the official having initial denial authority determines that 
the request is by the victim of a crime who seeks the record of the 
trial at which the requestor testified.

[Amdt. 1, 63 FR 38331, July 16, 1998, as amended at 73 FR 33328, June 
12, 2008]



Sec. 7.45  Transcripts.

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



Sec. 7.46  Alternative sources of information.

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

[[Page 74]]

or National Audio-Visual Center, National Archives and Records 
Administration, Capital Heights, MD 20743-3701.



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




                            Subpart A_General

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

        Subpart B_Classification/Declassification of Information

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

                     Subpart C_Access to Information

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

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

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



                            Subpart A_General



Sec. 8.1  Scope.

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



Sec. 8.3  Applicability.

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



Sec. 8.5  Definitions.

    As used in this part:
    Classification means the act or process by which information is 
determined to be classified information.
    Classification levels means the following three levels at which 
information may be classified:
    (a) Top secret. Information that requires the highest degree of 
protection, and the unauthorized disclosure of which could reasonably be 
expected to cause exceptionally grave damage to the national security 
that the original classification authority is able to identify or 
describe.
    (b) Secret. Information that requires a substantial degree of 
protection, and the unauthorized disclosure of which could reasonably be 
expected to cause serious damage to the national security that the 
original classification authority is able to identify or describe.
    (c) Confidential. Information that requires protection and the 
unauthorized disclosure of which could reasonably be expected to cause 
damage to the national security that the original classification 
authority is able to identify or describe.
    Classified information or ``classified national security 
information'' means information that has been determined under Executive 
Order 12958, or any predecessor or successor order, to require 
protection against unauthorized disclosure, and is marked to indicate 
its classified status when in documentary form.
    Clearance means that an individual is eligible, under the standards 
of Executive Orders 10450 and 12968 and appropriate DOT regulations, for 
access to classified information.
    Damage to the national security means harm to the national defense 
or foreign relations of the United States from the unauthorized 
disclosure of information, to include the sensitivity, value, and 
utility of that information.
    Declassification means the authorized change in the status of 
information

[[Page 75]]

from classified information to unclassified information.
    Downgrading means a determination by a declassification authority 
that information classified and safeguarded at a specific level shall be 
classified and safeguarded at a lower level.
    Information means any knowledge that can be communicated, or 
documentary material, regardless of its physical form or 
characteristics, that is owned by, produced by or for, or is under the 
control of the United States Government. ``Control'' means the authority 
of the agency that originates information, or its successor in function, 
to regulate access to the information.
    Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that qualifies under Section 3.6 of Executive Order 
12958.
    Original classification means an initial determination that 
information requires, in the interest of national security, protection 
against unauthorized disclosure.
    Original classification authority means an individual authorized in 
writing, either by the President or by agency heads or other officials 
designated by the President, to classify information in the first 
instance.



Sec. 8.7  Spheres of responsibility.

    (a) Pursuant to Section 5.6(c) of Executive Order 12958, and to 
section 6.1 of Executive Order 12968, the Assistant Secretary for 
Administration is hereby designated as the senior agency official of the 
Department of Transportation with assigned responsibilities to assure 
effective compliance with and implementation of Executive Order 12958, 
Executive Order 12968, Office of Management and Budget Directives, the 
regulations in this part, and related issuances.
    (b) In the discharge of these responsibilities, the Assistant 
Secretary for Administration will be assisted by the Director of 
Security and Administrative Management, who, in addition to other 
actions directed by this part, will evaluate the overall application of 
and adherence to the security policies and requirements prescribed in 
this part and who will report his/her findings and recommendations to 
the Assistant Secretary for Administration, heads of Departmental 
elements, and, as appropriate, to the Secretary.
    (c) Secretarial Officers and heads of Departmental elements will 
assure that the provisions in this part are effectively administered, 
that adequate personnel and funding are provided for this purpose, and 
that corrective actions that may be warranted are taken promptly.



        Subpart B_Classification/Declassification of Information



Sec. 8.9  Information Security Review Committee.

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

[[Page 76]]

member may designate a representative with full power to serve in his/
her place.
    (c) In carrying out its responsibilities to review decisions to 
revoke or not to issue clearances, or to deny access to classified 
information, the Committee will establish whatever procedures it deems 
fit.



Sec. 8.11  Authority to classify information.

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



Sec. 8.13  Authority to downgrade or declassify.

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



Sec. 8.15  Mandatory review for classification.

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



Sec. 8.17  Classification challenges.

    (a) Authorized holders of information classified by the Department 
of Transportation who, in good faith, believe that its classification 
status is improper are encouraged and expected to challenge the 
classification status of the information before the Departmental 
Information Security Review Committee.

[[Page 77]]

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



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

    (a) The Director of Security and Administrative Management is hereby 
designated as the official to whom a member of the public or another 
department or agency should submit a request for a classification review 
of classified information produced by or under the primary cognizance of 
the Department. Elements of the Department that receive a request 
directly will immediately notify the Director.
    (b) If the request for classification review involves material 
produced by or under the cognizance of the U.S. Coast Guard or the 
Federal Aviation Administration, the Director will forward the request 
to the headquarters security staff of the element concerned for action. 
If the request involves material produced by other Departmental 
elements, the Director will serve as the office acting on the request.
    (c) The office acting on the request will:
    (1) Immediately acknowledge receipt of the request and provide a 
copy of the correspondence to the Director. If a fee for search of 
records is involved pursuant to 49 CFR Part 7, the requester will be so 
notified;
    (2) Conduct a security review, which will include consultation with 
the office that produced the material and with source authorities when 
the classification, or exemption of material from automatic 
declassification, was based upon determinations by an original 
classifying authority; and
    (3) Assure that the requester is notified of the determination 
within 30 calendar days or given an explanation as to why further time 
is necessary, and provide a copy of the notification to the Director.
    (d) If the determination reached is that continued classification is 
required, the notification to the requester will include, whenever 
possible, a brief statement as to why the requested material cannot be 
declassified. The notification will also advise the requester of the 
right to appeal the determination to the Departmental Information 
Security Review Committee. A requester who wishes to appeal a 
classification review decision, or who has not been notified of a 
decision after 60 calendar days, may submit an appeal to the 
Departmental Information Security Review Committee.
    (e) If the determination reached is that continued classification is 
not required, the information will be declassified and the material 
remarked accordingly. The office acting on the request will then refer 
the request to the office originating the material or higher authority 
to determine if it is otherwise withholdable from public release under 
the Freedom of Information Act (5 U.S.C. 552) and the Department's 
implementing regulations (49 CFR Part 7).
    (1) If the material is available under the Freedom of Information 
Act, the requester will be advised that the material has been 
declassified and is available. If the request involves the furnishing of 
copies and a fee is to be collected, the requester will be so advised 
pursuant to 49 CFR Part 7, Departmental regulations implementing the 
Freedom of Information Act.
    (2) If the material is not available under the Freedom of 
Information Act, the requester will be advised that the material has 
been declassified but that the record is unavailable pursuant to the 
Freedom of Information Act, and that the provisions concerning 
procedures for reconsidering decisions not to disclose records, 
contained in 49 CFR Part 7, apply.

[[Page 78]]

    (f) Upon receipt of an appeal from a classification review 
determination based upon continued classification, the Departmental 
Information Security Review Committee will acknowledge receipt 
immediately and act on the matter within 30 calendar days. With respect 
to information originally classified by or under the primary cognizance 
of the Department, the Committee, acting for the Secretary, has 
authority to overrule previous determinations in whole or in part when, 
in its judgment, continued protection in the interest of national 
security is no longer required. When the classification of the material 
produced in the Department is based upon a classification determination 
made by another department or agency, the Committee will immediately 
consult with its counterpart committee for that department or agency.
    (1) If it is determined that the material produced in the Department 
requires continued classification, the requester will be so notified and 
advised of the right to appeal the decision to the Interagency 
Classification Review Committee.
    (2) If it is determined that the material no longer requires 
classification, it will be declassified and remarked. The Committee will 
refer the request to the General Counsel, or to the head of the 
Departmental agency concerned, as the case may be, to determine if the 
material is otherwise withholdable from the public under the Freedom of 
Information Act (5 U.S.C. 552) and Departmental regulations, (49 CFR 
Part 7), and paragraphs (f)(1) and (2) of this section will be followed. 
A copy of the response to the requester will be provided to the 
Committee.
    (g) Requests for a classification review of material more than 25 
years old will be referred directly to the Archivist of the United 
States and the requester will be notified of the referral. In this 
event, the provisions of this section apply.
    (h) Whenever a request is insufficient in the description of the 
record sought, the requester will be asked to limit his request to 
records that are reasonably obtainable. If, in spite of these steps, the 
requester does not describe the records with sufficient particularity, 
or the record requested cannot be obtained with a reasonable amount of 
effort, the requester will be notified of the reasons why the request is 
denied and of his/her right to appeal the determination to the 
Departmental Information Security Review Committee.



Sec. 8.21  Burden of proof.

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



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

    (a) Classified information officially transferred to the Department 
in conjunction with a transfer of function, and not merely for storage 
purposes, will be considered to have been originated by the Department.
    (b) Classified information in the custody of the Department 
originated by a department or agency that has ceased to exist and for 
whom there is no successor agency will be deemed to have been originated 
by the Department. This information may be declassified or downgraded by 
the Department after consultation with any other agency that has an 
interest in the subject matter of the information. Such agency will be 
allowed 30 calendar days in which to express an objection, if it so 
desires, before action is taken. A difference of opinion that cannot be 
resolved will be referred to the Departmental Information Security 
Review Committee, which will consult with its counterpart committee for 
the other agency.
    (c) Classified information transferred to the National Archives and 
Records Administration (NARA) will be declassified or downgraded by the 
Archivist of the United States in accordance with Executive Order 12958, 
Departmental classification guides, and any existing procedural 
agreement between NARA and the Department. The Department will take all 
reasonable steps to declassify information contained in records 
determined to have permanent historical value before they are 
accessioned in NARA.

[[Page 79]]

    (d) To the extent practicable, the Department will adopt a system of 
records management that will facilitate the public release of documents 
at the time such documents are declassified under the provisions of this 
part for automatic declassification. To the maximum extent possible 
without destroying the integrity of the Department's files, all such 
material will be segregated or set aside for public release upon 
request. The Department will cooperate with the Archivist in efforts to 
establish a Government-wide database of information that has been 
declassified.



                     Subpart C_Access to Information



Sec. 8.25  Personnel Security Review Board.

    (a) There is hereby established a Department of Transportation 
Personnel Security Review Board, which will, on behalf of the Secretary 
of Transportation (except in any case in which the Secretary personally 
makes the decision), make the administratively final decision on an 
appeal arising in any part of the Department from:
    (1) A decision not to grant access to classified information;
    (2) A decision to revoke access to classified information; or
    (3) A decision under Sec. 8.29 to deny access to classified 
information.
    (b) The Personnel Security Review Board will be composed of:
    (1) Two persons appointed by the Assistant Secretary for 
Administration: one from the Office of Personnel and Training, and one, 
familiar with personnel security adjudication, from the Office of 
Security and Administrative Management, who will serve as Chair;
    (2) One person appointed by the General Counsel, who, in addition to 
serving as a member of the Board, will provide to the Board whatever 
legal services it may require; and
    (3) One person appointed by each of the Commandant of the Coast 
Guard and the Federal Aviation Administrator.
    (4) Any member may designate a representative, meeting the same 
criteria as the member, with full power to serve in his/her place.
    (c) In carrying out its responsibilities to review final decisions 
to revoke or deny access to classified information, the Board will 
establish whatever procedures it deems fit.



Sec. 8.27  Public availability of declassified information.

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



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

    (a) Historical researchers. (1) Persons outside the executive branch 
who are engaged in historical research projects may have access to 
classified information provided that:
    (i) Access to the information is clearly consistent with the 
interests of national security; and
    (ii) The person to be granted access is trustworthy.
    (2) The provisions of this paragraph apply only to persons who are 
conducting historical research as private individuals or under private 
sponsorship and do not apply to research conducted under Government 
contract or

[[Page 80]]

sponsorship. The provisions are applicable only to situations where the 
classified information concerned, or any part of it, was originated by 
the Department or its contractors, or where the information, if 
originated elsewhere, is in the sole custody of the Department. Any 
person requesting access to material originated in another agency or to 
information under the exclusive jurisdiction of the National Archives 
and Records Administration (NARA) will be referred to the other agency 
or to NARA, as appropriate.
    (3) When a request for access to classified information for 
historical research is received, it will be referred to the appropriate 
local security office. That office will obtain from the applicant 
completed Standard Form 86, Questionnaire for National Security 
Positions, in triplicate, and Standard Form 87, Fingerprint Chart; a 
statement in detail to justify access, including identification of the 
kind of information desired and the organization or organizations, if 
any, sponsoring the research; and a written statement (signed, dated, 
and witnessed) with respect to the following:
    (i) That the applicant will abide by regulations of the Department:
    (A) To safeguard classified information; and
    (B) To protect information that has been determined to be 
proprietary or privileged and is therefore not eligible for public 
dissemination.
    (ii) That the applicant understands that any classified information 
that the applicant receives affects the security of the United States.
    (iii) That the applicant acknowledges an obligation to safeguard 
classified information or privileged information of which the applicant 
gains possession or knowledge as a result of the applicant's access to 
files of the Department.
    (iv) That the applicant agrees not to reveal to any person or agency 
any classified information or privileged information obtained as a 
result of the applicant's access except as specifically authorized in 
writing by the Department, and further agrees that the applicant shall 
not use the information for purposes other than those set forth in the 
applicant's application.
    (v) That the applicant agrees to authorize a review of the 
applicant's notes and manuscript for the sole purpose of determining 
that no classified information or material is contained therein.
    (vi) That the applicant understands that failure to abide by 
conditions of this statement will constitute sufficient cause for 
canceling the applicant's access to classified information and for 
denying the applicant any future access, and may subject the applicant 
to criminal provisions of Federal law as referred to in this statement.
    (vii) That the applicant is aware and fully understands that title 
18, United States Code, Crimes and Criminal Procedures, and the Internal 
Security Act of 1950, as amended, title 50, United States Code, 
prescribe, under certain circumstances, criminal penalties for the 
unauthorized disclosure of information respecting the national security, 
and for loss, destruction, or compromise of such information.
    (viii) That this statement is made to the U.S. Government to enable 
it to exercise its responsibilities for the protection of information 
affecting the national security.
    (ix) That the applicant understands that any material false 
statement that the applicant makes knowingly and willfully will subject 
the applicant to the penalties of 18 U.S.C. 1001.
    (4) The security office will process the forms in the same manner as 
specified for a preappointment national agency check for a critical-
sensitive position. Upon receipt of the completed national agency check, 
the security office, if warranted, may determine that access by the 
applicant to the information will be clearly consistent with the 
interests of national security and the person to be granted access is 
trustworthy. If deemed necessary, before making its determination, the 
office may conduct or request further investigation. Before access is 
denied in any case, the matter will be referred through channels to the 
Director of Security and Administrative Management for review and 
submission to the Personnel Security Review Board for final review.

[[Page 81]]

    (5) If access to TOP SECRET or intelligence or communications 
security information is involved a special background investigation is 
required. However, this investigation will not be requested until the 
matter has been referred through channels to the Director of Security 
and Administrative Management for determination as to adequacy of the 
justification and the consent of other agencies as required.
    (6) When it is indicated that an applicant's research may extend to 
material originating in the records of another agency, approval must be 
obtained from the other agency prior to the grant of access.
    (7) Approvals for access will be valid for the duration of the 
current research project but no longer than 2 years from the date of 
issuance, unless renewed. If a subsequent request for similar access is 
made by the individual within one year from the date of completion of 
the current project, access may again be granted without obtaining a new 
National Agency Check. If more than one year has elapsed, a new National 
Agency Check must be obtained. The local security office will promptly 
advise its headquarters security staff of all approvals of access 
granted under the provisions of this section.
    (8) An applicant may be given access only to that classified 
information that is directly pertinent to the applicant's approved 
project. The applicant may review files or records containing classified 
information only in offices under the control of the Department. 
Procedures must be established to identify classified material to which 
the applicant is given access. The applicant must be briefed on local 
procedures established to prevent unauthorized access to the classified 
material while in the applicant's custody, for the return of the 
material for secure storage at the end of the daily working period, and 
for the control of the applicant's notes until they have been reviewed. 
In addition to the security review of the applicant's manuscript, the 
manuscript must be reviewed by appropriate offices to assure that it is 
technically accurate insofar as material obtained from the Department is 
concerned, and is consistent with the Department's public release 
policies.
    (b) Former Presidential appointees. Persons who previously occupied 
policymaking positions to which they were appointed by the President may 
be granted access to classified information or material that they 
originated, reviewed, signed, or received, while in public office, 
provided that:
    (1) It is determined that such access is clearly consistent with the 
interests of national security; and
    (2) The person agrees to safeguard the information, to authorize a 
review of the person's notes to assure that classified information is 
not contained therein, and that the classified information will not be 
further disseminated or published.



Sec. 8.31  Industrial security.

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

[[Page 82]]

contracting officers assure that actions required by the regulation are 
taken.



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




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

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

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



Sec. 9.1  Purpose.

    (a) This part sets forth procedures governing the testimony of an 
employee in legal proceedings in which the United States is a party. It 
also sets forth procedures to be followed when an employee is issued a 
subpoena, order or other demand (collectively referred to in this part 
as a ``demand'') by a court or other competent authority, or is 
requested by a private litigant, to provide testimony or produce records 
concerning information acquired in the course of performing official 
duties or because of the employee's official status. It also prescribes 
the policies and procedures of the Department with respect to the 
acceptance of service of legal process and pleadings in legal 
proceedings involving the Department.
    (b) The purposes of this part are to:
    (1) Conserve the time of employees for conducting official business;
    (2) Minimize the possibility of involving the Department in 
controversial issues not related to its mission;
    (3) Maintain the impartiality of the Department among private 
litigants;
    (4) Avoid spending the time and money of the United States for 
private purposes; and
    (5) To protect confidential, sensitive information and the 
deliberative processes of the Department.
    (c) Agency counsel, in his or her discretion, may permit an 
exception from any requirement in this part. The exception may be 
granted only when the deviation will not interfere with matters of 
operational or military necessity, and when agency counsel determines 
that:
    (1) It is necessary to prevent a miscarriage of justice;
    (2) The Department has an interest in the decision that may be 
rendered in the legal proceeding; or
    (3) The exception is in the best interest of the Department or the 
United States.

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



Sec. 9.2  Applicability.

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



Sec. 9.3  Definitions.

    For purposes of this part:

[[Page 83]]

    Department means the Department of Transportation (DOT), including 
the Office of the Secretary (which encompasses the Office of the 
Inspector General) and the following operating administrations while 
they are part of DOT:
    (a) The U.S. Coast Guard.
    (b) The Federal Aviation Administration.
    (c) The Federal Highway Administration.
    (d) The Federal Railroad Administration.
    (e) The Federal Transit Administration.
    (f) The St. Lawrence Seaway Development Corporation.
    (g) The National Highway Traffic Safety Administration.
    (h) The Maritime Administration.
    (i) The Research and Special Programs Administration.
    (j) Any DOT operating administration established after the effective 
date of this part.
    Legal proceeding means any case or controversy pending before any 
federal, state, or local court (including grand jury proceedings), any 
administrative proceeding pending before any federal, state, or local 
agency, or any legislative proceeding pending before any state or local 
agency.
    Legal proceeding between private litigants means any legal 
proceeding in which neither the Department of Transportation nor the 
United States (including any federal agency or officer of the United 
States in his or her official capacity) is a party.
    Employee of the Department or Employee means any current or former 
officer or employee of the Department; any active duty, retired, or 
former officer or enlisted member of the Coast Guard; or any current or 
former contractor (including any corporation or other entity and any 
employee or subcontractor).
    Agency counsel means the General Counsel of the Department or the 
Chief Counsel of any operating administration of the Department 
concerned, any person to whom the General Counsel or Chief Counsel has 
delegated authority, or any person who is authorized to represent the 
Department in a specific legal proceeding.
    Testimony means any written or oral statement by a witness, 
including depositions, answers to interrogatories, affidavits, 
declarations, and statements at a hearing or trial.



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

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



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

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

[[Page 84]]

Guard in any legal proceeding conducted by the Coast Guard.



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

    In legal proceedings between private litigants:
    (a) The proper method for obtaining testimony or records from an 
employee is to submit a request to agency counsel as provided in 
Sec. Sec. 9.13 and 9.15 of this part, not to serve a demand on the 
employee. Whenever, in a legal proceeding between private litigants, an 
employee is served with a demand, or receives a request, to testify in 
that employee's official capacity or produce records, the employee shall 
immediately notify agency counsel.
    (b) If authorized to testify pursuant to these rules, an employee 
may testify only as to facts within that employee's personal knowledge 
with regard to matters arising out of his or her official duties.
    (1) When the proceeding arises from an accident, an employee may 
testify only as to personally known facts, not reasonably available from 
other sources, observed by the employee or uncovered during the 
employee's investigation of the accident or observed by the employee 
even if he or she did not investigate the accident. The employee shall 
decline to testify regarding facts beyond the scope of his or her 
official duties.
    (2) The employee shall not testify to facts that are contained in a 
report, or any part of a report, unless the employee has obtained 
permission from agency counsel to disclose the information.
    (3) The employee shall not disclose confidential or privileged 
information unless the employee has obtained permission from agency 
counsel to disclose the information.
    (4) The employee shall not testify as to facts when agency counsel 
determines that the testimony would not be in the best interest of the 
Department or the United States if disclosed.
    (c) An employee shall not testify as an expert or opinion witness 
with regard to any matter arising out of the employee's official duties 
or the functions of the Department. An employee who is asked questions 
that call for expert or opinion testimony shall decline to answer on the 
grounds that it is forbidden by this part. Agency counsel shall advise 
the employee on how to proceed if the presiding officer directs the 
employee to provide expert or opinion testimony.
    (d) An employee shall not provide testimony at a trial or hearing. 
An employee's testimony shall be limited to a single deposition, 
affidavit, or set of interrogatories, concerning the circumstances (e.g. 
an accident) from which the proceeding arose. Where multiple legal 
proceedings concerning those circumstances are pending, or can occur, it 
shall be the duty of the private litigant seeking the testimony to 
ascertain, to the extent feasible, the identities of all parties, or 
potential parties, to those proceedings and notify them that a 
deposition has been granted and that they have the opportunity to 
participate. The private litigant shall submit an affidavit or 
certification describing the extent of the search for parties and 
potential parties and listing the names of the parties and potential 
parties notified.
    (e) Where an employee has already provided testimony, any party 
wishing to obtain further testimony from that employee concerning the 
same matter or occurrence, whether in the same or a different private 
legal proceeding, may submit a request to agency counsel to waive the 
restrictions of paragraph (d) of this section. The request shall, in 
addition to meeting the requirements of Sec. 9.15 of this part, state 
why the requester should be permitted to gather additional information 
despite not having previously requested the information when it had an 
opportunity to do so, and why the additional testimony is now required 
and the prior testimony or previously supplied documents are 
insufficient.



Sec. 9.11  Legal proceedings between private litigants: Demands.

    (a) If an employee receives a demand that has not been validly 
issued or served, agency counsel may instruct the employee not to comply 
with the demand.
    (b) If an employee receives a demand (validly issued and served) to 
testify or produce records, agency counsel, in his

[[Page 85]]

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



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

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



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

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

The request shall specify which form of testimony (deposition, 
affidavit, declaration, or answers to interrogatories) is desired and 
the date by which it is desired; however, only one form, the

[[Page 86]]

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



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

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



Sec. 9.19  Acceptance of service on behalf of Secretary.

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



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




                   Subpart A_Applicability and Policy

Sec.
10.1 Applicability.
10.3 Policy.
10.5 Definitions.

                            Subpart B_General

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

                    Subpart C_Maintenance of Records

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

                    Subpart D_Availability of Records

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

                     Subpart E_Correction of Records

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

Subpart F_Procedures for Reconsidering Decisions Not To Grant Access to 
                            or Amend Records

10.51 General.

                          Subpart G_Exemptions

10.61 General exemptions.
10.63 Specific exemptions.

                             Subpart H_Fees

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

                      Subpart I_Criminal Penalties

10.81 Improper disclosure.
10.83 Improper maintenance of records.

[[Page 87]]

10.85 Wrongfully obtaining records.

Appendix to Part 10--Exemptions

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

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



                   Subpart A_Applicability and Policy



Sec. 10.1  Applicability.

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

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



Sec. 10.3  Policy.

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



Sec. 10.5  Definitions.

    Unless the context requires otherwise, the following definitions 
apply in this part:
    Administrator means the head of an operating administration and 
includes the Under Secretary for Security and the Commandant of the 
Coast Guard.
    Department means the Department of Transportation, including the 
Office of the Secretary, the Office of Inspector General, and the 
following operating administrations: This definition specifically 
excludes the Surface Transportation Board, which has its own Privacy Act 
regulations (49 CFR Part 1007), except to the extent that any system of 
records notice provides otherwise.
    (1) Federal Aviation Administration.
    (2) Federal Highway Administration.
    (3) Federal Motor Carrier Safety Administration.
    (4) Federal Railroad Administration.
    (5) Federal Transit Administration.
    (6) National Highway Traffic Safety Administration.
    (7) St. Lawrence Seaway Development Corporation.
    (8) Pipeline and Hazardous Materials Safety Administration.
    (9) Research and Innovative Technology Administration.
    (10) Maritime Administration.
    General Counsel means the General Counsel of the Department.
    Includes means ``includes but is not limited to;''
    Individual means a citizen of the United States or an alien lawfully 
admitted;
    Maintain includes maintain, collect, use, or disseminate;
    May is used in a permissive sense to state authority or permission 
to do the act prescribed;
    Record means any item, collection, or grouping of information about 
an individual that is maintained by the Department including, but not 
limited to, education, financial transactions, medical history, and 
criminal or employment history and that contains the name of, or an 
identifying number, symbol, or other identifying particular assigned to, 
the individual, such as a finger or voice print or a photograph;
    Secretary means the Secretary of Transportation or any person to 
whom has been delegated authority in the matter concerned;
    System of records means a group of any records under the control of 
the Department from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual;
    Statistical record means a record in a system of records maintained 
for statistical research or reporting purposes only and not in whole or 
in part in making any determination about an identifiable individual, 
except as provided by section 8 of title 13, United States Code; and
    Routine use means, with respect to the disclosure of a record, the 
use of

[[Page 88]]

such record for a purpose which is compatible with the purpose for which 
it was collected.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 65 
FR 48184, Aug. 7, 2000; 67 FR 54746, Aug. 26, 2002; 73 FR 33329, June 
12, 2008]



                            Subpart B_General



Sec. 10.11  Administration of part.

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

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 73 
FR 33329, June 12, 2008]



Sec. 10.13  Privacy Officer.

    (a) To assist with implementation, evaluation, and administration 
issues, the Chief Information Officer appoints a principal coordinating 
official with the title Privacy Officer, and one Privacy Act Coordinator 
from his/her staff.
    (b) Inquiries concerning Privacy Act matters, or requests for 
assistance, may be addressed to the Privacy Act Officer (S-80), 
Department of Transportation, 1200 New Jersey Avenue, SE., Washington, 
DC 20590.
    (c) Administrators may designate Privacy Officers or Coordinators to 
act as central coordinators within their administrations to assist them 
in administering the Act.

[73 FR 33329, June 12, 2008]



Sec. 10.15  Protection of records.

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

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

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

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



                    Subpart C_Maintenance of Records



Sec. 10.21  General.

    Except to the extent that a system of records is exempt in 
accordance with subpart G of this part, the Department, with respect to 
each system of records:
    (a) Maintains in its records only such information about an 
individual as is relevant and necessary to accomplish a purpose of the 
Department required to be accomplished by statute or by executive order 
of the President;
    (b) Collects information to the greatest extent practicable directly 
from the subject individual when the information may result in adverse 
determinations about an individual's rights, benefits, or privileges 
under Federal programs;

[[Page 89]]

    (c) Informs each individual whom it asks to supply information, on 
the form which it uses to collect the information or on a separate form 
that can be retained by the individual of:
    (1) The authority (whether granted by statute, or by executive order 
of the President) which authorizes the solicitation of the information 
and whether disclosure of such information is mandatory or voluntary;
    (2) The principal purpose or purposes for which the information is 
intended to be used;
    (3) The routine uses, as published pursuant to paragraph (d)(4) of 
this section, which may be made of the information; and
    (4) The effects, if any, on the individual of not providing all or 
any part of the requested information;
    (d) Publishes in the Federal Register at least annually a notice of 
the existence and character of the system of records, including:
    (1) The name and location of the system;
    (2) The categories of individuals on whom records are maintained in 
the system;
    (3) The categories of records maintained in the system;
    (4) Each routine use of the records contained in the system, 
including the categories of users and the purpose of such use;
    (5) The policies and practices regarding storage, retrievability, 
access controls, retention, and disposal of the records;
    (6) The title and business address of the official responsible for 
the system of records;
    (7) The procedures whereby an individual can be notified upon 
request if the system of records contains a record pertaining to that 
individual;
    (8) The procedures whereby an individual can be notified upon 
request how to gain access to any record pertaining to that individual 
contained in the system of records, and how to contest its content; and
    (9) The categories of sources of records in the system;
    (e) Maintains all records which are used in making any determination 
about any individual with such accuracy, relevancy, timeliness, and 
completeness as is reasonably necessary to assure fairness to the 
individual in the determination;
    (f) Prior to disseminating any record about an individual to any 
person other than an agency, unless the dissemination is made pursuant 
to Sec. 10.35(a)(2), makes reasonable efforts to assure that such 
records are accurate, complete, timely, and relevant for the 
Department's purposes;
    (g) Maintains no record describing how any individual exercises 
rights guaranteed by the First Amendment unless:
    (1) Expressly authorized by the General Counsel; and
    (2) Expressly authorized by statute or by the individual about whom 
the record is maintained or unless pertinent to and within the scope of 
an authorized law enforcement activity;
    (h) Makes reasonable efforts to serve notice on an individual when 
any record on such individual is made available to any person under 
compulsory legal process when such process becomes a matter of public 
record.



Sec. 10.23  Accounting of disclosures.

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

[[Page 90]]

dispute made by the agency in accordance with Sec. 10.45 of any record 
that has been disclosed to the person or agency if an accounting of the 
disclosure was made.

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



Sec. 10.25  Mailing lists.

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



Sec. 10.27  Government contractors.

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



Sec. 10.29  Social Security numbers.

    (a) No individual is denied any right, benefit, or privilege 
provided by law because of such individual's refusal to disclose his 
Social Security account number.
    (b) The provisions of paragraph (a) of this section do not apply to:
    (1) Any disclosure which is required by Federal statute; or
    (2) The disclosure of a Social Security number when such disclosure 
was required under statute or regulation adopted prior to January 1, 
1975, to verify the identity of an individual.
    (c) When an individual is requested to disclose his or her Social 
Security account number, that individual is informed whether that 
disclosure is mandatory or voluntary, by what statutory or other 
authority such number is solicited, what uses are made of it, and what 
detriments, including delay in the location of records, are incurred if 
the number is not provided.



                    Subpart D_Availability of Records



Sec. 10.31  Requests for records.

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

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



Sec. 10.33  Acknowledgment and access.

    (a) Requests by an individual to determine whether he or she is the 
subject of a record in a system of records, or requesting access to a 
record in a system of records, should be acknowledged within 10 working 
days, where the request is by mail. For requests in person, an immediate 
response is given, either granting access or informing such individual 
when notification or access may be expected.
    (b) If the response granting access or copies of the record is made 
within 10 working days, separate acknowledgment is not required.

[[Page 91]]

    (c) Although requests for access to a record are normally in 
writing, e.g., by filing a written form or letter, it is the option of 
the individual to mail or present the request form in person.



Sec. 10.35  Conditions of disclosure.

    (a) No record that is contained within a system of records of the 
Department is disclosed by any means of communication to any person, or 
to another agency, except pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record pertains, 
unless disclosure of the record would be:
    (1) To those officers and employees of the Department who have a 
need for the record in the performance of their duties;
    (2) Required under part 7 of this title which implements the Freedom 
of Information Act;
    (3) For a routine use as defined in Sec. 10.5 and described 
pursuant to Sec. 10.21(d)(4);
    (4) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
title 13, United States Code;
    (5) To a recipient who has provided the Department with advance 
adequate written assurance that the record will be used solely as a 
statistical research or reporting record, and the record is to be 
transferred in a form that is not individually identifiable;
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for evaluation by the 
Administrator of General Services or his designee to determine whether 
the record has such value;
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the agency which maintains the record specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought;
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (9) To either House of the Congress, or to the extent of matters 
within its jurisdiction, any committee or subcommittee thereof, any 
joint committee of the Congress or subcommittee of any such joint 
committee;
    (10) To the Comptroller General, or any authorized representatives, 
in the course of the performance of the duties of the General Accounting 
Office; or
    (11) Pursuant to the order of a court of competent jurisdiction.
    (12) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(f).
    (b) Any individual requesting access to his or her record or to any 
information pertaining to that individual which is contained within a 
system of records within the Department has access to that record or 
information unless the system of records within which the record or 
information is contained is exempted from disclosure in accordance with 
subpart G, provided, however, that nothing in this part is deemed to 
require that an individual be given access to any information compiled 
in reasonable anticipation of a civil action or proceeding. No exemption 
contained in subpart G of part 7 of the regulations of the Office of the 
Secretary is relied upon to withhold from an individual any record which 
is otherwise accessible to such individual under the provisions of this 
part. Any individual who is given access to a record or information 
pertaining to him is permitted to have a person of his or her own 
choosing accompany him and to have a copy made of all or any portion of 
the record or information in a form comprehensible to the individual. 
When deemed appropriate, the individual may be required to furnish a 
written statement authorizing discussion of his record in the 
accompanying person's presence.
    (c) Medical records. Where requests are for access to medical 
records, including psychological records, the decision to release 
directly to the individual, or to withhold direct release,

[[Page 92]]

shall be made by a medical practitioner. Where the medical practitioner 
has ruled that direct release will do harm to the individual who is 
requesting access, normal release through the individual's chosen 
medical practitioner will be recommended. Final review and decision on 
appeals of disapprovals of direct release will rest with the General 
Counsel.
    (d) Any person requesting access to records or to any information 
pertaining to other individuals is not granted such access unless that 
person can show that he or she has obtained permission for such access 
from the individual to whom the record pertains, unless the request 
comes within one of the exceptions of paragraph (a) of this section.

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



Sec. 10.37  Identification of individual making request.

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

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



Sec. 10.39  Location of records.

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

[62 FR 23667, May 1, 1997]



                     Subpart E_Correction of Records



Sec. 10.41  Requests for correction of records.

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

[62 FR 23667, May 1, 1997]



Sec. 10.43  Time limits.

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



Sec. 10.45  Statement of disagreement.

    If a determination is made not to amend a record, the requester is 
informed of the right to file a concise statement setting forth the 
reasons for disagreement with the refusal to amend. In any disclosure 
containing information about which an individual

[[Page 93]]

has filed such a statement of disagreement, the portions of the record 
which are disputed are noted clearly and copies of the statement of 
disagreement provided. If the Administrator concerned or his or her 
delegee, or in the case of the Office of the Secretary, the General 
Counsel or his or her delegee, deems it appropriate, copies of a concise 
statement of the reasons for not making the amendments requested may be 
provided along with the statement of disagreement.



Subpart F_Procedures for Reconsidering Decisions Not To Grant Access to 
                            or Amend Records



Sec. 10.51  General.

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

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

[[Page 94]]



                          Subpart G_Exemptions



Sec. 10.61  General exemptions.

    (a) The Assistant Secretary for Administration, with regard to the 
Investigations Division; and the Federal Aviation Administrator, with 
regard to the FAA's Investigative Record System (DOT/FAA 815) may exempt 
from any part of the Act and this part except subsections (b), (c)(1) 
and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and 
(i) of the Act, and implementing Sec. Sec. 10.35, 10.23(a) and (b), 
10.21(d)(1) through (6), 10.81, 10.83, and 10.85 of this chapter, any 
systems of records, or portions thereof, which they maintain which 
consist wholly of;
    (1) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status;
    (2) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (3) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision.
    (b) The requirements (including general notice) of sections 
553(b)(1), (2) and (3), and (c) and (e) of title 5, United States Code, 
will be met by publication in appendix A to this part, which must, at a 
minimum, specify:
    (1) The name of the system; and
    (2) The specific provisions of the Act from which the system is to 
be exempted and the reasons therefor.
    (c) Any decision to exempt a system of records under this section is 
subject to concurrence by the General Counsel.
    (d) Any person may petition the Secretary in accordance with the 
provisions of part 5 of this title, to institute a rulemaking proceeding 
for the amendment or repeal of any exemptions established under this 
section.

[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993; 73 
FR 33329, June 12, 2008]



Sec. 10.63  Specific exemptions.

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

[[Page 95]]

only to the extent that the disclosure of such material would reveal the 
identity of a source who furnished information to the Government under 
an express promise that the identity of the source would be held in 
confidence, or, prior to September 27, 1975, the effective date of the 
Privacy Act of 1974, under an implied promise that the identity of the 
source would be held in confidence;
    (6) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process; or
    (7) Evaluation material used to determine potential for promotion in 
the armed services, but only to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or, prior to the effective date of 
this section, under an implied promise that the identity of the source 
would be held in confidence.
    (b) The requirements (including general notice) of sections 553 (b) 
(1), (2) and (3), and (c) and (e) of title 5, United States Code, will 
be met by publication in appendix A to this part, which must, at a 
minimum, specify:
    (1) The name of the systems; and
    (2) The specific provisions of the Act from which the system is to 
be exempted and the reasons therefor.
    (c) Any decision to exempt a system of records under this section is 
subject to the concurrence of the General Counsel.
    (d) Any person may petition the Secretary in accordance with the 
provisions of 49 CFR part 5, to institute a rulemaking for the amendment 
or repeal of any exemptions established under this section.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 73 
FR 33329, June 12, 2008]



                             Subpart H_Fees



Sec. 10.71  General.

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



Sec. 10.73  Payment of fees.

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



Sec. 10.75  Fee schedule.

(a) Copies of documents by photocopy or similar method:
  Each page not larger than 11x17 inches:
    First page.................................................     $.25
    Each page..................................................      .05
(b) Copies of documents by typewriter: Each page...............     2.00
(c) Certified copies of documents:
  (1) With Department of Transportation seal...................     3.00
  (2) True copy, without seal..................................     1.00
(d) Photographs:
  (1) Black and white print (from negative)....................     1.25
  (2) Black and white print (from print).......................     3.15
  (3) Color print (from negative)..............................     3.50
  (4) Color print (from print).................................     6.25
(e) Duplicate data tapes--each reel of tape or fraction thereof    36.00
 


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

(f) Microreproduction fees are as follows:
  (1) Microfilm copies, each 100 foot roll or less.............    $3.75
  (2) Microfiche copies, each standard size sheet (4x6 containing up to 65 frames)................
  (3) Apertune card to hard copy, each copy....................      .50
  (4) 16mm microfilm to hard copy:
    First......................................................      .25
    Additional.................................................      .07
(g) Computerline printer output, each 1,000 lines or fraction       1.00
 thereof.......................................................
 



Sec. 10.77  Services performed without charge.

    (a) No fee is charged for time spent in searching for records or 
reviewing or preparing correspondence related to records subject to this 
part.
    (b) No fee is charged for documents furnished in response to:

[[Page 96]]

    (1) A request from an employee or former employee of the Department 
for copies of personnel records of the employee;
    (2) A request from a Member of Congress for official use;
    (3) A request from a State, territory, U.S. possession, county or 
municipal government, or an agency thereof;
    (4) A request from a court that will serve as a substitute for the 
personal court appearance of an officer or employee of the Department;
    (5) A request from a foreign government or an agency thereof, or an 
international organization.
    (c) Documents are furnished without charge or at a reduced charge, 
if the Assistant Secretary for Administration or the Administrator 
concerned, as the case may be, determines that waiver or reduction of 
the fee is in the public interest, because furnishing the information 
can be considered as primarily benefiting the general public.
    (d) When records are maintained in computer-readable form rather 
than human-readable form, one printed copy is made available which has 
been translated to human-readable form without a charge for translation 
but in accordance with Sec. 10.75(g), regarding computer line-printed 
charges.

[45 FR 8993, Feb. 11, 1980, as amended at 73 FR 33329, June 12, 2008]



                      Subpart I_Criminal Penalties



Sec. 10.81  Improper disclosure.

    Any officer or employee of the Department who by virtue of his or 
her employment or official position, has possession of, or access to, 
agency records which contain individually identifiable information the 
disclosure of which is prohibited by this part and who knowing that 
disclosure of the specific material is so prohibited, willfully 
discloses the material in any manner to any person or agency not 
entitled to receive it, is guilty of a misdemeanor and fined not more 
than $5,000 in accordance with 5 U.S.C. 552a(i)(1).



Sec. 10.83  Improper maintenance of records.

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



Sec. 10.85  Wrongfully obtaining records.

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



                  Sec. Appendix to Part 10--Exemptions

                       Part I. General Exemptions

    Those portions of the following systems of records that consist of 
(a) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status; (b) information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or (c) reports identifiable 
to an individual compiled at any stage of the process of enforcement of 
the criminal laws from arrest or indictment through release from 
supervision, are exempt from all parts of 5 U.S.C. 552a except 
subsections (b) (Conditions of disclosure); (c) (1) and (2) (Accounting 
of certain disclosures); (e)(4) (A) through (F) (Publication of 
existence and character of system); (e)(6) (Ensure records are accurate, 
relevant, timely, and complete before disclosure to person other than an 
agency and other than pursuant to a Freedom of Information Act request), 
(7) (Restrict recordkeeping on First Amendment rights), (9) (Rules of 
conduct), (10) (Safeguards), and (11) (Routine use publication); and (i) 
(Criminal penalties):
    A. The Investigative Records System maintained by the Assistant 
Inspector General for Investigations, Office of the Inspector General, 
Office of the Secretary (DOT/OST 100).
    B. Police Warrant Files and Central Files maintained by the Federal 
Aviation Administration (DOT/FAA 807).
    C. The Investigative Records System maintained by the Federal 
Aviation Administration regarding criminal investigations conducted by 
offices of Investigations and Security at headquarters and FAA Regional 
and Center Security Divisions (DOT/FAA 815).
    These exemptions are justified for the following reasons:

[[Page 97]]

    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to avoid 
the thrust of the investigation, etc.
    2. From subsections (d), (e)(4) (G) and (H), (f), and (g), because 
granting an individual access to investigative records, and granting 
him/her rights to amend/contest that information, interfere with the 
overall law enforcement process by revealing a pending sensitive 
investigation, possibly identify a confidential source, disclose 
information that would constitute an unwarranted invasion of another 
individual's personal privacy, reveal a sensitive investigative 
technique, or constitute a potential danger to the health or safety of 
law enforcement personnel.
    3. From subsection (e)(1), because it is often impossible to 
determine relevancy or necessity of information in the early stages of 
an investigation. The value of such information is a question of 
judgement and timing: what appears relevant and necessary when collected 
may ultimately be evaluated and viewed as irrelevant and unnecessary to 
an investigation. In addition, DOT may obtain information concerning the 
violation of laws other than those within the scope of its jurisdiction. 
In the interest of effective law enforcement, DOT should retain this 
information because it may aid in establishing patterns of unlawful 
activity and provide leads for other law enforcement agencies. Further, 
in obtaining evidence during an investigation, information may be 
provided to DOT that relates to matters incidental to the main purpose 
of the investigation but that may be pertinent to the investigative 
jurisdiction of another agency. Such information cannot readily be 
identified.
    4. From subsection (e)(2), because in a law enforcement 
investigation it is usually counterproductive to collect information to 
the greatest extent practicable directly from the subject of the 
information. It is not always feasible to rely upon the subject of an 
investigation as a source for information that may implicate him/her in 
illegal activities. In addition, collecting information directly from 
the subject could seriously compromise an investigation by prematurely 
revealing its nature and scope, or could provide the subject with an 
opportunity to conceal criminal activities, or intimidate potential 
sources, in order to avoid apprehension.
    5. From subsection (e)(3), because providing such notice to the 
subject of an investigation, or to other individual sources, could 
seriously compromise the investigation by prematurely revealing its 
nature and scope, or could inhibit cooperation, permit the subject to 
evade apprehension, or cause interference with undercover activities.

                      Part II. Specific Exemptions

    A. The following systems of records are exempt from subsection 
(c)(3) (Accounting of Certain Disclosures), (d) (Access to Records), 
(e)(4)(G), (H), and (I) (Agency Requirements), and (f) (Agency Rules) of 
5 USC 552a, to the extent that they contain investigatory material 
compiled for law enforcement purposes in accordance with 5 USC 
552a(k)(2):
    1. Investigative Record System (DOT/FAA 815) maintained by the 
Federal Aviation Administration at the Office of Civil Aviation Security 
in Washington, DC; the FAA regional Civil Aviation Security Divisions; 
the Civil Aviation Security Division at the Mike Monroney Aeronautical 
Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff 
at the FAA Technical Center in Atlantic City, New Jersey; and the 
various Federal Records Centers located throughout the country.
    2. FHWA Investigations Case File System, maintained by the Office of 
Program Review and Investigations, Federal Highway Administration (DOT/
FHWA 214).
    3. [Reserved]
    4. FHWA Motor Carrier Safety Proposed Civil and Criminal Enforcement 
Cases, maintained by the Bureau of Motor Carrier Safety, Federal Highway 
Administration (DOT/FHWA 204).
    5. DOT/NHTSA Investigations of Alleged Misconduct or Conflict of 
Interest, maintained by the Associate Administrator for Administration, 
National Highway Traffic Safety Administration (DOT/NHTSA 458).
    6. [Reserved]
    7. Suspected Unapproved Parts (SUP) Program, maintained by the 
Federal Aviation Administration (DOT/FAA 852).
    8. Motor Carrier Management Information System (MCMIS), maintained 
by the Federal Motor Carrier Safety Administration (DOT/FMCSA 001). 
These exemptions are justified for the following reasons:
    9-11. [Reserved]
    12. Civil Aviation Security System (DOT/FAA 813), maintained by the 
Office of Civil Aviation Security Policy and Planning, Federal Aviation 
Administration.
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to avoid 
the thrust of the investigation, etc.

[[Page 98]]

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

[[Page 99]]

    1. Investigative Record System maintained by the Assistant Inspector 
General for Investigations in the Office of the Inspector General (DOT/
OST 100).
    2. Personnel Security Records System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 016).
    3. Civil Aviation Security System (DOT/FAA 813), maintained by the 
Office of Civil Aviation Security, Federal Aviation Administration.
    The purpose of these exemptions is to prevent the disclosure of 
material authorized to be kept secret in the interest of national 
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 
552a(k)(1).
    G. Those portions of the following systems of records which consist 
of information properly classified in the interest of national defense 
or foreign policy in accordance with 5 U.S.C. 552a(b)(1) are exempt from 
subsections (c)(3) (Accounting of Certain Disclosures) and (d) (Access 
to Records) of 5 U.S.C. 552a:
    1. Investigative Record System (DOT/FAA 815) maintained by the 
Federal Aviation Administration at the Office of Civil Aviation Security 
in Washington, DC; the FAA regional Civil Aviation Security Divisions; 
the Civil Aviation Security Division at the Mike Monroney Aeronautical 
Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff 
at the FAA Technical Center in Atlantic City, New Jersey; and the 
various Federal Records Centers located throughout the country.
    The purpose of these exemptions is to prevent the disclosure of 
material authorized to be kept secret in the interest of national 
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 
552a(k)(1).

[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993; 59 
FR 13662, Mar. 23, 1994; 60 FR 43983, Aug. 24, 1995. Redesignated at 62 
FR 23667, May 1, 1997, as amended at 63 FR 2172, Jan. 14, 1998; 63 FR 
4197, Jan. 28, 1998; 66 FR 20407, Apr. 23, 2001; 73 FR 33329, June 12, 
2008]



PART 11_PROTECTION OF HUMAN SUBJECTS--Table of Contents




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

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

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



Sec. 11.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a federal department 
or agency, whether or not it is regulated as defined in Sec. 11.102(e), 
must comply with all sections of this policy.
    (2) Research that is neither conducted nor supported by a federal 
department or agency but is subject to regulation as defined in Sec. 
11.102(e) must be reviewed and approved, in compliance with Sec. 
11.101, Sec. 11.102, and Sec. 11.107

[[Page 100]]

through Sec. 11.117 of this policy, by an institutional review board 
(IRB) that operates in accordance with the pertinent requirements of 
this policy.
    (b) Unless otherwise required by department or agency heads, 
research activities in which the only involvement of human subjects will 
be in one or more of the following categories are exempt from this 
policy:
    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational practices, such as 
(i) research on regular and special education instructional strategies, 
or (ii) research on the effectiveness of or the comparison among 
instructional techniques, curricula, or classroom management methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and
    (ii) Any disclosure of the human subjects' responses outside the 
research could reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates for public office; or (ii) federal statute(s) require(s) 
without exception that the confidentiality of the personally 
identifiable information will be maintained throughout the research and 
thereafter.
    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.
    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs; (ii) procedures for 
obtaining benefits or services under those programs; (iii) possible 
changes in or alternatives to those programs or procedures; or (iv) 
possible changes in methods or levels of payment for benefits or 
services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies, (i) if wholesome foods without additives are consumed or (ii) 
if a food is consumed that contains a food ingredient at or below the 
level and for a use found to be safe, or agricultural chemical or 
environmental contaminant at or below the level found to be safe, by the 
Food and Drug Administration or approved by the Environmental Protection 
Agency or the Food Safety and Inspection Service of the U.S. Department 
of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human

[[Page 101]]

subjects may differ from those set forth in this policy. [An example is 
a foreign institution which complies with guidelines consistent with the 
World Medical Assembly Declaration (Declaration of Helsinki amended 
1989) issued either by sovereign states or by an organization whose 
function for the protection of human research subjects is 
internationally recognized.] In these circumstances, if a department or 
agency head determines that the procedures prescribed by the institution 
afford protections that are at least equivalent to those provided in 
this policy, the department or agency head may approve the substitution 
of the foreign procedures in lieu of the procedural requirements 
provided in this policy. Except when otherwise required by statute, 
Executive Order, or the department or agency head, notices of these 
actions as they occur will be published in the Federal Register or will 
be otherwise published as provided in department or agency procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy. Except when otherwise required by 
statute or Executive Order, the department or agency head shall forward 
advance notices of these actions to the Office for Human Research 
Protections, Department of Health and Human Services (HHS), or any 
successor office, and shall also publish them in the Federal Register or 
in such other manner as provided in department or agency procedures. \1\
---------------------------------------------------------------------------

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

[56 FR 28012, 28023, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec. 11.102  Definitions.

    (a) Department or agency head means the head of any federal 
department or agency and any other officer or employee of any department 
or agency to whom authority has been delegated.
    (b) Institution means any public or private entity or agency 
(including federal, state, and other agencies).
    (c) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research.
    (d) Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program which is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities.
    (e) Research subject to regulation, and similar terms are intended 
to encompass those research activities for which a federal department or 
agency has specific responsibility for regulating as a research 
activity, (for example, Investigational New Drug requirements 
administered by the Food and Drug Administration). It does not include 
research activities which are incidentally regulated by a federal 
department or agency solely as part of the department's or agency's 
broader responsibility to regulate certain types of activities whether 
research or non-research in nature (for example, Wage and Hour 
requirements administered by the Department of Labor).
    (f) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.

[[Page 102]]


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



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

    (a) Each institution engaged in research which is covered by this 
policy and which is conducted or supported by a federal department or 
agency shall provide written assurance satisfactory to the department or 
agency head that it will comply with the requirements set forth in this 
policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Human Research Protections, HHS, or any successor office, and 
approved for federalwide use by that office. When the existence of an 
HHS-approved assurance is accepted in lieu of requiring submission of an 
assurance, reports (except certification) required by this policy to be 
made to department and agency heads shall also be made to the Office for 
Human Research Protections, HHS, or any successor office.
    (b) Departments and agencies will conduct or support research 
covered by this policy only if the institution has an assurance approved 
as provided in this section, and only if the institution has certified 
to the department or agency head that the research has been reviewed and 
approved by an IRB provided for in the assurance, and will be subject to 
continuing review by the IRB. Assurances applicable to federally 
supported or conducted research shall at a minimum include:
    (1) A statement of principles governing the institution in the 
discharge of its responsibilities for protecting the rights and welfare 
of human subjects of research conducted at or sponsored by the 
institution, regardless of whether the research is subject to federal 
regulation. This may include an appropriate existing code, declaration, 
or statement of ethical principles, or a statement formulated by the 
institution itself. This requirement does not preempt provisions of this 
policy applicable to department- or agency-supported or regulated 
research and need not be applicable to any research exempted or waived 
under Sec. 11.101 (b) or (i).
    (2) Designation of one or more IRBs established in accordance with 
the requirements of this policy, and for which provisions are made for 
meeting space and sufficient staff to support

[[Page 103]]

the IRB's review and recordkeeping duties.
    (3) A list of IRB members identified by name; earned degrees; 
representative capacity; indications of experience such as board 
certifications, licenses, etc., sufficient to describe each member's 
chief anticipated contributions to IRB deliberations; and any employment 
or other relationship between each member and the institution; for 
example: full-time employee, part-time employee, member of governing 
panel or board, stockholder, paid or unpaid consultant. Changes in IRB 
membership shall be reported to the department or agency head, unless in 
accord with Sec. 11.103(a) of this policy, the existence of an HHS-
approved assurance is accepted. In this case, change in IRB membership 
shall be reported to the Office for Human Research Protections, HHS, or 
any successor ofice.
    (4) Written procedures which the IRB will follow (i) for conducting 
its initial and continuing review of research and for reporting its 
findings and actions to the investigator and the institution; (ii) for 
determining which projects require review more often than annually and 
which projects need verification from sources other than the 
investigators that no material changes have occurred since previous IRB 
review; and (iii) for ensuring prompt reporting to the IRB of proposed 
changes in a research activity, and for ensuring that such changes in 
approved research, during the period for which IRB approval has already 
been given, may not be initiated without IRB review and approval except 
when necessary to eliminate apparent immediate hazards to the subject.
    (5) Written procedures for ensuring prompt reporting to the IRB, 
appropriate institutional officials, and the department or agency head 
of (i) any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB and (ii) any suspension or 
termination of IRB approval.
    (c) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (d) The department or agency head will evaluate all assurances 
submitted in accordance with this policy through such officers and 
employees of the department or agency and such experts or consultants 
engaged for this purpose as the department or agency head determines to 
be appropriate. The department or agency head's evaluation will take 
into consideration the adequacy of the proposed IRB in light of the 
anticipated scope of the institution's research activities and the types 
of subject populations likely to be involved, the appropriateness of the 
proposed initial and continuing review procedures in light of the 
probable risks, and the size and complexity of the institution.
    (e) On the basis of this evaluation, the department or agency head 
may approve or disapprove the assurance, or enter into negotiations to 
develop an approvable one. The department or agency head may limit the 
period during which any particular approved assurance or class of 
approved assurances shall remain effective or otherwise condition or 
restrict approval.
    (f) Certification is required when the research is supported by a 
federal department or agency and not otherwise exempted or waived under 
Sec. 11.101 (b) or (i). An institution with an approved assurance shall 
certify that each application or proposal for research covered by the 
assurance and by Sec. 11.103 of this Policy has been reviewed and 
approved by the IRB. Such certification must be submitted with the 
application or proposal or by such later date as may be prescribed by 
the department or agency to which the application or proposal is 
submitted. Under no condition shall research covered by Sec. 11.103 of 
the Policy be supported prior to receipt of the certification that the 
research has been reviewed and approved by the IRB. Institutions without 
an approved assurance covering the research shall certify within 30 days 
after receipt of a request for such a certification from the department 
or agency, that the application or proposal has been approved by the 
IRB. If the certification is not submitted within these time limits, the

[[Page 104]]

application or proposal may be returned to the institution.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28023, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec. Sec. 11.104-11.106  [Reserved]



Sec. 11.107  IRB membership.

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



Sec. 11.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:
    (a) Follow written procedures in the same detail as described in 
Sec. 11.103(b)(4) and, to the extent required by, Sec. 11.103(b)(5).
    (b) Except when an expedited review procedure is used (see Sec. 
11.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 11.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy.
    (b) An IRB shall require that information given to subjects as part 
of informed consent is in accordance with Sec. 11.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 11.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 11.117.

[[Page 105]]

    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research covered by 
this policy at intervals appropriate to the degree of risk, but not less 
than once per year, and shall have authority to observe or have a third 
party observe the consent process and the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



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

approved research.

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


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

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 11.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized: (i) By using procedures which 
are consistent with sound research design and which do not unnecessarily 
expose subjects to risk, and (ii) whenever appropriate, by using 
procedures already being performed on the subjects for diagnostic or 
treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of

[[Page 106]]

the special problems of research involving vulnerable populations, such 
as children, prisoners, pregnant women, mentally disabled persons, or 
economically or educationally disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by Sec. 11.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 11.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, pregnant 
women, mentally disabled persons, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 11.112  Review by institution.

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



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

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

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 11.114  Cooperative research.

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



Sec. 11.115  IRB records.

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

[[Page 107]]

    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research which is conducted shall 
be retained for at least 3 years after completion of the research. All 
records shall be accessible for inspection and copying by authorized 
representatives of the department or agency at reasonable times and in a 
reasonable manner.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 11.116  General requirements for informed consent.

    Except as provided elsewhere in this policy, no investigator may 
involve a human being as a subject in research covered by this policy 
unless the investigator has obtained the legally effective informed 
consent of the subject or the subject's legally authorized 
representative. An investigator shall seek such consent only under 
circumstances that provide the prospective subject or the representative 
sufficient opportunity to consider whether or not to participate and 
that minimize the possibility of coercion or undue influence. The 
information that is given to the subject or the representative shall be 
in language understandable to the subject or the representative. No 
informed consent, whether oral or written, may include any exculpatory 
language through which the subject or the representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution or 
its agents from liability for negligence.
    (a) Basic elements of informed consent. Except as provided in 
paragraph (c) or (d) of this section, in seeking informed consent the 
following information shall be provided to each subject:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures which are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others which 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject; and
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled.
    (b) Additional elements of informed consent. When appropriate, one 
or more of the following elements of information shall also be provided 
to each subject:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) which are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;

[[Page 108]]

    (5) A statement that significant new findings developed during the 
course of the research which may relate to the subject's willingness to 
continue participation will be provided to the subject; and
    (6) The approximate number of subjects involved in the study.
    (c) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth above, or waive the requirement to obtain informed consent 
provided the IRB finds and documents that:
    (1) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine: (i) public benefit of 
service programs; (ii) procedures for obtaining benefits or services 
under those programs; (iii) possible changes in or alternatives to those 
programs or procedures; or (iv) possible changes in methods or levels of 
payment for benefits or services under those programs; and
    (2) The research could not practicably be carried out without the 
waiver or alteration.
    (d) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth in this section, or waive the requirements to obtain informed 
consent provided the IRB finds and documents that:
    (1) The research involves no more than minimal risk to the subjects;
    (2) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects;
    (3) The research could not practicably be carried out without the 
waiver or alteration; and
    (4) Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation.
    (e) The informed consent requirements in this policy are not 
intended to preempt any applicable Federal, state, or local laws which 
require additional information to be disclosed in order for informed 
consent to be legally effective.
    (f) Nothing in this policy is intended to limit the authority of a 
physician to provide emergency medical care, to the extent the physician 
is permitted to do so under applicable Federal, state, or local law.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 11.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written consent form 
approved by the IRB and signed by the subject or the subject's legally 
authorized representative. A copy shall be given to the person signing 
the form.
    (b) Except as provided in paragraph (c) of this section, the consent 
form may be either of the following:
    (1) A written consent document that embodies the elements of 
informed consent required by Sec. 11.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator shall give either the subject or the 
representative adequate opportunity to read it before it is signed; or
    (2) A short form written consent document stating that the elements 
of informed consent required by Sec. 11.116 have been presented orally 
to the subject or the subject's legally authorized representative. When 
this method is used, there shall be a witness to the oral presentation. 
Also, the IRB shall approve a written summary of what is to be said to 
the subject or the representative. Only the short form itself is to be 
signed by the subject or the representative. However, the witness shall 
sign both the short form and a copy of the summary, and the person 
actually obtaining consent shall sign a copy of the summary. A copy of 
the summary shall be given to the subject or the representative, in 
addition to a copy of the short form.
    (c) An IRB may waive the requirement for the investigator to obtain 
a signed consent form for some or all subjects if it finds either:
    (1) That the only record linking the subject and the research would 
be the consent document and the principal risk would be potential harm 
resulting

[[Page 109]]

from a breach of confidentiality. Each subject will be asked whether the 
subject wants documentation linking the subject with the research, and 
the subject's wishes will govern; or
    (2) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context.
    In cases in which the documentation requirement is waived, the IRB 
may require the investigator to provide subjects with a written 
statement regarding the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



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

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



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

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



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

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



Sec. 11.121  [Reserved]



Sec. 11.122  Use of Federal funds.

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



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

    (a) The department or agency head may require that department or 
agency support for any project be terminated or suspended in the manner 
prescribed in applicable program requirements, when the department or 
agency head finds an institution has materially failed to comply with 
the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other

[[Page 110]]

eligibility requirements and program criteria, factors such as whether 
the applicant has been subject to a termination or suspension under 
paragarph (a) of this section and whether the applicant or the person or 
persons who would direct or has/have directed the scientific and 
technical aspects of an activity has/have, in the judgment of the 
department or agency head, materially failed to discharge responsibility 
for the protection of the rights and welfare of human subjects (whether 
or not the research was subject to Federal regulation).



Sec. 11.124  Conditions.

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



PART 15_PROTECTION OF SENSITIVE SECURITY INFORMATION--
Table of Contents




Sec.
15.1 Scope.
15.3 Terms used in this part.
15.5 Sensitive security information.
15.7 Covered persons.
15.9 Restrictions on the disclosure of SSI.
15.11 Persons with a need to know.
15.13 Marking SSI.
15.15 SSI disclosed by DOT.
15.17 Consequences of unauthorized disclosure of SSI.
15.19 Destruction of SSI.

    Authority: 49 U.S.C. 40119.

    Source: 69 FR 28078, May 18, 2004, unless otherwise noted.



Sec. 15.1  Scope.

    (a) Applicability. This part governs the maintenance, safeguarding, 
and disclosure of records and information that the Secretary of DOT has 
determined to be Sensitive Security Information, as defined in Sec. 
15.5. This part does not apply to the maintenance, safeguarding, or 
disclosure of classified national security information, as defined by 
Executive Order 12968, or to other sensitive unclassified information 
that is not SSI, but that nonetheless may be exempt from public 
disclosure under the Freedom of Information Act. In addition, in the 
case of information that has been designated as critical infrastructure 
information under section 214 of the Homeland Security Act, the receipt, 
maintenance, or disclosure of such information by a Federal agency or 
employee is governed by section 214 and any implementing regulations, 
not by this part.
    (b) Delegation. The authority of the Secretary under this part may 
be further delegated within DOT.



Sec. 15.3  Terms used in this part.

    In addition to the terms in Sec. 15.3 of this chapter, the 
following terms apply in this part:
    Administrator means the Under Secretary of Transportation for 
Security referred to in 49 U.S.C. 114(b), or his or her designee.
    Coast Guard means the United States Coast Guard.
    Covered person means any organization, entity, individual, or other 
person described in Sec. 15.7. In the case of an individual, covered 
person includes any individual applying for employment in a position 
that would be a covered person, or in training for such a position, 
regardless of whether that individual is receiving a wage, salary, or 
other form of payment. Covered person includes a person applying for 
certification or other form of approval that, if granted, would make the 
person a covered person described in Sec. 15.7.
    DHS means the Department of Homeland Security and any directorate, 
bureau, or other component within the Department of Homeland Security, 
including the United States Coast Guard.
    DOT means the Department of Transportation and any operating 
administration, entity, or office within the Department of 
Transportation, including the Saint Lawrence Seaway Development 
Corporation and the Bureau of Transportation Statistics.
    Federal Flight Deck Officer means a pilot participating in the 
Federal Flight Deck Officer Program under 49 U.S.C. 44921 and 
implementing regulations.
    Maritime facility means any facility as defined in 33 CFR part 101.
    Record includes any means by which information is preserved, 
irrespective

[[Page 111]]

of format, including a book, paper, drawing, map, recording, tape, film, 
photograph, machine-readable material, and any information stored in an 
electronic format. The term record also includes any draft, proposed, or 
recommended change to any record.
    Security contingency plan means a plan detailing response procedures 
to address a transportation security incident, threat assessment, or 
specific threat against transportation, including details of 
preparation, response, mitigation, recovery, and reconstitution 
procedures, continuity of government, continuity of transportation 
operations, and crisis management.
    Security program means a program or plan and any amendments 
developed for the security of the following, including any comments, 
instructions, or implementing guidance:
    (1) An airport, aircraft, or aviation cargo operation;
    (2) A maritime facility, vessel, or port area; or
    (3) A transportation-related automated system or network for 
information processing, control, and communications.
    Security screening means evaluating a person or property to 
determine whether either poses a threat to security.
    SSI means sensitive security information, as described in Sec. 
15.5.
    Threat image projection system means an evaluation tool that 
involves periodic presentation of fictional threat images to operators 
and is used in connection with x-ray or explosives detection systems 
equipment.
    TSA means the Transportation Security Administration.
    Vulnerability assessment means any review, audit, or other 
examination of the security of a transportation infrastructure asset; 
airport; maritime facility, port area, vessel, aircraft, train, 
commercial motor vehicle, or pipeline, or a transportation-related 
automated system or network, to determine its vulnerability to unlawful 
interference, whether during the conception, planning, design, 
construction, operation, or decommissioning phase. A vulnerability 
assessment may include proposed, recommended, or directed actions or 
countermeasures to address security concerns.



Sec. 15.5  Sensitive security information.

    (a) In general. In accordance with 49 U.S.C. 40119(b)(1), SSI is 
information obtained or developed in the conduct of security activities, 
including research and development, the disclosure of which the 
Secretary of DOT has determined would--
    (1) Constitute an unwarranted invasion of privacy (including, but 
not limited to, information contained in any personnel, medical, or 
similar file);
    (2) Reveal trade secrets or privileged or confidential information 
obtained from any person; or
    (3) Be detrimental to transportation safety.
    (b) Information constituting SSI. Except as otherwise provided in 
writing by the Secretary of DOT in the interest of public safety or in 
furtherance of transportation security, the following information, and 
records containing such information, constitute SSI:
    (1) Security programs and contingency plans. Any security program or 
security contingency plan issued, established, required, received, or 
approved by DOT or DHS, including--
    (i) Any aircraft operator or airport operator security program or 
security contingency plan under this chapter;
    (ii) Any vessel, maritime facility, or port area security plan 
required or directed under Federal law;
    (iii) Any national or area security plan prepared under 46 U.S.C. 
70103; and
    (iv) Any security incident response plan established under 46 U.S.C. 
70104.
    (2) Security Directives. Any Security Directive or order--
    (i) Issued by TSA under 49 CFR 1542.303, 1544.305, or other 
authority;
    (ii) Issued by the Coast Guard under the Maritime Transportation 
Security Act, 33 CFR part 6, or 33 U.S.C. 1221 et seq. related to 
maritime security; or
    (iii) Any comments, instructions, and implementing guidance 
pertaining thereto.
    (3) Information Circulars. Any notice issued by DHS or DOT regarding 
a threat to aviation or maritime transportation, including any--
    (i) Information Circular issued by TSA under 49 CFR 1542.303 or 
1544.305, or other authority; and

[[Page 112]]

    (ii) Navigation or Vessel Inspection Circular issued by the Coast 
Guard related to maritime security.
    (4) Performance specifications. Any performance specification and 
any description of a test object or test procedure, for--
    (i) Any device used by the Federal government or any other person 
pursuant to any aviation or maritime transportation security 
requirements of Federal law for the detection of any weapon, explosive, 
incendiary, or destructive device or substance; and
    (ii) Any communications equipment used by the Federal government or 
any other person in carrying out or complying with any aviation or 
maritime transportation security requirements of Federal law.
    (5) Vulnerability assessments. Any vulnerability assessment 
directed, created, held, funded, or approved by the DOT, DHS, or that 
will be provided to DOT or DHS in support of a Federal security program.
    (6) Security inspection or investigative information. (i) Details of 
any security inspection or investigation of an alleged violation of 
aviation or maritime transportation security requirements of Federal law 
that could reveal a security vulnerability, including the identity of 
the Federal special agent or other Federal employee who conducted the 
inspection or audit.
    (ii) In the case of inspections or investigations performed by TSA, 
this includes the following information as to events that occurred 
within 12 months of the date of release of the information: the name of 
the airport where a violation occurred, the airport identifier in the 
case number, a description of the violation, the regulation allegedly 
violated, and the identity of any aircraft operator in connection with 
specific locations or specific security procedures. Such information 
will be released after the relevant 12-month period, except that TSA 
will not release the specific gate or other location on an airport where 
an event occurred, regardless of the amount of time that has passed 
since its occurrence. During the period within 12 months of the date of 
release of the information, TSA may release summaries of an aircraft 
operator's, but not an airport operator's, total security violations in 
a specified time range without identifying specific violations or 
locations. Summaries may include total enforcement actions, total 
proposed civil penalty amounts, number of cases opened, number of cases 
referred to TSA or FAA counsel for legal enforcement action, and number 
of cases closed.
    (7) Threat information. Any information held by the Federal 
government concerning threats against transportation or transportation 
systems and sources and methods used to gather or develop threat 
information, including threats against cyber infrastructure.
    (8) Security measures. Specific details of aviation or maritime 
transportation security measures, both operational and technical, 
whether applied directly by the Federal government or another person, 
including--
    (i) Security measures or protocols recommended by the Federal 
government;
    (ii) Information concerning the deployments, numbers, and operations 
of Coast Guard personnel engaged in maritime security duties and Federal 
Air Marshals, to the extent it is not classified national security 
information; and
    (iii) Information concerning the deployments and operations of 
Federal Flight Deck Officers, and numbers of Federal Flight Deck 
Officers aggregated by aircraft operator.
    (9) Security screening information. The following information 
regarding security screening under aviation or maritime transportation 
security requirements of Federal law:
    (i) Any procedures, including selection criteria and any comments, 
instructions, and implementing guidance pertaining thereto, for 
screening of persons, accessible property, checked baggage, U.S. mail, 
stores, and cargo, that is conducted by the Federal government or any 
other authorized person.
    (ii) Information and sources of information used by a passenger or 
property screening program or system, including an automated screening 
system.
    (iii) Detailed information about the locations at which particular 
screening methods or equipment are used, only if determined by TSA to be 
SSI.

[[Page 113]]

    (iv) Any security screener test and scores of such tests.
    (v) Performance or testing data from security equipment or screening 
systems.
    (vi) Any electronic image shown on any screening equipment monitor, 
including threat images and descriptions of threat images for threat 
image projection systems.
    (10) Security training materials. Records created or obtained for 
the purpose of training persons employed by, contracted with, or acting 
for the Federal government or another person to carry out any aviation 
or maritime transportation security measures required or recommended by 
DHS or DOT.
    (11) Identifying information of certain transportation security 
personnel. (i) Lists of the names or other identifying information that 
identify persons as--
    (A) Having unescorted access to a secure area of an airport or a 
secure or restricted area of a maritime facility, port area, or vessel 
or;
    (B) Holding a position as a security screener employed by or under 
contract with the Federal government pursuant to aviation or maritime 
transportation security requirements of Federal law, where such lists 
are aggregated by airport;
    (C) Holding a position with the Coast Guard responsible for 
conducting vulnerability assessments, security boardings, or engaged in 
operations to enforce maritime security requirements or conduct force 
protection;
    (D) Holding a position as a Federal Air Marshal; or
    (ii) The name or other identifying information that identifies a 
person as a current, former, or applicant for Federal Flight Deck 
Officer.
    (12) Critical aviation or maritime infrastructure asset information. 
Any list identifying systems or assets, whether physical or virtual, so 
vital to the aviation or maritime transportation system that the 
incapacity or destruction of such assets would have a debilitating 
impact on transportation security, if the list is--
    (i) Prepared by DHS or DOT; or
    (ii) Prepared by a State or local government agency and submitted by 
the agency to DHS or DOT.
    (13) Systems security information. Any information involving the 
security of operational or administrative data systems operated by the 
Federal government that have been identified by the DOT or DHS as 
critical to aviation or maritime transportation safety or security, 
including automated information security procedures and systems, 
security inspections, and vulnerability information concerning those 
systems.
    (14) Confidential business information. (i) Solicited or unsolicited 
proposals received by DHS or DOT, and negotiations arising therefrom, to 
perform work pursuant to a grant, contract, cooperative agreement, or 
other transaction, but only to the extent that the subject matter of the 
proposal relates to aviation or maritime transportation security 
measures;
    (ii) Trade secret information, including information required or 
requested by regulation or Security Directive, obtained by DHS or DOT in 
carrying out aviation or maritime transportation security 
responsibilities; and
    (iii) Commercial or financial information, including information 
required or requested by regulation or Security Directive, obtained by 
DHS or DOT in carrying out aviation or maritime transportation security 
responsibilities, but only if the source of the information does not 
customarily disclose it to the public.
    (15) Research and development. Information obtained or developed in 
the conduct of research related to aviation or maritime transportation 
security activities, where such research is approved, accepted, funded, 
recommended, or directed by the DHS or DOT, including research results.
    (16) Other information. Any information not otherwise described in 
this section that TSA determines is SSI under 49 U.S.C. 114(s) or that 
the Secretary of DOT determines is SSI under 49 U.S.C. 40119. Upon the 
request of another Federal agency, the Secretary of DOT may designate as 
SSI information not otherwise described in this section.
    (c) Loss of SSI designation. The Secretary of DOT may determine in 
writing that information or records described in paragraph (b) of this 
section do not constitute SSI because they no

[[Page 114]]

longer meet the criteria set forth in paragraph (a) of this section.



Sec. 15.7  Covered persons.

    Persons subject to the requirements of part 15 are:
    (a) Each airport operator and aircraft operator subject to the 
requirements of Subchapter C of this title.
    (b) Each indirect air carrier, as defined in 49 CFR 1540.5.
    (c) Each owner, charterer, or operator of a vessel, including 
foreign vessel owners, charterers, and operators, required to have a 
security plan under Federal or International law.
    (d) Each owner or operator of a maritime facility required to have a 
security plan under the Maritime Transportation Security Act, (Pub. L. 
107-295), 46 U.S.C. 70101 et seq., 33 CFR part 6, or 33 U.S.C. 1221 et 
seq.
    (e) Each person performing the function of a computer reservation 
system or global distribution system for airline passenger information.
    (f) Each person participating in a national or area security 
committee established under 46 U.S.C. 70112, or a port security 
committee.
    (g) Each industry trade association that represents covered persons 
and has entered into a non-disclosure agreement with the DHS or DOT.
    (h) DHS and DOT.
    (i) Each person conducting research and development activities that 
relate to aviation or maritime transportation security and are approved, 
accepted, funded, recommended, or directed by DHS or DOT.
    (j) Each person who has access to SSI, as specified in Sec. 15.11.
    (k) Each person employed by, contracted to, or acting for a covered 
person, including a grantee of DHS or DOT, and including a person 
formerly in such position.
    (l) Each person for which a vulnerability assessment has been 
directed, created, held, funded, or approved by the DOT, DHS, or that 
has prepared a vulnerability assessment that will be provided to DOT or 
DHS in support of a Federal security program.
    (m) Each person receiving SSI under Sec. 1520.15(d) or (e).



Sec. 15.9  Restrictions on the disclosure of SSI.

    (a) Duty to protect information. A covered person must--
    (1) Take reasonable steps to safeguard SSI in that person's 
possession or control from unauthorized disclosure. When a person is not 
in physical possession of SSI, the person must store it a secure 
container, such as a locked desk or file cabinet or in a locked room.
    (2) Disclose, or otherwise provide access to, SSI only to covered 
persons who have a need to know, unless otherwise authorized in writing 
by TSA, the Coast Guard, or the Secretary of DOT.
    (3) Refer requests by other persons for SSI to TSA or the applicable 
component or agency within DOT or DHS.
    (4) Mark SSI as specified in Sec. 15.13.
    (5) Dispose of SSI as specified in Sec. 15.19.
    (b) Unmarked SSI. If a covered person receives a record containing 
SSI that is not marked as specified in Sec. 1520.13, the covered person 
must--
    (1) Mark the record as specified in Sec. 15.13; and
    (2) Inform the sender of the record that the record must be marked 
as specified in Sec. 15.13.
    (c) Duty to report unauthorized disclosure. When a covered person 
becomes aware that SSI has been released to unauthorized persons, the 
covered person must promptly inform TSA or the applicable DOT or DHS 
component or agency.
    (d) Additional requirements for critical infrastructure information. 
In the case of information that is both SSI and has been designated as 
critical infrastructure information under section 214 of the Homeland 
Security Act, any covered person who is a Federal employee in possession 
of such information must comply with the disclosure restrictions and 
other requirements applicable to such information under section 214 and 
any implementing regulations.



Sec. 15.11  Persons with a need to know.

    (a) In general. A person has a need to know SSI in each of the 
following circumstances:

[[Page 115]]

    (1) When the person requires access to specific SSI to carry out 
transportation security activities approved, accepted, funded, 
recommended, or directed by DHS or DOT.
    (2) When the person is in training to carry out transportation 
security activities approved, accepted, funded, recommended, or directed 
by DHS or DOT.
    (3) When the information is necessary for the person to supervise or 
otherwise manage individuals carrying out transportation security 
activities approved, accepted, funded, recommended, or directed by the 
DHS or DOT.
    (4) When the person needs the information to provide technical or 
legal advice to a covered person regarding transportation security 
requirements of Federal law.
    (5) When the person needs the information to represent a covered 
person in connection with any judicial or administrative proceeding 
regarding those requirements.
    (b) Federal employees, contractors, and grantees. (1) A Federal 
employee has a need to know SSI if access to the information is 
necessary for performance of the employee's official duties.
    (2) A person acting in the performance of a contract with or grant 
from DHS or DOT has a need to know SSI if access to the information is 
necessary to performance of the contract or grant.
    (c) Background check. The Secretary of DOT may make an individual's 
access to the SSI contingent upon satisfactory completion of a security 
background check and the imposition of procedures and requirements for 
safeguarding SSI that are satisfactory to the Secretary.
    (d) Need to know further limited by the DHS or DOT. For some 
specific SSI, DHS or DOT may make a finding that only specific persons 
or classes of persons have a need to know.

[69 FR 28078, May 18, 2004, as amended at 70 FR 1381, Jan. 7, 2005]



Sec. 15.13  Marking SSI.

    (a) Marking of paper records. In the case of paper records 
containing SSI, a covered person must mark the record by placing the 
protective marking conspicuously on the top, and the distribution 
limitation statement on the bottom, of--
    (1) The outside of any front and back cover, including a binder 
cover or folder, if the document has a front and back cover;
    (2) Any title page; and
    (3) Each page of the document.
    (b) Protective marking. The protective marking is: SENSITIVE 
SECURITY INFORMATION.
    (c) Distribution limitation statement. The distribution limitation 
statement is:

    WARNING: This record contains Sensitive Security Information that is 
controlled under 49 CFR parts 15 and 1520. No part of this record may be 
disclosed to persons without a ``need to know'', as defined in 49 CFR 
parts 15 and 1520, except with the written permission of the 
Administrator of the Transportation Security Administration or the 
Secretary of Transportation. Unauthorized release may result in civil 
penalty or other action. For U.S. government agencies, public disclosure 
is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

    (d) Other types of records. In the case of non-paper records that 
contain SSI, including motion picture films, videotape recordings, audio 
recording, and electronic and magnetic records, a covered person must 
clearly and conspicuously mark the records with the protective marking 
and the distribution limitation statement such that the viewer or 
listener is reasonably likely to see or hear them when obtaining access 
to the contents of the record.



Sec. 15.15  SSI disclosed by DOT.

    (a) In general. Except as otherwise provided in this section, and 
notwithstanding the Freedom of Information Act (5 U.S.C. 552), the 
Privacy Act (5 U.S.C. 552a), and other laws, records containing SSI are 
not available for public inspection or copying, nor does DOT release 
such records to persons without a need to know.
    (b) Disclosure under the Freedom of Information Act and the Privacy 
Act. If a record contains both SSI and information that is not SSI, DOT, 
on a proper Freedom of Information Act or Privacy Act request, may 
disclose the record with the SSI redacted, provided the record is not 
otherwise exempt from disclosure under the Freedom of Information Act or 
Privacy Act.

[[Page 116]]

    (c) Disclosures to committees of Congress and the General Accounting 
Office. Nothing in this part precludes DOT from disclosing SSI to a 
committee of Congress authorized to have the information or to the 
Comptroller General, or to any authorized representative of the 
Comptroller General.
    (d) Disclosure in enforcement proceedings--(1) In general. The 
Secretary of DOT may provide SSI to a person in the context of an 
administrative enforcement proceeding when, in the sole discretion of 
the Secretary, access to the SSI is necessary for the person to prepare 
a response to allegations contained in a legal enforcement action 
document issued by DOT.
    (2) Security background check. Prior to providing SSI to a person 
under paragraph (d)(1) of this section, the Secretary of DOT may require 
the individual or, in the case of an entity, the individuals 
representing the entity, and their counsel, to undergo and satisfy, in 
the judgment of the Secretary of DOT, a security background check.
    (e) Other conditional disclosure. The Secretary of DOT may authorize 
a conditional disclosure of specific records or information that 
constitute SSI upon the written determination by the Secretary that 
disclosure of such records or information, subject to such limitations 
and restrictions as the Secretary may prescribe, would not be 
detrimental to transportation safety.
    (f) Obligation to protect information. When an individual receives 
SSI pursuant to paragraph (d) or (e) of this section that individual 
becomes a covered person under Sec. 15.7 and is subject to the 
obligations of a covered person under this part.
    (g) No release under FOIA. When DOT discloses SSI pursuant to 
paragraphs (b) through (e) of this section, DOT makes the disclosure for 
the sole purpose described in that paragraph. Such disclosure is not a 
public release of information under the Freedom of Information Act.
    (h) Disclosure of Critical Infrastructure Information. Disclosure of 
information that is both SSI and has been designated as critical 
infrastructure information under section 214 of the Homeland Security 
Act is governed solely by the requirements of section 214 and any 
implementing regulations.



Sec. 15.17  Consequences of unauthorized disclosure of SSI.

    Violation of this part is grounds for a civil penalty and other 
enforcement or corrective action by DOT, and appropriate personnel 
actions for Federal employees. Corrective action may include issuance of 
an order requiring retrieval of SSI to remedy unauthorized disclosure or 
an order to cease future unauthorized disclosure.



Sec. 15.19  Destruction of SSI.

    (a) DOT. Subject to the requirements of the Federal Records Act (5 
U.S.C. 105), including the duty to preserve records containing 
documentation of a Federal agency's policies, decisions, and essential 
transactions, DOT destroys SSI when no longer needed to carry out the 
agency's function.
    (b) Other covered persons--(1) In general. A covered person must 
destroy SSI completely to preclude recognition or reconstruction of the 
information when the covered person no longer needs the SSI to carry out 
transportation security measures.
    (2) Exception. Paragraph (b)(1) of this section does not require a 
State or local government agency to destroy information that the agency 
is required to preserve under State or local law.



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




Sec.
17.1 What is the purpose of these regulations?
17.2 What definitions apply to these regulations?
17.3 What programs and activities of the Department are subject to these 
          regulations?
17.4 [Reserved]
17.5 What is the Secretary's obligation with respect to Federal 
          interagency coordination?
17.6 What procedures apply to the selection of programs and activities 
          under these regulations?
17.7 How does the Secretary communicate with state and local officials 
          concerning the Department's programs and activities?

[[Page 117]]

17.8 How does the secretary provide states an opportunity to comment on 
          proposed Federal financial assistance and direct Federal 
          development?
17.9 How does the Secretary receive and respond to comments?
17.10 How does the Secretary make efforts to accommodate 
          intergovernmental concerns?
17.11 What are the Secretary's obligations in interstate situations?
17.12 How may a state simplify, consolidate, or substitute federally 
          required state plans?
17.13 May the Secretary waive any provision of these regulations?

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

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



Sec. 17.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982, 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968 and section 204 of the Demonstration Cities and 
Metropolitan Development Act of 1966.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed Federal financial assistance and direct Federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec. 17.2  What definitions apply to these regulations?

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



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

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



Sec. 17.4  [Reserved]



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

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



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

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 17.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Secretary of 
the Department's programs and activities selected for that process.
    (c) A state may notify the Secretary of changes in its selections at 
any time. For each change, the state shall submit to the Secretary an 
assurance

[[Page 118]]

that the state has consulted with elected local elected officials 
regarding the change. The Department may establish deadlines by which 
states are required to inform the Secretary of changes in their program 
selections.
    (d) The Secretary uses a state's process as soon as feasible, 
depending on individual programs, and activities, after the Secretary is 
notified of its selections.



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

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


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



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

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



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

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

[[Page 119]]

single point of contact, by the applicant, or directly to the Department 
by a commenting party.



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

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Secretary 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with a written explanation 
of the decision, in such form as the Secretary in his or her discretion 
deems appropriate. The Secretary may also supplement the written 
explanation by providing the explanation to the single point of contact 
by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Secretary informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Secretary has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



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

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



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

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



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

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

[[Page 120]]



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




                            Subpart A_General

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

                    Subpart B_Pre-Award Requirements

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

                    Subpart C_Post-Award Requirements

                        Financial Administration

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

                    Changes, Property, and Subawards

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

              Reports, Records, Retention, and Enforcement

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

                 Subpart D_After-The-Grant Requirements

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

Subpart E--Entitlements [Reserved]

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

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



                            Subpart A_General



Sec. 18.1  Purpose and scope of this part.

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



Sec. 18.2  Scope of subpart.

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



Sec. 18.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management,

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kinds and frequency of reports, and retention of records. These are 
distinguished from ``programmatic'' requirements, which concern matters 
that can be treated only on a program-by-program or grant-by-grant 
basis, such as kinds of activities that can be supported by grants under 
a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for ``grant'' and 
``subgrant'' in this section and except where qualified by ``Federal'') 
a procurement contract under a grant or subgrant, and means a 
procurement subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs of a federally assisted 
project or program not borne by the Federal Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 
688) certified by the Secretary of the Interior as eligible for the 
special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the United States Office of Management and Budget.
    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

[[Page 122]]

basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial assistance when 
provided by contractual legal agreement, but does not include 
procurement purchases, nor does it include any form of assistance which 
is excluded from the definition of ``grant'' in this part.
    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than 
``equipment'' as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. ``Termination'' does not include: (1) 
Withdrawal of funds awarded on the basis of the grantee's underestimate 
of the unobligated balance in a prior period; (2) Withdrawal of the 
unobligated balance as of the expiration of a grant; (3) Refusal to 
extend a grant or award additional funds, to make a competing or 
noncompeting continuation, renewal, extension, or supplemental award; or 
(4) voiding of a grant upon determination that the award was obtained 
fraudulently, or was otherwise illegal or invalid from inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a federally assisted project or program

[[Page 123]]

and which are contributed by non-Federal third parties without charge to 
the grantee, or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec. 18.4  Applicability.

    (a) General. Subparts A through D of this part apply to all grants 
and subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec. 18.6, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under title V, subtitle D, chapter 2, 
Section 583--the Secretary's discretionary grant program) and titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and part C of title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a),

[[Page 124]]

and 242 through 244 (portions of the Impact Aid program), except for 20 
U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for Handicapped 
Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 18.4(a) (3) through (8) are subject to subpart E.



Sec. 18.5  Effect on other issuances.

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



Sec. 18.6  Additions and exceptions.

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

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



                    Subpart B_Pre-Award Requirements



Sec. 18.10  Forms for applying for grants.

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

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



Sec. 18.11  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order

[[Page 125]]

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

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



                    Subpart C_Post-Award Requirements

                        Financial Administration



Sec. 18.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.

[[Page 126]]

    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.
    (d) Certain Urban Mass Transportation Administration (UMTA) grantees 
shall comply with the requirements of section 15 of the Urban Mass 
Transportation (UMT) Act of 1964, as amended, as implemented by 49 CFR 
part 630, regarding a uniform system of accounts and records and a 
uniform reporting system for certain grantees.

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



Sec. 18.21  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this

[[Page 127]]

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. 18.43(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.
    (j) 23 U.S.C. 121 limits payments to States for highway construction 
projects to the Federal share of the costs of construction incurred to 
date, plus the Federal share of the value of stockpiled materials.
    (k) Section 404 of the Surface Transportation Assistance Act of 1982 
directs

[[Page 128]]

the Secretary to reimburse States for the Federal share of costs 
incurred.

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



Sec. 18.22  Allowable costs.

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

------------------------------------------------------------------------
           For the costs of a--                Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.
Private nonprofit organization other than   OMB Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21.
For-profit organization other than a        48 CFR part 31. Contract
 hospital and an organization named in OBM   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.
------------------------------------------------------------------------

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

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



Sec. 18.23  Period of availability of funds.

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



Sec. 18.24  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from

[[Page 129]]

a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 18.25, shall not count towards satisfying a 
cost sharing or matching requirement unless they are expressly permitted 
in the terms of the assistance agreement. (This use of general program 
income is described in Sec. 18.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (8) 23 U.S.C. 121(a) permits reimbursement for actual construction 
cost incurred by States for highway construction projects. Except for 
private donations of right-of-way, contributions and donations shall not 
be considered State costs, and shall not be allowable for matching 
purposes for highway construction contracts. 23 U.S.C. 323 permits 
private donations of right-of-way to be used for a State's matching 
share, and establishes procedures for determining the fair market value 
of such donated right-of-way.
    (9) Section 4(a) of the UMT Act of 1964, as amended, provides that 
the Federal grant for any project to be assisted under section 3 of the 
UMT Act of 1964, as amended, shall be in an amount equal to 75 percent 
of the net project costs. Net project cost is defined as that portion of 
the cost of the project which cannot be reasonably financed from 
revenues.

[[Page 130]]

    (10) Section 18(e) of the UMT Act of 1964, as amended, limits the 
Federal share to 80 percent of the net cost of construction, as 
determined by the Secretary of Transportation. The Federal share for the 
payment of subsidies for operating expenses, as defined by the 
Secretary, shall not exceed 50 percent of the net cost of such operating 
expense projects.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services 
are in a different line of work, paragraph (c)(1) of this section 
applies.
    (3) Section 5(g) of the Department of Transportation Act (49 U.S.C. 
1654(g)) limits in-kind service contributions under the local Rail 
Service Assistance Program to ``the cash equivalent of State salaries 
for State public employees working in the State rail assistance program, 
but not including overhead and general administrative costs.''
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec. 18.22, in the same way as depreciation or 
use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction

[[Page 131]]

or facilities acquisition project, the current market value of that 
property may be counted as cost sharing or matching. If any part of the 
donated property was acquired with Federal funds, only the non-federal 
share of the property may be counted as cost sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.

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



Sec. 18.25  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. ``During the grant period'' is the time between 
the effective date of the award and the ending date of the award 
reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 18.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 18.31 
and 18.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement.

[[Page 132]]

The amount of the Federal grant award remains the same.
    (4) Section 3(a)(1)(D) of the UMT Act of 1964, as amended, provides 
that the Secretary shall establish requirements for the use of income 
derived from appreciated land values for certain UMTA grants. Specific 
requirements shall be contained in grant agreements.
    (5) UMTA grantees may retain program income for allowable capital or 
operating expenses.
    (6) For grants awarded under section 9 of the UMT Act of 1964, as 
amended, any revenues received from the sale of advertising and 
concessions in excess of fiscal year 1985 levels shall be excluded from 
program income.
    (7) 23 U.S.C. 156 requires that States shall charge fair market 
value for the sale, lease, or use of right-of-way airspace for non-
transportation purposes and that such income shall be used for projects 
eligible under 23 U.S.C.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.

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



Sec. 18.26  Non-Federal audits.

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

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

                    Changes, Property, and Subawards



Sec. 18.30  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.

[[Page 133]]

    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 18.22) contain requirements for prior approval of certain types of 
costs. Except where waived, those requirements apply to all grants and 
subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec. 18.36 but does not apply to the procurement of equipment, 
supplies, and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 18.22) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec. 18.31  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized

[[Page 134]]

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.
    (d) If the conditions in 23 U.S.C. 103(e) (5), (6), or (7), as 
appropriate, are met and approval is given by the Secretary, States 
shall not be required to repay the Highway Trust Fund for the cost of 
right-of-way and other items when certain segments of the Interstate 
System are withdrawn.

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



Sec. 18.32  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 18.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.

[[Page 135]]

    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third part 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow Sec. 18.32(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec. 18.33  Supplies.

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

[[Page 136]]



Sec. 18.34  Copyrights.

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



Sec. 18.35  Subawards to debarred and suspended parties.

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



Sec. 18.36  Procurement.

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

[[Page 137]]

use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec. 18.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services,

[[Page 138]]

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. 18.36(d)(2)(i) apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with

[[Page 139]]

more than one source submitting an offer, and either a fixed-price or 
cost-reimbursement type contract is awarded. It is generally used when 
conditions are not appropriate for the use of sealed bids. If this 
method is used, the following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types of services though 
A/E firms are a potential source to perform the proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids or competitive proposals and one of the following 
circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (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

[[Page 140]]

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. 18.22). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the

[[Page 141]]

awarding agency's right to survey the system. Under a self-certification 
procedure, awarding agencies may wish to rely on written assurances from 
the grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining 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.

[[Page 142]]

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

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



Sec. 18.37  Subgrants.

    (a) States. States shall follow state law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal

[[Page 143]]

statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec. 18.42 is 
placed in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 18.10;
    (2) Section 18.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 18.21; and
    (4) Section 18.50.

              Reports, Records, Retention, and Enforcement



Sec. 18.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily

[[Page 144]]

by Federal agencies to monitor progress under construction grants and 
subgrants. The Federal agency will require additional formal performance 
reports only when considered necessary, and never more frequently than 
quarterly.
    (1) Section 12(h) of the UMT Act of 1964, as amended, requires pre-
award testing of new buses models.
    (2) [Reserved]
    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.

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



Sec. 18.41  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extent required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec. 18.41(e)(2)(iii).
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.

[[Page 145]]

    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 18.41(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs--(1) Grants that support construction activities paid by 
reimbursement method. (i) Requests for reimbursement under construction 
grants will be submitted on Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. Federal agencies may, 
however, prescribe the Request for Advance or Reimbursement form, 
specified in Sec. 18.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 18.41(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance. (i) When a 
construction grant is paid by letter of credit, electronic funds 
transfer or Treasury check advances, the grantee will report its outlays 
to the Federal agency using Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. The Federal agency will 
provide any necessary special instruction. However, frequency and due 
date shall be governed by Sec. 18.41(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the

[[Page 146]]

advances will be requested on the form specified in Sec. 18.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 18.41(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 18.41(b)(2).
    (f) Notwithstanding the provisions of paragraphs (a)(1) of this 
section, recipients of FHWA and National Highway Traffic Safety 
Administration (NHTSA) grants shall use FHWA, NHTSA or State financial 
reports.

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



Sec. 18.42  Retention and access requirements for records.

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

[[Page 147]]

then the 3-year retention period for its supporting records starts from 
the date of such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from theend of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The right of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records unless required 
by Federal, State, or local law, grantees and subgrantees are not 
required to permit public access to their records.



Sec. 18.43  Enforcement.

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



Sec. 18.44  Termination for convenience.

    Except as provided in Sec. 18.43 awards may be terminated in whole 
or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in

[[Page 148]]

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



                 Subpart D_After-The-Grant Requirements



Sec. 18.50  Closeout.

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

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



Sec. 18.51  Later disallowances and adjustments.

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



Sec. 18.52  Collection of amounts due.

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

Subpart E--Entitlements [Reserved]

[[Page 149]]



PART 19_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS
WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT

ORGANIZATIONS--Table of Contents




                            Subpart A_General

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

                    Subpart B_Pre-Award Requirements

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

                    Subpart C_Post-Award Requirements

                    Financial and Program Management

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

                           Property Standards

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

                          Procurement Standards

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

                           Reports and Records

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

                       Termination and Enforcement

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

                 Subpart D_After-the-Award Requirements

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

Appendix A to Part 19--Contract Provisions

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

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



                            Subpart A_General



Sec. 19.1  Purpose.

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



Sec. 19.2  Definitions.

    (a) Accrued expenditures means the charges incurred by the recipient 
during a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subrecipients, and 
other payees; and,
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.

[[Page 150]]

    (b) Accrued income means the sum of: (1) Earnings during a given 
period from:
    (i) Services performed by the recipient, and
    (ii) Goods and other tangible property delivered to purchasers; and
    (2) Amounts becoming owed to the recipient for which no current 
services or performance is required by the recipient.
    (c) Acquisition cost of equipment means the net invoice price of the 
equipment, including the cost of modifications, attachments, 
accessories, or auxiliary apparatus necessary to make the property 
usable for the purpose for which it was acquired. Other charges, such as 
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit 
acquisition cost in accordance with the recipient's regular accounting 
practices.
    (d) Advance means a payment made by Treasury check or other 
appropriate payment mechanism to a recipient upon its request either 
before outlays are made by the recipient or through the use of 
predetermined payment schedules.
    (e) Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
the Federal Government to an eligible recipient. The term does not 
include: Technical assistance, which provides services instead of money; 
other assistance in the form of loans, loan guarantees, interest 
subsidies, or insurance; direct payments of any kind to individuals; 
and, contracts which are required to be entered into and administered 
under procurement laws and regulations.
    (f) Cash contributions means the recipient's cash outlay, including 
the outlay of money contributed to the recipient by third parties.
    (g) Closeout means the process by which a Federal awarding agency 
determines that all applicable administrative actions and all required 
work of the award have been completed by the recipient and Federal 
awarding agency.
    (h) Contract means a procurement contract under an award or 
subaward, and a procurement subcontract under a recipient's or 
subrecipient's contract.
    (i) Cost sharing or matching means that portion of project or 
program costs not borne by the Federal Government.
    (j) Date of completion means the date on which all work under an 
award is completed or the date on the award document, or any supplement 
or amendment thereto, on which Federal sponsorship ends.
    (k) Disallowed costs means those charges to an award that the 
Federal awarding agency determines to be unallowable, in accordance with 
the applicable Federal cost principles or other terms and conditions 
contained in the award.
    (l) Equipment means tangible nonexpendable personal property 
including exempt property charged directly to the award having a useful 
life of more than one year and an acquisition cost of $5,000 or more per 
unit. However, consistent with recipient policy, lower limits may be 
established.
    (m) Excess property means property under the control of any Federal 
awarding agency that, as determined by the head thereof, is no longer 
required for its needs or the discharge of its responsibilities.
    (n) Exempt property means tangible personal property acquired in 
whole or in part with Federal funds, where the Federal awarding agency 
has statutory authority to vest title in the recipient without further 
obligation to the Federal Government. An example of exempt property 
authority is contained in the Federal Grant and Cooperative Agreement 
Act (31 U.S.C. 6306), for property acquired under an award to conduct 
basic or applied research by a non-profit institution of higher 
education or non-profit organization whose principal purpose is 
conducting scientific research.
    (o) Federal awarding agency means the Federal agency that provides 
an award to the recipient. Except for the specific review requirements 
for deviations in Sec. 19.4, for Department of Transportation (DOT) 
awards, it means the DOT operating administration or departmental office 
that made the award.

[[Page 151]]

    (p) Federal funds authorized means the total amount of Federal funds 
obligated by the Federal Government for use by the recipient. This 
amount may include any authorized carryover of unobligated funds from 
prior funding periods when permitted by agency regulations or agency 
implementing instructions.
    (q) Federal share of real property, equipment, or supplies means 
that percentage of the property's acquisition costs and any improvement 
expenditures paid with Federal funds.
    (r) Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    (s) Intangible property and debt instruments means, but is not 
limited to, trademarks, copyrights, patents and patent applications and 
such property as loans, notes and other debt instruments, lease 
agreements, stock and other instruments of property ownership, whether 
considered tangible or intangible.
    (t) Obligations means the amounts of orders placed, contracts and 
grants awarded, services received and similar transactions during a 
given period that require payment by the recipient during the same or a 
future period.
    (u) Outlays or expenditures means charges made to the project or 
program. They may be reported on a cash or accrual basis. For reports 
prepared on a cash basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
charged, the value of third party in-kind contributions applied and the 
amount of cash advances and payments made to subrecipients. For reports 
prepared on an accrual basis, outlays are the sum of cash disbursements 
for direct charges for goods and services, the amount of indirect 
expense incurred, the value of in-kind contributions applied, and the 
net increase (or decrease) in the amounts owed by the recipient for 
goods and other property received, for services performed by employees, 
contractors, subrecipients and other payees and other amounts becoming 
owed under programs for which no current services or performance are 
required.
    (v) Personal property means property of any kind except real 
property. It may be tangible, having physical existence, or intangible, 
having no physical existence, such as copyrights, patents, or 
securities.
    (w) Prior approval means written approval by an authorized official 
evidencing prior consent.
    (x) Program income means gross income earned by the recipient that 
is directly generated by a supported activity or earned as a result of 
the award (see exclusions in Sec. Sec. 19.24 (e) and (h)). Program 
income includes, but is not limited to, income from fees for services 
performed, the use or rental of real or personal property acquired under 
federally-funded projects, the sale of commodities or items fabricated 
under an award, license fees and royalties on patents and copyrights, 
and interest on loans made with award funds. Interest earned on advances 
of Federal funds is not program income. Except as otherwise provided in 
Federal awarding agency regulations or the terms and conditions of the 
award, program income does not include the receipt of principal on 
loans, rebates, credits, discounts, etc., or interest earned on any of 
them.
    (y) Project costs means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred by a recipient and the 
value of the contributions made by third parties in accomplishing the 
objectives of the award during the project period.
    (z) Project period means the period established in the award 
document during which Federal sponsorship begins and ends.
    (aa) Property means, unless otherwise stated, real property, 
equipment, intangible property and debt instruments.
    (bb) Real property means land, including land improvements, 
structures and appurtenances thereto, but excludes movable machinery and 
equipment.
    (cc) Recipient means an organization receiving financial assistance 
directly from Federal awarding agencies to carry out a project or 
program. The term includes public and private institutions of higher 
education, public and private hospitals, and other quasi-public and 
private non-profit organizations such as, but not limited to, community 
action agencies, research institutes,

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educational associations, and health centers. The term may include 
commercial organizations, foreign or international organizations (such 
as agencies of the United Nations) which are recipients, subrecipients, 
or contractors or subcontractors of recipients or subrecipients at the 
discretion of the Federal awarding agency. The term does not include 
government-owned contractor-operated facilities or research centers 
providing continued support for mission-oriented, large-scale programs 
that are government-owned or controlled, or are designated as federally-
funded research and development centers.
    (dd) Research and development means all research activities, both 
basic and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions. ``Research'' 
is defined as a systematic study directed toward fuller scientific 
knowledge or understanding of the subject studied. ``Development'' is 
the systematic use of knowledge and understanding gained from research 
directed toward the production of useful materials, devices, systems, or 
methods, including design and development of prototypes and processes. 
The term research also includes activities involving the training of 
individuals in research techniques where such activities utilize the 
same facilities as other research and development activities and where 
such activities are not included in the instruction function.
    (ee) Small awards means a grant or cooperative agreement not 
exceeding the small purchase threshold fixed at 41 U.S.C. 403(11) 
(currently $25,000).
    (ff) Subaward means an award of financial assistance in the form of 
money, or property in lieu of money, made under an award by a recipient 
to an eligible subrecipient or by a subrecipient to a lower tier 
subrecipient. The term includes financial assistance when provided by 
any legal agreement, even if the agreement is called a contract, but 
does not include procurement of goods and services nor does it include 
any form of assistance which is excluded from the definition of 
``award'' in paragraph (e) of this section.
    (gg) Subrecipient means the legal entity to which a subaward is made 
and which is accountable to the recipient for the use of the funds 
provided. The term may include foreign or international organizations 
(such as agencies of the United Nations) at the discretion of the 
Federal awarding agency.
    (hh) Supplies means all personal property excluding equipment, 
intangible property, and debt instruments as defined in this section, 
and inventions of a contractor conceived or first actually reduced to 
practice in the performance of work under a funding agreement (``subject 
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts, and Cooperative Agreements.''
    (ii) Suspension means an action by a Federal awarding agency that 
temporarily withdraws Federal sponsorship under an award, pending 
corrective action by the recipient or pending a decision to terminate 
the award by the Federal awarding agency. Suspension of an award is a 
separate action from suspension under Federal agency regulations 
implementing E.O.s 12549 and 12689, ``Debarment and Suspension.''
    (jj) Termination means the cancellation of Federal sponsorship, in 
whole or in part, under an agreement at any time prior to the date of 
completion.
    (kk) Third party in-kind contributions means the value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting and specifically identifiable to the project or 
program.
    (ll) Unliquidated obligations, for financial reports prepared on a 
cash basis, means the amount of obligations incurred by the recipient 
that have not been paid. For reports prepared on an accrued expenditure 
basis, they represent the amount of obligations incurred by the 
recipient for which an outlay has not been recorded.
    (mm) Unobligated balance means the portion of the funds authorized 
by the Federal awarding agency that has not

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been obligated by the recipient and is determined by deducting the 
cumulative obligations from the cumulative funds authorized.
    (nn) Unrecovered indirect cost means the difference between the 
amount awarded and the amount which could have been awarded under the 
recipient's approved negotiated indirect cost rate.
    (oo) Working capital advance means a procedure whereby funds are 
advanced to the recipient to cover its estimated disbursement needs for 
a given initial period.



Sec. 19.3  Effect on other issuances.

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



Sec. 19.4  Deviations.

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



Sec. 19.5  Subawards.

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



Sec. 19.6  Availability of material referenced in this part.

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



                    Subpart B_Pre-Award Requirements



Sec. 19.10  Purpose.

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



Sec. 19.11  Pre-award policies.

    (a) Use of grants and cooperative agreements, and contracts. In each 
instance, the Federal awarding agency shall decide on the appropriate 
award instrument (i.e., grant, cooperative agreement, or contract). The 
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301-08) governs 
the use of grants, cooperative agreements and contracts. A grant or 
cooperative agreement shall be used only when the principal purpose of a 
transaction is to accomplish a public purpose of support or stimulation 
authorized by Federal statute. The statutory criterion for choosing 
between grants and cooperative agreements is that for the latter, 
``substantial involvement is expected between the executive agency and 
the

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State, local government, or other recipient when carrying out the 
activity contemplated in the agreement.'' Contracts shall be used when 
the principal purpose is acquisition of property or services for the 
direct benefit or use of the Federal Government.
    (b) Public notice and priority setting. Federal awarding agencies 
shall notify the public of its intended funding priorities for 
discretionary grant programs, unless funding priorities are established 
by Federal statute.



Sec. 19.12  Forms for applying for Federal assistance.

    (a) Federal awarding agencies shall comply with the applicable 
report clearance requirements of 5 CFR part 1320, ``Controlling 
Paperwork Burdens on the Public,'' with regard to all forms used by the 
Federal awarding agency in place of or as a supplement to the Standard 
Form 424 (SF-424) series.
    (b) Applicants shall use the SF-424 series or those forms and 
instructions prescribed by the Federal awarding agency.
    (c) For Federal programs covered by E.O. 12372, ``Intergovernmental 
Review of Federal Programs,'' as implemented at 49 CFR part 17, 
Intergovernmental review of Department of Transportation programs and 
activities, the applicant shall complete the appropriate sections of the 
SF-424 (Application for Federal Assistance) indicating whether the 
application was subject to review by the State Single Point of Contact 
(SPOC). The name and address of the SPOC for a particular State can be 
obtained from the Federal awarding agency or the Catalog of Federal 
Domestic Assistance. The SPOC shall advise the applicant whether the 
program for which application is made has been selected by that State 
for review.
    (d) Federal awarding agencies that do not use the SF-424 form should 
indicate whether the application is subject to review by the State under 
E.O. 12372.



Sec. 19.13  Debarment and suspension.

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



Sec. 19.14  Special award conditions.

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



Sec. 19.15  Metric system of measurement.

    The Metric Conversion Act, as amended by the Omnibus Trade and 
Competitiveness Act (15 U.S.C. 205), declares that the metric system is 
the preferred measurement system for U.S. trade and commerce. The Act 
requires each Federal agency to establish a date or dates in 
consultation with the Secretary of Commerce, when the metric system of 
measurement will be used in the agency's procurements, grants, and other 
business-related activities. Metric implementation may take longer

[[Page 155]]

where the use of the system is initially impractical or likely to cause 
significant inefficiencies in the accomplishment of federally-funded 
activities. Federal awarding agencies shall follow the provisions of 
E.O. 12770, ``Metric Usage in Federal Government Programs.''



Sec. 19.16  Resource Conservation and Recovery Act.

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



Sec. 19.17  Certifications and representations.

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



                    Subpart C_Post-Award Requirements

                    Financial and Program Management



Sec. 19.20  Purpose of financial and program management.

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



Sec. 19.21  Standards for financial management systems.

    (a) Federal awarding agencies shall require recipients to relate 
financial data to performance data and develop unit cost information 
whenever practical.
    (b) Recipients' financial management systems shall provide for the 
following.
    (1) Accurate, current and complete disclosure of the financial 
results of each federally-sponsored project or program in accordance 
with the reporting requirements set forth in Sec. 19.52. If a Federal 
awarding agency requires reporting on an accrual basis from a recipient 
that maintains its records on other than an accrual basis, the recipient 
shall not be required to establish an accrual accounting system. These 
recipients may develop such accrual data for its reports on the basis of 
an analysis of the documentation on hand.
    (2) Records that identify adequately the source and application of 
funds for federally-sponsored activities. These records shall contain 
information pertaining to Federal awards, authorizations, obligations, 
unobligated balances, assets, outlays, income and interest.
    (3) Effective control over and accountability for all funds, 
property and other assets. Recipients shall adequately safeguard all 
such assets and assure they are used solely for authorized purposes.
    (4) Comparison of outlays with budget amounts for each award. 
Whenever appropriate, financial information should be related to 
performance and unit cost data.
    (5) Written procedures to minimize the time elapsing between the 
transfer of funds to the recipient from the U.S. Treasury and the 
issuance or redemption of checks, warrants or payments by other means 
for program purposes by the recipient. To the extent that the provisions 
of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, 
payment methods of State agencies, instrumentalities, and fiscal agents 
shall be consistent with CMIA

[[Page 156]]

Treasury-State Agreements or the CMIA default procedures codified at 31 
CFR part 205, ``Withdrawal of Cash from the Treasury for Advances under 
Federal Grant and Other Programs.''
    (6) Written procedures for determining the reasonableness, 
allocability and allowability of costs in accordance with the provisions 
of the applicable Federal cost principles and the terms and conditions 
of the award.
    (7) Accounting records including cost accounting records that are 
supported by source documentation.
    (c) Where the Federal Government guarantees or insures the repayment 
of money borrowed by the recipient, the Federal awarding agency, at its 
discretion, may require adequate bonding and insurance if the bonding 
and insurance requirements of the recipient are not deemed adequate to 
protect the interest of the Federal Government.
    (d) The Federal awarding agency may require adequate fidelity bond 
coverage where the recipient lacks sufficient coverage to protect the 
Federal Government's interest.
    (e) Where bonds are required in the situations described above, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties, as prescribed in 31 CFR part 223, ``Surety 
Companies Doing Business with the United States.''



Sec. 19.22  Payment.

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

[[Page 157]]

least monthly when electronic funds transfers are not used.
    (f) If a recipient cannot meet the criteria for advance payments and 
the Federal awarding agency has determined that reimbursement is not 
feasible because the recipient lacks sufficient working capital, the 
Federal awarding agency may provide cash on a working capital advance 
basis. Under this procedure, the Federal awarding agency shall advance 
cash to the recipient to cover its estimated disbursement needs for an 
initial period generally geared to the awardee's disbursing cycle. 
Thereafter, the Federal awarding agency shall reimburse the recipient 
for its actual cash disbursements. The working capital advance method of 
payment shall not be used for recipients unwilling or unable to provide 
timely advances to their subrecipient to meet the subrecipient's actual 
cash disbursements.
    (g) To the extent available, recipients shall disburse funds 
available from repayments to and interest earned on a revolving fund, 
program income, rebates, refunds, contract settlements, audit recoveries 
and interest earned on such funds before requesting additional cash 
payments.
    (h) Unless otherwise required by statute, Federal awarding agencies 
shall not withhold payments for proper charges made by recipients at any 
time during the project period unless the conditions in paragraphs 
(h)(1) or (2) of this section apply.
    (1) A recipient has failed to comply with the project objectives, 
the terms and conditions of the award, or Federal reporting 
requirements.
    (2) The recipient or subrecipient is delinquent in a debt to the 
United States as defined in OMB Circular A-129, ``Managing Federal 
Credit Programs.'' Under such conditions, the Federal awarding agency 
may, upon reasonable notice, inform the recipient that payments shall 
not be made for obligations incurred after a specified date until the 
conditions are corrected or the indebtedness to the Federal Government 
is liquidated.
    (i) Standards governing the use of banks and other institutions as 
depositories of funds advanced under awards are as follows.
    (1) Except for situations described in paragraph (i)(2) of this 
section, Federal awarding agencies shall not require separate depository 
accounts for funds provided to a recipient or establish any eligibility 
requirements for depositories for funds provided to a recipient. 
However, recipients must be able to account for the receipt, obligation 
and expenditure of funds.
    (2) Advances of Federal funds shall be deposited and maintained in 
insured accounts whenever possible.
    (j) Consistent with the national goal of expanding the opportunities 
for women-owned and minority-owned business enterprises, recipients 
shall be encouraged to use women-owned and minority-owned banks (a bank 
which is owned at least 50 percent by women or minority group members).
    (k) Recipients shall maintain advances of Federal funds in interest 
bearing accounts, unless the conditions in paragraphs (k)(1), (2) or (3) 
of this section apply.
    (1) The recipient receives less than $120,000 in Federal awards per 
year.
    (2) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
    (l) For those entities where CMIA and its implementing regulations 
do not apply, interest earned on Federal advances deposited in interest 
bearing accounts shall be remitted annually to Department of Health and 
Human Services, Payment Management System, P.O. Box 6021, Rockville, MD 
20852. Interest amounts up to $250 per year may be retained by the 
recipient for administrative expense. In keeping with Electric Funds 
Transfer rules, (31 CFR part 206), interest should be remitted to the 
HHS Payment Management System through an electric medium such as the 
FEDWIRE Deposit system. Recipients which do not have this capability 
should use a check. State universities and hospitals shall comply with 
CMIA, as it pertains to interest. If an entity subject to CMIA uses its 
own

[[Page 158]]

funds to pay pre-award costs for discretionary awards without prior 
written approval from the Federal awarding agency, it waives its right 
to recover the interest under CMIA.
    (m) Except as noted elsewhere in this part, only the following forms 
shall be authorized for the recipients in requesting advances and 
reimbursements. Federal agencies shall not require more than an original 
and two copies of these forms.
    (1) SF-270, Request for Advance or Reimbursement. Each Federal 
awarding agency shall adopt the SF-270 as a standard form for all 
nonconstruction programs when electronic funds transfer or predetermined 
advance methods are not used. Federal awarding agencies, however, have 
the option of using this form for construction programs in lieu of the 
SF-271, ``Outlay Report and Request for Reimbursement for Construction 
Programs.''
    (2) SF-271, Outlay Report and Request for Reimbursement for 
Construction Programs. Each Federal awarding agency shall adopt the SF-
271 as the standard form to be used for requesting reimbursement for 
construction programs. However, a Federal awarding agency may substitute 
the SF-270 when the Federal awarding agency determines that it provides 
adequate information to meet Federal needs.



Sec. 19.23  Cost sharing or matching.

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

[[Page 159]]

the same skill for which the employee is normally paid.
    (f) Donated supplies may include such items as expendable equipment, 
office supplies, laboratory supplies or workshop and classroom supplies. 
Value assessed to donated supplies included in the cost sharing or 
matching share shall be reasonable and shall not exceed the fair market 
value of the property at the time of the donation.
    (g) The method used for determining cost sharing or matching for 
donated equipment, buildings and land for which title passes to the 
recipient may differ according to the purpose of the award, if the 
conditions in paragraph (g)(1) or (2) of this section apply.
    (1) If the purpose of the award is to assist the recipient in the 
acquisition of equipment, buildings or land, the total value of the 
donated property may be claimed as cost sharing or matching.
    (2) If the purpose of the award is to support activities that 
require the use of equipment, buildings or land, normally only 
depreciation or use charges for equipment and buildings may be made. 
However, the full value of equipment or other capital assets and fair 
rental charges for land may be allowed, provided that the Federal 
awarding agency has approved the charges.
    (h) The value of donated property shall be determined in accordance 
with the usual accounting policies of the recipient, with the following 
qualifications.
    (1) The value of donated land and buildings shall not exceed its 
fair market value at the time of donation to the recipient as 
established by an independent appraiser (e.g., certified real property 
appraiser or General Services Administration representative) and 
certified by a responsible official of the recipient.
    (2) The value of donated equipment shall not exceed the fair market 
value of equipment of the same age and condition at the time of 
donation.
    (3) The value of donated space shall not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (4) The value of loaned equipment shall not exceed its fair rental 
value.
    (5) The following requirements pertain to the recipient's supporting 
records for in-kind contributions from third parties.
    (i) Volunteer services shall be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (ii) The basis for determining the valuation for personal service, 
material, equipment, buildings and land shall be documented.
    (iii) Section 18(e) of the Federal Transit Act, as amended, (49 
U.S.C. app. 1614(e)) provides that the Federal share for operating 
assistance shall not exceed 50 percent of the net cost. At least 50 
percent of the remainder (the local share) must be derived from sources 
other than Federal funds or revenues of the system; and up to half of 
the local share may be derived from other Federal funds. For purposes of 
determining local share for section 18 operating assistance, the term 
``Federal funds or revenues'' does not include funds received pursuant 
to a service agreement with a State or local service agency or a private 
social service organization. Nonregulatory guidance is contained in FTA 
Circular 9040.1B, section 18 Program Guidance and Grant Application 
Instructions, Chapter III, section 7.



Sec. 19.24  Program income.

    (a) Federal awarding agencies shall apply the standards set forth in 
this section in requiring recipient organizations to account for program 
income related to projects financed in whole or in part with Federal 
funds.
    (b) Except as provided in paragraph (h) of this section, program 
income earned during the project period shall be retained by the 
recipient and, in accordance with Federal awarding agency regulations or 
the terms and conditions of the award, shall be used in one or more of 
the ways listed in the following.
    (1) Added to funds committed to the project by the Federal awarding 
agency and recipient and used to further eligible project or program 
objectives.
    (2) Used to finance the non-Federal share of the project or program.

[[Page 160]]

    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs on which the Federal share of costs 
is based.
    (c) When an agency authorizes the disposition of program income as 
described in paragraph (b)(1) or (b)(2) of this section, program income 
in excess of any limits stipulated shall be used in accordance with 
paragraph (b)(3) of this section.
    (d) In the event that the Federal awarding agency does not specify 
in its regulations or the terms and conditions of the award how program 
income is to be used, paragraph (b)(3) of this section shall apply 
automatically to all projects or programs except research. For awards 
that support research, paragraph (b)(1) of this section shall apply 
automatically unless the awarding agency indicates in the terms and 
conditions another alternative on the award or the recipient is subject 
to special award conditions, as indicated in Sec. 19.14.
    (e) Unless Federal awarding agency regulations or the terms and 
conditions of the award provide otherwise, recipients shall have no 
obligation to the Federal Government regarding program income earned 
after the end of the project period.
    (f) If authorized by Federal awarding agency regulations or the 
terms and conditions of the award, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income, provided these costs have not been charged to the award.
    (g) Proceeds from the sale of property shall be handled in 
accordance with the requirements of the Property Standards (See 
Sec. Sec. 19.30 through 19.37).
    (h) Unless Federal awarding agency regulations or the terms and 
condition of the award provide otherwise, recipients shall have no 
obligation to the Federal Government with respect to program income 
earned from license fees and royalties for copyrighted material, 
patents, patent applications, trademarks, and inventions produced under 
an award. However, Patent and Trademark Amendments (35 U.S.C. 18) apply 
to inventions made under an experimental, developmental, or research 
award.
    (i) Section 4(a) of the Federal Transit Act, as amended, (49 U.S.C. 
app. 1603(a)) allows FTA recipients to retain program income for 
allowable capital or operating expenses, but program income may not be 
used to refund or reduce the local share of a grant. The section 16 and 
18 programs, however, operate differently. Under the special authority 
to set appropriate terms and conditions for the section 16(b)(2) 
program, program income in the form of contract service revenue may be 
used as local share without a proportionate reduction in the Federal 
share. Similarly, section 18 allows the use of program income in the 
form of contract service revenue as local share without requiring a 
proportionate reduction in the Federal share. Grantees must account for 
program income in their accounting systems, which are subject to audit. 
The accounting system must be capable of identifying program income and 
the purpose for which it was used. Nonregulatory guidance is contained 
in FTA notice N 5.5005.1, Guidance on Program Income and Sales Proceeds.



Sec. 19.25  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. It may include either the 
Federal and non-Federal share, or only the Federal share, depending upon 
Federal awarding agency requirements. It shall be related to performance 
for program evaluation purposes whenever appropriate.
    (b) Recipients are required to report deviations from budget and 
program plans, and request prior approvals for budget and program plan 
revisions, in accordance with this section.
    (c) For nonconstruction awards, recipients shall request prior 
approvals from Federal awarding agencies for one or more of the 
following program or budget related reasons.
    (1) Change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (2) Change in a key person specified in the application or award 
document.
    (3) The absence for more than three months, or a 25 percent 
reduction in

[[Page 161]]

time devoted to the project, by the approved project director or 
principal investigator.
    (4) The need for additional Federal funding.
    (5) The transfer of amounts budgeted for indirect costs to absorb 
increases in direct costs, or vice versa, if approval is required by the 
Federal awarding agency.
    (6) The inclusion, unless waived by the Federal awarding agency, of 
costs that require prior approval in accordance with OMB Circular A-21, 
``Cost Principles for Institutions of Higher Education,'' OMB Circular 
A-122, ``Cost Principles for Non-Profit Organizations,'' or 45 CFR part 
74 Appendix E, ``Principles for Determining Costs Applicable to Research 
and Development under Grants and Contracts with Hospitals,'' or 48 CFR 
part 31, ``Contract Cost Principles and Procedures,'' as applicable.
    (7) The transfer of funds allotted for training allowances (direct 
payment to trainees) to other categories of expense.
    (8) Unless described in the application and funded in the approved 
awards, the subaward, transfer or contracting out of any work under an 
award. This provision does not apply to the purchase of supplies, 
material, equipment or general support services.
    (d) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (e) Except for requirements listed in paragraphs (c)(1) and (c)(4) 
of this section, Federal awarding agencies are authorized, at their 
option, to waive cost-related and administrative prior written approvals 
required by this part and OMB Circulars A-21 and A-122. Such waivers may 
include authorizing recipients to do any one or more of the following:
    (1) Incur pre-award costs 90 calendar days prior to award or more 
than 90 calendar days with the prior approval of the Federal awarding 
agency. All pre-award costs are incurred at the recipient's risk (i.e., 
the Federal awarding agency is under no obligation to reimburse such 
costs if for any reason the recipient does not receive an award or if 
the award is less than anticipated and inadequate to cover such costs).
    (2) Initiate a one-time extension of the expiration date of the 
award of up to 12 months unless one or more of the following conditions 
apply. For one-time extensions, the recipient must notify the Federal 
awarding agency in writing with the supporting reasons and revised 
expiration date at least 10 days before the expiration date specified in 
the award. This one-time extension may not be exercised merely for the 
purpose of using unobligated balances.
    (i) The terms and conditions of award prohibit the extension.
    (ii) The extension requires additional Federal funds.
    (iii) The extension involves any change in the approved objectives 
or scope of the project.
    (3) Carry forward unobligated balances to subsequent funding 
periods.
    (4) For awards that support research, unless the Federal awarding 
agency provides otherwise in the award or in the agency's regulations, 
the prior approval requirements described in paragraph (e) of this 
section are automatically waived (i.e., recipients need not obtain such 
prior approvals) unless one of the conditions included in paragraph 
(e)(2) of this section applies.
    (f) The Federal awarding agency may, at its option, restrict the 
transfer of funds among direct cost categories or programs, functions 
and activities for awards in which the Federal share of the project 
exceeds $100,000 and the cumulative amount of such transfers exceeds or 
is expected to exceed 10 percent of the total budget as last approved by 
the Federal awarding agency. No Federal awarding agency shall permit a 
transfer that would cause any Federal appropriation or part thereof to 
be used for purposes other than those consistent with the original 
intent of the appropriation.
    (g) All other changes to nonconstruction budgets, except for the 
changes described in paragraph (j) of this section, do not require prior 
approval.
    (h) For construction awards, recipients shall request prior written 
approval promptly from Federal awarding agencies for budget revisions 
whenever

[[Page 162]]

the conditions in paragraphs (h) (1), (2) or (3) of this section apply.
    (1) The revision results from changes in the scope or the objective 
of the project or program.
    (2) The need arises for additional Federal funds to complete the 
project.
    (3) A revision is desired which involves specific costs for which 
prior written approval requirements may be imposed consistent with 
applicable OMB cost principles listed in Sec. 19.27.
    (i) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (j) When a Federal awarding agency makes an award that provides 
support for both construction and nonconstruction work, the Federal 
awarding agency may require the recipient to request prior approval from 
the Federal awarding agency before making any fund or budget transfers 
between the two types of work supported.
    (k) For both construction and nonconstruction awards, Federal 
awarding agencies shall require recipients to notify the Federal 
awarding agency in writing promptly whenever the amount of Federal 
authorized funds is expected to exceed the needs of the recipient for 
the project period by more than $5,000 or five percent of the Federal 
award, whichever is greater. This notification shall not be required if 
an application for additional funding is submitted for a continuation 
award.
    (l) When requesting approval for budget revisions, recipients shall 
use the budget forms that were used in the application unless the 
Federal awarding agency indicates a letter of request suffices.
    (m) Within 30 calendar days from the date of receipt of the request 
for budget revisions, Federal awarding agencies shall review the request 
and notify the recipient whether the budget revisions have been 
approved. If the revision is still under consideration at the end of 30 
calendar days, the Federal awarding agency shall inform the recipient in 
writing of the date when the recipient may expect the decision.



Sec. 19.26  Non-Federal audits.

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

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



Sec. 19.27  Allowable costs.

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

[[Page 163]]

and those non-profit organizations listed in Attachment C to Circular A-
122 is determined in accordance with the provisions of the Federal 
Acquisition Regulation (FAR) at 48 CFR part 31.



Sec. 19.28  Period of availability of funds.

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

                           Property Standards



Sec. 19.30  Purpose of property standards.

    (a) Sections 19.31 through 19.37 set forth uniform standards 
governing management and disposition of property furnished by the 
Federal Government whose cost was charged to a project supported by a 
Federal award. Federal awarding agencies shall require recipients to 
observe these standards under awards and shall not impose additional 
requirements, unless specifically required by Federal statute. The 
recipient may use its own property management standards and procedures 
provided it observes the provisions of Sec. Sec. 19.31 through 19.37.
    (b) Transfer of capital assets. Section 12(k) of the Federal Transit 
Act, as amended, (49 U.S.C. app. 1608(k)) allows the transfer without 
compensation of real property (including land) and equipment acquired 
under the Act for another public purpose under certain conditions. 
Procedures to allow these transfers have not been issued.



Sec. 19.31  Insurance coverage.

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



Sec. 19.32  Real property.

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

[[Page 164]]

third party provided that, in such cases, the recipient shall be 
entitled to compensation for its attributable percentage of the current 
fair market value of the property.



Sec. 19.33  Federally-owned and exempt property.

    (a) Federally-owned property. (1) Title to federally-owned property 
remains vested in the Federal Government. Recipients shall submit 
annually an inventory listing of federally-owned property in their 
custody to the Federal awarding agency. Upon completion of the award or 
when the property is no longer needed, the recipient shall report the 
property to the Federal awarding agency for further Federal agency 
utilization.
    (2) If the Federal awarding agency has no further need for the 
property, it shall be declared excess and reported to the General 
Services Administration, unless the Federal awarding agency has 
statutory authority to dispose of the property by alternative methods 
(e.g., the authority provided by the Federal Technology Transfer Act (15 
U.S.C. 3710(I)) to donate research equipment to educational and non-
profit organizations in accordance with E.O. 12821, ``Improving 
Mathematics and Science Education in Support of the National Education 
Goals.'') Appropriate instructions shall be issued to the recipient by 
the Federal awarding agency.
    (b) Exempt property. When statutory authority exists, the Federal 
awarding agency has the option to vest title to property acquired with 
Federal funds in the recipient without further obligation to the Federal 
Government and under conditions the Federal awarding agency considers 
appropriate. Such property is ``exempt property.'' Should a Federal 
awarding agency not establish conditions, title to exempt property upon 
acquisition shall vest in the recipient without further obligation to 
the Federal Government.



Sec. 19.34  Equipment.

    (a) Title to equipment acquired by a recipient with Federal funds 
shall vest in the recipient, subject to conditions of this section.
    (b) The recipient shall not use equipment acquired with Federal 
funds to provide services to non-Federal outside organizations for a fee 
that is less than private companies charge for equivalent services, 
unless specifically authorized by Federal statute, for as long as the 
Federal Government retains an interest in the equipment.
    (c) The recipient shall use the equipment in the project or program 
for which it was acquired as long as needed, whether or not the project 
or program continues to be supported by Federal funds and shall not 
encumber the property without approval of the Federal awarding agency. 
When no longer needed for the original project or program, the recipient 
shall use the equipment in connection with its other federally-sponsored 
activities, in the following order of priority:
    (1) Activities sponsored by the Federal awarding agency which funded 
the original project, then
    (2) Activities sponsored by other Federal awarding agencies.
    (d) During the time that equipment is used on the project or program 
for which it was acquired, the recipient shall make it available for use 
on other projects or programs if such other use will not interfere with 
the work on the project or program for which the equipment was 
originally acquired. First preference for such other use shall be given 
to other projects or programs sponsored by the Federal awarding agency 
that financed the equipment; second preference shall be given to 
projects or programs sponsored by other Federal awarding agencies. If 
the equipment is owned by the Federal Government, use on other 
activities not sponsored by the Federal Government shall be permissible 
if authorized by the Federal awarding agency. User charges shall be 
treated as program income.
    (e) When acquiring replacement equipment, the recipient may use the 
equipment to be replaced as trade-in or sell the equipment and use the 
proceeds to offset the costs of the replacement equipment subject to the 
approval of the Federal awarding agency.
    (f) The recipient's property management standards for equipment 
acquired with Federal funds and federally-owned

[[Page 165]]

equipment shall include all of the following.
    (1) Equipment records shall be maintained accurately and shall 
include the following information.
    (i) A description of the equipment.
    (ii) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or other identification number.
    (iii) Source of the equipment, including the award number.
    (iv) Whether title vests in the recipient or the Federal Government.
    (v) Acquisition date (or date received, if the equipment was 
furnished by the Federal Government) and cost.
    (vi) Information from which one can calculate the percentage of 
Federal participation in the cost of the equipment (not applicable to 
equipment furnished by the Federal Government).
    (vii) Location and condition of the equipment and the date the 
information was reported.
    (viii) Unit acquisition cost.
    (ix) Ultimate disposition data, including date of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates the Federal awarding agency for its share.
    (2) Equipment owned by the Federal Government shall be identified to 
indicate Federal ownership.
    (3) A physical inventory of equipment shall be taken and the results 
reconciled with the equipment records at least once every two years. Any 
differences between quantities determined by the physical inspection and 
those shown in the accounting records shall be investigated to determine 
the causes of the difference. The recipient shall, in connection with 
the inventory, verify the existence, current utilization, and continued 
need for the equipment.
    (4) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft of the equipment. Any loss, 
damage, or theft of equipment shall be investigated and fully 
documented; if the equipment was owned by the Federal Government, the 
recipient shall promptly notify the Federal awarding agency.
    (5) Adequate maintenance procedures shall be implemented to keep the 
equipment in good condition.
    (6) Where the recipient is authorized or required to sell the 
equipment, proper sales procedures shall be established which provide 
for competition to the extent practicable and result in the highest 
possible return.
    (g) When the recipient no longer needs the equipment, the equipment 
may be used for other activities in accordance with the following 
standards. For equipment with a current per unit fair market value of 
$5,000 or more, the recipient may retain the equipment for other uses 
provided that compensation is made to the original Federal awarding 
agency or its successor. The amount of compensation shall be computed by 
applying the percentage of Federal participation in the cost of the 
original project or program to the current fair market value of the 
equipment. If the recipient has no need for the equipment, the recipient 
shall request disposition instructions from the Federal awarding agency. 
The Federal awarding agency shall determine whether the equipment can be 
used to meet the agency's requirements. If no requirement exists within 
that agency, the availability of the equipment shall be reported to the 
General Services Administration by the Federal awarding agency to 
determine whether a requirement for the equipment exists in other 
Federal agencies. The Federal awarding agency shall issue instructions 
to the recipient no later than 120 calendar days after the recipient's 
request and the following procedures shall govern.
    (1) If so instructed or if disposition instructions are not issued 
within 120 calendar days after the recipient's request, the recipient 
shall sell the equipment and reimburse the Federal awarding agency an 
amount computed by applying to the sales proceeds the percentage of 
Federal participation in the cost of the original project or program. 
However, the recipient shall be permitted to deduct and retain from the 
Federal share $500 or ten percent of the proceeds, whichever is less, 
for the recipient's selling and handling expenses.

[[Page 166]]

    (2) If the recipient is instructed to ship the equipment elsewhere, 
the recipient shall be reimbursed by the Federal Government by an amount 
which is computed by applying the percentage of the recipient's 
participation in the cost of the original project or program to the 
current fair market value of the equipment, plus any reasonable shipping 
or interim storage costs incurred.
    (3) If the recipient is instructed to otherwise dispose of the 
equipment, the recipient shall be reimbursed by the Federal awarding 
agency for such costs incurred in its disposition.
    (4) The Federal awarding agency may reserve the right to transfer 
the title to the Federal Government or to a third party named by the 
Federal Government when such third party is otherwise eligible under 
existing statutes. Such transfer shall be subject to the following 
standards.
    (i) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (ii) The Federal awarding agency shall issue disposition 
instructions within 120 calendar days after receipt of a final 
inventory. The final inventory shall list all equipment acquired with 
grant funds and federally-owned equipment. If the Federal awarding 
agency fails to issue disposition instructions within the 120 calendar 
day period, the recipient shall apply the standards of this section, as 
appropriate.
    (iii) When the Federal awarding agency exercises its right to take 
title, the equipment shall be subject to the provisions for federally-
owned equipment.



Sec. 19.35  Supplies and other expendable property.

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



Sec. 19.36  Intangible property.

    (a) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, under 
an award. The Federal awarding agency(ies) reserve a royalty-free, 
nonexclusive and irrevocable right to reproduce, publish, or otherwise 
use the work for Federal purposes, and to authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including government-wide regulations issued by 
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) The Federal Government has the right to:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award; and
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d)(1) In addition, in response to a Freedom of Information Act 
(FOIA) request for research data relating to published research findings 
produced under an award that were used by the Federal Government in 
developing an agency action that has the force and effect of law, the 
Federal awarding agency 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 Federal awarding agency obtains the research data solely in 
response to a FOIA request, the agency may charge

[[Page 167]]

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 Federal awarding agency. When no longer needed for the originally 
authorized purpose, disposition of the intangible property shall occur 
in accordance with the provisions of paragraph Sec. 19.34(g).

[59 FR 15639, Apr. 4, 1994, as amended at 65 FR 14407, 14419, Mar. 16, 
2000]



Sec. 19.37  Property trust relationship.

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

                          Procurement Standards



Sec. 19.40  Purpose of procurement standards.

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



Sec. 19.41  Recipient responsibilities.

    The standards contained in this section do not relieve the recipient 
of the contractual responsibilities arising under its contract(s). The 
recipient is the responsible authority, without recourse to the Federal 
awarding agency, regarding the settlement and satisfaction of all 
contractual and administrative issues arising out of procurements 
entered into in support of an award or other agreement. This includes 
disputes, claims, protests of award, source

[[Page 168]]

evaluation or other matters of a contractual nature. Matters concerning 
violation of statute are to be referred to such Federal, State or local 
authority as may have proper jurisdiction.



Sec. 19.42  Codes of conduct.

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



Sec. 19.43  Competition.

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



Sec. 19.44  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide for, at a minimum, that the conditions in 
paragraphs (a)(1), (2) and (3) of this section apply.
    (1) Recipients avoid purchasing unnecessary items.
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be the most economical and 
practical procurement for the Federal Government.
    (3) Solicitations for goods and services provide for all of the 
following:
    (i) A clear and accurate description of the technical requirements 
for the material, product or service to be procured. In competitive 
procurements, such a description shall not contain features which unduly 
restrict competition.
    (ii) Requirements which the bidder/offeror must fulfill and all 
other factors to be used in evaluating bids or proposals.
    (iii) A description, whenever practicable, of technical requirements 
in terms of functions to be performed or performance required, including 
the range of acceptable characteristics or minimum acceptable standards.
    (iv) The specific features of ``brand name or equal'' descriptions 
that bidders are required to meet when such items are included in the 
solicitation.
    (v) The acceptance, to the extent practicable and economically 
feasible, of products and services dimensioned in the metric system of 
measurement.
    (vi) Preference, to the extent practicable and economically 
feasible, for products and services that conserve natural resources and 
protect the environment and are energy efficient.
    (b) Positive efforts shall be made by recipients to utilize small 
businesses, minority-owned firms, and women's

[[Page 169]]

business enterprises, whenever possible. Recipients of Federal awards 
shall take all of the following steps to further this goal.
    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange timeframes for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.
    (3) Consider in the contract process whether firms competing for 
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority-owned firms and women's business enterprises when a contract is 
too large for one of these firms to handle individually.
    (5) Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration and the Department of 
Commerce's Minority Business Development Agency in the solicitation and 
utilization of small businesses, minority-owned firms, and women's 
business enterprises.
    (c) The type of procuring instruments used (e.g., fixed price 
contracts, cost reimbursable contracts, purchase orders, and incentive 
contracts) shall be determined by the recipient but shall be appropriate 
for the particular procurement and for promoting the best interest of 
the program or project involved. The ``cost-plus-a-percentage-of-cost'' 
or ``percentage of construction cost'' methods of contracting shall not 
be used.
    (d) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration shall be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources or accessibility to other necessary 
resources. In certain circumstances, contracts with certain parties are 
restricted by 49 CFR part 29, the implementation of E.O.'s 12549 and 
12689, ``Debarment and Suspension.''
    (e) Recipients shall, on request, make available for the Federal 
awarding agency, pre-award review and procurement documents, such as 
request for proposals or invitations for bids, independent cost 
estimates, etc., when any of the following conditions apply.
    (1) A recipient's procurement procedures or operation fails to 
comply with the procurement standards in this part.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403 (11) (currently $25,000) and is to be 
awarded without competition or only one bid or offer is received in 
response to a solicitation.
    (3) The procurement, which is expected to exceed the small purchase 
threshold, specifies a ``brand name'' product.
    (4) The proposed award over the small purchase threshold is to be 
awarded to other than the apparent low bidder under a sealed bid 
procurement.
    (5) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the amount of the small 
purchase threshold.
    (f) Additional procurement procedures.
    (1) Section 165 of the STAA of 1982, as amended; section 337 of the 
Surface Transportation and Uniform Relocation Assistance Act (STURAA) of 
1987, 49 U.S.C. 1601, section 1048 of the Intermodal Surface 
Transportation Efficiency Act of 1991, and section 9129 of the Aviation 
Safety and Capacity Expansion Act of 1990, 49 U.S.C. app. 2226, impose 
Buy America requirements on the procurement of foreign products and 
materials by all recipients of FHWA, FTA, and Federal Aviation 
Administration (FAA) funds. Procedures are contained in 49 CFR part 660, 
Buy America Requirements and part 661, Buy America Requirements--STAA of 
1982. In addition, for FTA recipients, nonregulatory guidance is 
contained in FTA Circular 4220.1B, Third Party Contracting Guidelines, 
Chapter I, section 11. Non-regulatory guidance for FAA programs is 
contained in FAA Order

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



Sec. 19.45  Cost and price analysis.

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



Sec. 19.46  Procurement records.

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



Sec. 19.47  Contract administration.

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



Sec. 19.48  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and complete agreement, the following provisions in all contracts. 
The following provisions shall also be applied to subcontracts.
    (a) Contracts in excess of the small purchase threshold shall 
contain contractual provisions or conditions that allow for 
administrative, contractual, or legal remedies in instances in which a 
contractor violates or breaches the contract terms, and provide for such 
remedial actions as may be appropriate.
    (b) All contracts in excess of the small purchase threshold shall 
contain suitable provisions for termination by the recipient, including 
the manner by which termination shall be effected and the basis for 
settlement. In addition, such contracts shall describe conditions under 
which the contract may be terminated for default as well as conditions 
where the contract may be terminated because of circumstances beyond the 
control of the contractor.
    (c) Except as otherwise required by statute, an award that requires 
the contracting (or subcontracting) for construction or facility 
improvements shall provide for the recipient to follow its own 
requirements relating to bid guarantees, performance bonds, and payment 
bonds unless the construction contract or subcontract exceeds $100,000. 
For those contracts or subcontracts exceeding $100,000, the Federal 
awarding agency may accept the

[[Page 171]]

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

                           Reports and Records



Sec. 19.50  Purpose of reports and records.

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



Sec. 19.51  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients shall monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 19.26.
    (b) The Federal awarding agency shall prescribe the frequency with 
which the performance reports shall be submitted. Except as provided in 
Sec. 19.51(f), performance reports shall not be required more 
frequently than quarterly or, less frequently than annually. Annual 
reports shall be due 90 calendar days after the grant year; quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
Federal awarding agency may require annual reports before the 
anniversary dates of multiple year awards in lieu of these requirements. 
The final performance reports are due 90 calendar days after the 
expiration or termination of the award.
    (c) If inappropriate, a final technical or performance report shall 
not be required after completion of the project.
    (d) When required, performance reports shall generally contain, for 
each award, brief information on each of the following:
    (1) A comparison of actual accomplishments with the goals and 
objectives established for the period, the findings of the investigator, 
or both. Whenever appropriate and the output of programs or projects can 
be readily quantified, such quantitative data should be related to cost 
data for computation of unit costs.
    (2) Reasons why established goals were not met, if appropriate.
    (3) Other pertinent information including, when appropriate, 
analysis

[[Page 172]]

and explanation of cost overruns or high unit costs.
    (e) Recipients shall not be required to submit more than the 
original and two copies of performance reports.
    (f) Recipients shall immediately notify the Federal awarding agency 
of developments that have a significant impact on the award-supported 
activities. Also, notification shall be given in the case of problems, 
delays, or adverse conditions which materially impair the ability to 
meet the objectives of the award. This notification shall include a 
statement of the action taken or contemplated, and any assistance needed 
to resolve the situation.
    (g) Federal awarding agencies may make site visits, as needed.
    (h) Federal awarding agencies shall comply with clearance 
requirements of 5 CFR part 1320 when requesting performance data from 
recipients.



Sec. 19.52  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report.
    (i) Each Federal awarding agency shall require recipients to use the 
SF-269 or SF-269A to report the status of funds for all nonconstruction 
projects or programs. A Federal awarding agency may, however, have the 
option of not requiring the SF-269 or SF-269A when the SF-270, Request 
for Advance or Reimbursement, or SF-272, Report of Federal Cash 
Transactions, is determined to provide adequate information to meet its 
needs, except that a final SF-269 or SF-269A shall be required at the 
completion of the project when the SF-270 is used only for advances.
    (ii) The Federal awarding agency shall prescribe whether the report 
shall be on a cash or accrual basis. If the Federal awarding agency 
requires accrual information and the recipient's accounting records are 
not normally kept on the accrual basis, the recipient shall not be 
required to convert its accounting system, but shall develop such 
accrual information through best estimates based on an analysis of the 
documentation on hand.
    (iii) The Federal awarding agency shall determine the frequency of 
the Financial Status Report for each project or program, considering the 
size and complexity of the particular project or program. However, the 
report shall not be required more frequently than quarterly or less 
frequently than annually. A final report shall be required at the 
completion of the agreement.
    (iv) The Federal awarding agency shall require recipients to submit 
the SF-269 or SF-269A (an original and no more than two copies) no later 
than 30 days after the end of each specified reporting period for 
quarterly and semi-annual reports, and 90 calendar days for annual and 
final reports. Extensions of reporting due dates may be approved by the 
Federal awarding agency upon request of the recipient.
    (2) SF-272, Report of Federal Cash Transactions.
    (i) When funds are advanced to recipients the Federal awarding 
agency shall require each recipient to submit the SF-272 and, when 
necessary, its continuation sheet, SF-272a. The Federal awarding agency 
shall use this report to monitor cash advanced to recipients and to 
obtain disbursement information for each agreement with the recipients.
    (ii) Federal awarding agencies may require forecasts of Federal cash 
requirements in the ``Remarks'' section of the report.
    (iii) When practical and deemed necessary, Federal awarding agencies 
may require recipients to report in the ``Remarks'' section the amount 
of cash advances received in excess of three days. Recipients shall 
provide short narrative explanations of actions taken to reduce the 
excess balances.
    (iv) Recipients shall be required to submit not more than the 
original and two copies of the SF-272 15 calendar days following the end 
of each quarter. The Federal awarding agencies may require a monthly 
report from those recipients receiving advances totaling $1 million or 
more per year.
    (v) Federal awarding agencies may waive the requirement for 
submission of the SF-272 for any one of the following reasons:

[[Page 173]]

    (A) When monthly advances do not exceed $25,000 per recipient, 
provided that such advances are monitored through other forms contained 
in this section;
    (B) If, in the Federal awarding agency's opinion, the recipient's 
accounting controls are adequate to minimize excessive Federal advances; 
or,
    (C) When the electronic payment mechanisms provide adequate data.
    (b) When the Federal awarding agency needs additional information or 
more frequent reports, the following shall be observed.
    (1) When additional information is needed to comply with legislative 
requirements, Federal awarding agencies shall issue instructions to 
require recipients to submit such information under the ``Remarks'' 
section of the reports.
    (2) When a Federal awarding agency determines that a recipient's 
accounting system does not meet the standards in Sec. 19.21, additional 
pertinent information to further monitor awards may be obtained upon 
written notice to the recipient until such time as the system is brought 
up to standard. The Federal awarding agency, in obtaining this 
information, shall comply with report clearance requirements of 5 CFR 
part 1320.
    (3) Federal awarding agencies are encouraged to shade out any line 
item on any report if not necessary.
    (4) Federal awarding agencies may accept the identical information 
from the recipients in machine readable format or computer printouts or 
electronic outputs in lieu of prescribed formats.
    (5) Federal awarding agencies may provide computer or electronic 
outputs to recipients when such expedites or contributes to the accuracy 
of reporting.



Sec. 19.53  Retention and access requirements for records.

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

[[Page 174]]

but shall last as long as records are retained.
    (f) Unless required by statute, no Federal awarding agency shall 
place restrictions on recipients that limit public access to the records 
of recipients that are pertinent to an award, except when the Federal 
awarding agency can demonstrate that such records shall be kept 
confidential and would have been exempted from disclosure pursuant to 
the Freedom of Information Act (5 U.S.C. 552) if the records had 
belonged to the Federal awarding agency.
    (g) Indirect cost rate proposals, cost allocations plans, etc. 
Paragraphs (g)(1) and (g)(2) of this section apply to the following 
types of documents, and their supporting records: Indirect cost rate 
computations or proposals, cost allocation plans, and any similar 
accounting computations of the rate at which a particular group of costs 
is chargeable (such as computer usage chargeback rates or composite 
fringe benefit rates).
    (1) If submitted for negotiation. If the recipient submits to the 
Federal awarding agency or the subrecipient submits to the recipient the 
proposal, plan, or other computation to form the basis for negotiation 
of the rate, then the 3-year retention period for its supporting records 
starts on the date of such submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to the Federal awarding agency or the subrecipient is 
not required to submit to the recipient the proposal, plan, or other 
computation for negotiation purposes, then the 3-year retention period 
for the proposal, plan, or other computation and its supporting records 
starts at the end of the fiscal year (or other accounting period) 
covered by the proposal, plan, or other computation.

                       Termination and Enforcement



Sec. 19.60  Purpose of termination and enforcement.

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



Sec. 19.61  Termination.

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



Sec. 19.62  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
the Federal awarding agency may, in addition to imposing any of the 
special conditions outlined in Sec. 19.14, take one or more of the 
following actions, as appropriate in the circumstances.
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by the 
Federal awarding agency.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching

[[Page 175]]

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



                 Subpart D_After-the-Award Requirements



Sec. 19.70  Purpose.

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



Sec. 19.71  Closeout procedures.

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



Sec. 19.72  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following.
    (1) The right of the Federal awarding agency to disallow costs and 
recover funds on the basis of a later audit or other review.

[[Page 176]]

    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 19.26.
    (4) Property management requirements in Sec. Sec. 19.31 through 
19.37.
    (5) Records retention as required in Sec. 19.53.
    (b) After closeout of an award, a relationship created under an 
award may be modified or ended in whole or in part with the consent of 
the Federal awarding agency and the recipient, provided the 
responsibilities of the recipient referred to in Sec. 19.73(a), 
including those for property management as applicable, are considered 
and provisions made for continuing responsibilities of the recipient, as 
appropriate.



Sec. 19.73  Collection of amounts due.

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



             Sec. Appendix A to Part 19--Contract Provisions

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

[[Page 177]]

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



PART 20_NEW RESTRICTIONS ON LOBBYING--Table of Contents




                            Subpart A_General

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

                  Subpart B_Activities by Own Employees

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

            Subpart C_Activities by Other Than Own Employees

20.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

20.400 Penalties.
20.405 Penalty procedures.
20.410 Enforcement.

                          Subpart E_Exemptions

20.500 Secretary of Defense.

                        Subpart F_Agency Reports

20.600 Semi-annual compilation.
20.605 Inspector General report.

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

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

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

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



                            Subpart A_General



Sec. 20.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a

[[Page 178]]

Member of Congress in connection with any of the following covered 
Federal actions: the awarding of any Federal contract, the making of any 
Federal grant, the making of any Federal loan, the entering into of any 
cooperative agreement, and the extension, continuation, renewal, 
amendment, or modification of any Federal contract, grant, loan, or 
cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 20.105  Definitions.

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

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included

[[Page 179]]

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



Sec. 20.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:

[[Page 180]]

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

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

Shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                  Subpart B_Activities by Own Employees



Sec. 20.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
20.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement

[[Page 181]]

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



Sec. 20.205  Professional and technical services.

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

[[Page 182]]

those required by law or regulation, or reasonably expected to be 
required by law or regulation, and any other requirements in the actual 
award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 20.210  Reporting.

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



            Subpart C_Activities by Other Than Own Employees



Sec. 20.300  Professional and technical services.

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



                   Subpart D_Penalties and Enforcement



Sec. 20.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.

[[Page 183]]

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



Sec. 20.405  Penalty procedures.

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



Sec. 20.410  Enforcement.

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



                          Subpart E_Exemptions



Sec. 20.500  Secretary of Defense.

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



                        Subpart F_Agency Reports



Sec. 20.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed

[[Page 184]]

Services of the Senate and the House of Representatives (whichever such 
committees have jurisdiction of matters involving such information) and 
to the Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 20.605  Inspector General report.

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



      Sec. Appendix A to Part 20--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 185]]

            Statement for Loan Guarantees and Loan Insurance

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

[[Page 186]]



     Sec. Appendix B to Part 20--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC02FE91.097


[[Page 187]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.098


[[Page 188]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.099


[[Page 189]]





PART 21_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE 
DEPARTMENT OF TRANSPORTATION_EFFECTUATION OF TITLE VI OF THE CIVIL

RIGHTS ACT OF 1964--Table of Contents




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

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

    Authority: 42 U.S.C. 2000d-2000d-7.

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



Sec. 21.1  Purpose.

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



Sec. 21.3  Application of this part.

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

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

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec. 21.5  Discrimination prohibited.

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

[[Page 190]]

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

[[Page 191]]

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

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973; 68 FR 51389, Aug. 26, 2003]



Sec. 21.7  Assurances required.

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

[[Page 192]]

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

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec. 21.9  Compliance information.

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

[[Page 193]]

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

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973; 68 FR 51389, Aug. 26, 2003]



Sec. 21.11  Conduct of investigations.

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

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



Sec. 21.13  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to: (1) A reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec. 21.7. If an applicant fails or refuses 
to furnish an assurance required under Sec. 21.7 or otherwise fails or 
refuses to comply with a

[[Page 194]]

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

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



Sec. 21.15  Hearings.

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

[[Page 195]]

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

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec. 21.17  Decisions and notices.

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

[[Page 196]]

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

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

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec. 21.19  Judicial review.

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



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

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

[[Page 197]]

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

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec. 21.23  Definitions.

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

[[Page 198]]

    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (e)(1), (2), or (3) of this section.
    (f) Recipient may mean any State, territory, possession, the 
District of Columbia, or Puerto Rico, or any political subdivision 
thereof, or instrumentality thereof, any public or private agency, 
institution, or organization, or other entity, or any individual, in any 
State, territory, possession, the District of Columbia, or Puerto Rico, 
to whom Federal financial assistance is extended, directly or through 
another recipient, including any successor, assignee, or transferee 
thereof, but such term does not include any ultimate beneficiary.
    (g) Secretary means the Secretary of Transportation or, except in 
Sec. 21.17 (e), any person to whom he has delegated his authority in 
the matter concerned.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



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

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

[[Page 199]]

    15. Use of grants made in connection with Urban Mass Transportation 
Technical Studies Grant Program--Urban Mass Transportation Act of 1964, 
as amended (49 U.S.C. 1607a).
    16. Use of grants made in connection with Urban Mass Transportation 
Managerial Training Grant Program--Urban Mass Transportation Act of 
1964, as amended (49 U.S.C. 1607b).
    17. Use of grants made in connection with Urban Mass Transportation 
Grants for Research and Training Programs in Institutions of Higher 
Learning--Urban Mass Transportation Act of 1964, as amended (49 U.S.C. 
1607c).
    18. Use of grants made in connection with the High Speed Ground 
Transportation Act, as amended (49 U.S.C. 631-642).



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

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



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

            Nondiscrimination on Federally Assisted Projects

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

[[Page 200]]

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

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



PART 23_PARTICIPATION OF DISADVANTAGED BUSINESS ENTERPRISE IN AIRPORT
CONCESSIONS--Table of Contents




                            Subpart A_General

Sec.
23.1 What are the objectives of this part?
23.3 What do the terms used in this part mean?
23.5 To whom does this part apply?
23.7 How long do the provisions of this part remain in effect?
23.9 What are the nondiscrimination and assurance requirements of this 
          part for recipients?
23.11 What compliance and enforcement provisions are used under this 
          part?

[[Page 201]]

23.13 How does the Department issue guidance, interpretations, 
          exemptions, and waivers pertaining to this part?

                        Subpart B_ACDBE programs

23.21 Who must submit an ACDBE program to FAA, and when?
23.23 What administrative provisions must be in a recipient's ACDBE 
          program?
23.25 What measures must recipients include in their ACDBE programs to 
          ensure nondiscriminatory participation of ACDBEs in 
          concessions?
23.27 What information does a recipient have to retain and report about 
          implementation of its ACDBE program?
23.29 What monitoring and compliance procedures must recipients follow?

                    Subpart C_Certification of ACDBEs

23.31 What certification standards and procedures do recipients use to 
          certify ACDBEs?
23.33 What size standards do recipients use to determine the eligibility 
          of ACDBEs?
23.35 What is the personal net worth standard for disadvantaged owners 
          of ACDBEs?
23.37 Are firms certified under 49 CFR part 26 eligible to participate 
          as ACDBEs?
23.39 What other certification requirements apply in the case of ACDBEs?

            Subpart D_Goals, Good Faith Efforts, and Counting

23.41 What is the basic overall goal requirement for recipients?
23.43 What are the consultation requirements in the development of 
          recipients' overall goals?
23.45 What are the requirements for submitting overall goal information 
          to the FAA?
23.47 What is the base for a recipient's goals for concessions other 
          than car rentals?
23.49 What is the base for a recipient's goals for car rentals?
23.51 How are a recipient's overall goals expressed and calculated?
23.53 How do car rental companies count ACDBE participation toward their 
          goals?
23.55 How do recipients count ACDBE participation toward goals for items 
          other than car rentals?
23.57 What happens if a recipient falls short of meeting its overall 
          goals?
23.59 What is the role of the statutory 10 percent goal in the ACDBE 
          program?
23.61 Can recipients use quotas or set-asides as part of their their 
          ACDBE programs?

                       Subpart E_Other Provisions

23.71 Does a recipient have to change existing concession agreements?
23.73 What requirements apply to privately-owned or leased terminal 
          buildings?
23.75 Can recipients enter into long-term, exclusive agreements with 
          concessionaires?
23.77 Does this part preempt local requirements?
23.79 Does this part permit recipients to use local geographic 
          preferences?

Appendix A to Part 23--Uniform Report of ACDBE Participation

    Authority: 49 U.S.C. 47107; 42 U.S.C. 2000d; 49 U.S.C. 322; 
Executive Order 12138.

    Source: 70 FR 14508, Mar. 22, 2005, unless otherwise noted.



                            Subpart A_General



Sec. 23.1  What are the objectives of this part?

    This part seeks to achieve several objectives:
    (a) To ensure nondiscrimination in the award and administration of 
opportunities for concessions by airports receiving DOT financial 
assistance;
    (b) To create a level playing field on which ACDBEs can compete 
fairly for opportunities for concessions;
    (c) To ensure that the Department's ACDBE program is narrowly 
tailored in accordance with applicable law;
    (d) To ensure that only firms that fully meet this part's 
eligibility standards are permitted to participate as ACDBEs;
    (e) To help remove barriers to the participation of ACDBEs in 
opportunities for concessions at airports receiving DOT financial 
assistance; and
    (f) To provide appropriate flexibility to airports receiving DOT 
financial assistance in establishing and providing opportunities for 
ACDBEs.



Sec. 23.3  What do the terms used in this part mean?

    Administrator means the Administrator of the Federal Aviation 
Administration (FAA).
    Affiliation has the same meaning the term has in the Small Business 
Administration (SBA) regulations, 13 CFR part 121, except that the 
provisions of SBA regulations concerning affiliation in the context of 
joint ventures (13 CFR Sec. 121.103(f)) do not apply to this part.
    (1) Except as otherwise provided in 13 CFR part 121, concerns are 
affiliates of

[[Page 202]]

each other when, either directly or indirectly:
    (i) One concern controls or has the power to control the other; or
    (ii) A third party or parties controls or has the power to control 
both; or
    (iii) An identity of interest between or among parties exists such 
that affiliation may be found.
    (2) In determining whether affiliation exists, it is necessary to 
consider all appropriate factors, including common ownership, common 
management, and contractual relationships. Affiliates must be considered 
together in determining whether a concern meets small business size 
criteria and the statutory cap on the participation of firms in the 
ACDBE program.
    Airport Concession Disadvantaged Business Enterprise (ACDBE) means a 
concession that is a for-profit small business concern--
    (1) That is at least 51 percent owned by one or more individuals who 
are both socially and economically disadvantaged or, in the case of a 
corporation, in which 51 percent of the stock is owned by one or more 
such individuals; and
    (2) Whose management and daily business operations are controlled by 
one or more of the socially and economically disadvantaged individuals 
who own it.
    Alaska Native Corporation (ANC) means any Regional Corporation, 
Village Corporation, Urban Corporation, or Group Corporation organized 
under the laws of the State of Alaska in accordance with the Alaska 
Native Claims Settlement Act (43 U.S.C. 1601 et seq.)
    Car dealership means an establishment primarily engaged in the 
retail sale of new and/or used automobiles. Car dealerships frequently 
maintain repair departments and carry stocks of replacement parts, 
tires, batteries, and automotive accessories. Such establishments also 
frequently sell pickup trucks and vans at retail. In the standard 
industrial classification system, car dealerships are categorized in 
NAICS code 441110.
    Concession means one or more of the types of for-profit businesses 
listed in paragraph (1) or (2) of this definition:
    (1) A business, located on an airport subject to this part, that is 
engaged in the sale of consumer goods or services to the public under an 
agreement with the recipient, another concessionaire, or the owner or 
lessee of a terminal, if other than the recipient.
    (2) A business conducting one or more of the following covered 
activities, even if it does not maintain an office, store, or other 
business location on an airport subject to this part, as long as the 
activities take place on the airport: Management contracts and 
subcontracts, a web-based or other electronic business in a terminal or 
which passengers can access at the terminal, an advertising business 
that provides advertising displays or messages to the public on the 
airport, or a business that provides goods and services to 
concessionaires.

    Example to paragraph (2): A supplier of goods or a management 
contractor maintains its office or primary place of business off the 
airport. However the supplier provides goods to a retail establishment 
in the airport; or the management contractor operates the parking 
facility on the airport. These businesses are considered concessions for 
purposes of this part.

    (3) For purposes of this subpart, a business is not considered to be 
``located on the airport'' solely because it picks up and/or delivers 
customers under a permit, license, or other agreement. For example, 
providers of taxi, limousine, car rental, or hotel services are not 
considered to be located on the airport just because they send shuttles 
onto airport grounds to pick up passengers or drop them off. A business 
is considered to be ``located on the airport,'' however, if it has an 
on-airport facility. Such facilities include in the case of a taxi 
operator, a dispatcher; in the case of a limousine, a booth selling 
tickets to the public; in the case of a car rental company, a counter at 
which its services are sold to the public or a ready return facility; 
and in the case of a hotel operator, a hotel located anywhere on airport 
property.
    (4) Any business meeting the definition of concession is covered by 
this subpart, regardless of the name given to the agreement with the 
recipient, concessionaire, or airport terminal owner or lessee. A 
concession may be

[[Page 203]]

operated under various types of agreements, including but not limited to 
the following:
    (i) Leases.
    (ii) Subleases.
    (iii) Permits.
    (iv) Contracts or subcontracts.
    (v) Other instruments or arrangements.
    (5) The conduct of an aeronautical activity is not considered a 
concession for purposes of this subpart. Aeronautical activities include 
scheduled and non-scheduled air carriers, air taxis, air charters, and 
air couriers, in their normal passenger or freight carrying capacities; 
fixed base operators; flight schools; recreational service providers 
(e.g., sky-diving, parachute-jumping, flying guides); and air tour 
services.
    (6) Other examples of entities that do not meet the definition of a 
concession include flight kitchens and in-flight caterers servicing air 
carriers, government agencies, industrial plants, farm leases, 
individuals leasing hangar space, custodial and security contracts, 
telephone and electric service to the airport facility, holding 
companies, and skycap services under contract with an air carrier or 
airport.
    Concessionaire means a firm that owns and controls a concession or a 
portion of a concession.
    Department (DOT) means the U.S. Department of Transportation, 
including the Office of the Secretary and the Federal Aviation 
Administration (FAA).
    Direct ownership arrangement means a joint venture, partnership, 
sublease, licensee, franchise, or other arrangement in which a firm owns 
and controls a concession.
    Good faith efforts means efforts to achieve an ACDBE goal or other 
requirement of this part that, by their scope, intensity, and 
appropriateness to the objective, can reasonably be expected to meet the 
program requirement.
    Immediate family member means father, mother, husband, wife, son, 
daughter, brother, sister, grandmother, grandfather, grandson, 
granddaughter, mother-in-law, father-in-law, brother-in-law, sister-in-
law, or registered domestic partner.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians, including any ANC, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians, or is 
recognized as such by the State in which the tribe, band, nation, group, 
or community resides. See definition of ``tribally-owned concern'' in 
this section.
    Joint venture means an association of an ACDBE firm and one or more 
other firms to carry out a single, for-profit business enterprise, for 
which the parties combine their property, capital, efforts, skills and 
knowledge, and in which the ACDBE is responsible for a distinct, clearly 
defined portion of the work of the contract and whose shares in the 
capital contribution, control, management, risks, and profits of the 
joint venture are commensurate with its ownership interest. Joint 
venture entities are not certified as ACDBEs.
    Large hub primary airport means a commercial service airport that 
has a number of passenger boardings equal to at least one percent of all 
passenger boardings in the United States.
    Management contract or subcontract means an agreement with a 
recipient or another management contractor under which a firm directs or 
operates one or more business activities, the assets of which are owned, 
leased, or otherwise controlled by the recipient. The managing agent 
generally receives, as compensation, a flat fee or a percentage of the 
gross receipts or profit from the business activity. For purposes of 
this subpart, the business activity operated or directed by the managing 
agent must be other than an aeronautical activity, be located at an 
airport subject to this subpart, and be engaged in the sale of consumer 
goods or provision of services to the public.
    Material amendment means a significant change to the basic rights or 
obligations of the parties to a concession agreement. Examples of 
material amendments include an extension to the term not provided for in 
the original agreement or a substantial increase in the scope of the 
concession privilege. Examples of nonmaterial amendments include a 
change in the name of

[[Page 204]]

the concessionaire or a change to the payment due dates.
    Medium hub primary airport means a commercial service airport that 
has a number of passenger boardings equal to at least 0.25 percent of 
all passenger boardings in the United States but less than one percent 
of such passenger boardings.
    Native Hawaiian means any individual whose ancestors were natives, 
prior to 1778, of the area that now comprises the State of Hawaii.
    Native Hawaiian Organization means any community service 
organization serving Native Hawaiians in the State of Hawaii that is a 
not-for-profit organization chartered by the State of Hawaii, and is 
controlled by Native Hawaiians
    Noncompliance means that a recipient has not correctly implemented 
the requirements of this part.
    Nonhub primary airport means a commercial service airport that has 
more than 10,000 passenger boardings each year but less than 0.05 
percent of all passenger boardings in the United States.
    Part 26 means 49 CFR part 26, the Department of Transportation's 
disadvantaged business enterprise regulation for DOT-assisted contracts.
    Personal net worth means the net value of the assets of an 
individual remaining after total liabilities are deducted. An 
individual's personal net worth does not include the following: The 
individual's ownership interest in an ACDBE firm or a firm that is 
applying for ACDBE certification; the individual's equity in his or her 
primary place of residence; and other assets that the individual can 
document are necessary to obtain financing or a franchise agreement for 
the initiation or expansion of his or her ACDBE firm (or have in fact 
been encumbered to support existing financing for the individual's ACDBE 
business), to a maximum of $3 million. An individual's personal net 
worth includes only his or her own share of assets held jointly or as 
community property with the individual's spouse.
    Primary airport means a commercial service airport that the 
Secretary determines to have more than 10,000 passengers enplaned 
annually.
    Primary industry classification means the North American Industrial 
Classification System (NAICS) code designation that best describes the 
primary business of a firm. The NAICS Manual is available through the 
National Technical Information Service (NTIS) of the U.S. Department of 
Commerce (Springfield, VA, 22261). NTIS also makes materials available 
through its Web site (http://www.ntis.gov/naics).
    Primary recipient means a recipient to which DOT financial 
assistance is extended through the programs of the FAA and which passes 
some or all of it on to another recipient.
    Principal place of business means the business location where the 
individuals who manage the firm's day-to-day operations spend most 
working hours and where top management's business records are kept. If 
the offices from which management is directed and where business records 
are kept are in different locations, the recipient will determine the 
principal place of business for ACDBE program purposes.
    Race-conscious means a measure or program that is focused 
specifically on assisting only ACDBEs, including women-owned ACDBEs. For 
the purposes of this part, race-conscious measures include gender-
conscious measures.
    Race-neutral means a measure or program that is, or can be, used to 
assist all small businesses, without making distinctions or 
classifications on the basis of race or gender.
    Secretary means the Secretary of Transportation or his/her designee.
    Set-aside means a contracting practice restricting eligibility for 
the competitive award of a contract solely to ACDBE firms.
    Small Business Administration or SBA means the United States Small 
Business Administration.
    Small business concern means a for profit business that does not 
exceed the size standards of Sec. 23.33 of this part.
    Small hub airport means a publicly owned commercial service airport 
that has a number of passenger boardings equal to at least 0.05 percent 
of all passenger boardings in the United States but less than 0.25 
percent of such passenger boardings.

[[Page 205]]

    Socially and economically disadvantaged individual means any 
individual who is a citizen (or lawfully admitted permanent resident) of 
the United States and who is--
    (1) Any individual determined by a recipient to be a socially and 
economically disadvantaged individual on a case-by-case basis.
    (2) Any individual in the following groups, members of which are 
rebuttably presumed to be socially and economically disadvantaged:
    (i) ``Black Americans,'' which includes persons having origins in 
any of the Black racial groups of Africa;
    (ii) ``Hispanic Americans,'' which includes persons of Mexican, 
Puerto Rican, Cuban, Dominican, Central or South American, or other 
Spanish or Portuguese culture or origin, regardless of race;
    (iii) ``Native Americans,'' which includes persons who are American 
Indians, Eskimos, Aleuts, or Native Hawaiians;
    (iv) ``Asian-Pacific Americans,'' which includes persons whose 
origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, 
Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the 
Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the 
Pacific Islands (Republic of Palau), the Commonwealth of the Northern 
Marianas Islands, Macao, Fiji, Tonga, Kirbati, Juvalu, Nauru, Federated 
States of Micronesia, or Hong Kong;
    (v) ``Subcontinent Asian Americans,'' which includes persons whose 
origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives 
Islands, Nepal or Sri Lanka;
    (vi) Women;
    (vii) Any additional groups whose members are designated as socially 
and economically disadvantaged by the SBA, at such time as the SBA 
designation becomes effective.
    Recipient means any entity, public or private, to which DOT 
financial assistance is extended, whether directly or through another 
recipient, through the programs of the FAA.
    Tribally-owned concern means any concern at least 51 percent owned 
by an Indian tribe as defined in this section.
    You refers to a recipient, unless a statement in the text of this 
part or the context requires otherwise (i.e., ``You must do XYZ'' means 
that recipients must do XYZ).

[70 FR 14508, Mar. 22, 2005, as amended at 72 FR 15616, Apr. 2, 2007]



Sec. 23.5  To whom does this part apply?

    If you are a recipient that has received a grant for airport 
development at any time after January 1988 that was authorized under 
Title 49 of the United States Code, this part applies to you.



Sec. 23.7  How long do the provisions of this part remain in effect?

    Unless extended by the Department, the provisions of this rule will 
terminate and become inoperative on April 21, 2010.



Sec. 23.9  What are the nondiscrimination and assurance requirements
of this part for recipients?

    (a) As a recipient, you must meet the non-discrimination 
requirements provided in part 26, Sec. 26.7 with respect to the award 
and performance of any concession agreement, management contract or 
subcontract, purchase or lease agreement, or other agreement covered by 
this subpart.
    (b) You must also take all necessary and reasonable steps to ensure 
nondiscrimination in the award and administration of contracts and 
agreements covered by this part.
    (c) You must include the following assurances in all concession 
agreements and management contracts you execute with any firm after 
April 21, 2005:
    (1) ``This agreement is subject to the requirements of the U.S. 
Department of Transportation's regulations, 49 CFR part 23. The 
concessionaire or contractor agrees that it will not discriminate 
against any business owner because of the owner's race, color, national 
origin, or sex in connection with the award or performance of any 
concession agreement, management contract, or subcontract, purchase or 
lease agreement, or other agreement covered by 49 CFR part 23.
    (2) ``The concessionaire or contractor agrees to include the above 
statements

[[Page 206]]

in any subsequent concession agreement or contract covered by 49 CFR 
part 23, that it enters and cause those businesses to similarly include 
the statements in further agreements.''



Sec. 23.11  What compliance and enforcement provisions are used under this part?

    The compliance and enforcement provisions of part 26 (Sec. Sec. 
26.101 and 26.105 through 26.109) apply to this part in the same way 
that they apply to FAA recipients and programs under part 26.

[70 FR 14508, Mar. 22, 2005, as amended at 72 FR 15616, Apr. 2, 2007]



Sec. 23.13  How does the Department issue guidance, interpretations,
exemptions, and waivers pertaining to this part?

    (a) Only guidance and interpretations (including interpretations set 
forth in certification appeal decisions) consistent with this part 23 
and issued after April 21, 2005, express the official positions and 
views of the Department of Transportation or the Federal Aviation 
Administration.
    (b) The Secretary of Transportation, Office of the Secretary of 
Transportation, and the FAA may issue written interpretations of or 
written guidance concerning this part. Written interpretations and 
guidance are valid, and express the official positions and views of the 
Department of Transportation or the FAA, only if they are issued over 
the signature of the Secretary of Transportation or if they contain the 
following statement:

    The General Counsel of the Department of Transportation has reviewed 
this document and approved it as consistent with the language and intent 
of 49 CFR part 23.

    (c) You may apply for an exemption from any provision of this part. 
To apply, you must request the exemption in writing from the Office of 
the Secretary of Transportation or the FAA. The Secretary will grant the 
request only if it documents special or exceptional circumstances, not 
likely to be generally applicable, and not contemplated in connection 
with the rulemaking that established this part, that make your 
compliance with a specific provision of this part impractical. You must 
agree to take any steps that the Department specifies to comply with the 
intent of the provision from which an exemption is granted. The 
Secretary will issue a written response to all exemption requests.
    (d) You can apply for a waiver of any provision of subpart B or D of 
this part including, but not limited to, any provisions regarding 
administrative requirements, overall goals, contract goals or good faith 
efforts. Program waivers are for the purpose of authorizing you to 
operate an ACDBE program that achieves the objectives of this part by 
means that may differ from one or more of the requirements of subpart B 
or D of this part. To receive a program waiver, you must follow these 
procedures:
    (1) You must apply through the FAA. The application must include a 
specific program proposal and address how you will meet the criteria of 
paragraph (d)(2) of this section. Before submitting your application, 
you must have had public participation in developing your proposal, 
including consultation with the ACDBE community and at least one public 
hearing. Your application must include a summary of the public 
participation process and the information gathered through it.
    (2) Your application must show that--
    (i) There is a reasonable basis to conclude that you could achieve a 
level of ACDBE participation consistent with the objectives of this part 
using different or innovative means other than those that are provided 
in subpart B or D of this part;
    (ii) Conditions at your airport are appropriate for implementing the 
proposal;
    (iii) Your proposal would prevent discrimination against any 
individual or group in access to concession opportunities or other 
benefits of the program; and
    (iv) Your proposal is consistent with applicable law and FAA program 
requirements.
    (3) The FAA Administrator has the authority to approve your 
application. If the Administrator grants your application, you may 
administer your ACDBE program as provided in your proposal, subject to 
the following conditions:

[[Page 207]]

    (i) ACDBE eligibility is determined as provided in subpart C of this 
part, and ACDBE participation is counted as provided in Sec. Sec. 23.53 
through 23.55.
    (ii) Your level of ACDBE participation continues to be consistent 
with the objectives of this part;
    (iii) There is a reasonable limitation on the duration of the your 
modified program; and
    (iv) Any other conditions the Administrator makes on the grant of 
the waiver.
    (4) The Administrator may end a program waiver at any time and 
require you to comply with this part's provisions. The Administrator may 
also extend the waiver, if he or she determines that all requirements of 
this section continue to be met. Any such extension shall be for no 
longer than period originally set for the duration of the program 
waiver.

[70 FR 14508, Mar. 22, 2005, as amended at 72 FR 15616, Apr. 2, 2007]



                        Subpart B_ACDBE Programs



Sec. 23.21  Who must submit an ACDBE program to FAA, and when?

    (a) Except as provided in paragraph (e) of this section, if you are 
a primary airport that has or was required to have a concessions DBE 
program prior to April 21, 2005, you must submit a revisesd ACDBE 
program meeting the requirements of this part to the appropriate FAA 
regional office for approval.
    (1) You must submit this revised program on the same schedule 
provided for your first submission of overall goals in Sec. 23.45(a) of 
this part.
    (2) Timely submission and FAA approval of your revised ACDBE program 
is a condition of eligibility for FAA financial assistance.
    (3) Until your new ACDBE program is submitted and approved, you must 
continue to implement your concessions DBE program that was in effect 
before the effective date of this amendment to part 23, except with 
respect to any provision that is contrary to this part.
    (b) If you are a primary airport that does not now have a DBE 
concessions program, and you apply for a grant of FAA funds for airport 
planning and development under 49 U.S.C. 47107 et seq., you must submit 
an ACDBE program to the FAA at the time of your application. Timely 
submission and FAA approval of your ACDBE program are conditions of 
eligibility for FAA financial assistance.
    (c) If you are the owner of more than one airport that is required 
to have an ACDBE program, you may implement one plan for all your 
locations. If you do so, you must establish a separate ACDBE goal for 
each location.
    (d) If you make any significant changes to your ACDBE program at any 
time, you must provide the amended program to the FAA for approval 
before implementing the changes.
    (e) If you are a non-primary airport, non-commercial service 
airport, a general aviation airport, reliever airport, or any other 
airport that does not have scheduled commercial service, you are not 
required to have an ACDBE program. However, you must take appropriate 
outreach steps to encourage available ACDBEs to participate as 
concessionaires whenever there is a concession opportunity.



Sec. 23.23  What administrative provisions must be in a recipient's
ACDBE program?

    (a) If, as a recipient that must have an ACDBE program, the program 
must include provisions for a policy statement, liaison officer, and 
directory, as provided in part 26, Sec. Sec. 26.23, 26.25, and 26.31, 
as well as certification of ACDBEs as provided by Subpart C of this 
part. You must include a statement in your program committing you to 
operating your ACDBE program in a nondiscriminatory manner.
    (b) You may combine your provisions for implementing these 
requirements under this part and part 26 (e.g., a single policy 
statement can cover both Federally-assisted airport contracts and 
concessions; the same individual can act as the liaison officer for both 
part 23 and part 26 matters).



Sec. 23.25  What measures must recipients include in their ACDBE programs
to ensure nondiscriminatory participation of ACDBEs in concessions?

    (a) You must include in your ACDBE program a narrative description 
of the types of measures you intend to make

[[Page 208]]

to ensure nondiscriminatory participation of ACDBEs in concession and 
other covered activities.
    (b) Your ACDBE program must provide for setting goals consistent 
with the requirements of Subpart D of this part.
    (c) Your ACDBE program must provide for seeking ACDBE participation 
in all types of concession activities, rather than concentrating 
participation in one category or a few categories to the exclusion of 
others.
    (d) Your ACDBE program must include race-neutral measures that you 
will take. You must maximize the use of race-neutral measures, obtaining 
as much as possible of the ACDBE participation needed to meet overall 
goals through such measures. These are responsibilities that you 
directly undertake as a recipient, in addition to the efforts that 
concessionaires make, to obtain ACDBE participation. The following are 
examples of race-neutral measures you can implement:
    (1) Locating and identifying ACDBEs and other small businesses who 
may be interested in participating as concessionaires under this part;
    (2) Notifying ACDBEs of concession opportunities and encouraging 
them to compete, when appropriate;
    (3) When practical, structuring concession activities so as to 
encourage and facilitate the participation of ACDBEs
    (4) Providing technical assistance to ACDBEs in overcoming 
limitations, such as inability to obtain bonding or financing;
    (5) Ensuring that competitors for concession opportunities are 
informed during pre-solicitation meetings about how the recipient's 
ACDBE program will affect the procurement process;
    (6) Providing information concerning the availability of ACDBE firms 
to competitors to assist them in obtaining ACDBE participation; and
    (7) Establishing a business development program (see part 26, Sec. 
26.35); technical assistance program; or taking other steps to foster 
ACDBE participation in concessions.
    (e) Your ACDBE program must also provide for the use of race-
conscious measures when race-neutral measures, standing alone, are not 
projected to be sufficient to meet an overall goal. The following are 
examples of race-conscious measures you can implement:
    (1) Establishing concession-specific goals for particular concession 
opportunities.
    (i) If the objective of the concession-specific goal is to obtain 
ACDBE participation through a direct ownership arrangement with a ACDBE, 
calculate the goal as a percentage of the total estimated annual gross 
receipts from the concession.
    (ii) If the goal applies to purchases and/or leases of goods and 
services, calculate the goal by dividing the estimated dollar value of 
such purchases and/or leases from ACDBEs by the total estimated dollar 
value of all purchases to be made by the concessionaire.
    (iii) To be eligible to be awarded the concession, competitors must 
make good faith efforts to meet this goal. A competitor may do so either 
by obtaining enough ACDBE participation to meet the goal or by 
documenting that it made sufficient good faith efforts to do so.
    (iv) The administrative procedures applicable to contract goals in 
part 26, Sec. 26.51-53, apply with respect to concession-specific 
goals.
    (2) Negotiation with a potential concessionaire to include ACDBE 
participation, through direct ownership arrangements or measures, in the 
operation of the concession.
    (3) With the prior approval of FAA, other methods that take a 
competitor's ability to provide ACDBE participation into account in 
awarding a concession.
    (f) Your ACDBE program must require businesses subject to ACDBE 
goals at the airport (except car rental companies) to make good faith 
efforts to explore all available options to meet goals, to the maximum 
extent practicable, through direct ownership arrangements with DBEs.
    (g) As provided in Sec. 23.61 of this part, you must not use set-
asides and quotas as means of obtaining ACDBE participation.

[[Page 209]]



Sec. 23.27  What information does a recipient have to retain and report
about implementation of its ACDBE program?

    (a) As a recipient, you must retain sufficient basic information 
about your program implementation, your certification of ACDBEs, and the 
award and performance of agreements and contracts to enable the FAA to 
determine your compliance with this part. You must retain this data for 
a minimum of three years following the end of the concession agreement 
or other covered contract.
    (b) Beginning March 1, 2006, you must submit an annual report on 
ACDBE participation using the form found in appendix A to this part. You 
must submit the report to the appropriate FAA Regional Civil Rights 
Office.



Sec. 23.29  What monitoring and compliance procedures must recipients
follow?

    As a recipient, you must implement appropriate mechanisms to ensure 
compliance with the requirements of this part by all participants in the 
program. You must include in your concession program the specific 
provisions to be inserted into concession agreements and management 
contracts, the enforcement mechanisms, and other means you use to ensure 
compliance. These provisions must include a monitoring and enforcement 
mechanism to verify that the work committed to ACDBEs is actually 
performed by the ACDBEs. Your program must describe in detail the level 
of effort and resources devoted to monitoring and enforcement.



            Subpart C_Certification and Eligibility of ACDBEs



Sec. 23.31  What certification standards and procedures do recipients
use to certify ACDBEs?

    (a) As a recipient, you must use, except as provided in this 
subpart, the procedures and standards of part 26, Sec. Sec. 26.61-91 
for certification of ACDBEs to participate in your concessions program. 
Your ACDBE program must incorporate the use of these standards and 
procedures and must provide that certification decisions for ACDBEs will 
be made by the Unified Certification Program (UCP) in your state (see 
part 26, Sec. 26.81).
    (b) The UCP's directory of eligible DBEs must specify whether a firm 
is certified as a DBE for purposes of part 26, an ACDBE for purposes of 
part 23, or both.
    (c) As an airport or UCP, you must review the eligibility of 
currently certified ACDBE firms to make sure that they meet the 
eligibility standards of this part.
    (1) You must complete these reviews as soon as possible, but in no 
case later than April 21, 2006 or three years from the anniversary date 
of each firm's most recent certification, whichever is later.
    (2) You must direct all currently certified ACDBEs to submit to you 
by April 21, 2006, a personal net worth statement, a certification of 
disadvantage, and an affidavit of no change.



Sec. 23.33  What size standards do recipients use to determine the 
eligibility of ACDBEs?

    (a) As a recipient, you must, except as provided in paragraph (b) of 
this section, treat a firm as a small business eligible to be certified 
as an ACDBE if its gross receipts, averaged over the firm's previous 
three fiscal years, do not exceed $52.47 million.
    (b) The following types of businesses have size standards that 
differ from the standard set forth in paragraph (a) of this section:
    (1) Banks and financial institutions: $1 billion in assets;
    (2) Car rental companies: $69.97 million average annual gross 
receipts over the firm's three previous fiscal years, as adjusted by the 
Department for inflation every two years from April 3, 2009.
    (3) Pay telephones: 1,500 employees;
    (4) Automobile dealers: 350 employees.
    (c) The Department adjusts the numbers in paragraphs (a) and (b)(2) 
of this section using the Department of Commerce price deflators for 
purchases by State and local governments as the basis for this 
adjustment. The Department publishes a Federal Register

[[Page 210]]

document informing the public of each adjustment.

[74 FR 15224, Apr. 3, 2009]



Sec. 23.35  What is the personal net worth standard for disadvantaged 
owners of ACDBEs?

    The personal net worth standard used in determining eligibility for 
purposes of this part is $750,000. Any individual who has a personal net 
worth exceeding this amount is not a socially and economically 
disadvantaged individual for purposes of this part, even if the 
individual is a member of a group otherwise presumed to be 
disadvantaged.



Sec. 23.37  Are firms certified under 49 CFR part 26 eligible to 
participate as ACDBEs?

    (a) You must presume that a firm that is certified as a DBE under 
part 26 is eligible to participate as an ACDBE. By meeting the size, 
disadvantage (including personal net worth), ownership and control 
standards of part 26, the firm will have also met the eligibility 
standards for part 23.
    (b) However, before certifying such a firm, you must ensure that the 
disadvantaged owners of a DBE certified under part 26 are able to 
control the firm with respect to its activity in the concessions 
program. In addition, you are not required to certify a part 26 DBE as a 
part 23 ACDBE if the firm does not do work relevant to the airport's 
concessions program.



Sec. 23.39  What other certification requirements apply in the case of ACDBEs?

    (a) The provisions of part 26, Sec. Sec. 26.83 (c)(2) through 
(c)(6) do not apply to certifications for purposes of this part. 
Instead, in determining whether a firm is an eligible ACDBE, you must 
take the following steps:
    (1) Obtain the resumes or work histories of the principal owners of 
the firm and personally interview these individuals;
    (2) Analyze the ownership of stock of the firm, if it is a 
corporation;
    (3) Analyze the bonding and financial capacity of the firm;
    (4) Determine the work history of the firm, including any concession 
contracts or other contracts it may have received;
    (5) Obtain or compile a list of the licenses of the firm and its key 
personnel to perform the concession contracts or other contracts it 
wishes to receive;
    (6) Obtain a statement from the firm of the type(s) of concession(s) 
it prefers to operate or the type(s) of other contract(s) it prefers to 
perform.
    (b) In reviewing the affidavit required by part 26, Sec. 26.83(j), 
you must ensure that the ACDBE firm meets the applicable size standard 
in Sec. 23.33.
    (c) For purposes of this part, the term prime contractor in part 26, 
Sec. 26.87(i) includes a firm holding a prime contract with an airport 
concessionaire to provide goods or services to the concessionaire or a 
firm holding a prime concession agreement with a recipient.
    (d) With respect to firms owned by Alaska Native Corporations 
(ANCs), the provisions of part 26, Sec. 26.73(i) do not apply under 
this part. The eligibility of ANC-owned firms for purposes of this part 
is governed by Sec. 26.73(h).
    (e) When you remove a concessionaire's eligibility after the 
concessionaire has entered a concession agreement, because the firm 
exceeded the small business size standard or because an owner has 
exceeded the personal net worth standard, and the firm in all other 
respects remains an eligible DBE, you may continue to count the 
concessionaire's participation toward DBE goals during the remainder of 
the current concession agreement. However, you must not count the 
concessionaire's participation toward DBE goals beyond the termination 
date for the concession agreement in effect at the time of the 
decertification (e.g., in a case where the agreement is renewed or 
extended, or an option for continued participation beyond the current 
term of the agreement is exercised).
    (f) When UCPs are established in a state (see part 26, Sec. 26.81), 
the UCP, rather than individual recipients, certifies firms for the 
ACDBE concession program.
    (g) You must use the Uniform Application Form found in appendix F to

[[Page 211]]

part 26. However, you must instruct applicants to take the following 
additional steps:
    (1) In the space available in section 2(B)(7) of the form, the 
applicant must state that it is applying for certification as an ACDBE.
    (2) With respect to section 4(C) of the form, the applicant must 
provide information on an attached page concerning the address/location, 
ownership/lease status, current value of property or lease, and fees/
lease payments paid to the airport.
    (3) The applicant need not complete section 4(I) and (J). However, 
the applicant must provide information on an attached page concerning 
any other airport concession businesses the applicant firm or any 
affiliate owns and/or operates, including name, location, type of 
concession, and start date of concession.
    (h) Car rental companies and private terminal owners or lessees are 
not authorized to certify firms as ACDBEs. As a car rental company or 
private terminal owner or lessee, you must obtain ACDBE participation 
from firms which a recipient or UCPs have certified as ACDBEs.
    (i) You must use the certification standards of this part to 
determine the ACDBE eligibility of firms that provide goods and services 
to concessionaires.



            Subpart D_Goals, Good Faith Efforts, and Counting



Sec. 23.41  What is the basic overall goal requirement for recipients?

    (a) If you are a recipient who must implement an ACDBE program, you 
must, except as provided in paragraph (b) of this section, establish two 
separate overall ACDBE goals. The first is for car rentals; the second 
is for concessions other than car rentals.
    (b) If your annual car rental concession revenues, averaged over the 
three-years preceding the date on which you are required to submit 
overall goals, do not exceed $200,000, you are not required to submit a 
car rental overall goal. If your annual revenues for concessions other 
than car rentals, averaged over the three years preceding the date on 
which you are required to submit overall goals, do not exceed $200,000, 
you are not required to submit a non-car rental overall goal.
    (c) Each overall goal must cover a three-year period. You must 
review your goals annually to make sure they continue to fit your 
circumstances appropriately. You must report to the FAA any significant 
adjustments that you make to your goal in the time before your next 
scheduled submission.
    (d) Your goals established under this part must provide for 
participation by all certified ACDBEs and may not be subdivided into 
group-specific goals.
    (e) If you fail to establish and implement goals as provided in this 
section, you are not in compliance with this part. If you establish and 
implement goals in a way different from that provided in this part, you 
are not in compliance with this part. If you fail to comply with this 
requirement, you are not eligible to receive FAA financial assistance.



Sec. 23.43  What are the consultation requirements in the development 
of recipients' overall goals?

    (a) As a recipient, you must consult with stakeholders before 
submitting your overall goals to FAA.
    (b) Stakeholders with whom you must consult include, but are not 
limited to, minority and women's business groups, community 
organizations, trade associations representing concessionaires currently 
located at the airport, as well as existing concessionaires themselves, 
and other officials or organizations which could be expected to have 
information concerning the availability of disadvantaged businesses, the 
effects of discrimination on opportunities for ACDBEs, and the 
recipient's efforts to increase participation of ACDBEs.



Sec. 23.45  What are the requirements for submitting overall goal 
information to the FAA?

    (a) You must submit your overall goals to the appropriate FAA 
Regional Civil Rights Office for approval. Your first set of overall 
goals meeting the requirements of this subpart are due on the following 
schedule:
    (1) If you are a large or medium hub primary airport on April 21, 
2005, by

[[Page 212]]

January 1, 2006. You must make your next submissions by October 1, 2008.
    (2) If you are a small hub primary airport on April 21, 2005, by 
October 1, 2006.
    (3) If you are a nonhub primary airport on April 21, 2005, by 
October 1, 2007.
    (b) You must then submit new goals every three years after the date 
that applies to you.
    (c) Timely submission and FAA approval of your overall goals is a 
condition of eligibility for FAA financial assistance.
    (d) In the time before you make your first submission under 
paragraph (a) of this section, you must continue to use the overall 
goals that have been approved by the FAA before the effective date of 
this part.
    (e) Your overall goal submission must include a description of the 
method used to calculate your goals and the data you relied on. You must 
``show your work'' to enable the FAA to understand how you concluded 
your goals were appropriate. This means that you must provide to the FAA 
the data, calculations, assumptions, and reasoning used in establishing 
your goals.
    (f) Your submission must include your projection of the portions of 
your overall goals you propose to meet through use of race-neutral and 
race-conscious means, respectively, and the basis for making this 
projection (see Sec. 23.51(d)(5))
    (g) FAA may approve or disapprove the way you calculated your goal, 
including your race-neutral/race-conscious ``split,'' as part of its 
review of your plan or goal submission. Except as provided in paragraph 
(h) of this section, the FAA does not approve or disapprove the goal 
itself (i.e., the number).
    (h) If the FAA determines that your goals have not been correctly 
calculated or the justification is inadequate, the FAA may, after 
consulting with you, adjust your overall goal or race-conscious/race-
neutral ``split.'' The adjusted goal represents the FAA's determination 
of an appropriate overall goal for ACDBE participation in the 
recipient's concession program, based on relevant data and analysis. The 
adjusted goal is binding on you.
    (i) If a new concession opportunity the estimated average annual 
gross revenues of which are anticipated to be $200,000 or greater arises 
at a time that falls between normal submission dates for overall goals, 
you must submit an appropriate adjustment to your overall goal to the 
FAA for approval at least six months before executing the concession 
agreement for the new concession opportunity.



Sec. 23.47  What is the base for a recipient's goal for concessions
other than car rentals?

    (a) As a recipient, the base for your goal includes the total gross 
receipts of concessions, except as otherwise provided in this section.
    (b) This base does not include the gross receipts of car rental 
operations.
    (c) The dollar amount of a management contract or subcontract with a 
non-ACDBE and the gross receipts of business activities to which a 
management or subcontract with a non-ACDBE pertains are not added to 
this base.
    (d) This base does not include any portion of a firm's estimated 
gross receipts that will not be generated from a concession.

    Example to paragraph (d): A firm operates a restaurant in the 
airport terminal which serves the traveling public and under the same 
lease agreement, provides in-flight catering service to air carriers. 
The projected gross receipts from the restaurant are included in the 
overall goal calculation, while the gross receipts to be earned by the 
in-flight catering services are not.



Sec. 23.49  What is the base for a recipient's goal for car rentals?

    Except in the case where you use the alternative goal approach of 
Sec. 23.51(c)(5)(ii), the base for your goal is the total gross 
receipts of car rental operations at your airport. You do not include 
gross receipts of other concessions in this base.



Sec. 23.51  How are a recipient's overall goals expressed and calculated?

    (a) Your objective in setting a goal is to estimate the percentage 
of the base calculated under Sec. Sec. 23.47-23.49 that would be 
performed by ACDBEs in the absence of discrimination and its effects.

[[Page 213]]

    (1) This percentage is the estimated ACDBE participation that would 
occur if there were a ``level playing field'' for firms to work as 
concessionaires for your airport.
    (2) In conducting this goal setting process, you are determining the 
extent, if any, to which the firms in your market area have suffered 
discrimination or its effects in connection with concession 
opportunities or related business opportunities.
    (3) You must complete the goal-setting process separately for each 
of the two overall goals identified in Sec. 23.41 of this part.
    (b)(1) Each overall concessions goal must be based on demonstrable 
evidence of the availability of ready, willing and able ACDBEs relative 
to all businesses ready, willing and able to participate in your ACDBE 
program (hereafter, the ``relative availability of ACDBEs'').
    (2) You cannot simply rely on the 10 percent national aspirational 
goal, your previous overall goal, or past ACDBE participation rates in 
your program without reference to the relative availability of ACDBEs in 
your market.
    (3) Your market area is defined by the geographical area in which 
the substantial majority of firms which seek to do concessions business 
with the airport are located and the geographical area in which the 
firms which receive the substantial majority of concessions-related 
revenues are located. Your market area may be different for different 
types of concessions.
    (c) Step 1. You must begin your goal setting process by determining 
a base figure for the relative availability of ACDBEs. The following are 
examples of approaches that you may take toward determining a base 
figure. These examples are provided as a starting point for your goal 
setting process. Any percentage figure derived from one of these 
examples should be considered a basis from which you begin when 
examining the evidence available to you. These examples are not intended 
as an exhaustive list. Other methods or combinations of methods to 
determine a base figure may be used, subject to approval by the FAA.
    (1) Use DBE Directories and Census Bureau Data. Determine the number 
of ready, willing and able ACDBEs in your market area from your ACDBE 
directory. Using the Census Bureau's County Business Pattern (CBP) data 
base, determine the number of all ready, willing and able businesses 
available in your market area that perform work in the same NAICS codes. 
(Information about the CBP data base may be obtained from the Census 
Bureau at their Web site, http://www.census.gov/epcd/cbp/view/
cbpview.html.) Divide the number of ACDBEs by the number of all 
businesses to derive a base figure for the relative availability of 
ACDBEs in your market area.
    (2) Use an Active Participants List. Determine the number of ACDBEs 
that have participated or attempted to participate in your airport 
concessions program in previous years. Determine the number of all 
businesses that have participated or attempted to participate in your 
airport concession program in previous years. Divide the number of 
ACDBEs who have participated or attempted to participate by the number 
for all businesses to derive a base figure for the relative availability 
of ACDBEs in your market area.
    (3) Use data from a disparity study. Use a percentage figure derived 
from data in a valid, applicable disparity study.
    (4) Use the goal of another recipient. If another airport or other 
DOT recipient in the same, or substantially similar, market has set an 
overall goal in compliance with this rule, you may use that goal as a 
base figure for your goal.
    (5) Alternative methods. (i) You may use other methods to determine 
a base figure for your overall goal. Any methodology you choose must be 
based on demonstrable evidence of local market conditions and be 
designed to ultimately attain a goal that is rationally related to the 
relative availability of ACDBEs in your market area.
    (ii) In the case of a car rental goal, where it appears that all or 
most of the goal is likely to be met through the purchases by car rental 
companies of vehicles or other goods or services from ACDBEs, one 
permissible alternative is to structure the goal entirely in terms

[[Page 214]]

of purchases of goods and services. In this case, you would calculate 
your car rental overall goal by dividing the estimated dollar value of 
such purchases from ACDBEs by the total estimated dollar value of all 
purchases to be made by car rental companies.
    (d) Step 2. Once you have calculated a base figure, you must examine 
all relevant evidence reasonably available in your jurisdiction to 
determine what adjustment, if any, is needed to the base figure in order 
to arrive at your overall goal.
    (1) There are many types of evidence that must be considered when 
adjusting the base figure. These include, but are not limited to:
    (i) The current capacity of ACDBEs to perform work in your 
concessions program, as measured by the volume of work ACDBEs have 
performed in recent years; and
    (ii) Evidence from disparity studies conducted anywhere within your 
jurisdiction, to the extent it is not already accounted for in your base 
figure.
    (2) If your base figure is the goal of another recipient, you must 
adjust it for differences in your market area and your concessions 
program.
    (3) If available, you must consider evidence from related fields 
that affect the opportunities for ACDBEs to form, grow and compete. 
These include, but are not limited to:
    (i) Statistical disparities in the ability of ACDBEs to get the 
financing, bonding and insurance required to participate in your 
program;
    (ii) Data on employment, self-employment, education, training and 
union apprenticeship programs, to the extent you can relate it to the 
opportunities for ACDBEs to perform in your program.
    (4) If you attempt to make an adjustment to your base figure to 
account for the continuing effects of past discrimination, or the 
effects of an ongoing ACDBE program, the adjustment must be based on 
demonstrable evidence that is logically and directly related to the 
effect for which the adjustment is sought.
    (5) Among the information you submit with your overall goal (see 
23.45(e)), you must include description of the methodology you used to 
establish the goal, including your base figure and the evidence with 
which it was calculated, as well as the adjustments you made to the base 
figure and the evidence relied on for the adjustments. You should also 
include a summary listing of the relevant available evidence in your 
jurisdiction and an explanation of how you used that evidence to adjust 
your base figure. You must also include your projection of the portions 
of the overall goal you expect to meet through race-neutral and race-
conscious measures, respectively (see Sec. Sec. 26.51(c)).
    (e) You are not required to obtain prior FAA concurrence with your 
overall goal (i.e., with the number itself). However, if the FAA's 
review suggests that your overall goal has not been correctly 
calculated, or that your method for calculating goals is inadequate, the 
FAA may, after consulting with you, adjust your overall goal or require 
that you do so. The adjusted overall goal is binding on you.
    (f) If you need additional time to collect data or take other steps 
to develop an approach to setting overall goals, you may request the 
approval of the FAA Administrator for an interim goal and/or goal-
setting mechanism. Such a mechanism must:
    (1) Reflect the relative availability of ACDBEs in your local market 
area to the maximum extent feasible given the data available to you; and
    (2) Avoid imposing undue burdens on non-ACDBEs.



Sec. 23.53  How do car rental companies count ACDBE participation
toward their goals?

    (a) As a car rental company, you may, in meeting the goal the 
airport has set for you, include purchases or leases of vehicles from 
any vendor that is a certified ACDBE.
    (b) As a car rental company, if you choose to meet the goal the 
airport has set for you by including purchases or leases of vehicles 
from an ACDBE vendor, you must also submit to the recipient 
documentation of the good faith efforts you have made to obtain ACDBE 
participation from other ACDBE providers of goods and services.
    (c) While this part does not require you to obtain ACDBE 
participation

[[Page 215]]

through direct ownership arrangements, you may count such participation 
toward the goal the airport has set for you.
    (d) The following special rules apply to counting participation 
related to car rental operations:
    (1) Count the entire amount of the cost charged by an ACDBE for 
repairing vehicles, provided that it is reasonable and not excessive as 
compared with fees customarily allowed for similar services.
    (2) Count the entire amount of the fee or commission charged by a 
ACDBE to manage a car rental concession under an agreement with the 
concessionaire toward ACDBE goals, provided that it is reasonable and 
not excessive as compared with fees customarily allowed for similar 
services.
    (3) Do not count any portion of a fee paid by a manufacturer to a 
car dealership for reimbursement of work performed under the 
manufacturer's warranty.
    (e) For other goods and services, count participation toward ACDBE 
goals as provided in part 26, Sec. 26.55 and Sec. 23.55 of this part. 
In the event of any conflict between these two sections, Sec. 23.55 
controls.
    (f) If you have a national or regional contract, count a pro-rated 
share of the amount of that contract toward the goals of each airport 
covered by the contract. Use the proportion of your applicable gross 
receipts as the basis for making this pro-rated assignment of ACDBE 
participation.

    Example to paragraph (f): Car Rental Company X signs a regional 
contract with an ACDBE car dealer to supply cars to all five airports in 
a state. The five airports each account for 20 percent of X's gross 
receipts in the state. Twenty percent of the value of the cars purchased 
through the ACDBE car dealer would count toward the goal of each 
airport.



Sec. 23.55  How do recipients count ACDBE participation toward goals
for items other than car rentals?

    (a) You count only ACDBE participation that results from a 
commercially useful function. For purposes of this part, the term 
commercially useful function has the same meaning as in part 26, Sec. 
26.55(c), except that the requirements of Sec. 26.55(c)(3) do not apply 
to concessions.
    (b) Count the total dollar value of gross receipts an ACDBE earns 
under a concession agreement and the total dollar value of a management 
contract or subcontract with an ACDBE toward the goal. However, if the 
ACDBE enters into a subconcession agreement or subcontract with a non-
ACDBE, do not count any of the gross receipts earned by the non-ACDBE.
    (c) When an ACDBE performs as a subconcessionaire or subcontractor 
for a non-ACDBE, count only the portion of the gross receipts earned by 
the ACDBE under its subagreement.
    (d) When an ACDBE performs as a participant in a joint venture, 
count a portion of the gross receipts equal to the distinct, clearly 
defined portion of the work of the concession that the ACDBE performs 
with its own forces toward ACDBE goals.
    (e) Count the entire amount of fees or commissions charged by an 
ACDBE firm for a bona fide service, provided that, as the recipient, you 
determine this amount to be reasonable and not excessive as compared 
with fees customarily allowed for similar services. Such services may 
include, but are not limited to, professional, technical, consultant, 
legal, security systems, advertising, building cleaning and maintenance, 
computer programming, or managerial.
    (f) Count 100 percent of the cost of goods obtained from an ACDBE 
manufacturer. For purposes of this part, the term manufacturer has the 
same meaning as in part 26, Sec. 26.55(e)(1)(ii).
    (g) Count 100 percent of the cost of goods purchased or leased from 
a ACDBE regular dealer. For purposes of this part, the term ``regular 
dealer'' has the same meaning as in part 26, Sec. 26.55(e)(2)(ii).
    (h) Count credit toward ACDBE goals for goods purchased from an 
ACDBE which is neither a manufacturer nor a regular dealer as follows:
    (1) Count the entire amount of fees or commissions charged for 
assistance in the procurement of the goods, provided that this amount is 
reasonable and not excessive as compared with fees customarily allowed 
for similar services.

[[Page 216]]

Do not count any portion of the cost of the goods themselves.
    (2) Count the entire amount of fees or transportation charges for 
the delivery of goods required for a concession, provided that this 
amount is reasonable and not excessive as compared with fees customarily 
allowed for similar services. Do not count any portion of the cost of 
goods themselves.
    (i) If a firm has not been certified as an ACDBE in accordance with 
the standards in this part, do not count the firm's participation toward 
ACDBE goals.
    (j) Do not count the work performed or gross receipts earned by a 
firm after its eligibility has been removed toward ACDBE goals. However, 
if an ACDBE firm certified on April 21, 2005 is decertified because one 
or more of its disadvantaged owners do not meet the personal net worth 
criterion or the firm exceeds business size standards of this part 
during the performance of a contract or other agreement, the firm's 
participation may continue to be counted toward ACDBE goals for the 
remainder of the term of the contract or other agreement (but not 
extensions or renewals of such contracts or agreements).
    (k) Do not count costs incurred in connection with the renovation, 
repair, or construction of a concession facility (sometimes referred to 
as the ``build-out'').
    (l) Do not count the ACDBE participation of car rental companies 
toward your ACDBE achievements toward this goal.



Sec. 23.57  What happens if a recipient falls short of meeting its 
overall goals?

    (a) You cannot be penalized, or treated by the Department as being 
in noncompliance with this part, simply because your ACDBE participation 
falls short of your overall goals. You can be penalized or treated as 
being in noncompliance only if you have failed to administer your ACDBE 
program in good faith.
    (b) If your ACDBE participation falls short of your overall goals, 
FAA may require you to submit to the FAA a statement of the reasons why 
you were unable to meet it and the steps you are taking to meet your 
overall goals or to adjust them based on changed circumstances.
    (c) In response to your submission, FAA may require you to implement 
appropriate remedial measures,



Sec. 23.59  What is the role of the statutory 10 percent goal in the 
ACDBE program?

    (a) The statute authorizing the ACDBE program provides that, except 
to the extent the Secretary determines otherwise, not less than 10 
percent of concession businesses are to be ACDBEs.
    (b) This 10 percent goal is an aspirational goal at the national 
level, which the Department uses as a tool in evaluating and monitoring 
DBEs' opportunities to participate in airport concessions.
    (c) The national 10 percent aspirational goal does not authorize or 
require recipients to set overall or concession-specific goals at the 10 
percent level, or any other particular level, or to take any special 
administrative steps if their goals are above or below 10 percent.



Sec. 23.61  Can recipients use quotas or set-asides as part of
their ACDBE programs?

    You must not use quotas or set-asides for ACDBE participation in 
your program.



                       Subpart E_Other Provisions



Sec. 23.71  Does a recipient have to change existing concession 
agreements?

    Nothing in this part requires you to modify or abrogate an existing 
concession agreement (one executed before April 21, 2005) during its 
term. When an extension or option to renew such an agreement is 
exercised, or when a material amendment is made, you must assess 
potential for ACDBE participation and may, if permitted by the 
agreement, use any means authorized by this part to obtain a modified 
amount of ACDBE participation in the renewed or amended agreement.

[[Page 217]]



Sec. 23.73  What requirements apply to privately-owned or leased
terminal buildings?

    (a) If you are a recipient who is required to implement an ACDBE 
program on whose airport there is a privately-owned or leased terminal 
building that has concessions, or any portion of such a building, this 
section applies to you.
    (b) You must pass through the applicable requirements of this part 
to the private terminal owner or lessee via your agreement with the 
owner or lessee or by other means. You must ensure that the terminal 
owner or lessee complies with the requirements of this part.
    (c) If your airport is a primary airport, you must obtain from the 
terminal owner or lessee the goals and other elements of the ACDBE 
program required under this part. You must incorporate this information 
into your concession plan and submit it to the FAA in accordance with 
this part.
    (d) If the terminal building is at a non-primary commercial service 
airport or general aviation airport or reliever airport, you must ensure 
that the owner complies with the requirements in Sec. 23.21(e).



Sec. 23.75  Can recipients enter into long-term, exclusive agreements
with concessionaires?

    (a) Except as provided in paragraph (b) of this section, you must 
not enter into long-term, exclusive agreements for concessions. For 
purposes of this section, a long-term agreement is one having a term 
longer than five years.
    (b) You may enter into a long-term, exclusive concession agreement 
only under the following conditions:
    (1) Special local circumstances exist that make it important to 
enter such agreement, and
    (2) The responsible FAA regional office approves your plan for 
meeting the standards of paragraph (c) of this section.
    (c) In order to obtain FAA approval of a long-term-exclusive 
concession agreement, you must submit the following information to the 
FAA regional office:
    (1) A description of the special local circumstances that warrant a 
long-term, exclusive agreement.
    (2) A copy of the draft and final leasing and subleasing or other 
agreements. This long-term, exclusive agreement must provide that:
    (i) A number of ACDBEs that reasonably reflects their availability 
in your market area, in the absence of discrimination, to do the types 
of work required will participate as concessionaires throughout the term 
of the agreement and account for at a percentage of the estimated annual 
gross receipts equivalent to a level set in accordance with Sec. Sec. 
23.47 through 23.49 of this part.
    (ii) You will review the extent of ACDBE participation before the 
exercise of each renewal option to consider whether an increase or 
decrease in ACDBE participation is warranted.
    (iii) An ACDBE concessionaire that is unable to perform successfully 
will be replaced by another ACDBE concessionaire, if the remaining term 
of the agreement makes this feasible. In the event that such action is 
not feasible, you will require the concessionaire to make good faith 
efforts during the remaining term of the agreement to encourage ACDBEs 
to compete for the purchases and/or leases of goods and services to be 
made by the concessionaire.
    (3) Assurances that any ACDBE participant will be in an acceptable 
form, such as a sublease, joint venture, or partnership.
    (4) Documentation that ACDBE participants are properly certified.
    (5) A description of the type of business or businesses to be 
operated (e.g., location, storage and delivery space, ``back-of-the-
house facilities'' such as kitchens, window display space, advertising 
space, and other amenities that will increase the ACDBE's chance to 
succeed).
    (6) Information on the investment required on the part of the ACDBE 
and any unusual management or financial arrangements between the prime 
concessionaire and ACDBE.
    (7) Information on the estimated gross receipts and net profit to be 
earned by the ACDBE.

[[Page 218]]



Sec. 23.77  Does this part preempt local requirements?

    (a) In the event that a State or local law, regulation, or policy 
differs from the requirements of this part, the recipient must, as a 
condition of remaining eligible to receive Federal financial assistance 
from the DOT, take such steps as may be necessary to comply with the 
requirements of this part.
    (b) You must clearly identify any State or local law, regulation, or 
policy pertaining to minority, women's, or disadvantaged business 
enterprise concerning airport concessions that adds to, goes beyond, or 
imposes more stringent requirements than the provisions of this part. 
FAA will determine whether such a law, regulation, or policy conflicts 
with this part, in which case the requirements of this part will govern.
    (c) If not deemed in conflict by the FAA, you must write and 
administer such a State or local law, policy, or regulation separately 
from the ACDBE program.
    (d) You must provide copies of any such provisions and the legal 
authority supporting them to the FAA with your ACDBE program submission. 
FAA will not approve an ACDBE program if there are such provisions that 
conflict with the provisions of this part.
    (e) However, nothing in this part preempts any State or local law, 
regulation, or policy enacted by the governing body of a recipient, or 
the authority of any State or local government or recipient to adopt or 
enforce any law, regulation, or policy relating to ACDBEs, as long as 
the law, regulation, or policy does not conflict with this part.



Sec. 23.79  Does this part permit recipients to use local geographic
preferences?

    No. As a recipient you must not use a local geographic preference. 
For purposes of this section, a local geographic preference is any 
requirement that gives an ACDBE located in one place (e.g., your local 
area) an advantage over ACDBEs from other places in obtaining business 
as, or with, a concession at your airport.



    Sec. Appendix A to Part 23--Uniform Report of ACDBE Participation

         Instructions for Uniform Report of ACDBE Participation

    1. Insert name of airport receiving FAA financial assistance and AIP 
number.
    2. Provide the name and contact information (phone, fax, e-mail) for 
the person FAA should contact with questions about the report.
    3a. Provide the annual reporting period to which the report pertains 
(e.g., October 2005-September 2006).
    3b. Provide the date on which the report is submitted to FAA.
    4. This block and blocks 5 and 6 concern non-car rental goals and 
participation only. In this block, provide the overall non-car rental 
percentage goal and the race-conscious (RC) and race-neutral (RN) 
components of it. The RC and RN percentages should add up to the overall 
percentage goal.
    5. For purposes of this block and blocks 6, 8, and 9, the 
participation categories listed at the left of the block are the 
following: ``Prime Concessions'' are concessions who have a direct 
relationship with the airport (e.g., a company who has a lease agreement 
directly with the airport to operate a concession). A ``subconcession'' 
is a firm that has a sublease or other agreement with a prime 
concessionaire, rather than with the airport itself, to operate a 
concession at the airport. A ``management contract'' is an agreement 
between the airport and a firm to manage a portion of the airport's 
facilities or operations (e.g., manage the parking facilities). ``Goods/
services'' refers to those goods and services purchased by the airport 
itself or by concessionaires and management contractors from certified 
DBEs.
    Block 5 concerns all non-car rental concession activity covered by 
49 CFR part 23 during the reporting period, both new or continuing.
    In Column A, enter the total concession gross revenues for 
concessionaires (prime and sub) and purchases of goods and services 
(ACDBE and non-ACDBE combined) at the airport. In Column B, enter the 
number of lease agreements, contracts, etc. in effect or taking place 
during the reporting period in each participation category for all 
concessionaires and purchases of goods and services (ACDBE and non-ACDBE 
combined).
    Because, by statute, non-ACDBE management contracts do not count as 
part of the base for ACDBE goals, the cells for total management 
contract participation and ACDBE participation as a percentage of total 
management contracting dollars are not intended to be filled in blocks 
5, 6, 8, and 9.
    In Column C, enter the total gross revenues in each participation 
category

[[Page 219]]

(ACDBEs) only. In Column D, enter the number of lease agreements, 
contracts, etc., in effect or entered into during the reporting period 
in each participation category for all concessionaires and purchases of 
goods and services (ACDBEs only).
    Columns E and F are subsets of Column C: break out the total gross 
revenues listed in Column C into the portions that are attributable to 
race-conscious and race-neutral measures, respectively. Column G is a 
percentage calculation. It answers the question, what percentage of the 
numbers in Column A is represented by the corresponding numbers in 
Column C?
    6. The numbers in this Block concern only new non-car rental 
concession opportunities that arose during the current reporting period. 
In other words, the information requested in Block 6 is a subset of that 
requested in Block 5. Otherwise, this Block is filled out in the same 
way as Block 5.
    7. Blocks 7-9 concern car rental goals and participation. In Block 
7, provide the overall car rental percentage goal and the race-conscious 
(RC) and race-neutral (RN) components of it. The RC and RN percentages 
should add up to the overall percentage goal.
    8. Block 8 is parallel to Block 5, except that it is for car 
rentals. The instructions for filling it out are the same as for Block 
5.
    9. Block 9 is parallel to Block 6, except that it is for car 
rentals. The information requested in Block 9 is a subset of that 
requested in Block 8. The instructions for filling it out are the same 
as for Block 6.
    10. Block 10 instructs recipients to bring forward the cumulative 
ACDBE participation figures from Blocks 5 and 8, breaking down these 
figures by race and gender categories. Participation by non-minority 
women-owned firms should be listed in the ``non-minority women'' column. 
Participation by firms owned by minority women should be listed in the 
appropriate minority group column. The ``other'' column should be used 
to reflect participation by individuals who are not a member of a 
presumptively disadvantaged group who have been found disadvantaged on a 
case-by-case basis.
    11. This block instructs recipients to attach five information items 
for each ACDBE firm participating in its program during the reporting 
period. If the firm's participation numbers are reflected in Blocks 5-6 
and/or 8-9, the requested information about that firm should be attached 
in response to this item.

                  Uniform Report of ACDBE Participation

    1. Name of Recipient and AIP Number:
    2. Contact Information:
    3a. Reporting Period:
    3b. Date of Report:
    4. Current Non-Car Rental ACDBE Goal: Race Conscious Goal ----% Race 
Neutral Goal ----% Overall Goal ----%

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A  Total     B  Total    C  Total    D  Total    E  RC to    F  RN to     G  % of
        5. Non-car rental  Cumulative ACDBE participation            dollars       number     to ACDBEs   to ACDBEs    ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Management Contracts.............................................     XXXXXXX      XXXXXXX   ..........  ..........  ..........  ..........      XXXXXX
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A  Total     B  Total    C  Total    D  Total    E  RC to    F  RN to     G  % of
     6. Non-Car rental  New ACDBE participation  this period         dollars       number     to ACDBEs   to ACDBEs    ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Management Contracts.............................................     XXXXXXX      XXXXXXX   ..........  ..........  ..........      XXXXXX  ...........
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    7. Current Car Rental ACDBE Goal: Race Conscious Goal ----% Race 
Neutral Goal ----% Overall Goal ----%

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A  Total     B  Total    C  Total    D  Total    E  RC to    F  RN to     G  % of
          8. Car rental  Cumulative ACDBE participation              dollars       number     to ACDBEs   to ACDBEs    ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................

[[Page 220]]

 
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A  Total     B  Total    C  Total    D  Total    E  RC to    F  RN to     G  % of
        9. Car rental  New ACDBE participation this period           dollars       number     to ACDBEs   to ACDBEs    ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    B  Hispanic   C  Asian-   D  Asian-                F  Non-
  10. Cumulative ACDBE participation by race/gender      A  Black    Americans     Pacific     Indian     E  Native   minority    G  Other    H  Totals
                                                        Americans                 Americans   Americans   Americans     Women
--------------------------------------------------------------------------------------------------------------------------------------------------------
Car Rental...........................................
Non-Car Rental.......................................
    Totals...........................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    11. On an attachment, list the following information for each ACDBE 
firm participating in your program during the period of this report: (1) 
Firm name; (2) Type of business; (3) Beginning and expiration dates of 
agreement, including options to renew; (4) Dates that material 
amendments have been or will be made to agreement (if known); (5) 
Estimated gross receipts for the firm during this reporting period.



PART 24_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION
FOR FEDERAL AND FEDERALLY-ASSISTED PROGRAMS--Table of Contents




                            Subpart A_General

Sec.
24.1 Purpose.
24.2 Definitions and acronyms.
24.3 No duplication of payments.
24.4 Assurances, monitoring and corrective action.
24.5 Manner of notices.
24.6 Administration of jointly-funded projects.
24.7 Federal Agency waiver of regulations.
24.8 Compliance with other laws and regulations.
24.9 Recordkeeping and reports.
24.10 Appeals.

                   Subpart B_Real Property Acquisition

24.101 Applicability of acquisition requirements.
24.102 Basic acquisition policies.
24.103 Criteria for appraisals.
24.104 Review of appraisals.
24.105 Acquisition of tenant-owned improvements.
24.106 Expenses incidental to transfer of title to the Agency.
24.107 Certain litigation expenses.
24.108 Donations.

                Subpart C_General Relocation Requirements

24.201 Purpose.
24.202 Applicability.
24.203 Relocation notices.
24.204 Availability of comparable replacement dwelling before 
          displacement.
24.205 Relocation planning, advisory services, and coordination.
24.206 Eviction for cause.
24.207 General requirements claims for relocation payments.
24.208 Aliens not lawfully present in the United States.
24.209 Relocation payments not considered as income.

           Subpart D_Payments for Moving and Related Expenses

24.301 Payment for actual reasonable moving and related expenses.
24.302 Fixed payment for moving expenses'residential moves.
24.303 Related nonresidential eligible expenses.
24.304 Reestablishment expenses'nonresidential moves.
24.305 Fixed payment for moving expenses'nonresidential moves.
24.306 Discretionary utility relocation payments.

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                 Subpart E_Replacement Housing Payments

24.401 Replacement housing payment for 180-day homeowner-occupants.
24.402 Replacement housing payment for 90-day occupants.
24.403 Additional rules governing replacement housing payments.
24.404 Replacement housing of last resort.

                         Subpart F_Mobile Homes

24.501 Applicability.
24.502 Replacement housing payment for 180-day mobile homeowner 
          displaced from a mobile home, and/or from the acquired mobile 
          home site.
24.503 Replacement housing payment for 90-day mobile home occupants.

                         Subpart G_Certification

24.601 Purpose.
24.602 Certification application.
24.603 Monitoring and corrective action.

Appendix A to Part 24--Additional Information
Appendix B to Part 24--Statistical Report Form

    Authority: 42 U.S.C. 4601 et seq.; 49 CFR 1.48(cc).

    Source: 70 FR 611, Jan. 4, 2005, unless otherwise noted.



                            Subpart A_General



Sec. 24.1  Purpose.

    The purpose of this part is to promulgate rules to implement the 
Uniform Relocation Assistance and Real Property Acquisition Policies Act 
of 1970, as amended (42 U.S.C. 4601 et seq.) (Uniform Act), in 
accordance with the following objectives:
    (a) To ensure that owners of real property to be acquired for 
Federal and federally-assisted projects are treated fairly and 
consistently, to encourage and expedite acquisition by agreements with 
such owners, to minimize litigation and relieve congestion in the 
courts, and to promote public confidence in Federal and federally-
assisted land acquisition programs;
    (b) To ensure that persons displaced as a direct result of Federal 
or federally-assisted projects are treated fairly, consistently, and 
equitably so that such displaced persons will not suffer 
disproportionate injuries as a result of projects designed for the 
benefit of the public as a whole; and
    (c) To ensure that Agencies implement these regulations in a manner 
that is efficient and cost effective.



Sec. 24.2  Definitions and acronyms.

    (a) Definitions. Unless otherwise noted, the following terms used in 
this part shall be understood as defined in this section:
    (1) Agency. The term Agency means the Federal Agency, State, State 
Agency, or person that acquires real property or displaces a person.
    (i) Acquiring Agency. The term acquiring Agency means a State 
Agency, as defined in paragraph (a)(1)(iv) of this section, which has 
the authority to acquire property by eminent domain under State law, and 
a State Agency or person which does not have such authority.
    (ii) Displacing Agency. The term displacing Agency means any Federal 
Agency carrying out a program or project, and any State, State Agency, 
or person carrying out a program or project with Federal financial 
assistance, which causes a person to be a displaced person.
    (iii) Federal Agency. The term Federal Agency means any department, 
Agency, or instrumentality in the executive branch of the government, 
any wholly owned government corporation, the Architect of the Capitol, 
the Federal Reserve Banks and branches thereof, and any person who has 
the authority to acquire property by eminent domain under Federal law.
    (iv) State Agency. The term State Agency means any department, 
Agency or instrumentality of a State or of a political subdivision of a 
State, any department, Agency, or instrumentality of two or more States 
or of two or more political subdivisions of a State or States, and any 
person who has the authority to acquire property by eminent domain under 
State law.
    (2) Alien not lawfully present in the United States. The phrase 
``alien not lawfully present in the United States'' means an alien who 
is not ``lawfully present'' in the United States as defined in 8 CFR 
103.12 and includes:
    (i) An alien present in the United States who has not been admitted 
or

[[Page 222]]

paroled into the United States pursuant to the Immigration and 
Nationality Act (8 U.S.C. 1101 et seq.) and whose stay in the United 
States has not been authorized by the United States Attorney General; 
and,
    (ii) An alien who is present in the United States after the 
expiration of the period of stay authorized by the United States 
Attorney General or who otherwise violates the terms and conditions of 
admission, parole or authorization to stay in the United States.
    (3) Appraisal. The term appraisal means a written statement 
independently and impartially prepared by a qualified appraiser setting 
forth an opinion of defined value of an adequately described property as 
of a specific date, supported by the presentation and analysis of 
relevant market information.
    (4) Business. The term business means any lawful activity, except a 
farm operation, that is conducted:
    (i) Primarily for the purchase, sale, lease and/or rental of 
personal and/or real property, and/or for the manufacture, processing, 
and/or marketing of products, commodities, and/or any other personal 
property;
    (ii) Primarily for the sale of services to the public;
    (iii) Primarily for outdoor advertising display purposes, when the 
display must be moved as a result of the project; or
    (iv) By a nonprofit organization that has established its nonprofit 
status under applicable Federal or State law.
    (5) Citizen. The term citizen for purposes of this part includes 
both citizens of the United States and noncitizen nationals.
    (6) Comparable replacement dwelling. The term comparable replacement 
dwelling means a dwelling which is:
    (i) Decent, safe and sanitary as described in paragraph 24.2(a)(8) 
of this section;
    (ii) Functionally equivalent to the displacement dwelling. The term 
functionally equivalent means that it performs the same function, and 
provides the same utility. While a comparable replacement dwelling need 
not possess every feature of the displacement dwelling, the principal 
features must be present. Generally, functional equivalency is an 
objective standard, reflecting the range of purposes for which the 
various physical features of a dwelling may be used. However, in 
determining whether a replacement dwelling is functionally equivalent to 
the displacement dwelling, the Agency may consider reasonable trade-offs 
for specific features when the replacement unit is equal to or better 
than the displacement dwelling (See appendix A, Sec. 24.2(a)(6));
    (iii) Adequate in size to accommodate the occupants;
    (iv) In an area not subject to unreasonable adverse environmental 
conditions;
    (v) In a location generally not less desirable than the location of 
the displaced person's dwelling with respect to public utilities and 
commercial and public facilities, and reasonably accessible to the 
person's place of employment;
    (vi) On a site that is typical in size for residential development 
with normal site improvements, including customary landscaping. The site 
need not include special improvements such as outbuildings, swimming 
pools, or greenhouses. (See also Sec. 24.403(a)(2));
    (vii) Currently available to the displaced person on the private 
market except as provided in paragraph (a)(6)(ix) of this section (See 
appendix A, Sec. 24.2(a)(6)(vii)); and
    (viii) Within the financial means of the displaced person:
    (A) A replacement dwelling purchased by a homeowner in occupancy at 
the displacement dwelling for at least 180 days prior to initiation of 
negotiations (180-day homeowner) is considered to be within the 
homeowner's financial means if the homeowner will receive the full price 
differential as described in Sec. 24.401(c), all increased mortgage 
interest costs as described at Sec. 24.401(d) and all incidental 
expenses as described at Sec. 24.401(e), plus any additional amount 
required to be paid under Sec. 24.404, Replacement housing of last 
resort.
    (B) A replacement dwelling rented by an eligible displaced person is 
considered to be within his or her financial means if, after receiving 
rental assistance under this part, the person's monthly rent and 
estimated average

[[Page 223]]

monthly utility costs for the replacement dwelling do not exceed the 
person's base monthly rental for the displacement dwelling as described 
at Sec. 24.402(b)(2).
    (C) For a displaced person who is not eligible to receive a 
replacement housing payment because of the person's failure to meet 
length-of-occupancy requirements, comparable replacement rental housing 
is considered to be within the person's financial means if an Agency 
pays that portion of the monthly housing costs of a replacement dwelling 
which exceeds the person's base monthly rent for the displacement 
dwelling as described in Sec. 24.402(b)(2). Such rental assistance must 
be paid under Sec. 24.404, Replacement housing of last resort.
    (ix) For a person receiving government housing assistance before 
displacement, a dwelling that may reflect similar government housing 
assistance. In such cases any requirements of the government housing 
assistance program relating to the size of the replacement dwelling 
shall apply. (See appendix A, Sec. 24.2(a)(6)(ix).)
    (7) Contribute materially. The term contribute materially means that 
during the 2 taxable years prior to the taxable year in which 
displacement occurs, or during such other period as the Agency 
determines to be more equitable, a business or farm operation:
    (i) Had average annual gross receipts of at least $5,000; or
    (ii) Had average annual net earnings of at least $1,000; or
    (iii) Contributed at least 33\1/3\ percent of the owner's or 
operator's average annual gross income from all sources.
    (iv) If the application of the above criteria creates an inequity or 
hardship in any given case, the Agency may approve the use of other 
criteria as determined appropriate.
    (8) Decent, safe, and sanitary dwelling. The term decent, safe, and 
sanitary dwelling means a dwelling which meets local housing and 
occupancy codes. However, any of the following standards which are not 
met by the local code shall apply unless waived for good cause by the 
Federal Agency funding the project. The dwelling shall:
    (i) Be structurally sound, weather tight, and in good repair;
    (ii) Contain a safe electrical wiring system adequate for lighting 
and other devices;
    (iii) Contain a heating system capable of sustaining a healthful 
temperature (of approximately 70 degrees) for a displaced person, except 
in those areas where local climatic conditions do not require such a 
system;
    (iv) Be adequate in size with respect to the number of rooms and 
area of living space needed to accommodate the displaced person. The 
number of persons occupying each habitable room used for sleeping 
purposes shall not exceed that permitted by local housing codes or, in 
the absence of local codes, the policies of the displacing Agency. In 
addition, the displacing Agency shall follow the requirements for 
separate bedrooms for children of the opposite gender included in local 
housing codes or in the absence of local codes, the policies of such 
Agencies;
    (v) There shall be a separate, well lighted and ventilated bathroom 
that provides privacy to the user and contains a sink, bathtub or shower 
stall, and a toilet, all in good working order and properly connected to 
appropriate sources of water and to a sewage drainage system. In the 
case of a housekeeping dwelling, there shall be a kitchen area that 
contains a fully usable sink, properly connected to potable hot and cold 
water and to a sewage drainage system, and adequate space and utility 
service connections for a stove and refrigerator;
    (vi) Contains unobstructed egress to safe, open space at ground 
level; and
    (vii) For a displaced person with a disability, be free of any 
barriers which would preclude reasonable ingress, egress, or use of the 
dwelling by such displaced person. (See appendix A, Sec. 
24.2(a)(8)(vii).)
    (9) Displaced person. (i) General. The term displaced person means, 
except as provided in paragraph (a)(9)(ii) of this section, any person 
who moves from the real property or moves his or her personal property 
from the real property. (This includes a person who occupies the real 
property prior to its acquisition, but who does not meet the length of 
occupancy requirements of the Uniform Act as described at Sec. 
24.401(a) and Sec. 24.402(a)):

[[Page 224]]

    (A) As a direct result of a written notice of intent to acquire (see 
Sec. 24.203(d)), the initiation of negotiations for, or the acquisition 
of, such real property in whole or in part for a project;
    (B) As a direct result of rehabilitation or demolition for a 
project; or
    (C) As a direct result of a written notice of intent to acquire, or 
the acquisition, rehabilitation or demolition of, in whole or in part, 
other real property on which the person conducts a business or farm 
operation, for a project. However, eligibility for such person under 
this paragraph applies only for purposes of obtaining relocation 
assistance advisory services under Sec. 24.205(c), and moving expenses 
under Sec. 24.301, Sec. 24.302 or Sec. 24.303.
    (ii) Persons not displaced. The following is a nonexclusive listing 
of persons who do not qualify as displaced persons under this part:
    (A) A person who moves before the initiation of negotiations (see 
Sec. 24.403(d)), unless the Agency determines that the person was 
displaced as a direct result of the program or project;
    (B) A person who initially enters into occupancy of the property 
after the date of its acquisition for the project;
    (C) A person who has occupied the property for the purpose of 
obtaining assistance under the Uniform Act;
    (D) A person who is not required to relocate permanently as a direct 
result of a project. Such determination shall be made by the Agency in 
accordance with any guidelines established by the Federal Agency funding 
the project (See appendix A, Sec. 24.2(a)(9)(ii)(D));
    (E) An owner-occupant who moves as a result of an acquisition of 
real property as described in Sec. Sec. 24.101(a)(2) or 24.101(b)(1) or 
(2), or as a result of the rehabilitation or demolition of the real 
property. (However, the displacement of a tenant as a direct result of 
any acquisition, rehabilitation or demolition for a Federal or 
federally-assisted project is subject to this part.);
    (F) A person whom the Agency determines is not displaced as a direct 
result of a partial acquisition;
    (G) A person who, after receiving a notice of relocation eligibility 
(described at Sec. 24.203(b)), is notified in writing that he or she 
will not be displaced for a project. Such written notification shall not 
be issued unless the person has not moved and the Agency agrees to 
reimburse the person for any expenses incurred to satisfy any binding 
contractual relocation obligations entered into after the effective date 
of the notice of relocation eligibility;
    (H) An owner-occupant who conveys his or her property, as described 
in Sec. Sec. 24.101(a)(2) or 24.101(b)(1) or (2), after being informed 
in writing that if a mutually satisfactory agreement on terms of the 
conveyance cannot be reached, the Agency will not acquire the property. 
In such cases, however, any resulting displacement of a tenant is 
subject to the regulations in this part;
    (I) A person who retains the right of use and occupancy of the real 
property for life following its acquisition by the Agency;
    (J) An owner who retains the right of use and occupancy of the real 
property for a fixed term after its acquisition by the Department of the 
Interior under Pub. L. 93-477, Appropriations for National Park System, 
or Pub. L. 93-303, Land and Water Conservation Fund, except that such 
owner remains a displaced person for purposes of subpart D of this part;
    (K) A person who is determined to be in unlawful occupancy prior to 
or after the initiation of negotiations, or a person who has been 
evicted for cause, under applicable law, as provided for in Sec. 
24.206. However, advisory assistance may be provided to unlawful 
occupants at the option of the Agency in order to facilitate the 
project;
    (L) A person who is not lawfully present in the United States and 
who has been determined to be ineligible for relocation assistance in 
accordance with Sec. 24.208; or
    (M) Tenants required to move as a result of the sale of their 
dwelling to a person using downpayment assistance provided under the 
American Dream Downpayment Initiative (ADDI) authorized by section 102 
of the American Dream Downpayment Act (Pub. L. 108-186; codified at 42 
U.S.C. 12821).
    (10) Dwelling. The term dwelling means the place of permanent or 
customary and usual residence of a person, according to local custom or 
law, including a single family house; a single

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family unit in a two-family, multi-family, or multi-purpose property; a 
unit of a condominium or cooperative housing project; a non-housekeeping 
unit; a mobile home; or any other residential unit.
    (11) Dwelling site. The term dwelling site means a land area that is 
typical in size for similar dwellings located in the same neighborhood 
or rural area. (See appendix A, Sec. 24.2(a)(11).)
    (12) Farm operation. The term farm operation means any activity 
conducted solely or primarily for the production of one or more 
agricultural products or commodities, including timber, for sale or home 
use, and customarily producing such products or commodities in 
sufficient quantity to be capable of contributing materially to the 
operator's support.
    (13) Federal financial assistance. The term Federal financial 
assistance means a grant, loan, or contribution provided by the United 
States, except any Federal guarantee or insurance and any interest 
reduction payment to an individual in connection with the purchase and 
occupancy of a residence by that individual.
    (14) Household income. The term household income means total gross 
income received for a 12 month period from all sources (earned and 
unearned) including, but not limited to wages, salary, child support, 
alimony, unemployment benefits, workers compensation, social security, 
or the net income from a business. It does not include income received 
or earned by dependent children and full time students under 18 years of 
age. (See appendix A, Sec. 24.2(a)(14) for examples of exclusions to 
income.)
    (15) Initiation of negotiations. Unless a different action is 
specified in applicable Federal program regulations, the term initiation 
of negotiations means the following:
    (i) Whenever the displacement results from the acquisition of the 
real property by a Federal Agency or State Agency, the initiation of 
negotiations means the delivery of the initial written offer of just 
compensation by the Agency to the owner or the owner's representative to 
purchase the real property for the project. However, if the Federal 
Agency or State Agency issues a notice of its intent to acquire the real 
property, and a person moves after that notice, but before delivery of 
the initial written purchase offer, the initiation of negotiations means 
the actual move of the person from the property.
    (ii) Whenever the displacement is caused by rehabilitation, 
demolition or privately undertaken acquisition of the real property (and 
there is no related acquisition by a Federal Agency or a State Agency), 
the initiation of negotiations means the notice to the person that he or 
she will be displaced by the project or, if there is no notice, the 
actual move of the person from the property.
    (iii) In the case of a permanent relocation to protect the public 
health and welfare, under the Comprehensive Environmental Response 
Compensation and Liability Act of 1980 (Pub. L. 96-510, or Superfund) 
(CERCLA) the initiation of negotiations means the formal announcement of 
such relocation or the Federal or federally-coordinated health advisory 
where the Federal Government later decides to conduct a permanent 
relocation.
    (iv) In the case of permanent relocation of a tenant as a result of 
an acquisition of real property described in Sec. 24.101(b)(1) through 
(5), the initiation of negotiations means the actions described in Sec. 
24.2(a)(15)(i) and (ii), except that such initiation of negotiations 
does not become effective, for purposes of establishing eligibility for 
relocation assistance for such tenants under this part, until there is a 
written agreement between the Agency and the owner to purchase the real 
property. (See appendix A, Sec. 24.2(a)(15)(iv)).
    (16) Lead Agency. The term Lead Agency means the Department of 
Transportation acting through the Federal Highway Administration.
    (17) Mobile home. The term mobile home includes manufactured homes 
and recreational vehicles used as residences. (See appendix A, Sec. 
24.2(a)(17)).
    (18) Mortgage. The term mortgage means such classes of liens as are 
commonly given to secure advances on, or the unpaid purchase price of, 
real property, under the laws of the State in

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which the real property is located, together with the credit 
instruments, if any, secured thereby.
    (19) Nonprofit organization. The term nonprofit organization means 
an organization that is incorporated under the applicable laws of a 
State as a nonprofit organization, and exempt from paying Federal income 
taxes under section 501 of the Internal Revenue Code (26 U.S.C. 501).
    (20) Owner of a dwelling. The term owner of a dwelling means a 
person who is considered to have met the requirement to own a dwelling 
if the person purchases or holds any of the following interests in real 
property:
    (i) Fee title, a life estate, a land contract, a 99 year lease, or a 
lease including any options for extension with at least 50 years to run 
from the date of acquisition; or
    (ii) An interest in a cooperative housing project which includes the 
right to occupy a dwelling; or
    (iii) A contract to purchase any of the interests or estates 
described in Sec. 24.2(a)(1)(i) or (ii) of this section; or
    (iv) Any other interest, including a partial interest, which in the 
judgment of the Agency warrants consideration as ownership.
    (21) Person. The term person means any individual, family, 
partnership, corporation, or association.
    (22) Program or project. The phrase program or project means any 
activity or series of activities undertaken by a Federal Agency or with 
Federal financial assistance received or anticipated in any phase of an 
undertaking in accordance with the Federal funding Agency guidelines.
    (23) Salvage value. The term salvage value means the probable sale 
price of an item offered for sale to knowledgeable buyers with the 
requirement that it be removed from the property at a buyer's expense 
(i.e., not eligible for relocation assistance). This includes items for 
re-use as well as items with components that can be re-used or recycled 
when there is no reasonable prospect for sale except on this basis.
    (24) Small business. A small business is a business having not more 
than 500 employees working at the site being acquired or displaced by a 
program or project, which site is the location of economic activity. 
Sites occupied solely by outdoor advertising signs, displays, or devices 
do not qualify as a business for purposes of Sec. 24.304.
    (25) State. Any of the several States of the United States or the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or a political subdivision of any of 
these jurisdictions.
    (26) Tenant. The term tenant means a person who has the temporary 
use and occupancy of real property owned by another.
    (27) Uneconomic remnant. The term uneconomic remnant means a parcel 
of real property in which the owner is left with an interest after the 
partial acquisition of the owner's property, and which the Agency has 
determined has little or no value or utility to the owner.
    (28) Uniform Act. The term Uniform Act means the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894; 42 U.S.C. 4601 et seq.), and amendments thereto.
    (29) Unlawful occupant. A person who occupies without property 
right, title or payment of rent or a person legally evicted, with no 
legal rights to occupy a property under State law. An Agency, at its 
discretion, may consider such person to be in lawful occupancy.
    (30) Utility costs. The term utility costs means expenses for 
electricity, gas, other heating and cooking fuels, water and sewer.
    (31) Utility facility. The term utility facility means any electric, 
gas, water, steam power, or materials transmission or distribution 
system; any transportation system; any communications system, including 
cable television; and any fixtures, equipment, or other property 
associated with the operation, maintenance, or repair of any such 
system. A utility facility may be publicly, privately, or cooperatively 
owned.
    (32) Utility relocation. The term utility relocation means the 
adjustment of a utility facility required by the program or project 
undertaken by the displacing Agency. It includes removing and 
reinstalling the facility, including necessary temporary facilities; 
acquiring

[[Page 227]]

necessary right-of-way on a new location; moving, rearranging or 
changing the type of existing facilities; and taking any necessary 
safety and protective measures. It shall also mean constructing a 
replacement facility that has the functional equivalency of the existing 
facility and is necessary for the continued operation of the utility 
service, the project economy, or sequence of project construction.
    (33) Waiver valuation. The term waiver valuation means the valuation 
process used and the product produced when the Agency determines that an 
appraisal is not required, pursuant to Sec. 24.102(c)(2) appraisal 
waiver provisions.
    (b) Acronyms. The following acronyms are commonly used in the 
implementation of programs subject to this regulation:
    (1) BCIS. Bureau of Citizenship and Immigration Service.
    (2) FEMA. Federal Emergency Management Agency.
    (3) FHA. Federal Housing Administration.
    (4) FHWA. Federal Highway Administration.
    (5) FIRREA. Financial Institutions Reform, Recovery, and Enforcement 
Act of 1989.
    (6) HLR. Housing of last resort.
    (7) HUD. U.S. Department of Housing and Urban Development.
    (8) MIDP. Mortgage interest differential payment.
    (9) RHP. Replacement housing payment.
    (10) STURAA. Surface Transportation and Uniform Relocation Act 
Amendments of 1987.
    (11) URA. Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970.
    (12) USDOT. U.S. Department of Transportation.
    (13) USPAP. Uniform Standards of Professional Appraisal Practice.



Sec. 24.3  No duplication of payments.

    No person shall receive any payment under this part if that person 
receives a payment under Federal, State, local law, or insurance 
proceeds which is determined by the Agency to have the same purpose and 
effect as such payment under this part. (See appendix A, Sec. 24.3).



Sec. 24.4  Assurances, monitoring and corrective action.

    (a) Assurances. (1) Before a Federal Agency may approve any grant 
to, or contract, or agreement with, a State Agency under which Federal 
financial assistance will be made available for a project which results 
in real property acquisition or displacement that is subject to the 
Uniform Act, the State Agency must provide appropriate assurances that 
it will comply with the Uniform Act and this part. A displacing Agency's 
assurances shall be in accordance with section 210 of the Uniform Act. 
An acquiring Agency's assurances shall be in accordance with section 305 
of the Uniform Act and must contain specific reference to any State law 
which the Agency believes provides an exception to Sec. Sec. 301 or 302 
of the Uniform Act. If, in the judgment of the Federal Agency, Uniform 
Act compliance will be served, a State Agency may provide these 
assurances at one time to cover all subsequent federally-assisted 
programs or projects. An Agency, which both acquires real property and 
displaces persons, may combine its section 210 and section 305 
assurances in one document.
    (2) If a Federal Agency or State Agency provides Federal financial 
assistance to a ``person'' causing displacement, such Federal or State 
Agency is responsible for ensuring compliance with the requirements of 
this part, notwithstanding the person's contractual obligation to the 
grantee to comply.
    (3) As an alternative to the assurance requirement described in 
paragraph (a)(1) of this section, a Federal Agency may provide Federal 
financial assistance to a State Agency after it has accepted a 
certification by such State Agency in accordance with the requirements 
in subpart G of this part.
    (b) Monitoring and corrective action. The Federal Agency will 
monitor compliance with this part, and the State Agency shall take 
whatever corrective action is necessary to comply with the Uniform Act 
and this part. The Federal

[[Page 228]]

Agency may also apply sanctions in accordance with applicable program 
regulations. (Also see Sec. 24.603, of this part).
    (c) Prevention of fraud, waste, and mismanagement. The Agency shall 
take appropriate measures to carry out this part in a manner that 
minimizes fraud, waste, and mismanagement.



Sec. 24.5  Manner of notices.

    Each notice which the Agency is required to provide to a property 
owner or occupant under this part, except the notice described at Sec. 
24.102(b), shall be personally served or sent by certified or registered 
first-class mail, return receipt requested, and documented in Agency 
files. Each notice shall be written in plain, understandable language. 
Persons who are unable to read and understand the notice must be 
provided with appropriate translation and counseling. Each notice shall 
indicate the name and telephone number of a person who may be contacted 
for answers to questions or other needed help.



Sec. 24.6  Administration of jointly-funded projects.

    Whenever two or more Federal Agencies provide financial assistance 
to an Agency or Agencies, other than a Federal Agency, to carry out 
functionally or geographically related activities, which will result in 
the acquisition of property or the displacement of a person, the Federal 
Agencies may by agreement designate one such Agency as the cognizant 
Federal Agency. In the unlikely event that agreement among the Agencies 
cannot be reached as to which Agency shall be the cognizant Federal 
Agency, then the Lead Agency shall designate one of such Agencies to 
assume the cognizant role. At a minimum, the agreement shall set forth 
the federally-assisted activities which are subject to its terms and 
cite any policies and procedures, in addition to this part, that are 
applicable to the activities under the agreement. Under the agreement, 
the cognizant Federal Agency shall assure that the project is in 
compliance with the provisions of the Uniform Act and this part. All 
federally-assisted activities under the agreement shall be deemed a 
project for the purposes of this part.



Sec. 24.7  Federal Agency waiver of regulations.

    The Federal Agency funding the project may waive any requirement in 
this part not required by law if it determines that the waiver does not 
reduce any assistance or protection provided to an owner or displaced 
person under this part. Any request for a waiver shall be justified on a 
case-by-case basis.



Sec. 24.8  Compliance with other laws and regulations.

    The implementation of this part must be in compliance with other 
applicable Federal laws and implementing regulations, including, but not 
limited to, the following:
    (a) Section I of the Civil Rights Act of 1866 (42 U.S.C. 1982 et 
seq.).
    (b) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.).
    (c) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et 
seq.), as amended.
    (d) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.).
    (e) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 790 et 
seq.).
    (f) The Flood Disaster Protection Act of 1973 (Pub. L. 93-234).
    (g) The Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.).
    (h) Executive Order 11063--Equal Opportunity and Housing, as amended 
by Executive Order 12892.
    (i) Executive Order 11246--Equal Employment Opportunity, as amended.
    (j) Executive Order 11625--Minority Business Enterprise.
    (k) Executive Orders 11988--Floodplain Management, and 11990--
Protection of Wetlands.
    (l) Executive Order 12250--Leadership and Coordination of Non-
Discrimination Laws.
    (m) Executive Order 12630--Governmental Actions and Interference 
with Constitutionally Protected Property Rights.
    (n) Robert T. Stafford Disaster Relief and Emergency Assistance Act, 
as amended (42 U.S.C. 5121 et seq.).
    (o) Executive Order 12892--Leadership and Coordination of Fair 
Housing in Federal Programs: Affirmatively Furthering Fair Housing 
(January 17, 1994).

[[Page 229]]



Sec. 24.9  Recordkeeping and reports.

    (a) Records. The Agency shall maintain adequate records of its 
acquisition and displacement activities in sufficient detail to 
demonstrate compliance with this part. These records shall be retained 
for at least 3 years after each owner of a property and each person 
displaced from the property receives the final payment to which he or 
she is entitled under this part, or in accordance with the applicable 
regulations of the Federal funding Agency, whichever is later.
    (b) Confidentiality of records. Records maintained by an Agency in 
accordance with this part are confidential regarding their use as public 
information, unless applicable law provides otherwise.
    (c) Reports. The Agency shall submit a report of its real property 
acquisition and displacement activities under this part if required by 
the Federal Agency funding the project. A report will not be required 
more frequently than every 3 years, or as the Uniform Act provides, 
unless the Federal funding Agency shows good cause. The report shall be 
prepared and submitted using the format contained in appendix B of this 
part.



Sec. 24.10  Appeals.

    (a) General. The Agency shall promptly review appeals in accordance 
with the requirements of applicable law and this part.
    (b) Actions which may be appealed. Any aggrieved person may file a 
written appeal with the Agency in any case in which the person believes 
that the Agency has failed to properly consider the person's application 
for assistance under this part. Such assistance may include, but is not 
limited to, the person's eligibility for, or the amount of, a payment 
required under Sec. 24.106 or Sec. 24.107, or a relocation payment 
required under this part. The Agency shall consider a written appeal 
regardless of form.
    (c) Time limit for initiating appeal. The Agency may set a 
reasonable time limit for a person to file an appeal. The time limit 
shall not be less than 60 days after the person receives written 
notification of the Agency's determination on the person's claim.
    (d) Right to representation. A person has a right to be represented 
by legal counsel or other representative in connection with his or her 
appeal, but solely at the person's own expense.
    (e) Review of files by person making appeal. The Agency shall permit 
a person to inspect and copy all materials pertinent to his or her 
appeal, except materials which are classified as confidential by the 
Agency. The Agency may, however, impose reasonable conditions on the 
person's right to inspect, consistent with applicable laws.
    (f) Scope of review of appeal. In deciding an appeal, the Agency 
shall consider all pertinent justification and other material submitted 
by the person, and all other available information that is needed to 
ensure a fair and full review of the appeal.
    (g) Determination and notification after appeal. Promptly after 
receipt of all information submitted by a person in support of an 
appeal, the Agency shall make a written determination on the appeal, 
including an explanation of the basis on which the decision was made, 
and furnish the person a copy. If the full relief requested is not 
granted, the Agency shall advise the person of his or her right to seek 
judicial review of the Agency decision.
    (h) Agency official to review appeal. The Agency official conducting 
the review of the appeal shall be either the head of the Agency or his 
or her authorized designee. However, the official shall not have been 
directly involved in the action appealed.



                   Subpart B_Real Property Acquisition



Sec. 24.101  Applicability of acquisition requirements.

    (a) Direct Federal program or project. (1) The requirements of this 
subpart apply to any acquisition of real property for a direct Federal 
program or project, except acquisition for a program or project that is 
undertaken by the Tennessee Valley Authority or the Rural Utilities 
Service. (See appendix A, Sec. 24.101(a).)
    (2) If a Federal Agency (except for the Tennessee Valley Authority 
or the Rural Utilities Service) will not acquire a property because 
negotiations

[[Page 230]]

fail to result in an agreement, the owner of the property shall be so 
informed in writing. Owners of such properties are not displaced 
persons, (see Sec. Sec. 24.2(a)(9)(ii)(E) or (H)), and as such, are not 
entitled to relocation assistance benefits. However, tenants on such 
properties may be eligible for relocation assistance benefits. (See 
Sec. 24.2(a)(9)).
    (b) Programs and projects receiving Federal financial assistance. 
The requirements of this subpart apply to any acquisition of real 
property for programs and projects where there is Federal financial 
assistance in any part of project costs except for the acquisitions 
described in paragraphs (b)(1) through (5) of this section. The 
relocation assistance provisions in this part are applicable to any 
tenants that must move as a result of an acquisition described in 
paragraphs (b)(1) through (5) of this section. Such tenants are 
considered displaced persons. (See Sec. 24.2(a)(9).)
    (1) The requirements of Subpart B do not apply to acquisitions that 
meet all of the following conditions in paragraphs (b)(1)(i) through 
(iv):
    (i) No specific site or property needs to be acquired, although the 
Agency may limit its search for alternative sites to a general 
geographic area. Where an Agency wishes to purchase more than one site 
within a general geographic area on this basis, all owners are to be 
treated similarly. (See appendix A, Sec. 24.101(b)(1)(i).)
    (ii) The property to be acquired is not part of an intended, 
planned, or designated project area where all or substantially all of 
the property within the area is to be acquired within specific time 
limits.
    (iii) The Agency will not acquire the property if negotiations fail 
to result in an amicable agreement, and the owner is so informed in 
writing.
    (iv) The Agency will inform the owner in writing of what it believes 
to be the market value of the property. (See appendix A, Sec. 
24.101(b)(1)(iv) and (2)(ii).)
    (2) Acquisitions for programs or projects undertaken by an Agency or 
person that receives Federal financial assistance but does not have 
authority to acquire property by eminent domain, provided that such 
Agency or person shall:
    (i) Prior to making an offer for the property, clearly advise the 
owner that it is unable to acquire the property if negotiations fail to 
result in an agreement; and
    (ii) Inform the owner in writing of what it believes to be the 
market value of the property. (See appendix A, Sec. 24.101(b)(1)(iv) 
and (2)(ii).)
    (3) The acquisition of real property from a Federal Agency, State, 
or State Agency, if the Agency desiring to make the purchase does not 
have authority to acquire the property through condemnation.
    (4) The acquisition of real property by a cooperative from a person 
who, as a condition of membership in the cooperative, has agreed to 
provide without charge any real property that is needed by the 
cooperative.
    (5) Acquisition for a program or project that receives Federal 
financial assistance from the Tennessee Valley Authority or the Rural 
Utilities Service.
    (c) Less-than-full-fee interest in real property. (1) The provisions 
of this subpart apply when acquiring fee title subject to retention of a 
life estate or a life use; to acquisition by leasing where the lease 
term, including option(s) for extension, is 50 years or more; and to the 
acquisition of permanent and/or temporary easements necessary for the 
project. However, the Agency may apply these regulations to any less-
than-full-fee acquisition that, in its judgment, should be covered.
    (2) The provisions of this subpart do not apply to temporary 
easements or permits needed solely to perform work intended exclusively 
for the benefit of the property owner, which work may not be done if 
agreement cannot be reached.
    (d) Federally-assisted projects. For projects receiving Federal 
financial assistance, the provisions of Sec. Sec. 24.102, 24.103, 
24.104, and 24.105 apply to the greatest extent practicable under State 
law. (See Sec. 24.4(a).)



Sec. 24.102  Basic acquisition policies.

    (a) Expeditious acquisition. The Agency shall make every reasonable 
effort

[[Page 231]]

to acquire the real property expeditiously by negotiation.
    (b) Notice to owner. As soon as feasible, the Agency shall notify 
the owner in writing of the Agency's interest in acquiring the real 
property and the basic protections provided to the owner by law and this 
part. (See Sec. 24.203.)
    (c) Appraisal, waiver thereof, and invitation to owner. (1) Before 
the initiation of negotiations the real property to be acquired shall be 
appraised, except as provided in Sec. 24.102 (c)(2), and the owner, or 
the owner's designated representative, shall be given an opportunity to 
accompany the appraiser during the appraiser's inspection of the 
property.
    (2) An appraisal is not required if:
    (i) The owner is donating the property and releases the Agency from 
its obligation to appraise the property; or
    (ii) The Agency determines that an appraisal is unnecessary because 
the valuation problem is uncomplicated and the anticipated value of the 
proposed acquisition is estimated at $10,000 or less, based on a review 
of available data.
    (A) When an appraisal is determined to be unnecessary, the Agency 
shall prepare a waiver valuation.
    (B) The person performing the waiver valuation must have sufficient 
understanding of the local real estate market to be qualified to make 
the waiver valuation.
    (C) The Federal Agency funding the project may approve exceeding the 
$10,000 threshold, up to a maximum of $25,000, if the Agency acquiring 
the real property offers the property owner the option of having the 
Agency appraise the property. If the property owner elects to have the 
Agency appraise the property, the Agency shall obtain an appraisal and 
not use procedures described in this paragraph. (See appendix A, Sec. 
24.102(c)(2).)
    (d) Establishment and offer of just compensation. Before the 
initiation of negotiations, the Agency shall establish an amount which 
it believes is just compensation for the real property. The amount shall 
not be less than the approved appraisal of the fair market value of the 
property, taking into account the value of allowable damages or benefits 
to any remaining property. An Agency official must establish the amount 
believed to be just compensation. (See Sec. 24.104.) Promptly 
thereafter, the Agency shall make a written offer to the owner to 
acquire the property for the full amount believed to be just 
compensation. (See appendix A, Sec. 24.102(d).)
    (e) Summary statement. Along with the initial written purchase 
offer, the owner shall be given a written statement of the basis for the 
offer of just compensation, which shall include:
    (1) A statement of the amount offered as just compensation. In the 
case of a partial acquisition, the compensation for the real property to 
be acquired and the compensation for damages, if any, to the remaining 
real property shall be separately stated.
    (2) A description and location identification of the real property 
and the interest in the real property to be acquired.
    (3) An identification of the buildings, structures, and other 
improvements (including removable building equipment and trade fixtures) 
which are included as part of the offer of just compensation. Where 
appropriate, the statement shall identify any other separately held 
ownership interest in the property, e.g., a tenant-owned improvement, 
and indicate that such interest is not covered by this offer.
    (f) Basic negotiation procedures. The Agency shall make all 
reasonable efforts to contact the owner or the owner's representative 
and discuss its offer to purchase the property, including the basis for 
the offer of just compensation and explain its acquisition policies and 
procedures, including its payment of incidental expenses in accordance 
with Sec. 24.106. The owner shall be given reasonable opportunity to 
consider the offer and present material which the owner believes is 
relevant to determining the value of the property and to suggest 
modification in the proposed terms and conditions of the purchase. The 
Agency shall consider the owner's presentation. (See appendix A, Sec. 
24.102(f).)
    (g) Updating offer of just compensation. If the information 
presented by the owner, or a material change in the character or 
condition of the property,

[[Page 232]]

indicates the need for new appraisal information, or if a significant 
delay has occurred since the time of the appraisal(s) of the property, 
the Agency shall have the appraisal(s) updated or obtain a new 
appraisal(s). If the latest appraisal information indicates that a 
change in the purchase offer is warranted, the Agency shall promptly 
reestablish just compensation and offer that amount to the owner in 
writing.
    (h) Coercive action. The Agency shall not advance the time of 
condemnation, or defer negotiations or condemnation or the deposit of 
funds with the court, or take any other coercive action in order to 
induce an agreement on the price to be paid for the property.
    (i) Administrative settlement. The purchase price for the property 
may exceed the amount offered as just compensation when reasonable 
efforts to negotiate an agreement at that amount have failed and an 
authorized Agency official approves such administrative settlement as 
being reasonable, prudent, and in the public interest. When Federal 
funds pay for or participate in acquisition costs, a written 
justification shall be prepared, which states what available 
information, including trial risks, supports such a settlement. (See 
appendix A, Sec. 24.102(i).)
    (j) Payment before taking possession. Before requiring the owner to 
surrender possession of the real property, the Agency shall pay the 
agreed purchase price to the owner, or in the case of a condemnation, 
deposit with the court, for the benefit of the owner, an amount not less 
than the Agency's approved appraisal of the fair market value of such 
property, or the court award of compensation in the condemnation 
proceeding for the property. In exceptional circumstances, with the 
prior approval of the owner, the Agency may obtain a right-of-entry for 
construction purposes before making payment available to an owner. (See 
appendix A, Sec. 24.102(j).)
    (k) Uneconomic remnant. If the acquisition of only a portion of a 
property would leave the owner with an uneconomic remnant, the Agency 
shall offer to acquire the uneconomic remnant along with the portion of 
the property needed for the project. (See Sec. 24.2(a)(27).)
    (l) Inverse condemnation. If the Agency intends to acquire any 
interest in real property by exercise of the power of eminent domain, it 
shall institute formal condemnation proceedings and not intentionally 
make it necessary for the owner to institute legal proceedings to prove 
the fact of the taking of the real property.
    (m) Fair rental. If the Agency permits a former owner or tenant to 
occupy the real property after acquisition for a short term, or a period 
subject to termination by the Agency on short notice, the rent shall not 
exceed the fair market rent for such occupancy. (See appendix A, Sec. 
24.102(m).)
    (n) Conflict of interest. (1) The appraiser, review appraiser or 
person performing the waiver valuation shall not have any interest, 
direct or indirect, in the real property being valued for the Agency.
    Compensation for making an appraisal or waiver valuation shall not 
be based on the amount of the valuation estimate.
    (2) No person shall attempt to unduly influence or coerce an 
appraiser, review appraiser, or waiver valuation preparer regarding any 
valuation or other aspect of an appraisal, review or waiver valuation. 
Persons functioning as negotiators may not supervise or formally 
evaluate the performance of any appraiser or review appraiser performing 
appraisal or appraisal review work, except that, for a program or 
project receiving Federal financial assistance, the Federal funding 
Agency may waive this requirement if it determines it would create a 
hardship for the Agency.
    (3) An appraiser, review appraiser, or waiver valuation preparer 
making an appraisal, appraisal review or waiver valuation may be 
authorized by the Agency to act as a negotiator for real property for 
which that person has made an appraisal, appraisal review or waiver 
valuation only if the offer to acquire the property is $10,000, or less. 
(See appendix A, Sec. 24.102(n).)

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec. 24.103  Criteria for appraisals.

    (a) Appraisal requirements. This section sets forth the requirements 
for

[[Page 233]]

real property acquisition appraisals for Federal and federally-assisted 
programs. Appraisals are to be prepared according to these requirements, 
which are intended to be consistent with the Uniform Standards of 
Professional Appraisal Practice (USPAP). \1\ (See appendix A, Sec. 
24.103(a).) The Agency may have appraisal requirements that supplement 
these requirements, including, to the extent appropriate, the Uniform 
Appraisal Standards for Federal Land Acquisition (UASFLA). \2\
---------------------------------------------------------------------------

    \1\ Uniform Standards of Professional Appraisal Practice (USPAP). 
Published by The Appraisal Foundation, a nonprofit educational 
organization. Copies may be ordered from The Appraisal Foundation at the 
following URL: http://www.appraisalfoundation.org/htm/USPAP2004/toc.htm.
    \2\ The ``Uniform Appraisal Standards for Federal Land 
Acquisitions'' is published by the Interagency Land Acquisition 
Conference. It is a compendium of Federal eminent domain appraisal law, 
both case and statute, regulations and practices. It is available at 
http://www.usdoj.gov/enrd/land-ack/toc.htm or in soft cover format from 
the Appraisal Institute at http://www.appraisalinstitute.org/econom/
publications/Default.asp and select ``Legal/Regulatory'' or call 888-
570-4545.
---------------------------------------------------------------------------

    (1) The Agency acquiring real property has a legitimate role in 
contributing to the appraisal process, especially in developing the 
scope of work and defining the appraisal problem. The scope of work and 
development of an appraisal under these requirements depends on the 
complexity of the appraisal problem.
    (2) The Agency has the responsibility to assure that the appraisals 
it obtains are relevant to its program needs, reflect established and 
commonly accepted Federal and federally-assisted program appraisal 
practice, and as a minimum, complies with the definition of appraisal in 
Sec. 24.2(a)(3) and the five following requirements: (See appendix A, 
Sec. Sec. 24.103 and 24.103(a).)
    (i) An adequate description of the physical characteristics of the 
property being appraised (and, in the case of a partial acquisition, an 
adequate description of the remaining property), including items 
identified as personal property, a statement of the known and observed 
encumbrances, if any, title information, location, zoning, present use, 
an analysis of highest and best use, and at least a 5-year sales history 
of the property. (See appendix A, Sec. 24.103(a)(1).)
    (ii) All relevant and reliable approaches to value consistent with 
established Federal and federally-assisted program appraisal practices. 
If the appraiser uses more than one approach, there shall be an analysis 
and reconciliation of approaches to value used that is sufficient to 
support the appraiser's opinion of value. (See appendix A, Sec. 
24.103(a).)
    (iii) A description of comparable sales, including a description of 
all relevant physical, legal, and economic factors such as parties to 
the transaction, source and method of financing, and verification by a 
party involved in the transaction.
    (iv) A statement of the value of the real property to be acquired 
and, for a partial acquisition, a statement of the value of the damages 
and benefits, if any, to the remaining real property, where appropriate.
    (v) The effective date of valuation, date of appraisal, signature, 
and certification of the appraiser.
    (b) Influence of the project on just compensation. The appraiser 
shall disregard any decrease or increase in the fair market value of the 
real property caused by the project for which the property is to be 
acquired, or by the likelihood that the property would be acquired for 
the project, other than that due to physical deterioration within the 
reasonable control of the owner. (See appendix A, Sec. 24.103(b).)
    (c) Owner retention of improvements. If the owner of a real property 
improvement is permitted to retain it for removal from the project site, 
the amount to be offered for the interest in the real property to be 
acquired shall be not less than the difference between the amount 
determined to be just compensation for the owner's entire interest in 
the real property and the salvage value (defined at Sec. 24.2(a)(24)) 
of the retained improvement.
    (d) Qualifications of appraisers and review appraisers. (1) The 
Agency shall establish criteria for determining the

[[Page 234]]

minimum qualifications and competency of appraisers and review 
appraisers. Qualifications shall be consistent with the scope of work 
for the assignment. The Agency shall review the experience, education, 
training, certification/licensing, designation(s) and other 
qualifications of appraisers, and review appraisers, and use only those 
determined by the Agency to be qualified. (See appendix A, Sec. 
24.103(d)(1).)
    (2) If the Agency uses a contract (fee) appraiser to perform the 
appraisal, such appraiser shall be State licensed or certified in 
accordance with title XI of the Financial Institutions Reform, Recovery, 
and Enforcement Act of 1989 (FIRREA) (12 U.S.C. 3331 et seq.).

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec. 24.104  Review of appraisals.

    The Agency shall have an appraisal review process and, at a minimum:
    (a) A qualified review appraiser (see Sec. 24.103(d)(1) and 
appendix A, Sec. 24.104) shall examine the presentation and analysis of 
market information in all appraisals to assure that they meet the 
definition of appraisal found in 49 CFR 24.2(a)(3), appraisal 
requirements found in 49 CFR 24.103 and other applicable requirements, 
including, to the extent appropriate, the UASFLA, and support the 
appraiser's opinion of value. The level of review analysis depends on 
the complexity of the appraisal problem. As needed, the review appraiser 
shall, prior to acceptance, seek necessary corrections or revisions. The 
review appraiser shall identify each appraisal report as recommended (as 
the basis for the establishment of the amount believed to be just 
compensation), accepted (meets all requirements, but not selected as 
recommended or approved), or not accepted. If authorized by the Agency 
to do so, the staff review appraiser shall also approve the appraisal 
(as the basis for the establishment of the amount believed to be just 
compensation), and, if also authorized to do so, develop and report the 
amount believed to be just compensation. (See appendix A, Sec. 
24.104(a).)
    (b) If the review appraiser is unable to recommend (or approve) an 
appraisal as an adequate basis for the establishment of the offer of 
just compensation, and it is determined by the acquiring Agency that it 
is not practical to obtain an additional appraisal, the review appraiser 
may, as part of the review, present and analyze market information in 
conformance with Sec. 24.103 to support a recommended (or approved) 
value. (See appendix A, Sec. 24.104(b).)
    (c) The review appraiser shall prepare a written report that 
identifies the appraisal reports reviewed and documents the findings and 
conclusions arrived at during the review of the appraisal(s). Any 
damages or benefits to any remaining property shall be identified in the 
review appraiser's report. The review appraiser shall also prepare a 
signed certification that states the parameters of the review. The 
certification shall state the approved value, and, if the review 
appraiser is authorized to do so, the amount believed to be just 
compensation for the acquisition. (See appendix A, Sec. 24.104(c).)



Sec. 24.105  Acquisition of tenant-owned improvements.

    (a) Acquisition of improvements. When acquiring any interest in real 
property, the Agency shall offer to acquire at least an equal interest 
in all buildings, structures, or other improvements located upon the 
real property to be acquired, which it requires to be removed or which 
it determines will be adversely affected by the use to which such real 
property will be put. This shall include any improvement of a tenant-
owner who has the right or obligation to remove the improvement at the 
expiration of the lease term.
    (b) Improvements considered to be real property. Any building, 
structure, or other improvement, which would be considered to be real 
property if owned by the owner of the real property on which it is 
located, shall be considered to be real property for purposes of this 
subpart.
    (c) Appraisal and Establishment of Just Compensation for a Tenant-
Owned Improvement. Just compensation for a tenant-owned improvement is 
the amount which the improvement contributes to the fair market value of 
the whole

[[Page 235]]

property, or its salvage value, whichever is greater. (Salvage value is 
defined at Sec. 24.2(a)(23).)
    (d) Special conditions for tenant-owned improvements. No payment 
shall be made to a tenant-owner for any real property improvement 
unless:
    (1) The tenant-owner, in consideration for the payment, assigns, 
transfers, and releases to the Agency all of the tenant-owner's right, 
title, and interest in the improvement;
    (2) The owner of the real property on which the improvement is 
located disclaims all interest in the improvement; and
    (3) The payment does not result in the duplication of any 
compensation otherwise authorized by law.
    (e) Alternative compensation. Nothing in this subpart shall be 
construed to deprive the tenant-owner of any right to reject payment 
under this subpart and to obtain payment for such property interests in 
accordance with other applicable law.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec. 24.106  Expenses incidental to transfer of title to the Agency.

    (a) The owner of the real property shall be reimbursed for all 
reasonable expenses the owner necessarily incurred for:
    (1) Recording fees, transfer taxes, documentary stamps, evidence of 
title, boundary surveys, legal descriptions of the real property, and 
similar expenses incidental to conveying the real property to the 
Agency. However, the Agency is not required to pay costs solely required 
to perfect the owner's title to the real property;
    (2) Penalty costs and other charges for prepayment of any 
preexisting recorded mortgage entered into in good faith encumbering the 
real property; and
    (3) The pro rata portion of any prepaid real property taxes which 
are allocable to the period after the Agency obtains title to the 
property or effective possession of it, whichever is earlier.
    (b) Whenever feasible, the Agency shall pay these costs directly to 
the billing agent so that the owner will not have to pay such costs and 
then seek reimbursement from the Agency.



Sec. 24.107  Certain litigation expenses.

    The owner of the real property shall be reimbursed for any 
reasonable expenses, including reasonable attorney, appraisal, and 
engineering fees, which the owner actually incurred because of a 
condemnation proceeding, if:
    (a) The final judgment of the court is that the Agency cannot 
acquire the real property by condemnation;
    (b) The condemnation proceeding is abandoned by the Agency other 
than under an agreed-upon settlement; or
    (c) The court having jurisdiction renders a judgment in favor of the 
owner in an inverse condemnation proceeding or the Agency effects a 
settlement of such proceeding.



Sec. 24.108  Donations.

    An owner whose real property is being acquired may, after being 
fully informed by the Agency of the right to receive just compensation 
for such property, donate such property or any part thereof, any 
interest therein, or any compensation paid therefore, to the Agency as 
such owner shall determine. The Agency is responsible for ensuring that 
an appraisal of the real property is obtained unless the owner releases 
the Agency from such obligation, except as provided in Sec. 
24.102(c)(2).



                Subpart C_General Relocation Requirements



Sec. 24.201  Purpose.

    This subpart prescribes general requirements governing the provision 
of relocation payments and other relocation assistance in this part.



Sec. 24.202  Applicability.

    These requirements apply to the relocation of any displaced person 
as defined at Sec. 24.2(a)(9). Any person who qualifies as a displaced 
person must be fully informed of his or her rights and entitlements to 
relocation assistance and payments provided by the Uniform Act and this 
regulation. (See appendix A, Sec. 24.202.)

[[Page 236]]



Sec. 24.203  Relocation notices.

    (a) General information notice. As soon as feasible, a person 
scheduled to be displaced shall be furnished with a general written 
description of the displacing Agency's relocation program which does at 
least the following:
    (1) Informs the person that he or she may be displaced for the 
project and generally describes the relocation payment(s) for which the 
person may be eligible, the basic conditions of eligibility, and the 
procedures for obtaining the payment(s);
    (2) Informs the displaced person that he or she will be given 
reasonable relocation advisory services, including referrals to 
replacement properties, help in filing payment claims, and other 
necessary assistance to help the displaced person successfully relocate;
    (3) Informs the displaced person that he or she will not be required 
to move without at least 90 days advance written notice (see paragraph 
(c) of this section), and informs any person to be displaced from a 
dwelling that he or she cannot be required to move permanently unless at 
least one comparable replacement dwelling has been made available;
    (4) Informs the displaced person that any person who is an alien not 
lawfully present in the United States is ineligible for relocation 
advisory services and relocation payments, unless such ineligibility 
would result in exceptional and extremely unusual hardship to a 
qualifying spouse, parent, or child, as defined in Sec. 24.208(h); and
    (5) Describes the displaced person's right to appeal the Agency's 
determination as to a person's application for assistance for which a 
person may be eligible under this part.
    (b) Notice of relocation eligibility. Eligibility for relocation 
assistance shall begin on the date of a notice of intent to acquire 
(described in Sec. 24.203(d)), the initiation of negotiations (defined 
in Sec. 24.2(a)(15)), or actual acquisition, whichever occurs first. 
When this occurs, the Agency shall promptly notify all occupants in 
writing of their eligibility for applicable relocation assistance.
    (c) Ninety-day notice--(1) General. No lawful occupant shall be 
required to move unless he or she has received at least 90 days advance 
written notice of the earliest date by which he or she may be required 
to move.
    (2) Timing of notice. The displacing Agency may issue the notice 90 
days or earlier before it expects the person to be displaced.
    (3) Content of notice. The 90-day notice shall either state a 
specific date as the earliest date by which the occupant may be required 
to move, or state that the occupant will receive a further notice 
indicating, at least 30 days in advance, the specific date by which he 
or she must move. If the 90-day notice is issued before a comparable 
replacement dwelling is made available, the notice must state clearly 
that the occupant will not have to move earlier than 90 days after such 
a dwelling is made available. (See Sec. 24.204(a).)
    (4) Urgent need. In unusual circumstances, an occupant may be 
required to vacate the property on less than 90 days advance written 
notice if the displacing Agency determines that a 90-day notice is 
impracticable, such as when the person's continued occupancy of the 
property would constitute a substantial danger to health or safety. A 
copy of the Agency's determination shall be included in the applicable 
case file.
    (d) Notice of intent to acquire. A notice of intent to acquire is a 
displacing Agency's written communication that is provided to a person 
to be displaced, including those to be displaced by rehabilitation or 
demolition activities from property acquired prior to the commitment of 
Federal financial assistance to the activity, which clearly sets forth 
that the Agency intends to acquire the property. A notice of intent to 
acquire establishes eligibility for relocation assistance prior to the 
initiation of negotiations and/or prior to the commitment of Federal 
financial assistance. (See Sec. 24.2(a)(9)(i)(A).)



Sec. 24.204  Availability of comparable replacement dwelling before
displacement.

    (a) General. No person to be displaced shall be required to move 
from his or her dwelling unless at least one comparable replacement 
dwelling (defined at Sec. 24.2 (a)(6)) has been made available to the 
person. When possible, three or

[[Page 237]]

more comparable replacement dwellings shall be made available. A 
comparable replacement dwelling will be considered to have been made 
available to a person, if:
    (1) The person is informed of its location;
    (2) The person has sufficient time to negotiate and enter into a 
purchase agreement or lease for the property; and
    (3) Subject to reasonable safeguards, the person is assured of 
receiving the relocation assistance and acquisition payment to which the 
person is entitled in sufficient time to complete the purchase or lease 
of the property.
    (b) Circumstances permitting waiver. The Federal Agency funding the 
project may grant a waiver of the policy in paragraph (a) of this 
section in any case where it is demonstrated that a person must move 
because of:
    (1) A major disaster as defined in section 102 of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act, as amended (42 
U.S.C. 5122);
    (2) A presidentially declared national emergency; or
    (3) Another emergency which requires immediate vacation of the real 
property, such as when continued occupancy of the displacement dwelling 
constitutes a substantial danger to the health or safety of the 
occupants or the public.
    (c) Basic conditions of emergency move. Whenever a person to be 
displaced is required to relocate from the displacement dwelling for a 
temporary period because of an emergency as described in paragraph (b) 
of this section, the Agency shall:
    (1) Take whatever steps are necessary to assure that the person is 
temporarily relocated to a decent, safe, and sanitary dwelling;
    (2) Pay the actual reasonable out-of-pocket moving expenses and any 
reasonable increase in rent and utility costs incurred in connection 
with the temporary relocation; and
    (3) Make available to the displaced person as soon as feasible, at 
least one comparable replacement dwelling. (For purposes of filing a 
claim and meeting the eligibility requirements for a relocation payment, 
the date of displacement is the date the person moves from the 
temporarily occupied dwelling.)



Sec. 24.205  Relocation planning, advisory services, and coordination.

    (a) Relocation planning. During the early stages of development, an 
Agency shall plan Federal and federally-assisted programs or projects in 
such a manner that recognizes the problems associated with the 
displacement of individuals, families, businesses, farms, and nonprofit 
organizations and develop solutions to minimize the adverse impacts of 
displacement. Such planning, where appropriate, shall precede any action 
by an Agency which will cause displacement, and should be scoped to the 
complexity and nature of the anticipated displacing activity including 
an evaluation of program resources available to carry out timely and 
orderly relocations. Planning may involve a relocation survey or study, 
which may include the following:
    (1) An estimate of the number of households to be displaced 
including information such as owner/tenant status, estimated value and 
rental rates of properties to be acquired, family characteristics, and 
special consideration of the impacts on minorities, the elderly, large 
families, and persons with disabilities when applicable.
    (2) An estimate of the number of comparable replacement dwellings in 
the area (including price ranges and rental rates) that are expected to 
be available to fulfill the needs of those households displaced. When an 
adequate supply of comparable housing is not expected to be available, 
the Agency should consider housing of last resort actions.
    (3) An estimate of the number, type and size of the businesses, 
farms, and nonprofit organizations to be displaced and the approximate 
number of employees that may be affected.
    (4) An estimate of the availability of replacement business sites. 
When an adequate supply of replacement business sites is not expected to 
be available, the impacts of displacing the businesses should be 
considered and addressed. Planning for displaced businesses which are 
reasonably expected to involve complex or lengthy moving

[[Page 238]]

processes or small businesses with limited financial resources and/or 
few alternative relocation sites should include an analysis of business 
moving problems.
    (5) Consideration of any special relocation advisory services that 
may be necessary from the displacing Agency and other cooperating 
Agencies.
    (b) Loans for planning and preliminary expenses. In the event that 
an Agency elects to consider using the duplicative provision in section 
215 of the Uniform Act which permits the use of project funds for loans 
to cover planning and other preliminary expenses for the development of 
additional housing, the Lead Agency will establish criteria and 
procedures for such use upon the request of the Federal Agency funding 
the program or project.
    (c) Relocation assistance advisory services--(1) General. The Agency 
shall carry out a relocation assistance advisory program which satisfies 
the requirements of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d et seq.), Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 
3601 et seq.), and Executive Order 11063 (27 FR 11527, November 24, 
1962), and offer the services described in paragraph (c)(2) of this 
section. If the Agency determines that a person occupying property 
adjacent to the real property acquired for the project is caused 
substantial economic injury because of such acquisition, it may offer 
advisory services to such person.
    (2) Services to be provided. The advisory program shall include such 
measures, facilities, and services as may be necessary or appropriate in 
order to:
    (i) Determine, for nonresidential (businesses, farm and nonprofit 
organizations) displacements, the relocation needs and preferences of 
each business (farm and nonprofit organization) to be displaced and 
explain the relocation payments and other assistance for which the 
business may be eligible, the related eligibility requirements, and the 
procedures for obtaining such assistance. This shall include a personal 
interview with each business. At a minimum, interviews with displaced 
business owners and operators should include the following items:
    (A) The business's replacement site requirements, current lease 
terms and other contractual obligations and the financial capacity of 
the business to accomplish the move.
    (B) Determination of the need for outside specialists in accordance 
with Sec. 24.301(g)(12) that will be required to assist in planning the 
move, assistance in the actual move, and in the reinstallation of 
machinery and/or other personal property.
    (C) For businesses, an identification and resolution of personalty/
realty issues. Every effort must be made to identify and resolve realty/
personalty issues prior to, or at the time of, the appraisal of the 
property.
    (D) An estimate of the time required for the business to vacate the 
site.
    (E) An estimate of the anticipated difficulty in locating a 
replacement property.
    (F) An identification of any advance relocation payments required 
for the move, and the Agency's legal capacity to provide them.
    (ii) Determine, for residential displacements, the relocation needs 
and preferences of each person to be displaced and explain the 
relocation payments and other assistance for which the person may be 
eligible, the related eligibility requirements, and the procedures for 
obtaining such assistance. This shall include a personal interview with 
each residential displaced person.
    (A) Provide current and continuing information on the availability, 
purchase prices, and rental costs of comparable replacement dwellings, 
and explain that the person cannot be required to move unless at least 
one comparable replacement dwelling is made available as set forth in 
Sec. 24.204(a).
    (B) As soon as feasible, the Agency shall inform the person in 
writing of the specific comparable replacement dwelling and the price or 
rent used for establishing the upper limit of the replacement housing 
payment (see Sec. 24.403 (a) and (b)) and the basis for the 
determination, so that the person is aware of the maximum replacement 
housing payment for which he or she may qualify.
    (C) Where feasible, housing shall be inspected prior to being made 
available to assure that it meets applicable

[[Page 239]]

standards. (See Sec. 24.2(a)(8).) If such an inspection is not made, 
the Agency shall notify the person to be displaced that a replacement 
housing payment may not be made unless the replacement dwelling is 
subsequently inspected and determined to be decent, safe, and sanitary.
    (D) Whenever possible, minority persons shall be given reasonable 
opportunities to relocate to decent, safe, and sanitary replacement 
dwellings, not located in an area of minority concentration, that are 
within their financial means. This policy, however, does not require an 
Agency to provide a person a larger payment than is necessary to enable 
a person to relocate to a comparable replacement dwelling. (See appendix 
A, Sec. 24.205(c)(2)(ii)(D).)
    (E) The Agency shall offer all persons transportation to inspect 
housing to which they are referred.
    (F) Any displaced person that may be eligible for government housing 
assistance at the replacement dwelling shall be advised of any 
requirements of such government housing assistance program that would 
limit the size of the replacement dwelling (see Sec. 24.2(a)(6)(ix)), 
as well as of the long term nature of such rent subsidy, and the limited 
(42 month) duration of the relocation rental assistance payment.
    (iii) Provide, for nonresidential moves, current and continuing 
information on the availability, purchase prices, and rental costs of 
suitable commercial and farm properties and locations. Assist any person 
displaced from a business or farm operation to obtain and become 
established in a suitable replacement location.
    (iv) Minimize hardships to persons in adjusting to relocation by 
providing counseling, advice as to other sources of assistance that may 
be available, and such other help as may be appropriate.
    (v) Supply persons to be displaced with appropriate information 
concerning Federal and State housing programs, disaster loan and other 
programs administered by the Small Business Administration, and other 
Federal and State programs offering assistance to displaced persons, and 
technical help to persons applying for such assistance.
    (d) Coordination of relocation activities. Relocation activities 
shall be coordinated with project work and other displacement-causing 
activities to ensure that, to the extent feasible, persons displaced 
receive consistent treatment and the duplication of functions is 
minimized. (See Sec. 24.6.)
    (e) Any person who occupies property acquired by an Agency, when 
such occupancy began subsequent to the acquisition of the property, and 
the occupancy is permitted by a short term rental agreement or an 
agreement subject to termination when the property is needed for a 
program or project, shall be eligible for advisory services, as 
determined by the Agency.



Sec. 24.206  Eviction for cause.

    (a) Eviction for cause must conform to applicable State and local 
law. Any person who occupies the real property and is not in unlawful 
occupancy on the date of the initiation of negotiations, is presumed to 
be entitled to relocation payments and other assistance set forth in 
this part unless the Agency determines that:
    (1) The person received an eviction notice prior to the initiation 
of negotiations and, as a result of that notice is later evicted; or
    (2) The person is evicted after the initiation of negotiations for 
serious or repeated violation of material terms of the lease or 
occupancy agreement; and
    (3) In either case the eviction was not undertaken for the purpose 
of evading the obligation to make available the payments and other 
assistance set forth in this part.
    (b) For purposes of determining eligibility for relocation payments, 
the date of displacement is the date the person moves, or if later, the 
date a comparable replacement dwelling is made available. This section 
applies only to persons who would otherwise have been displaced by the 
project. (See appendix A, Sec. 24.206.)



Sec. 24.207  General requirements--claims for relocation payments.

    (a) Documentation. Any claim for a relocation payment shall be 
supported by such documentation as may be reasonably required to support 
expenses incurred, such as bills, certified prices,

[[Page 240]]

appraisals, or other evidence of such expenses. A displaced person must 
be provided reasonable assistance necessary to complete and file any 
required claim for payment.
    (b) Expeditious payments. The Agency shall review claims in an 
expeditious manner. The claimant shall be promptly notified as to any 
additional documentation that is required to support the claim. Payment 
for a claim shall be made as soon as feasible following receipt of 
sufficient documentation to support the claim.
    (c) Advanced payments. If a person demonstrates the need for an 
advanced relocation payment in order to avoid or reduce a hardship, the 
Agency shall issue the payment, subject to such safeguards as are 
appropriate to ensure that the objective of the payment is accomplished.
    (d) Time for filing. (1) All claims for a relocation payment shall 
be filed with the Agency no later than 18 months after:
    (i) For tenants, the date of displacement.
    (ii) For owners, the date of displacement or the date of the final 
payment for the acquisition of the real property, whichever is later.
    (2) The Agency shall waive this time period for good cause.
    (e) Notice of denial of claim. If the Agency disapproves all or part 
of a payment claimed or refuses to consider the claim on its merits 
because of untimely filing or other grounds, it shall promptly notify 
the claimant in writing of its determination, the basis for its 
determination, and the procedures for appealing that determination.
    (f) No waiver of relocation assistance. A displacing Agency shall 
not propose or request that a displaced person waive his or her rights 
or entitlements to relocation assistance and benefits provided by the 
Uniform Act and this regulation.
    (g) Expenditure of payments. Payments, provided pursuant to this 
part, shall not be considered to constitute Federal financial 
assistance. Accordingly, this part does not apply to the expenditure of 
such payments by, or for, a displaced person.



Sec. 24.208  Aliens not lawfully present in the United States.

    (a) Each person seeking relocation payments or relocation advisory 
assistance shall, as a condition of eligibility, certify:
    (1) In the case of an individual, that he or she is either a citizen 
or national of the United States, or an alien who is lawfully present in 
the United States.
    (2) In the case of a family, that each family member is either a 
citizen or national of the United States, or an alien who is lawfully 
present in the United States. The certification may be made by the head 
of the household on behalf of other family members.
    (3) In the case of an unincorporated business, farm, or nonprofit 
organization, that each owner is either a citizen or national of the 
United States, or an alien who is lawfully present in the United States. 
The certification may be made by the principal owner, manager, or 
operating officer on behalf of other persons with an ownership interest.
    (4) In the case of an incorporated business, farm, or nonprofit 
organization, that the corporation is authorized to conduct business 
within the United States.
    (b) The certification provided pursuant to paragraphs (a)(1), 
(a)(2), and (a)(3) of this section shall indicate whether such person is 
either a citizen or national of the United States, or an alien who is 
lawfully present in the United States. Requirements concerning the 
certification in addition to those contained in this rule shall be 
within the discretion of the Federal funding Agency and, within those 
parameters, that of the displacing Agency.
    (c) In computing relocation payments under the Uniform Act, if any 
member(s) of a household or owner(s) of an unincorporated business, 
farm, or nonprofit organization is (are) determined to be ineligible 
because of a failure to be legally present in the United States, no 
relocation payments may be made to him or her. Any payment(s) for which 
such household, unincorporated business, farm, or nonprofit organization 
would otherwise be eligible shall be computed for the household,

[[Page 241]]

based on the number of eligible household members and for the 
unincorporated business, farm, or nonprofit organization, based on the 
ratio of ownership between eligible and ineligible owners.
    (d) The displacing Agency shall consider the certification provided 
pursuant to paragraph (a) of this section to be valid, unless the 
displacing Agency determines in accordance with paragraph (f) of this 
section that it is invalid based on a review of an alien's documentation 
or other information that the Agency considers reliable and appropriate.
    (e) Any review by the displacing Agency of the certifications 
provided pursuant to paragraph (a) of this section shall be conducted in 
a nondiscriminatory fashion. Each displacing Agency will apply the same 
standard of review to all such certifications it receives, except that 
such standard may be revised periodically.
    (f) If, based on a review of an alien's documentation or other 
credible evidence, a displacing Agency has reason to believe that a 
person's certification is invalid (for example a document reviewed does 
not on its face reasonably appear to be genuine), and that, as a result, 
such person may be an alien not lawfully present in the United States, 
it shall obtain the following information before making a final 
determination:
    (1) If the Agency has reason to believe that the certification of a 
person who has certified that he or she is an alien lawfully present in 
the United States is invalid, the displacing Agency shall obtain 
verification of the alien's status from the local Bureau of Citizenship 
and Immigration Service (BCIS) Office. A list of local BCIS offices is 
available at http://www.uscis.gov/graphics/fieldoffices/alphaa.htm. Any 
request for BCIS verification shall include the alien's full name, date 
of birth and alien number, and a copy of the alien's documentation. (If 
an Agency is unable to contact the BCIS, it may contact the FHWA in 
Washington, DC, Office of Real Estate Services or Office of Chief 
Counsel for a referral to the BCIS.)
    (2) If the Agency has reason to believe that the certification of a 
person who has certified that he or she is a citizen or national is 
invalid, the displacing Agency shall request evidence of United States 
citizenship or nationality from such person and, if considered 
necessary, verify the accuracy of such evidence with the issuer.
    (g) No relocation payments or relocation advisory assistance shall 
be provided to a person who has not provided the certification described 
in this section or who has been determined to be not lawfully present in 
the United States, unless such person can demonstrate to the displacing 
Agency's satisfaction that the denial of relocation assistance will 
result in an exceptional and extremely unusual hardship to such person's 
spouse, parent, or child who is a citizen of the United States, or is an 
alien lawfully admitted for permanent residence in the United States.
    (h) For purposes of paragraph (g) of this section, ``exceptional and 
extremely unusual hardship'' to such spouse, parent, or child of the 
person not lawfully present in the United States means that the denial 
of relocation payments and advisory assistance to such person will 
directly result in:
    (1) A significant and demonstrable adverse impact on the health or 
safety of such spouse, parent, or child;
    (2) A significant and demonstrable adverse impact on the continued 
existence of the family unit of which such spouse, parent, or child is a 
member; or
    (3) Any other impact that the displacing Agency determines will have 
a significant and demonstrable adverse impact on such spouse, parent, or 
child.
    (i) The certification referred to in paragraph (a) of this section 
may be included as part of the claim for relocation payments described 
in Sec. 24.207 of this part.

(Approved by the Office of Management and Budget under control number 
2105-0508.)



Sec. 24.209  Relocation payments not considered as income.

    No relocation payment received by a displaced person under this part 
shall be considered as income for the purpose of the Internal Revenue 
Code of 1954, which has been redesignated as the Internal Revenue Code 
of 1986 (Title 26,

[[Page 242]]

U.S. Code), or for the purpose of determining the eligibility or the 
extent of eligibility of any person for assistance under the Social 
Security Act (42 U.S. Code 301 et seq.) or any other Federal law, except 
for any Federal law providing low-income housing assistance.



           Subpart D_Payments for Moving and Related Expenses



Sec. 24.301  Payment for actual reasonable moving and related expenses.

    (a) General. (1) Any owner-occupant or tenant who qualifies as a 
displaced person (defined at Sec. 24.2(a)(9)) and who moves from a 
dwelling (including a mobile home) or who moves from a business, farm or 
nonprofit organization is entitled to payment of his or her actual 
moving and related expenses, as the Agency determines to be reasonable 
and necessary.
    (2) A non-occupant owner of a rented mobile home is eligible for 
actual cost reimbursement under Sec. 24.301 to relocate the mobile 
home. If the mobile home is not acquired as real estate, but the 
homeowner-occupant obtains a replacement housing payment under one of 
the circumstances described at Sec. 24.502(a)(3), the home-owner 
occupant is not eligible for payment for moving the mobile home, but may 
be eligible for a payment for moving personal property from the mobile 
home.
    (b) Moves from a dwelling. A displaced person's actual, reasonable 
and necessary moving expenses for moving personal property from a 
dwelling may be determined based on the cost of one, or a combination of 
the following methods: (Eligible expenses for moves from a dwelling 
include the expenses described in paragraphs (g)(1) through (g)(7) of 
this section. Self-moves based on the lower of two bids or estimates are 
not eligible for reimbursement under this section.)
    (1) Commercial move--moves performed by a professional mover.
    (2) Self-move--moves that may be performed by the displaced person 
in one or a combination of the following methods:
    (i) Fixed Residential Moving Cost Schedule. (Described in Sec. 
24.302.)
    (ii) Actual cost move. Supported by receipted bills for labor and 
equipment. Hourly labor rates should not exceed the cost paid by a 
commercial mover. Equipment rental fees should be based on the actual 
cost of renting the equipment but not exceed the cost paid by a 
commercial mover.
    (c) Moves from a mobile home. A displaced person's actual, 
reasonable and necessary moving expenses for moving personal property 
from a mobile home may be determined based on the cost of one, or a 
combination of the following methods: (self-moves based on the lower of 
two bids or estimates are not eligible for reimbursement under this 
section. Eligible expenses for moves from a mobile home include those 
expenses described in paragraphs (g)(1) through (g)(7) of this section. 
In addition to the items in paragraph (a) of this section, the owner-
occupant of a mobile home that is moved as personal property and used as 
the person's replacement dwelling, is also eligible for the moving 
expenses described in paragraphs (g)(8) through (g)(10) of this 
section.)
    (1) Commercial move--moves performed by a professional mover.
    (2) Self-move--moves that may be performed by the displaced person 
in one or a combination of the following methods:
    (i) Fixed Residential Moving Cost Schedule. (Described in Sec. 
24.302.)
    (ii) Actual cost move. Supported by receipted bills for labor and 
equipment. Hourly labor rates should not exceed the cost paid by a 
commercial mover. Equipment rental fees should be based on the actual 
cost of renting the equipment but not exceed the cost paid by a 
commercial mover.
    (d) Moves from a business, farm or nonprofit organization. Personal 
property as determined by an inventory from a business, farm or 
nonprofit organization may be moved by one or a combination of the 
following methods: (Eligible expenses for moves from a business, farm or 
nonprofit organization include those expenses described in paragraphs 
(g)(1) through (g)(7) of this section and paragraphs (g)(11) through 
(g)(18) of this section and Sec. 24.303.)
    (1) Commercial move. Based on the lower of two bids or estimates 
prepared by a commercial mover. At the Agency's discretion, payment for 
a low cost

[[Page 243]]

or uncomplicated move may be based on a single bid or estimate.
    (2) Self-move. A self-move payment may be based on one or a 
combination of the following:
    (i) The lower of two bids or estimates prepared by a commercial 
mover or qualified Agency staff person. At the Agency's discretion, 
payment for a low cost or uncomplicated move may be based on a single 
bid or estimate; or
    (ii) Supported by receipted bills for labor and equipment. Hourly 
labor rates should not exceed the rates paid by a commercial mover to 
employees performing the same activity and, equipment rental fees should 
be based on the actual rental cost of the equipment but not to exceed 
the cost paid by a commercial mover.
    (e) Personal property only. Eligible expenses for a person who is 
required to move personal property from real property but is not 
required to move from a dwelling (including a mobile home), business, 
farm or nonprofit organization include those expenses described in 
paragraphs (g)(1) through (g)(7) and (g)(18) of this section. (See 
appendix A, Sec. 24.301(e).)
    (f) Advertising signs. The amount of a payment for direct loss of an 
advertising sign, which is personal property shall be the lesser of:
    (1) The depreciated reproduction cost of the sign, as determined by 
the Agency, less the proceeds from its sale; or
    (2) The estimated cost of moving the sign, but with no allowance for 
storage.
    (g) Eligible actual moving expenses. (1) Transportation of the 
displaced person and personal property. Transportation costs for a 
distance beyond 50 miles are not eligible, unless the Agency determines 
that relocation beyond 50 miles is justified.
    (2) Packing, crating, unpacking, and uncrating of the personal 
property.
    (3) Disconnecting, dismantling, removing, reassembling, and 
reinstalling relocated household appliances and other personal property. 
For businesses, farms or nonprofit organizations this includes 
machinery, equipment, substitute personal property, and connections to 
utilities available within the building; it also includes modifications 
to the personal property, including those mandated by Federal, State or 
local law, code or ordinance, necessary to adapt it to the replacement 
structure, the replacement site, or the utilities at the replacement 
site, and modifications necessary to adapt the utilities at the 
replacement site to the personal property.
    (4) Storage of the personal property for a period not to exceed 12 
months, unless the Agency determines that a longer period is necessary.
    (5) Insurance for the replacement value of the property in 
connection with the move and necessary storage.
    (6) The replacement value of property lost, stolen, or damaged in 
the process of moving (not through the fault or negligence of the 
displaced person, his or her agent, or employee) where insurance 
covering such loss, theft, or damage is not reasonably available.
    (7) Other moving-related expenses that are not listed as ineligible 
under Sec. 24.301(h), as the Agency determines to be reasonable and 
necessary.
    (8) The reasonable cost of disassembling, moving, and reassembling 
any appurtenances attached to a mobile home, such as porches, decks, 
skirting, and awnings, which were not acquired, anchoring of the unit, 
and utility ``hookup'' charges.
    (9) The reasonable cost of repairs and/or modifications so that a 
mobile home can be moved and/or made decent, safe, and sanitary.
    (10) The cost of a nonrefundable mobile home park entrance fee, to 
the extent it does not exceed the fee at a comparable mobile home park, 
if the person is displaced from a mobile home park or the Agency 
determines that payment of the fee is necessary to effect relocation.
    (11) Any license, permit, fees or certification required of the 
displaced person at the replacement location. However, the payment may 
be based on the remaining useful life of the existing license, permit, 
fees or certification.
    (12) Professional services as the Agency determines to be actual, 
reasonable and necessary for:
    (i) Planning the move of the personal property;
    (ii) Moving the personal property; and
    (iii) Installing the relocated personal property at the replacement 
location.

[[Page 244]]

    (13) Relettering signs and replacing stationery on hand at the time 
of displacement that are made obsolete as a result of the move.
    (14) Actual direct loss of tangible personal property incurred as a 
result of moving or discontinuing the business or farm operation. The 
payment shall consist of the lesser of:
    (i) The fair market value in place of the item, as is for continued 
use, less the proceeds from its sale. (To be eligible for payment, the 
claimant must make a good faith effort to sell the personal property, 
unless the Agency determines that such effort is not necessary. When 
payment for property loss is claimed for goods held for sale, the fair 
market value shall be based on the cost of the goods to the business, 
not the potential selling prices.); or
    (ii) The estimated cost of moving the item as is, but not including 
any allowance for storage; or for reconnecting a piece of equipment if 
the equipment is in storage or not being used at the acquired site. (See 
appendix A, Sec. 24.301(g)(14)(i) and (ii).) If the business or farm 
operation is discontinued, the estimated cost of moving the item shall 
be based on a moving distance of 50 miles.
    (15) The reasonable cost incurred in attempting to sell an item that 
is not to be relocated.
    (16) Purchase of substitute personal property. If an item of 
personal property, which is used as part of a business or farm operation 
is not moved but is promptly replaced with a substitute item that 
performs a comparable function at the replacement site, the displaced 
person is entitled to payment of the lesser of:
    (i) The cost of the substitute item, including installation costs of 
the replacement site, minus any proceeds from the sale or trade-in of 
the replaced item; or
    (ii) The estimated cost of moving and reinstalling the replaced item 
but with no allowance for storage. At the Agency's discretion, the 
estimated cost for a low cost or uncomplicated move may be based on a 
single bid or estimate.
    (17) Searching for a replacement location. A business or farm 
operation is entitled to reimbursement for actual expenses, not to 
exceed $2,500, as the Agency determines to be reasonable, which are 
incurred in searching for a replacement location, including:
    (i) Transportation;
    (ii) Meals and lodging away from home;
    (iii) Time spent searching, based on reasonable salary or earnings;
    (iv) Fees paid to a real estate agent or broker to locate a 
replacement site, exclusive of any fees or commissions related to the 
purchase of such sites;
    (v) Time spent in obtaining permits and attending zoning hearings; 
and
    (vi) Time spent negotiating the purchase of a replacement site based 
on a reasonable salary or earnings.
    (18) Low value/high bulk. When the personal property to be moved is 
of low value and high bulk, and the cost of moving the property would be 
disproportionate to its value in the judgment of the displacing Agency, 
the allowable moving cost payment shall not exceed the lesser of: The 
amount which would be received if the property were sold at the site or 
the replacement cost of a comparable quantity delivered to the new 
business location. Examples of personal property covered by this 
provision include, but are not limited to, stockpiled sand, gravel, 
minerals, metals and other similar items of personal property as 
determined by the Agency.
    (h) Ineligible moving and related expenses. A displaced person is 
not entitled to payment for:
    (1) The cost of moving any structure or other real property 
improvement in which the displaced person reserved ownership. (However, 
this part does not preclude the computation under Sec. 
24.401(c)(2)(iii));
    (2) Interest on a loan to cover moving expenses;
    (3) Loss of goodwill;
    (4) Loss of profits;
    (5) Loss of trained employees;
    (6) Any additional operating expenses of a business or farm 
operation incurred because of operating in a new location except as 
provided in Sec. 24.304(a)(6);
    (7) Personal injury;
    (8) Any legal fee or other cost for preparing a claim for a 
relocation payment or for representing the claimant before the Agency;

[[Page 245]]

    (9) Expenses for searching for a replacement dwelling;
    (10) Physical changes to the real property at the replacement 
location of a business or farm operation except as provided in 
Sec. Sec. 24.301(g)(3) and 24.304(a);
    (11) Costs for storage of personal property on real property already 
owned or leased by the displaced person, and
    (12) Refundable security and utility deposits.
    (i) Notification and inspection (nonresidential). The Agency shall 
inform the displaced person, in writing, of the requirements of this 
section as soon as possible after the initiation of negotiations. This 
information may be included in the relocation information provided the 
displaced person as set forth in Sec. 24.203. To be eligible for 
payments under this section the displaced person must:
    (1) Provide the Agency reasonable advance notice of the approximate 
date of the start of the move or disposition of the personal property 
and an inventory of the items to be moved. However, the Agency may waive 
this notice requirement after documenting its file accordingly.
    (2) Permit the Agency to make reasonable and timely inspections of 
the personal property at both the displacement and replacement sites and 
to monitor the move.
    (j) Transfer of ownership (nonresidential). Upon request and in 
accordance with applicable law, the claimant shall transfer to the 
Agency ownership of any personal property that has not been moved, sold, 
or traded in.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec. 24.302  Fixed payment for moving expenses--residential moves.

    Any person displaced from a dwelling or a seasonal residence or a 
dormitory style room is entitled to receive a fixed moving cost payment 
as an alternative to a payment for actual moving and related expenses 
under Sec. 24.301. This payment shall be determined according to the 
Fixed Residential Moving Cost Schedule \3\ approved by the Federal 
Highway Administration and published in the Federal Register on a 
periodic basis. The payment to a person with minimal personal 
possessions who is in occupancy of a dormitory style room or a person 
whose residential move is performed by an Agency at no cost to the 
person shall be limited to the amount stated in the most recent edition 
of the Fixed Residential Moving Cost Schedule.
---------------------------------------------------------------------------

    \3\ The Fixed Residential Moving Cost Schedule is available at the 
following URL: http://www.fhwa.dot.gov//////realestate/fixsch96.htm. 
Agencies are cautioned to ensure they are using the most recent edition.
---------------------------------------------------------------------------



Sec. 24.303  Related nonresidential eligible expenses.

    The following expenses, in addition to those provided by Sec. 
24.301 for moving personal property, shall be provided if the Agency 
determines that they are actual, reasonable and necessary:
    (a) Connection to available nearby utilities from the right-of-way 
to improvements at the replacement site.
    (b) Professional services performed prior to the purchase or lease 
of a replacement site to determine its suitability for the displaced 
person's business operation including but not limited to, soil testing, 
feasibility and marketing studies (excluding any fees or commissions 
directly related to the purchase or lease of such site). At the 
discretion of the Agency a reasonable pre-approved hourly rate may be 
established. (See appendix A, Sec. 24.303(b).)
    (c) Impact fees or one time assessments for anticipated heavy 
utility usage, as determined necessary by the Agency.



Sec. 24.304  Reestablishment expenses--nonresidential moves.

    In addition to the payments available under Sec. Sec. 24.301 and 
24.303 of this subpart, a small business, as defined in Sec. 
24.2(a)(24), farm or nonprofit organization is entitled to receive a 
payment, not to exceed $10,000, for expenses actually incurred in 
relocating and reestablishing such small business, farm or nonprofit 
organization at a replacement site.
    (a) Eligible expenses. Reestablishment expenses must be reasonable 
and necessary, as determined by the Agency.

[[Page 246]]

They include, but are not limited to, the following:
    (1) Repairs or improvements to the replacement real property as 
required by Federal, State or local law, code or ordinance.
    (2) Modifications to the replacement property to accommodate the 
business operation or make replacement structures suitable for 
conducting the business.
    (3) Construction and installation costs for exterior signing to 
advertise the business.
    (4) Redecoration or replacement of soiled or worn surfaces at the 
replacement site, such as paint, paneling, or carpeting.
    (5) Advertisement of replacement location.
    (6) Estimated increased costs of operation during the first 2 years 
at the replacement site for such items as:
    (i) Lease or rental charges;
    (ii) Personal or real property taxes;
    (iii) Insurance premiums; and
    (iv) Utility charges, excluding impact fees.
    (7) Other items that the Agency considers essential to the 
reestablishment of the business.
    (b) Ineligible expenses. The following is a nonexclusive listing of 
reestablishment expenditures not considered to be reasonable, necessary, 
or otherwise eligible:
    (1) Purchase of capital assets, such as, office furniture, filing 
cabinets, machinery, or trade fixtures.
    (2) Purchase of manufacturing materials, production supplies, 
product inventory, or other items used in the normal course of the 
business operation.
    (3) Interest on money borrowed to make the move or purchase the 
replacement property.
    (4) Payment to a part-time business in the home which does not 
contribute materially (defined at Sec. 24.2(a)(7)) to the household 
income.



Sec. 24.305  Fixed payment for moving expenses--nonresidential moves.

    (a) Business. A displaced business may be eligible to choose a fixed 
payment in lieu of the payments for actual moving and related expenses, 
and actual reasonable reestablishment expenses provided by Sec. Sec. 
24.301, 24.303 and 24.304. Such fixed payment, except for payment to a 
nonprofit organization, shall equal the average annual net earnings of 
the business, as computed in accordance with paragraph (e) of this 
section, but not less than $1,000 nor more than $20,000. The displaced 
business is eligible for the payment if the Agency determines that:
    (1) The business owns or rents personal property which must be moved 
in connection with such displacement and for which an expense would be 
incurred in such move and, the business vacates or relocates from its 
displacement site;
    (2) The business cannot be relocated without a substantial loss of 
its existing patronage (clientele or net earnings). A business is 
assumed to meet this test unless the Agency determines that it will not 
suffer a substantial loss of its existing patronage;
    (3) The business is not part of a commercial enterprise having more 
than three other entities which are not being acquired by the Agency, 
and which are under the same ownership and engaged in the same or 
similar business activities.
    (4) The business is not operated at a displacement dwelling solely 
for the purpose of renting such dwelling to others;
    (5) The business is not operated at the displacement site solely for 
the purpose of renting the site to others; and
    (6) The business contributed materially to the income of the 
displaced person during the 2 taxable years prior to displacement. (See 
Sec. 24.2(a)(7).)
    (b) Determining the number of businesses. In determining whether two 
or more displaced legal entities constitute a single business, which is 
entitled to only one fixed payment, all pertinent factors shall be 
considered, including the extent to which:
    (1) The same premises and equipment are shared;
    (2) Substantially identical or interrelated business functions are 
carried out and business and financial affairs are commingled;
    (3) The entities are held out to the public, and to those 
customarily dealing with them, as one business; and

[[Page 247]]

    (4) The same person or closely related persons own, control, or 
manage the affairs of the entities.
    (c) Farm operation. A displaced farm operation (defined at Sec. 
24.2(a)(12)) may choose a fixed payment, in lieu of the payments for 
actual moving and related expenses and actual reasonable reestablishment 
expenses, in an amount equal to its average annual net earnings as 
computed in accordance with paragraph (e) of this section, but not less 
than $1,000 nor more than $20,000. In the case of a partial acquisition 
of land, which was a farm operation before the acquisition, the fixed 
payment shall be made only if the Agency determines that:
    (1) The acquisition of part of the land caused the operator to be 
displaced from the farm operation on the remaining land; or
    (2) The partial acquisition caused a substantial change in the 
nature of the farm operation.
    (d) Nonprofit organization. A displaced nonprofit organization may 
choose a fixed payment of $1,000 to $20,000, in lieu of the payments for 
actual moving and related expenses and actual reasonable reestablishment 
expenses, if the Agency determines that it cannot be relocated without a 
substantial loss of existing patronage (membership or clientele). A 
nonprofit organization is assumed to meet this test, unless the Agency 
demonstrates otherwise. Any payment in excess of $1,000 must be 
supported with financial statements for the two 12-month periods prior 
to the acquisition. The amount to be used for the payment is the average 
of 2 years annual gross revenues less administrative expenses. (See 
appendix A, Sec. 24.305(d).)
    (e) Average annual net earnings of a business or farm operation. The 
average annual net earnings of a business or farm operation are one-half 
of its net earnings before Federal, State, and local income taxes during 
the 2 taxable years immediately prior to the taxable year in which it 
was displaced. If the business or farm was not in operation for the full 
2 taxable years prior to displacement, net earnings shall be based on 
the actual period of operation at the displacement site during the 2 
taxable years prior to displacement, projected to an annual rate. 
Average annual net earnings may be based upon a different period of time 
when the Agency determines it to be more equitable. Net earnings include 
any compensation obtained from the business or farm operation by its 
owner, the owner's spouse, and dependents. The displaced person shall 
furnish the Agency proof of net earnings through income tax returns, 
certified financial statements, or other reasonable evidence, which the 
Agency determines is satisfactory. (See appendix A, Sec. 24.305(e).)



Sec. 24.306  Discretionary utility relocation payments.

    (a) Whenever a program or project undertaken by a displacing Agency 
causes the relocation of a utility facility (see Sec. 24.2(a)(31)) and 
the relocation of the facility creates extraordinary expenses for its 
owner, the displacing Agency may, at its option, make a relocation 
payment to the owner for all or part of such expenses, if the following 
criteria are met:
    (1) The utility facility legally occupies State or local government 
property, or property over which the State or local government has an 
easement or right-of-way;
    (2) The utility facility's right of occupancy thereon is pursuant to 
State law or local ordinance specifically authorizing such use, or where 
such use and occupancy has been granted through a franchise, use and 
occupancy permit, or other similar agreement;
    (3) Relocation of the utility facility is required by and is 
incidental to the primary purpose of the project or program undertaken 
by the displacing Agency;
    (4) There is no Federal law, other than the Uniform Act, which 
clearly establishes a policy for the payment of utility moving costs 
that is applicable to the displacing Agency's program or project; and
    (5) State or local government reimbursement for utility moving costs 
or payment of such costs by the displacing Agency is in accordance with 
State law.
    (b) For the purposes of this section, the term extraordinary 
expenses means those expenses which, in the opinion of the displacing 
Agency, are not routine

[[Page 248]]

or predictable expenses relating to the utility's occupancy of rights-
of-way, and are not ordinarily budgeted as operating expenses, unless 
the owner of the utility facility has explicitly and knowingly agreed to 
bear such expenses as a condition for use of the property, or has 
voluntarily agreed to be responsible for such expenses.
    (c) A relocation payment to a utility facility owner for moving 
costs under this section may not exceed the cost to functionally restore 
the service disrupted by the federally-assisted program or project, less 
any increase in value of the new facility and salvage value of the old 
facility. The displacing Agency and the utility facility owner shall 
reach prior agreement on the nature of the utility relocation work to be 
accomplished, the eligibility of the work for reimbursement, the 
responsibilities for financing and accomplishing the work, and the 
method of accumulating costs and making payment. (See appendix A, Sec. 
24.306.)



                 Subpart E_Replacement Housing Payments



Sec. 24.401  Replacement housing payment for 180-day homeowner-occupants.

    (a) Eligibility. A displaced person is eligible for the replacement 
housing payment for a 180-day homeowner-occupant if the person:
    (1) Has actually owned and occupied the displacement dwelling for 
not less than 180 days immediately prior to the initiation of 
negotiations; and
    (2) Purchases and occupies a decent, safe, and sanitary replacement 
dwelling within one year after the later of the following dates (except 
that the Agency may extend such one year period for good cause):
    (i) The date the displaced person receives final payment for the 
displacement dwelling or, in the case of condemnation, the date the full 
amount of the estimate of just compensation is deposited in the court; 
or
    (ii) The date the displacing Agency's obligation under Sec. 24.204 
is met.
    (b) Amount of payment. The replacement housing payment for an 
eligible 180-day homeowner-occupant may not exceed $22,500. (See also 
Sec. 24.404.) The payment under this subpart is limited to the amount 
necessary to relocate to a comparable replacement dwelling within one 
year from the date the displaced homeowner-occupant is paid for the 
displacement dwelling, or the date a comparable replacement dwelling is 
made available to such person, whichever is later. The payment shall be 
the sum of:
    (1) The amount by which the cost of a replacement dwelling exceeds 
the acquisition cost of the displacement dwelling, as determined in 
accordance with paragraph (c) of this section;
    (2) The increased interest costs and other debt service costs which 
are incurred in connection with the mortgage(s) on the replacement 
dwelling, as determined in accordance with paragraph (d) of this 
section; and
    (3) The reasonable expenses incidental to the purchase of the 
replacement dwelling, as determined in accordance with paragraph (e) of 
this section.
    (c) Price differential--(1) Basic computation. The price 
differential to be paid under paragraph (b)(1) of this section is the 
amount which must be added to the acquisition cost of the displacement 
dwelling and site (see Sec. 24.2(a)(11)) to provide a total amount 
equal to the lesser of:
    (i) The reasonable cost of a comparable replacement dwelling as 
determined in accordance with Sec. 24.403(a); or
    (ii) The purchase price of the decent, safe, and sanitary 
replacement dwelling actually purchased and occupied by the displaced 
person.
    (2) Owner retention of displacement dwelling. If the owner retains 
ownership of his or her dwelling, moves it from the displacement site, 
and reoccupies it on a replacement site, the purchase price of the 
replacement dwelling shall be the sum of:
    (i) The cost of moving and restoring the dwelling to a condition 
comparable to that prior to the move;
    (ii) The cost of making the unit a decent, safe, and sanitary 
replacement dwelling (defined at Sec. 24.2(a)(8)); and
    (iii) The current fair market value for residential use of the 
replacement dwelling site (see appendix A, Sec. 24.401(c)(2)(iii)), 
unless the claimant rented the displacement site and there is a 
reasonable opportunity for the

[[Page 249]]

claimant to rent a suitable replacement site; and
    (iv) The retention value of the dwelling, if such retention value is 
reflected in the ``acquisition cost'' used when computing the 
replacement housing payment.
    (d) Increased mortgage interest costs. The displacing Agency shall 
determine the factors to be used in computing the amount to be paid to a 
displaced person under paragraph (b)(2) of this section. The payment for 
increased mortgage interest cost shall be the amount which will reduce 
the mortgage balance on a new mortgage to an amount which could be 
amortized with the same monthly payment for principal and interest as 
that for the mortgage(s) on the displacement dwelling. In addition, 
payments shall include other debt service costs, if not paid as 
incidental costs, and shall be based only on bona fide mortgages that 
were valid liens on the displacement dwelling for at least 180 days 
prior to the initiation of negotiations. Paragraphs (d)(1) through 
(d)(5) of this section shall apply to the computation of the increased 
mortgage interest costs payment, which payment shall be contingent upon 
a mortgage being placed on the replacement dwelling.
    (1) The payment shall be based on the unpaid mortgage balance(s) on 
the displacement dwelling; however, in the event the displaced person 
obtains a smaller mortgage than the mortgage balance(s) computed in the 
buydown determination, the payment will be prorated and reduced 
accordingly. (See appendix A, Sec. 24.401(d).) In the case of a home 
equity loan the unpaid balance shall be that balance which existed 180 
days prior to the initiation of negotiations or the balance on the date 
of acquisition, whichever is less.
    (2) The payment shall be based on the remaining term of the 
mortgage(s) on the displacement dwelling or the term of the new 
mortgage, whichever is shorter.
    (3) The interest rate on the new mortgage used in determining the 
amount of the payment shall not exceed the prevailing fixed interest 
rate for conventional mortgages currently charged by mortgage lending 
institutions in the area in which the replacement dwelling is located.
    (4) Purchaser's points and loan origination or assumption fees, but 
not seller's points, shall be paid to the extent:
    (i) They are not paid as incidental expenses;
    (ii) They do not exceed rates normal to similar real estate 
transactions in the area;
    (iii) The Agency determines them to be necessary; and
    (iv) The computation of such points and fees shall be based on the 
unpaid mortgage balance on the displacement dwelling, less the amount 
determined for the reduction of the mortgage balance under this section.
    (5) The displaced person shall be advised of the approximate amount 
of this payment and the conditions that must be met to receive the 
payment as soon as the facts relative to the person's current 
mortgage(s) are known and the payment shall be made available at or near 
the time of closing on the replacement dwelling in order to reduce the 
new mortgage as intended.
    (e) Incidental expenses. The incidental expenses to be paid under 
paragraph (b)(3) of this section or Sec. 24.402(c)(1) are those 
necessary and reasonable costs actually incurred by the displaced person 
incident to the purchase of a replacement dwelling, and customarily paid 
by the buyer, including:
    (1) Legal, closing, and related costs, including those for title 
search, preparing conveyance instruments, notary fees, preparing surveys 
and plats, and recording fees.
    (2) Lender, FHA, or VA application and appraisal fees.
    (3) Loan origination or assumption fees that do not represent 
prepaid interest.
    (4) Professional home inspection, certification of structural 
soundness, and termite inspection.
    (5) Credit report.
    (6) Owner's and mortgagee's evidence of title, e.g., title 
insurance, not to exceed the costs for a comparable replacement 
dwelling.
    (7) Escrow agent's fee.
    (8) State revenue or documentary stamps, sales or transfer taxes 
(not to exceed the costs for a comparable replacement dwelling).

[[Page 250]]

    (9) Such other costs as the Agency determine to be incidental to the 
purchase.
    (f) Rental assistance payment for 180-day homeowner. A 180-day 
homeowner-occupant, who could be eligible for a replacement housing 
payment under paragraph (a) of this section but elects to rent a 
replacement dwelling, is eligible for a rental assistance payment. The 
amount of the rental assistance payment is based on a determination of 
market rent for the acquired dwelling compared to a comparable rental 
dwelling available on the market. The difference, if any, is computed in 
accordance with Sec. 24.402(b)(1), except that the limit of $5,250 does 
not apply, and disbursed in accordance with Sec. 24.402(b)(3). Under no 
circumstances would the rental assistance payment exceed the amount that 
could have been received under Sec. 24.401(b)(1) had the 180-day 
homeowner elected to purchase and occupy a comparable replacement 
dwelling.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec. 24.402  Replacement housing payment for 90-day occupants.

    (a) Eligibility. A tenant or owner-occupant displaced from a 
dwelling is entitled to a payment not to exceed $5,250 for rental 
assistance, as computed in accordance with paragraph (b) of this 
section, or downpayment assistance, as computed in accordance with 
paragraph (c) of this section, if such displaced person:
    (1) Has actually and lawfully occupied the displacement dwelling for 
at least 90 days immediately prior to the initiation of negotiations; 
and
    (2) Has rented, or purchased, and occupied a decent, safe, and 
sanitary replacement dwelling within 1 year (unless the Agency extends 
this period for good cause) after:
    (i) For a tenant, the date he or she moves from the displacement 
dwelling; or
    (ii) For an owner-occupant, the later of:
    (A) The date he or she receives final payment for the displacement 
dwelling, or in the case of condemnation, the date the full amount of 
the estimate of just compensation is deposited with the court; or
    (B) The date he or she moves from the displacement dwelling.
    (b) Rental assistance payment--(1) Amount of payment. An eligible 
displaced person who rents a replacement dwelling is entitled to a 
payment not to exceed $5,250 for rental assistance. (See Sec. 24.404.) 
Such payment shall be 42 times the amount obtained by subtracting the 
base monthly rental for the displacement dwelling from the lesser of:
    (i) The monthly rent and estimated average monthly cost of utilities 
for a comparable replacement dwelling; or
    (ii) The monthly rent and estimated average monthly cost of 
utilities for the decent, safe, and sanitary replacement dwelling 
actually occupied by the displaced person.
    (2) Base monthly rental for displacement dwelling. The base monthly 
rental for the displacement dwelling is the lesser of:
    (i) The average monthly cost for rent and utilities at the 
displacement dwelling for a reasonable period prior to displacement, as 
determined by the Agency (for an owner-occupant, use the fair market 
rent for the displacement dwelling. For a tenant who paid little or no 
rent for the displacement dwelling, use the fair market rent, unless its 
use would result in a hardship because of the person's income or other 
circumstances);
    (ii) Thirty (30) percent of the displaced person's average monthly 
gross household income if the amount is classified as ``low income'' by 
the U.S. Department of Housing and Urban Development's Annual Survey of 
Income Limits for the Public Housing and Section 8 Programs \4\. The 
base monthly rental shall be established solely on the criteria in 
paragraph (b)(2)(i) of this section for persons with income exceeding 
the survey's ``low income'' limits, for persons refusing to provide 
appropriate evidence of income, and for persons who are dependents. A 
full

[[Page 251]]

time student or resident of an institution may be assumed to be a 
dependent, unless the person demonstrates otherwise; or,
---------------------------------------------------------------------------

    \4\ The U.S. Department of Housing and Urban Development's Public 
Housing and Section 8 Program Income Limits are updated annually and are 
available on FHWA's Web site at http://www.fhwa.dot.gov/realestate/ua/
ualic.htm.
---------------------------------------------------------------------------

    (iii) The total of the amounts designated for shelter and utilities 
if the displaced person is receiving a welfare assistance payment from a 
program that designates the amounts for shelter and utilities.
    (3) Manner of disbursement. A rental assistance payment may, at the 
Agency's discretion, be disbursed in either a lump sum or in 
installments. However, except as limited by Sec. 24.403(f), the full 
amount vests immediately, whether or not there is any later change in 
the person's income or rent, or in the condition or location of the 
person's housing.
    (c) Downpayment assistance payment--(1) Amount of payment. An 
eligible displaced person who purchases a replacement dwelling is 
entitled to a downpayment assistance payment in the amount the person 
would receive under paragraph (b) of this section if the person rented a 
comparable replacement dwelling. At the Agency's discretion, a 
downpayment assistance payment that is less than $5,250 may be increased 
to any amount not to exceed $5,250. However, the payment to a displaced 
homeowner shall not exceed the amount the owner would receive under 
Sec. 24.401(b) if he or she met the 180-day occupancy requirement. If 
the Agency elects to provide the maximum payment of $5,250 as a 
downpayment, the Agency shall apply this discretion in a uniform and 
consistent manner, so that eligible displaced persons in like 
circumstances are treated equally. A displaced person eligible to 
receive a payment as a 180-day owner-occupant under Sec. 24.401(a) is 
not eligible for this payment. (See appendix A, Sec. 24.402(c).)
    (2) Application of payment. The full amount of the replacement 
housing payment for downpayment assistance must be applied to the 
purchase price of the replacement dwelling and related incidental 
expenses.



Sec. 24.403  Additional rules governing replacement housing payments.

    (a) Determining cost of comparable replacement dwelling. The upper 
limit of a replacement housing payment shall be based on the cost of a 
comparable replacement dwelling (defined at Sec. 24.2(a)(6)).
    (1) If available, at least three comparable replacement dwellings 
shall be examined and the payment computed on the basis of the dwelling 
most nearly representative of, and equal to, or better than, the 
displacement dwelling.
    (2) If the site of the comparable replacement dwelling lacks a major 
exterior attribute of the displacement dwelling site, (e.g., the site is 
significantly smaller or does not contain a swimming pool), the value of 
such attribute shall be subtracted from the acquisition cost of the 
displacement dwelling for purposes of computing the payment.
    (3) If the acquisition of a portion of a typical residential 
property causes the displacement of the owner from the dwelling and the 
remainder is a buildable residential lot, the Agency may offer to 
purchase the entire property. If the owner refuses to sell the remainder 
to the Agency, the fair market value of the remainder may be added to 
the acquisition cost of the displacement dwelling for purposes of 
computing the replacement housing payment.
    (4) To the extent feasible, comparable replacement dwellings shall 
be selected from the neighborhood in which the displacement dwelling was 
located or, if that is not possible, in nearby or similar neighborhoods 
where housing costs are generally the same or higher.
    (5) Multiple occupants of one displacement dwelling. If two or more 
occupants of the displacement dwelling move to separate replacement 
dwellings, each occupant is entitled to a reasonable prorated share, as 
determined by the Agency, of any relocation payments that would have 
been made if the occupants moved together to a comparable replacement 
dwelling. However, if the Agency determines that two or more occupants 
maintained separate households within the same dwelling, such occupants 
have separate entitlements to relocation payments.
    (6) Deductions from relocation payments. An Agency shall deduct the 
amount of any advance relocation payment from the relocation payment(s)

[[Page 252]]

to which a displaced person is otherwise entitled. The Agency shall not 
withhold any part of a relocation payment to a displaced person to 
satisfy an obligation to any other creditor.
    (7) Mixed-use and multifamily properties. If the displacement 
dwelling was part of a property that contained another dwelling unit 
and/or space used for nonresidential purposes, and/or is located on a 
lot larger than typical for residential purposes, only that portion of 
the acquisition payment which is actually attributable to the 
displacement dwelling shall be considered the acquisition cost when 
computing the replacement housing payment.
    (b) Inspection of replacement dwelling. Before making a replacement 
housing payment or releasing the initial payment from escrow, the Agency 
or its designated representative shall inspect the replacement dwelling 
and determine whether it is a decent, safe, and sanitary dwelling as 
defined at Sec. 24.2(a)(8).
    (c) Purchase of replacement dwelling. A displaced person is 
considered to have met the requirement to purchase a replacement 
dwelling, if the person:
    (1) Purchases a dwelling;
    (2) Purchases and rehabilitates a substandard dwelling;
    (3) Relocates a dwelling which he or she owns or purchases;
    (4) Constructs a dwelling on a site he or she owns or purchases;
    (5) Contracts for the purchase or construction of a dwelling on a 
site provided by a builder or on a site the person owns or purchases; or
    (6) Currently owns a previously purchased dwelling and site, 
valuation of which shall be on the basis of current fair market value.
    (d) Occupancy requirements for displacement or replacement dwelling. 
No person shall be denied eligibility for a replacement housing payment 
solely because the person is unable to meet the occupancy requirements 
set forth in these regulations for a reason beyond his or her control, 
including:
    (1) A disaster, an emergency, or an imminent threat to the public 
health or welfare, as determined by the President, the Federal Agency 
funding the project, or the displacing Agency; or
    (2) Another reason, such as a delay in the construction of the 
replacement dwelling, military duty, or hospital stay, as determined by 
the Agency.
    (e) Conversion of payment. A displaced person who initially rents a 
replacement dwelling and receives a rental assistance payment under 
Sec. 24.402(b) is eligible to receive a payment under Sec. 24.401 or 
Sec. 24.402(c) if he or she meets the eligibility criteria for such 
payments, including purchase and occupancy within the prescribed 1-year 
period. Any portion of the rental assistance payment that has been 
disbursed shall be deducted from the payment computed under Sec. 24.401 
or Sec. 24.402(c).
    (f) Payment after death. A replacement housing payment is personal 
to the displaced person and upon his or her death the undisbursed 
portion of any such payment shall not be paid to the heirs or assigns, 
except that:
    (1) The amount attributable to the displaced person's period of 
actual occupancy of the replacement housing shall be paid.
    (2) Any remaining payment shall be disbursed to the remaining family 
members of the displaced household in any case in which a member of a 
displaced family dies.
    (3) Any portion of a replacement housing payment necessary to 
satisfy the legal obligation of an estate in connection with the 
selection of a replacement dwelling by or on behalf of a deceased person 
shall be disbursed to the estate.
    (g) Insurance proceeds. To the extent necessary to avoid duplicate 
compensation, the amount of any insurance proceeds received by a person 
in connection with a loss to the displacement dwelling due to a 
catastrophic occurrence (fire, flood, etc.) shall be included in the 
acquisition cost of the displacement dwelling when computing the price 
differential. (See Sec. 24.3.)

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec. 24.404  Replacement housing of last resort.

    (a) Determination to provide replacement housing of last resort. 
Whenever a program or project cannot proceed on a timely basis because 
comparable replacement dwellings are not available

[[Page 253]]

within the monetary limits for owners or tenants, as specified in Sec. 
24.401 or Sec. 24.402, as appropriate, the Agency shall provide 
additional or alternative assistance under the provisions of this 
subpart. Any decision to provide last resort housing assistance must be 
adequately justified either:
    (1) On a case-by-case basis, for good cause, which means that 
appropriate consideration has been given to:
    (i) The availability of comparable replacement housing in the 
program or project area;
    (ii) The resources available to provide comparable replacement 
housing; and
    (iii) The individual circumstances of the displaced person, or
    (2) By a determination that:
    (i) There is little, if any, comparable replacement housing 
available to displaced persons within an entire program or project area; 
and, therefore, last resort housing assistance is necessary for the area 
as a whole;
    (ii) A program or project cannot be advanced to completion in a 
timely manner without last resort housing assistance; and
    (iii) The method selected for providing last resort housing 
assistance is cost effective, considering all elements, which contribute 
to total program or project costs.
    (b) Basic rights of persons to be displaced. Notwithstanding any 
provision of this subpart, no person shall be required to move from a 
displacement dwelling unless comparable replacement housing is available 
to such person. No person may be deprived of any rights the person may 
have under the Uniform Act or this part. The Agency shall not require 
any displaced person to accept a dwelling provided by the Agency under 
these procedures (unless the Agency and the displaced person have 
entered into a contract to do so) in lieu of any acquisition payment or 
any relocation payment for which the person may otherwise be eligible.
    (c) Methods of providing comparable replacement housing. Agencies 
shall have broad latitude in implementing this subpart, but 
implementation shall be for reasonable cost, on a case-by-case basis 
unless an exception to case-by-case analysis is justified for an entire 
project.
    (1) The methods of providing replacement housing of last resort 
include, but are not limited to:
    (i) A replacement housing payment in excess of the limits set forth 
in Sec. 24.401 or Sec. 24.402. A replacement housing payment under 
this section may be provided in installments or in a lump sum at the 
Agency's discretion.
    (ii) Rehabilitation of and/or additions to an existing replacement 
dwelling.
    (iii) The construction of a new replacement dwelling.
    (iv) The provision of a direct loan, which requires regular 
amortization or deferred repayment. The loan may be unsecured or secured 
by the real property. The loan may bear interest or be interest-free.
    (v) The relocation and, if necessary, rehabilitation of a dwelling.
    (vi) The purchase of land and/or a replacement dwelling by the 
displacing Agency and subsequent sale or lease to, or exchange with a 
displaced person.
    (vii) The removal of barriers for persons with disabilities.
    (2) Under special circumstances, consistent with the definition of a 
comparable replacement dwelling, modified methods of providing 
replacement housing of last resort permit consideration of replacement 
housing based on space and physical characteristics different from those 
in the displacement dwelling (see appendix A, Sec. 24.404(c)), 
including upgraded, but smaller replacement housing that is decent, 
safe, and sanitary and adequate to accommodate individuals or families 
displaced from marginal or substandard housing with probable functional 
obsolescence. In no event, however, shall a displaced person be required 
to move into a dwelling that is not functionally equivalent in 
accordance with Sec. 24.2(a)(6)(ii) of this part.
    (3) The Agency shall provide assistance under this subpart to a 
displaced person who is not eligible to receive a replacement housing 
payment under Sec. Sec. 24.401 and 24.402 because of failure to meet 
the length of occupancy requirement when comparable replacement rental 
housing is not available at rental rates within the displaced person's 
financial means. (See

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Sec. 24.2(a)(6)(viii)(C).) Such assistance shall cover a period of 42 
months.



                         Subpart F_Mobile Homes



Sec. 24.501  Applicability.

    (a) General. This subpart describes the requirements governing the 
provision of replacement housing payments to a person displaced from a 
mobile home and/or mobile home site who meets the basic eligibility 
requirements of this part. Except as modified by this subpart, such a 
displaced person is entitled to a moving expense payment in accordance 
with subpart D of this part and a replacement housing payment in 
accordance with subpart E of this part to the same extent and subject to 
the same requirements as persons displaced from conventional dwellings. 
Moving cost payments to persons occupying mobile homes are covered in 
Sec. 24.301(g)(1) through (g)(10).
    (b) Partial acquisition of mobile home park. The acquisition of a 
portion of a mobile home park property may leave a remaining part of the 
property that is not adequate to continue the operation of the park. If 
the Agency determines that a mobile home located in the remaining part 
of the property must be moved as a direct result of the project, the 
occupant of the mobile home shall be considered to be a displaced person 
who is entitled to relocation payments and other assistance under this 
part.



Sec. 24.502  Replacement housing payment for 180-day mobile homeowner
displaced from a mobile home, and/or from the acquired mobile home site.

    (a) Eligibility. An owner-occupant displaced from a mobile home or 
site is entitled to a replacement housing payment, not to exceed 
$22,500, under Sec. 24.401 if:
    (1) The person occupied the mobile home on the displacement site for 
at least 180 days immediately before:
    (i) The initiation of negotiations to acquire the mobile home, if 
the person owned the mobile home and the mobile home is real property;
    (ii) The initiation of negotiations to acquire the mobile home site 
if the mobile home is personal property, but the person owns the mobile 
home site; or
    (iii) The date of the Agency's written notification to the owner-
occupant that the owner is determined to be displaced from the mobile 
home as described in paragraphs (a)(3)(i) through (iv) of this section.
    (2) The person meets the other basic eligibility requirements at 
Sec. 24.401(a)(2); and
    (3) The Agency acquires the mobile home as real estate, or acquires 
the mobile home site from the displaced owner, or the mobile home is 
personal property but the owner is displaced from the mobile home 
because the Agency determines that the mobile home:
    (i) Is not, and cannot economically be made decent, safe, and 
sanitary;
    (ii) Cannot be relocated without substantial damage or unreasonable 
cost;
    (iii) Cannot be relocated because there is no available comparable 
replacement site; or
    (iv) Cannot be relocated because it does not meet mobile home park 
entrance requirements.
    (b) Replacement housing payment computation for a 180-day owner that 
is displaced from a mobile home. The replacement housing payment for an 
eligible displaced 180-day owner is computed as described at Sec. 
24.401(b) incorporating the following, as applicable:
    (1) If the Agency acquires the mobile home as real estate and/or 
acquires the owned site, the acquisition cost used to compute the price 
differential payment is the actual amount paid to the owner as just 
compensation for the acquisition of the mobile home, and/or site, if 
owned by the displaced mobile homeowner.
    (2) If the Agency does not purchase the mobile home as real estate 
but the owner is determined to be displaced from the mobile home and 
eligible for a replacement housing payment based on paragraph 
(a)(1)(iii) of this section, the eligible price differential payment for 
the purchase of a comparable replacement mobile home, is the lesser of 
the displaced mobile homeowner's net cost to purchase a replacement 
mobile home (i.e., purchase price of the replacement mobile home less 
trade-in or sale proceeds of the displacement mobile home); or, the cost 
of the Agency's selected comparable mobile home less

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the Agency's estimate of the salvage or trade-in value for the mobile 
home from which the person is displaced.
    (3) If a comparable replacement mobile home site is not available, 
the price differential payment shall be computed on the basis of the 
reasonable cost of a conventional comparable replacement dwelling.
    (c) Rental assistance payment for a 180-day owner-occupant that is 
displaced from a leased or rented mobile home site. If the displacement 
mobile home site is leased or rented, a displaced 180-day owner-occupant 
is entitled to a rental assistance payment computed as described in 
Sec. 24.402(b). This rental assistance payment may be used to lease a 
replacement site; may be applied to the purchase price of a replacement 
site; or may be applied, with any replacement housing payment 
attributable to the mobile home, to the purchase of a replacement mobile 
home or conventional decent, safe and sanitary dwelling.
    (d) Owner-occupant not displaced from the mobile home. If the Agency 
determines that a mobile home is personal property and may be relocated 
to a comparable replacement site, but the owner-occupant elects not to 
do so, the owner is not entitled to a replacement housing payment for 
the purchase of a replacement mobile home. However, the owner is 
eligible for moving costs described at Sec. 24.301 and any replacement 
housing payment for the purchase or rental of a comparable site as 
described in this section or Sec. 24.503 as applicable.



Sec. 24.503  Replacement housing payment for 90-day mobile home occupants.

    A displaced tenant or owner-occupant of a mobile home and/or site is 
eligible for a replacement housing payment, not to exceed $5,250, under 
Sec. 24.402 if:
    (a) The person actually occupied the displacement mobile home on the 
displacement site for at least 90 days immediately prior to the 
initiation of negotiations;
    (b) The person meets the other basic eligibility requirements at 
Sec. 24.402(a); and
    (c) The Agency acquires the mobile home and/or mobile home site, or 
the mobile home is not acquired by the Agency but the Agency determines 
that the occupant is displaced from the mobile home because of one of 
the circumstances described at Sec. 24.502(a)(3).



                         Subpart G_Certification



Sec. 24.601  Purpose.

    This subpart permits a State Agency to fulfill its responsibilities 
under the Uniform Act by certifying that it shall operate in accordance 
with State laws and regulations which shall accomplish the purpose and 
effect of the Uniform Act, in lieu of providing the assurances required 
by Sec. 24.4 of this part.



Sec. 24.602  Certification application.

    An Agency wishing to proceed on the basis of a certification may 
request an application for certification from the Lead Agency Director, 
Office of Real Estate Services, HEPR-1, Federal Highway Administration, 
1200 New Jersey Avenue, SE., Washington, DC 20590. The completed 
application for certification must be approved by the governor of the 
State, or the governor's designee, and must be coordinated with the 
Federal funding Agency, in accordance with application procedures.

[70 FR 611, Jan. 4, 2005, as amended at 73 FR 33329, June 12, 2008]



Sec. 24.603  Monitoring and corrective action.

    (a) The Federal Lead Agency shall, in coordination with other 
Federal Agencies, monitor from time to time State Agency implementation 
of programs or projects conducted under the certification process and 
the State Agency shall make available any information required for this 
purpose.
    (b) The Lead Agency may require periodic information or data from 
affected Federal or State Agencies.
    (c) A Federal Agency may, after consultation with the Lead Agency, 
and notice to and consultation with the governor, or his or her 
designee, rescind any previous approval provided under this subpart if 
the certifying State Agency fails to comply with its certification or 
with applicable State law and regulations. The Federal Agency shall 
initiate consultation with the

[[Page 256]]

Lead Agency at least 30 days prior to any decision to rescind approval 
of a certification under this subpart. The Lead Agency will also inform 
other Federal Agencies, which have accepted a certification under this 
subpart from the same State Agency, and will take whatever other action 
that may be appropriate.
    (d) Section 103(b)(2) of the Uniform Act, as amended, requires that 
the head of the Lead Agency report biennially to the Congress on State 
Agency implementation of section 103. To enable adequate preparation of 
the prescribed biennial report, the Lead Agency may require periodic 
information or data from affected Federal or State Agencies.



           Sec. Appendix A to Part 24--Additional Information

    This appendix provides additional information to explain the intent 
of certain provisions of this part.

                           Subpart A--General

    Section 24.2 Definitions and Acronyms
    Section 24.2(a)(6) Definition of comparable replacement dwelling. 
The requirement in Sec. 24.2(a)(6)(ii) that a comparable replacement 
dwelling be ``functionally equivalent'' to the displacement dwelling 
means that it must perform the same function, and provide the same 
utility. While it need not possess every feature of the displacement 
dwelling, the principal features must be present.
    For example, if the displacement dwelling contains a pantry and a 
similar dwelling is not available, a replacement dwelling with ample 
kitchen cupboards may be acceptable. Insulated and heated space in a 
garage might prove an adequate substitute for basement workshop space. A 
dining area may substitute for a separate dining room. Under some 
circumstances, attic space could substitute for basement space for 
storage purposes, and vice versa.
    Only in unusual circumstances may a comparable replacement dwelling 
contain fewer rooms or, consequentially, less living space than the 
displacement dwelling. Such may be the case when a decent, safe, and 
sanitary replacement dwelling (which by definition is ``adequate to 
accommodate'' the displaced person) may be found to be ``functionally 
equivalent'' to a larger but very run-down substandard displacement 
dwelling. Another example is when a displaced person accepts an offer of 
government housing assistance and the applicable requirements of such 
housing assistance program require that the displaced person occupy a 
dwelling that has fewer rooms or less living space than the displacement 
dwelling.
    Section 24.2(a)(6)(vii). The definition of comparable replacement 
dwelling requires that a comparable replacement dwelling for a person 
who is not receiving assistance under any government housing program 
before displacement must be currently available on the private market 
without any subsidy under a government housing program.
    Section 24.2(a)(6)(ix). A public housing unit may qualify as a 
comparable replacement dwelling only for a person displaced from a 
public housing unit. A privately owned dwelling with a housing program 
subsidy tied to the unit may qualify as a comparable replacement 
dwelling only for a person displaced from a similarly subsidized unit or 
public housing.
    A housing program subsidy that is paid to a person (not tied to the 
building), such as a HUD Section 8 Housing Voucher Program, may be 
reflected in an offer of a comparable replacement dwelling to a person 
receiving a similar subsidy or occupying a privately owned subsidized 
unit or public housing unit before displacement.
    However, nothing in this part prohibits an Agency from offering, or 
precludes a person from accepting, assistance under a government housing 
program, even if the person did not receive similar assistance before 
displacement. However, the Agency is obligated to inform the person of 
his or her options under this part. (If a person accepts assistance 
under a government housing assistance program, the rules of that program 
governing the size of the dwelling apply, and the rental assistance 
payment under Sec. 24.402 would be computed on the basis of the 
person's actual out-of-pocket cost for the replacement housing.)
    Section 24.2(a)(8)(ii) Decent, Safe and Sanitary. Many local housing 
and occupancy codes require the abatement of deteriorating paint, 
including lead-based paint and lead-based paint dust, in protecting the 
public health and safety. Where such standards exist, they must be 
honored. Even where local law does not mandate adherence to such 
standards, it is strongly recommended that they be considered as a 
matter of public policy.
    Section 24.2(a)(8)(vii) Persons with a disability. Reasonable 
accommodation of a displaced person with a disability at the replacement 
dwelling means the Agency is required to address persons with a physical 
impairment that substantially limits one or more of the major life 
activities. In these situations, reasonable accommodation should include 
the following at a minimum: Doors of adequate width; ramps or other 
assistance devices to traverse stairs and access bathtubs, shower 
stalls, toilets and sinks; storage cabinets, vanities, sink and mirrors

[[Page 257]]

at appropriate heights. Kitchen accommodations will include sinks and 
storage cabinets built at appropriate heights for access. The Agency 
shall also consider other items that may be necessary, such as physical 
modification to a unit, based on the displaced person's needs.
    Section 24.2(a)(9)(ii)(D) Persons not displaced. Paragraph 
(a)(9)(ii)(D) of this section recognizes that there are circumstances 
where the acquisition, rehabilitation or demolition of real property 
takes place without the intent or necessity that an occupant of the 
property be permanently displaced. Because such occupants are not 
considered ``displaced persons'' under this part, great care must be 
exercised to ensure that they are treated fairly and equitably. For 
example, if the tenant-occupant of a dwelling will not be displaced, but 
is required to relocate temporarily in connection with the project, the 
temporarily occupied housing must be decent, safe, and sanitary and the 
tenant must be reimbursed for all reasonable out-of-pocket expenses 
incurred in connection with the temporary relocation. These expenses may 
include moving expenses and increased housing costs during the temporary 
relocation. Temporary relocation should not extend beyond one year 
before the person is returned to his or her previous unit or location. 
The Agency must contact any residential tenant who has been temporarily 
relocated for a period beyond one year and offer all permanent 
relocation assistance. This assistance would be in addition to any 
assistance the person has already received for temporary relocation, and 
may not be reduced by the amount of any temporary relocation assistance.
    Similarly, if a business will be shut-down for any length of time 
due to rehabilitation of a site, it may be temporarily relocated and 
reimbursed for all reasonable out of pocket expenses or must be 
determined to be displaced at the Agency's option.
    Any person who disagrees with the Agency's determination that he or 
she is not a displaced person under this part may file an appeal in 
accordance with 49 CFR part 24.10 of this regulation.
    Section 24.2(a)(11) Dwelling Site. This definition ensures that the 
computation of replacement housing payments are accurate and realistic 
(a) when the dwelling is located on a larger than normal site, (b) when 
mixed-use properties are acquired, (c) when more than one dwelling is 
located on the acquired property, or (d) when the replacement dwelling 
is retained by an owner and moved to another site.
    Section 24.2(a)(14) Household income (exclusions). Household income 
for purposes of this regulation does not include program benefits that 
are not considered income by Federal law such as food stamps and the 
Women Infants and Children (WIC) program. For a more detailed list of 
income exclusions see Federal Highway Administration, Office of Real 
Estate Services Web site: http://www.fhwa.dot.gov/realestate/. (FR 4644-
N-16 page 20319 Updated.) If there is a question on whether or not to 
include income from a specific program contact the Federal Agency 
administering the program.
    Section 24(a)(15) Initiation of negotiations. This section provides 
a special definition for acquisition and displacements under Pub. L. 96-
510 or Superfund. The order of activities under Superfund may differ 
slightly in that temporary relocation may precede acquisition. Superfund 
is a program designed to clean up hazardous waste sites. When such a 
site is discovered, it may be necessary, in certain limited 
circumstances, to alert individual owners and tenants to potential 
health or safety threats and to offer to temporarily relocate them while 
additional information is gathered. If a decision is later made to 
permanently relocate such persons, those who had been temporarily 
relocated under Superfund authority would no longer be on site when a 
formal, written offer to acquire the property was made, and thus would 
lose their eligibility for a replacement housing payment. In order to 
prevent this unfair outcome, we have provided a definition of initiation 
of negotiation, which is based on the date the Federal Government offers 
to temporarily relocate an owner or tenant from the subject property.
    Section 24.2(a)(15)(iv) Initiation of negotiations (Tenants.) 
Tenants who occupy property that may be acquired amicably, without 
recourse to the use of the power of eminent domain, must be fully 
informed as to their eligibility for relocation assistance. This 
includes notifying such tenants of their potential eligibility when 
negotiations are initiated, notifying them if they become fully 
eligible, and, in the event the purchase of the property will not occur, 
notifying them that they are no longer eligible for relocation benefits. 
If a tenant is not readily accessible, as the result of a disaster or 
emergency, the Agency must make a good faith effort to provide these 
notifications and document its efforts in writing.
    Section 24.2(a)(17) Mobile home. The following examples provide 
additional guidance on the types of mobile homes and manufactured 
housing that can be found acceptable as comparable replacement dwellings 
for persons displaced from mobile homes. A recreational vehicle that is 
capable of providing living accommodations may be considered a 
replacement dwelling if the following criteria are met: the recreational 
vehicle is purchased and occupied as the ``primary'' place of residence; 
it is located on a purchased or leased site and connected to or have 
available all necessary utilities for functioning as a housing unit on 
the date of the displacing Agency's inspection; and, the dwelling, as 
sited, meets all local, State, and

[[Page 258]]

Federal requirements for a decent, safe and sanitary dwelling. (The 
regulations of some local jurisdictions will not permit the 
consideration of these vehicles as decent, safe and sanitary dwellings. 
In those cases, the recreational vehicle will not qualify as a 
replacement dwelling.)
    For HUD programs, mobile home is defined as ``a structure, 
transportable in one or more sections, which, in the traveling mode, is 
eight body feet or more in width or forty body feet or more in length, 
or, when erected on site, is three hundred or more square feet, and 
which is built on a permanent chassis and designed to be used as a 
dwelling with or without a permanent foundation when connected to the 
required utilities and includes the plumbing, heating, air-conditioning, 
and electrical systems contained therein; except that such terms shall 
include any structure which meets all the requirements of this paragraph 
except the size requirements and with respect to which the manufacturer 
voluntarily files a certification required by the Secretary of HUD and 
complies with the standards established under the National Manufactured 
Housing Construction and Safety Standards Act, provided by Congress in 
the original 1974 Manufactured Housing Act.'' In 1979 the term ``mobile 
home'' was changed to ``manufactured home.'' For purposes of this 
regulation, the terms mobile home and manufactured home are synonymous.
    When assembled, manufactured homes built after 1976 contain no less 
than 320 square feet. They may be single or multi-sectioned units when 
installed. Their designation as personalty or realty will be determined 
by State law. When determined to be realty, most are eligible for 
conventional mortgage financing.
    The 1976 HUD standards distinguish manufactured homes from factory-
built ``modular homes'' as well as conventional or ``stick-built'' 
homes. Both of these types of housing are required to meet State and 
local construction codes.
    Section 24.3 No Duplication of Payments. This section prohibits an 
Agency from making a payment to a person under these regulations that 
would duplicate another payment the person receives under Federal, 
State, or local law. The Agency is not required to conduct an exhaustive 
search for such other payments; it is only required to avoid creating a 
duplication based on the Agency's knowledge at the time a payment is 
computed.

                  Subpart B--Real Property Acquisition

    Federal Agencies may find that, for Federal eminent domain purposes, 
the terms ``fair market value'' (as used throughout this subpart) and 
``market value,'' which may be the more typical term in private 
transactions, may be synonymous.
    Section 24.101(a) Direct Federal program or project. All 49 CFR Part 
24 Subpart B (real property acquisition) requirements apply to all 
direct acquisitions for Federal programs and projects by Federal 
Agencies, except for acquisitions undertaken by the Tennessee Valley 
Authority or the Rural Utilities Service. There are no exceptions for 
``voluntary transactions.''
    Section 24.101(b)(1)(i). The term ``general geographic area'' is 
used to clarify that the ``geographic area'' is not to be construed to 
be a small, limited area.
    Sections 24.101(b)(1)(iv) and (2)(ii). These sections provide that, 
for programs and projects receiving Federal financial assistance 
described in Sec. Sec. 24.101(b)(1) and (2), Agencies are to inform the 
owner(s) in writing of the Agency's estimate of the fair market value 
for the property to be acquired.
    While this part does not require an appraisal for these 
transactions, Agencies may still decide that an appraisal is necessary 
to support their determination of the market value of these properties, 
and, in any event, Agencies must have some reasonable basis for their 
determination of market value. In addition, some of the concepts 
inherent in Federal Program appraisal practice are appropriate for these 
estimates. It would be appropriate for Agencies to adhere to project 
influence restrictions, as well as guard against discredited ``public 
interest value'' valuation concepts.
    After an Agency has established an amount it believes to be the 
market value of the property and has notified the owner of this amount 
in writing, an Agency may negotiate freely with the owner in order to 
reach agreement. Since these transactions are voluntary, accomplished by 
a willing buyer and a willing seller, negotiations may result in 
agreement for the amount of the original estimate, an amount exceeding 
it, or for a lesser amount. Although not required by the regulations, it 
would be entirely appropriate for Agencies to apply the administrative 
settlement concept and procedures in Sec. 24.102(i) to negotiate 
amounts that exceed the original estimate of market value. Agencies 
shall not take any coercive action in order to reach agreement on the 
price to be paid for the property.
    Section 24.101(c) Less-than-full-fee interest in real property. This 
provision provides a benchmark beyond which the requirements of the 
subpart clearly apply to leases.
    Section 24.102(c)(2) Appraisal, waiver thereof, and invitation to 
owner. The purpose of the appraisal waiver provision is to provide 
Agencies a technique to avoid the costs and time delay associated with 
appraisal requirements for low-value, non-complex acquisitions. The 
intent is that non-appraisers make the waiver valuations, freeing 
appraisers to do more sophisticated work.

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    The Agency employee making the determination to use the appraisal 
waiver process must have enough understanding of appraisal principles to 
be able to determine whether or not the proposed acquisition is low 
value and uncomplicated.
    Waiver valuations are not appraisals as defined by the Uniform Act 
and these regulations; therefore, appraisal performance requirements or 
standards, regardless of their source, are not required for waiver 
valuations by this rule. Since waiver valuations are not appraisals, 
neither is there a requirement for an appraisal review. However, the 
Agency must have a reasonable basis for the waiver valuation and an 
Agency official must still establish an amount believed to be just 
compensation to offer the property owner(s).
    The definition of ``appraisal'' in the Uniform Act and appraisal 
waiver provisions of the Uniform Act and these regulations are Federal 
law and public policy and should be considered as such when determining 
the impact of appraisal requirements levied by others.
    Section 24.102(d) Establishment of offer of just compensation. The 
initial offer to the property owner may not be less than the amount of 
the Agency's approved appraisal, but may exceed that amount if the 
Agency determines that a greater amount reflects just compensation for 
the property.
    Section 24.102(f) Basic negotiation procedures. An offer should be 
adequately presented to an owner, and the owner should be properly 
informed. Personal, face-to-face contact should take place, if feasible, 
but this section does not require such contact in all cases.
    This section also provides that the property owner be given a 
reasonable opportunity to consider the Agency's offer and to present 
relevant material to the Agency. In order to satisfy this requirement, 
Agencies must allow owners time for analysis, research and development, 
and compilation of a response, including perhaps getting an appraisal. 
The needed time can vary significantly, depending on the circumstances, 
but thirty (30) days would seem to be the minimum time these actions can 
be reasonably expected to require. Regardless of project time pressures, 
property owners must be afforded this opportunity.
    In some jurisdictions, there is pressure to initiate formal eminent 
domain procedures at the earliest opportunity because completing the 
eminent domain process, including gaining possession of the needed real 
property, is very time consuming. These provisions are not intended to 
restrict this practice, so long as it does not interfere with the 
reasonable time that must be provided for negotiations, described above, 
and the Agencies adhere to the Uniform Act ban on coercive action 
(section 301(7) of the Uniform Act).
    If the owner expresses intent to provide an appraisal report, 
Agencies are encouraged to provide the owner and/or his/her appraiser a 
copy of Agency appraisal requirements and inform them that their 
appraisal should be based on those requirements.
    Section 24.102(i) Administrative settlement. This section provides 
guidance on administrative settlement as an alternative to judicial 
resolution of a difference of opinion on the value of a property, in 
order to avoid unnecessary litigation and congestion in the courts.
    All relevant facts and circumstances should be considered by an 
Agency official delegated this authority. Appraisers, including review 
appraisers, must not be pressured to adjust their estimate of value for 
the purpose of justifying such settlements. Such action would invalidate 
the appraisal process.
    Section 24.102(j) Payment before taking possession. It is intended 
that a right-of-entry for construction purposes be obtained only in the 
exceptional case, such as an emergency project, when there is no time to 
make an appraisal and purchase offer and the property owner is agreeable 
to the process.
    Section 24.102(m) Fair rental. Section 301(6) of the Uniform Act 
limits what an Agency may charge when a former owner or previous 
occupant of a property is permitted to rent the property for a short 
term or when occupancy is subject to termination by the Agency on short 
notice. Such rent may not exceed ``the fair rental value of the property 
to a short-term occupier.'' Generally, the Agency's right to terminate 
occupancy on short notice (whether or not the renter also has that 
right) supports the establishment of a lesser rental than might be found 
in a longer, fixed-term situation.
    Section 24.102(n) Conflict of interest. The overall objective is to 
minimize the risk of fraud while allowing Agencies to operate as 
efficiently as possible. There are three parts to this provision.
    The first provision is the prohibition against having any interest 
in the real property being valued by the appraiser (for an appraisal), 
the valuer (for a waiver estimate) or the review appraiser (for an 
appraisal review.)
    The second provision is that no person functioning as a negotiator 
for a project or program can supervise or formally evaluate the 
performance of any appraiser or review appraiser performing appraisal or 
appraisal review work for that project or program. The intent of this 
provision is to ensure appraisal/valuation independence and to prevent 
inappropriate influence. It is not intended to prevent Agencies from 
providing appraisers/valuers with appropriate project information and 
participating in determining the scope of work for the appraisal or

[[Page 260]]

valuation. For a program or project receiving Federal financial 
assistance, the Federal funding Agency may waive this requirement if it 
would create a hardship for the Agency. The intent is to accommodate 
Federal-aid recipients that have a small staff where this provision 
would be unworkable.
    The third provision is to minimize situations where administrative 
costs exceed acquisition costs. Section 24.102(n) also provides that the 
same person may prepare a valuation estimate (including an appraisal) 
and negotiate that acquisition, if the valuation estimate amount is 
$10,000 or less. However, it should be noted that this exception for 
properties valued at $10,000 or less is not mandatory, e.g., Agencies 
are not required to use those who prepare a waiver valuation or 
appraisal of $10,000 or less to negotiate the acquisition, and, all 
appraisals must be reviewed in accordance with Sec. 24.104. This 
includes appraisals of real property valued at $10,000 or less.
    Section 24.103 Criteria for Appraisals. The term ``requirements'' is 
used throughout this section to avoid confusion with The Appraisal 
Foundation's Uniform Standards of Professional Appraisal Practice 
(USPAP) ``standards.'' Although this section discusses appraisal 
requirements, the definition of ``appraisal'' itself at Sec. 24.2(a)(3) 
includes appraisal performance requirements that are an inherent part of 
this section.
    The term ``Federal and federally-assisted program or project'' is 
used to better identify the type of appraisal practices that are to be 
referenced and to differentiate them from the private sector, especially 
mortgage lending, appraisal practice.
    Section 24.103(a) Appraisal requirements. The first sentence 
instructs readers that requirements for appraisals for Federal and 
federally-assisted programs or projects are located in 49 CFR part 24. 
These are the basic appraisal requirements for Federal and federally-
assisted programs or projects. However, Agencies may enhance and expand 
on them, and there may be specific project or program legislation that 
references other appraisal requirements.
    These appraisal requirements are necessarily designed to comply with 
the Uniform Act and other Federal eminent domain based appraisal 
requirements. They are also considered to be consistent with Standards 
Rules 1, 2, and 3 of the 2004 edition of the USPAP. Consistency with 
USPAP has been a feature of these appraisal requirements since the 
beginning of USPAP. This ``consistent'' relationship was more formally 
recognized in OMB Bulletin 92-06. While these requirements are 
considered consistent with USPAP, neither can supplant the other; their 
provisions are neither identical, nor interchangeable. Appraisals 
performed for Federal and federally-assisted real property acquisition 
must follow the requirements in this regulation. Compliance with any 
other appraisal requirements is not the purview of this regulation. An 
appraiser who is committed to working within the bounds of USPAP should 
recognize that compliance with both USPAP and these requirements may be 
achieved by using the Supplemental Standards Rule and the Jurisdictional 
Exception Rule of USPAP, where applicable.
    The term ``scope of work'' defines the general parameters of the 
appraisal. It reflects the needs of the Agency and the requirements of 
Federal and federally-assisted program appraisal practice. It should be 
developed cooperatively by the assigned appraiser and an Agency official 
who is competent to both represent the Agency's needs and respect valid 
appraisal practice. The scope of work statement should include the 
purpose and/or function of the appraisal, a definition of the estate 
being appraised, and if it is fair market value, its applicable 
definition, and the assumptions and limiting conditions affecting the 
appraisal. It may include parameters for the data search and 
identification of the technology, including approaches to value, to be 
used to analyze the data. The scope of work should consider the specific 
requirements in 49 CFR 24.103(a)(2)(i) through (v) and address them as 
appropriate.
    Section 24.103(a)(1). The appraisal report should identify the items 
considered in the appraisal to be real property, as well as those 
identified as personal property.
    Section 24.103(a)(2). All relevant and reliable approaches to value 
are to be used. However, where an Agency determines that the sales 
comparison approach will be adequate by itself and yield credible 
appraisal results because of the type of property being appraised and 
the availability of sales data, it may limit the appraisal assignment to 
the sales comparison approach. This should be reflected in the scope of 
work.
    Section 24.103(b) Influence of the project on just compensation. As 
used in this section, the term ``project'' means an undertaking which is 
planned, designed, and intended to operate as a unit.
    When the public is aware of the proposed project, project area 
property values may be affected. Therefore, property owners should not 
be penalized because of a decrease in value caused by the proposed 
project nor reap a windfall at public expense because of increased value 
created by the proposed project.
    Section 24.103(d)(1). The appraiser and review appraiser must each 
be qualified and competent to perform the appraisal and appraisal review 
assignments, respectively. Among other qualifications, State licensing 
or certification and professional society designations can help provide 
an indication of an appraiser's abilities.

[[Page 261]]

    Section 24.104 Review of appraisals. The term ``review appraiser'' 
is used rather than ``reviewing appraiser,'' to emphasize that ``review 
appraiser'' is a separate specialty and not just an appraiser who 
happens to be reviewing an appraisal. Federal Agencies have long held 
the perspective that appraisal review is a unique skill that, while it 
certainly builds on appraisal skills, requires more. The review 
appraiser should possess both appraisal technical abilities and the 
ability to be the two-way bridge between the Agency's real property 
valuation needs and the appraiser.
    Agency review appraisers typically perform a role greater than 
technical appraisal review. They are often involved in early project 
development. Later they may be involved in devising the scope of work 
statements and participate in making appraisal assignments to fee and/or 
staff appraisers. They are also mentors and technical advisors, 
especially on Agency policy and requirements, to appraisers, both staff 
and fee. Additionally, review appraisers are frequently technical 
advisors to other Agency officials.
    Section 24.104(a). This paragraph states that the review appraiser 
is to review the appraiser's presentation and analysis of market 
information and that it is to be reviewed against Sec. 24.103 and other 
applicable requirements, including, to the extent appropriate, the 
Uniform Appraisal Standards for Federal Land Acquisition. The appraisal 
review is to be a technical review by an appropriately qualified review 
appraiser. The qualifications of the review appraiser and the level of 
explanation of the basis for the review appraiser's recommended (or 
approved) value depend on the complexity of the appraisal problem. If 
the initial appraisal submitted for review is not acceptable, the review 
appraiser is to communicate and work with the appraiser to the greatest 
extent possible to facilitate the appraiser's development of an 
acceptable appraisal.
    In doing this, the review appraiser is to remain in an advisory 
role, not directing the appraisal, and retaining objectivity and options 
for the appraisal review itself.
    If the Agency intends that the staff review appraiser approve the 
appraisal (as the basis for the establishment of the amount believed to 
be just compensation), or establish the amount the Agency believes is 
just compensation, she/he must be specifically authorized by the Agency 
to do so. If the review appraiser is not specifically authorized to 
approve the appraisal (as the basis for the establishment of the amount 
believed to be just compensation), or establish the amount believed to 
be just compensation, that authority remains with another Agency 
official.
    Section 24.104(b). In developing an independent approved or 
recommended value, the review appraiser may reference any acceptable 
resource, including acceptable parts of any appraisal, including an 
otherwise unacceptable appraisal. When a review appraiser develops an 
independent value, while retaining the appraisal review, that 
independent value also becomes the approved appraisal of the fair market 
value for Uniform Act Section 301(3) purposes. It is within Agency 
discretion to decide whether a second review is needed if the first 
review appraiser establishes a value different from that in the 
appraisal report or reports on the property.
    Section 24.104(c). Before acceptance of an appraisal, the review 
appraiser must determine that the appraiser's documentation, including 
valuation data and analysis of that data, demonstrates the soundness of 
the appraiser's opinion of value. For the purposes of this part, an 
acceptable appraisal is any appraisal that, on its own, meets the 
requirements of Sec. 24.103. An approved appraisal is the one 
acceptable appraisal that is determined to best fulfill the requirement 
to be the basis for the amount believed to be just compensation. 
Recognizing that appraisal is not an exact science, there may be more 
than one acceptable appraisal of a property, but for the purposes of 
this part, there can be only one approved appraisal.
    At the Agency's discretion, for a low value property requiring only 
a simple appraisal process, the review appraiser's recommendation (or 
approval), endorsing the appraiser's report, may be determined to 
satisfy the requirement for the review appraiser's signed report and 
certification.
    Section 24.106(b). Expenses incidental to transfer of title to the 
agency. Generally, the Agency is able to pay such incidental costs 
directly and, where feasible, is required to do so. In order to prevent 
the property owner from making unnecessary out-of-pocket expenditures 
and to avoid duplication of expenses, the property owner should be 
informed early in the acquisition process of the Agency's intent to make 
such arrangements. Such expenses must be reasonable and necessary.

               Subpart C--General Relocation Requirements

    Section 24.202 Applicability and Section 205(c) Services to be 
provided. In extraordinary circumstances, when a displaced person is not 
readily accessible, the Agency must make a good faith effort to comply 
with these sections and document its efforts in writing.
    Section 24.204 Availability of comparable replacement dwelling 
before displacement.
    Section 24.204(a) General. This provision requires that no one may 
be required to move from a dwelling without a comparable replacement 
dwelling having been made available. In addition, Sec. 24.204(a) 
requires that, ``where possible, three or more comparable

[[Page 262]]

replacement dwellings shall be made available.'' Thus, the basic 
standard for the number of referrals required under this section is 
three. Only in situations where three comparable replacement dwellings 
are not available (e.g., when the local housing market does not contain 
three comparable dwellings) may the Agency make fewer than three 
referrals.
    Section 24.205 Relocation assistance advisory services. Section 
24.205(c)(2)(ii)(D) emphasizes that if the comparable replacement 
dwellings are located in areas of minority concentration, minority 
persons should, if possible, also be given opportunities to relocate to 
replacement dwellings not located in such areas.
    Section 24.206 Eviction for cause. An eviction related to non-
compliance with a requirement related to carrying out a project (e.g., 
failure to move or relocate when instructed, or to cooperate in the 
relocation process) shall not negate a person's entitlement to 
relocation payments and other assistance set forth in this part.
    Section 24.207 General Requirements-Claims for relocation payments. 
Section 24.207(a) allows an Agency to make a payment for low cost or 
uncomplicated nonresidential moves without additional documentation, as 
long as the payment is limited to the amount of the lowest acceptable 
bid or estimate, as provided for in Sec. 24.301(d)(1).
    While Sec. 24.207(f) prohibits an Agency from proposing or 
requesting that a displaced person waive his or her rights or 
entitlements to relocation assistance and payments, an Agency may accept 
a written statement from the displaced person that states that they have 
chosen not to accept some or all of the payments or assistance to which 
they are entitled. Any such written statement must clearly show that the 
individual knows what they are entitled to receive (a copy of the Notice 
of Eligibility which was provided may serve as documentation) and their 
statement must specifically identify which assistance or payments they 
have chosen not to accept. The statement must be signed and dated and 
may not be coerced by the Agency.

           Subpart D--Payment for Moving and Related Expenses

    Section 24.301. Payment for Actual Reasonable Moving and Related 
Expenses.
    Section 24.301(e) Personal property only. Examples of personal 
property only moves might be: personal property that is located on a 
portion of property that is being acquired, but the business or 
residence will not be taken and can still operate after the acquisition; 
personal property that is located in a mini-storage facility that will 
be acquired or relocated; personal property that is stored on vacant 
land that is to be acquired.
    For a nonresidential personal property only move, the owner of the 
personal property has the options of moving the personal property by 
using a commercial mover or a self-move.
    If a question arises concerning the reasonableness of an actual cost 
move, the acquiring Agency may obtain estimates from qualified movers to 
use as the standard in determining the payment.
    Section 24.301 (g)(14)(i) and (ii). If the piece of equipment is 
operational at the acquired site, the estimated cost to reconnect the 
equipment shall be based on the cost to install the equipment as it 
currently exists, and shall not include the cost of code-required 
betterments or upgrades that may apply at the replacement site. As 
prescribed in the regulation, the allowable in-place value estimate 
(Sec. 24.301(g)(14)(i)) and moving cost estimate (Sec. 
24.301(g)(14)(ii)) must reflect only the ``as is'' condition and 
installation of the item at the displacement site. The in-place value 
estimate may not include costs that reflect code or other requirements 
that were not in effect at the displacement site; or include 
installation costs for machinery or equipment that is not operable or 
not installed at the displacement site.
    Section 24.301(g)(17) Searching expenses. In special cases where the 
displacing Agency determines it to be reasonable and necessary, certain 
additional categories of searching costs may be considered for 
reimbursement. These include those costs involved in investigating 
potential replacement sites and the time of the business owner, based on 
salary or earnings, required to apply for licenses or permits, zoning 
changes, and attendance at zoning hearings. Necessary attorney fees 
required to obtain such licenses or permits are also reimbursable. Time 
spent in negotiating the purchase of a replacement business site is also 
reimbursable based on a reasonable salary or earnings rate. In those 
instances when such additional costs to investigate and acquire the site 
exceed $2,500, the displacing Agency may consider waiver of the cost 
limitation under the Sec. 24.7, waiver provision. Such a waiver should 
be subject to the approval of the Federal-funding Agency in accordance 
with existing delegation authority.
    Section 24.303(b) Professional Services. If a question should arise 
as to what is a ``reasonable hourly rate,'' the Agency should compare 
the rates of other similar professional providers in that area.
    Section 24.305 Fixed Payment for Moving Expenses--Nonresidential 
Moves.
    Section 24.305(d) Nonprofit organization. Gross revenues may include 
membership fees, class fees, cash donations, tithes, receipts from sales 
or other forms of fund collection that enables the nonprofit 
organization to operate. Administrative expenses are those for 
administrative support such as rent, utilities, salaries, advertising, 
and

[[Page 263]]

other like items as well as fundraising expenses. Operating expenses for 
carrying out the purposes of the nonprofit organization are not included 
in administrative expenses. The monetary receipts and expense amounts 
may be verified with certified financial statements or financial 
documents required by public Agencies.
    Section 24.305(e) Average annual net earnings of a business or farm 
operation. If the average annual net earnings of the displaced business, 
farm, or nonprofit organization are determined to be less than $1,000, 
even $0 or a negative amount, the minimum payment of $1,000 shall be 
provided.
    Section 24.306 Discretionary Utility Relocation Payments. Section 
24.306(c) describes the issues that the Agency and the utility facility 
owner must agree to in determining the amount of the relocation payment. 
To facilitate and aid in reaching such agreement, the practices in the 
Federal Highway Administration regulation, 23 CFR part 645, subpart A, 
Utility Relocations, Adjustments and Reimbursement, should be followed.

                 Subpart E--Replacement Housing Payments

    Section 24.401 Replacement Housing Payment for 180-day Homeowner-
Occupants.
    Section 24.401(a)(2). An extension of eligibility may be granted if 
some event beyond the control of the displaced person such as acute or 
life threatening illness, bad weather preventing the completion of 
construction, or physical modifications required for reasonable 
accommodation of a replacement dwelling, or other like circumstances 
causes a delay in occupying a decent, safe, and sanitary replacement 
dwelling.
    Section 24.401(c)(2)(iii) Price differential. The provision in Sec. 
24.401(c)(2)(iii) to use the current fair market value for residential 
use does not mean the Agency must have the property appraised. Any 
reasonable method for arriving at the fair market value may be used.
    Section 24.401(d) Increased mortgage interest costs. The provision 
in Sec. 24.401(d) sets forth the factors to be used in computing the 
payment that will be required to reduce a person's replacement mortgage 
(added to the downpayment) to an amount which can be amortized at the 
same monthly payment for principal and interest over the same period of 
time as the remaining term on the displacement mortgages. This payment 
is commonly known as the ``buydown.''
    The Agency must know the remaining principal balance, the interest 
rate, and monthly principal and interest payments for the old mortgage 
as well as the interest rate, points and term for the new mortgage to 
compute the increased mortgage interest costs. If the combination of 
interest and points for the new mortgage exceeds the current prevailing 
fixed interest rate and points for conventional mortgages and there is 
no justification for the excessive rate, then the current prevailing 
fixed interest rate and points shall be used in the computations. 
Justification may be the unavailability of the current prevailing rate 
due to the amount of the new mortgage, credit difficulties, or other 
similar reasons.

                           Sample Computation
Old Mortgage:
    Remaining Principal Balance..........................     $50,000
    Monthly Payment (principal and interest).............        $458.22
    Interest rate (percent)..............................           7
New Mortgage:
    Interest rate (percent)..............................          10
    Points...............................................           3
    Term (years).........................................          15
------------------------------------------------------------------------

    Remaining term of the old mortgage is determined to be 174 months. 
Determining, or computing, the actual remaining term is more reliable 
than using the data supplied by the mortgagee. However, if it is 
shorter, use the term of the new mortgage and compute the needed monthly 
payment.
    Amount to be financed to maintain monthly payments of $458.22 at 10% 
= $42,010.18.

Calculation:
    Remaining Principal Balance.........................      $50,000.00
    Minus Monthly Payment (principal and interest)......      -42,010.18
                                                         ---------------
    Increased mortgage interest costs...................        7,989.82
    3 points on $42,010.18..............................        1,260.31
                                                         ---------------
    Total buydown necessary to maintain payments at             9,250.13
     $458.22/month......................................
------------------------------------------------------------------------

    If the new mortgage actually obtained is less than the computed 
amount for a new mortgage ($42,010.18), the buydown shall be prorated 
accordingly. If the actual mortgage obtained in our example were 
$35,000, the buydown payment would be $7,706.57 ($35,000 divided by 
$42,010.18 = .8331; $9,250.13 multiplied by .83 = $7,706.57).
    The Agency is obligated to inform the displaced person of the 
approximate amount of this payment and that the displaced person must 
obtain a mortgage of at least the same amount as the old mortgage and 
for at least the same term in order to receive the full amount of this 
payment. The Agency must advise the displaced person of the interest 
rate and points used to calculate the payment.
    Section 24.402 Replacement Housing Payment for 90-day Occupants
    Section 24.402(b)(2) Low income calculation example. The Uniform Act 
requires that an eligible displaced person who rents a replacement 
dwelling is entitled to a rental assistance payment calculated in 
accordance with Sec. 24.402(b). One factor in this calculation is to 
determine if a displaced person is ``low income,'' as defined by the 
U.S. Department of

[[Page 264]]

Housing and Urban Development's annual survey of income limits for the 
Public Housing and Section 8 Programs. To make such a determination, the 
Agency must: (1) Determine the total number of members in the household 
(including all adults and children); (2) locate the appropriate table 
for income limits applicable to the Uniform Act for the state in which 
the displaced residence is located (found at: http://www.fhwa.dot.gov/
realestate/ua/ualic.htm); (3) from the list of local jurisdictions 
shown, identify the appropriate county, Metropolitan Statistical Area 
(MSA)*, or Primary Metropolitan Statistical Area (PMSA)* in which the 
displacement property is located; and (4) locate the appropriate income 
limit in that jurisdiction for the size of this displaced person/family. 
The income limit must then be compared to the household income (Sec. 
24.2(a)(15)) which is the gross annual income received by the displaced 
family, excluding income from any dependent children and full-time 
students under the age of 18. If the household income for the eligible 
displaced person/family is less than or equal to the income limit, the 
family is considered ``low income.'' For example:
    Tom and Mary Smith and their three children are being displaced. The 
information obtained from the family and verified by the Agency is as 
follows:
    Tom Smith, employed, earns $21,000/yr.
    Mary Smith, receives disability payments of $6,000/yr.
    Tom Smith Jr., 21, employed, earns $10,000/yr.
    Mary Jane Smith, 17, student, has a paper route, earns $3,000/yr. 
(Income is not included because she is a dependent child and a full-time 
student under 18)
    Sammie Smith, 10, full-time student, no income.
    Total family income for 5 persons is: $21,000 + $6,000 + $10,000 = 
$37,000
    The displacement residence is located in the State of Maryland, 
Caroline County. The low income limit for a 5 person household is: 
$47,450. (2004 Income Limits)
    This household is considered ``low income.''
    * A complete list of counties and towns included in the identified 
MSAs and PMSAs can be found under the bulleted item ``Income Limit Area 
Definition'' posted on the FHWA's Web site at: http://www.fhwa.dot.gov/
realestate/ua/ualic.htm.
    Section 24.402(c) Downpayment assistance. The downpayment assistance 
provisions in Sec. 24.402(c) limit such assistance to the amount of the 
computed rental assistance payment for a tenant or an eligible 
homeowner. It does, however, provide the latitude for Agency discretion 
in offering downpayment assistance that exceeds the computed rental 
assistance payment, up to the $5,250 statutory maximum. This does not 
mean, however, that such Agency discretion may be exercised in a 
selective or discriminatory fashion. The displacing Agency should 
develop a policy that affords equal treatment for displaced persons in 
like circumstances and this policy should be applied uniformly 
throughout the Agency's programs or projects.
    For the purpose of this section, should the amount of the rental 
assistance payment exceed the purchase price of the replacement 
dwelling, the payment would be limited to the cost of the dwelling.
    Section 24.404 Replacement Housing of Last Resort.
    Section 24.404(b) Basic rights of persons to be displaced. This 
paragraph affirms the right of a 180-day homeowner-occupant, who is 
eligible for a replacement housing payment under Sec. 24.401, to a 
reasonable opportunity to purchase a comparable replacement dwelling. 
However, it should be read in conjunction with the definition of ``owner 
of a dwelling'' at Sec. 24.2(a)(20). The Agency is not required to 
provide persons owning only a fractional interest in the displacement 
dwelling a greater level of assistance to purchase a replacement 
dwelling than the Agency would be required to provide such persons if 
they owned fee simple title to the displacement dwelling. If such 
assistance is not sufficient to buy a replacement dwelling, the Agency 
may provide additional purchase assistance or rental assistance.
    Section 24.404(c) Methods of providing comparable replacement 
housing. This Section emphasizes the use of cost effective means of 
providing comparable replacement housing. The term ``reasonable cost'' 
is used to highlight the fact that while innovative means to provide 
housing are encouraged, they should be cost-effective. Section 
24.404(c)(2) permits the use of last resort housing, in special cases, 
which may involve variations from the usual methods of obtaining 
comparability. However, such variation should never result in a lowering 
of housing standards nor should it ever result in a lower quality of 
living style for the displaced person. The physical characteristics of 
the comparable replacement dwelling may be dissimilar to those of the 
displacement dwelling but they may never be inferior.
    One example might be the use of a new mobile home to replace a very 
substandard conventional dwelling in an area where comparable 
conventional dwellings are not available.
    Another example could be the use of a superior, but smaller, decent, 
safe and sanitary dwelling to replace a large, old substandard dwelling, 
only a portion of which is being used as living quarters by the 
occupants and

[[Page 265]]

no other large comparable dwellings are available in the area.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



           Sec. Appendix B to Part 24--Statistical Report Form

    This Appendix sets forth the statistical information collected from 
Agencies in accordance with Sec. 24.9(c).
    General
    1. Report coverage. This report covers all relocation and real 
property acquisition activities under a Federal or a federally-assisted 
project or program subject to the provisions of the Uniform Act. If the 
exact numbers are not easily available, an Agency may provide what it 
believes to be a reasonable estimate.
    2. Report period. Activities shall be reported on a Federal fiscal 
year basis, i.e., October 1 through September 30.
    3. Where and when to submit report. Submit a copy of this report to 
the lead Agency as soon as possible after September 30, but NOT LATER 
THAN NOVEMBER 15. Lead Agency address: Federal Highway Administration, 
Office of Real Estate Services (HEPR), 1200 New Jersey Avenue, SE., 
Washington, DC 20590.
    4. How to report relocation payments. The full amount of a 
relocation payment shall be reported as if disbursed in the year during 
which the claim was approved, regardless of whether the payment is to be 
paid in installments.
    5. How to report dollar amounts. Round off all money entries in 
Parts of this section A, B and C to the nearest dollar.
    6. Regulatory references. The references in Parts A, B, C and D of 
this section indicate the subpart of the regulations pertaining to the 
requested information.

         Part A. Real property acquisition under The Uniform Act

    Line 1. Report all parcels acquired during the report year where 
title or possession was vested in the Agency during the reporting 
period. The parcel count reported should relate to ownerships and not to 
the number of parcels of different property interests (such as fee, 
perpetual easement, temporary easement, etc.) that may have been part of 
an acquisition from one owner. For example, an acquisition from a 
property that includes a fee simple parcel, a perpetual easement parcel, 
and a temporary easement parcel should be reported as 1 parcel not 3 
parcels. (Include parcels acquired without Federal financial assistance, 
if there was or will be Federal financial assistance in other phases of 
the project or program.)
    Line 2. Report the number of parcels reported on Line 1 that were 
acquired by condemnation. Include those parcels where compensation for 
the property was paid, deposited in court, or otherwise made available 
to a property owner pursuant to applicable law in order to vest title or 
possession in the Agency through condemnation authority.
    Line 3. Report the number of parcels in Line 1 acquired through 
administrative settlement where the purchase price for the property 
exceeded the amount offered as just compensation and efforts to 
negotiate an agreement at that amount have failed.
    Line 4. Report the total of the amounts paid, deposited in court, or 
otherwise made available to a property owner pursuant to applicable law 
in order to vest title or possession in the Agency in Line 1.

          Part B. Residential Relocation Under the Uniform Act

    Line 5. Report the number of households who were permanently 
displaced during the fiscal year by project or program activities and 
moved to their replacement dwelling. The term ``households'' includes 
all families and individuals. A family shall be reported as ``one'' 
household, not by the number of people in the family unit.
    Line 6. Report the total amount paid for residential moving expenses 
(actual expense and fixed payment).
    Line 7. Report the total amount paid for residential replacement 
housing payments including payments for replacement housing of last 
resort provided pursuant to Sec. 24.404 of this part.
    Line 8. Report the number of households in Line 5 who were 
permanently displaced during the fiscal year by project or program 
activities and moved to their replacement dwelling as part of last 
resort housing assistance.
    Line 9. Report the number of tenant households in Line 5 who were 
permanently displaced during the fiscal year by project or program 
activities, and who purchased and moved to their replacement dwelling 
using a downpayment assistance payment under this part.
    Line 10. Report the total sum costs of residential relocation 
expenses and payments (excluding Agency administrative expenses) in 
Lines 6 and 7.

         Part C. Nonresidential Relocation Under the Uniform Act

    Line 11. Report the number of businesses, nonprofit organizations, 
and farms who were permanently displaced during the fiscal year by 
project or program activities and moved to their replacement location. 
This includes businesses, nonprofit organizations, and farms, that upon 
displacement, discontinued operations.
    Line 12. Report the total amount paid for nonresidential moving 
expenses (actual expense and fixed payment.)

[[Page 266]]

    Line 13. Report the total amount paid for nonresidential 
reestablishment expenses.
    Line 14. Report the total sum costs of nonresidential relocation 
expenses and payments (excluding Agency administrative expenses) in 
Lines 12 and 13.

                       Part D. Relocation Appeals

    Line 15. Report the total number of relocation appeals filed during 
the fiscal year by aggrieved persons (residential and nonresidential).

[[Page 267]]

[GRAPHIC] [TIFF OMITTED] TR04JA05.004


[[Page 268]]



[70 FR 611, Jan. 4, 2005, as amended at 73 FR 33329, June 12, 2008]



PART 25_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A_Introduction

Sec.
25.100 Purpose and effective date.
25.105 Definitions.
25.110 Remedial and affirmative action and self-evaluation.
25.115 Assurance required.
25.120 Transfers of property.
25.125 Effect of other requirements.
25.130 Effect of employment opportunities.
25.135 Designation of responsible employee and adoption of grievance 
          procedures.
25.140 Dissemination of policy.

                           Subpart B_Coverage

25.200 Application.
25.205 Educational institutions and other entities controlled by 
          religious organizations.
25.210 Military and merchant marine educational institutions.
25.215 Membership practices of certain organizations.
25.220 Admissions.
25.225 Educational institutions eligible to submit transition plans.
25.230 Transition plans.
25.235 Statutory amendments.

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

25.300 Admission.
25.305 Preference in admission.
25.310 Recruitment.

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

25.400 Education programs or activities.
25.405 Housing.
25.410 Comparable facilities.
25.415 Access to course offerings.
25.420 Access to schools operated by LEAs.
25.425 Counseling and use of appraisal and counseling materials.
25.430 Financial assistance.
25.435 Employment assistance to students.
25.440 Health and insurance benefits and services.
25.445 Marital or parental status.
25.450 Athletics.
25.455 Textbooks and curricular material.

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

25.500 Employment.
25.505 Employment criteria.
25.510 Recruitment.
25.515 Compensation.
25.520 Job classification and structure.
25.525 Fringe benefits.
25.530 Marital or parental status.
25.535 Effect of state or local law or other requirements.
25.540 Advertising.
25.545 Pre-employment inquiries.
25.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

25.600 Notice of covered programs.
25.605 Enforcement procedures.

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

    Source: 65 FR 52865, 52894, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec. 25.100  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. 25.105  Definitions.

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

[[Page 269]]

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 Director, Departmental Office of 
Civil Rights.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a

[[Page 270]]

technical field, whether or not the school or institution offers 
certificates, diplomas, or degrees and whether or not it offers full-
time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec. 
25.100 through 25.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.



Sec. 25.110  Remedial and affirmative action and self-evaluation.

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



Sec. 25.115  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

[[Page 271]]

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. 25.110(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. 25.120  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. 25.205 through 25.235(a).



Sec. 25.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.

[[Page 272]]



Sec. 25.130  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. 25.135  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. 25.140  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. 25.300 through 25.310 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. 25.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.

[[Page 273]]



                           Subpart B_Coverage



Sec. 25.200  Application.

    Except as provided in Sec. Sec. 25.205 through 25.235(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. 25.205  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. 25.210  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. 25.215  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. 25.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec. 25.225 and 25.230, and Sec. Sec. 25.300 through 
25.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec. 25.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec. 25.300 
through 25.310 apply to each recipient. A recipient to which Sec. Sec. 
25.300 through 25.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec. 25.300 through 
25.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec. 25.300 through 25.310 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. 25.300 through 25.310 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. 25.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec. 25.300 through 25.310 apply that:

[[Page 274]]

    (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. 25.300 through 
25.310.



Sec. 25.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 25.225 
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. 25.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec. 25.300 through 
25.310 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. 25.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 25.235  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;

[[Page 275]]

    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



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



Sec. 25.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be

[[Page 276]]

subjected to discrimination in admission, by any recipient to which 
Sec. Sec. 25.300 through Sec. Sec. 25.310 apply, except as provided in 
Sec. Sec. 25.225 and Sec. Sec. 25.230.
    (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. 25.300 through 25.310 
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. 25.300 through 25.310 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. 25.235(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. 25.305  Preference in admission.

    A recipient to which Sec. Sec. 25.300 through 25.310 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. 25.300 through 25.310.



Sec. 25.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec. 
25.300 through 25.310 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. 25.110(a), and may choose to undertake 
such efforts as affirmative action pursuant to Sec. 25.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec. 25.300 through 25.310 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. 25.300 through 25.310.



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



Sec. 25.400  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

[[Page 277]]

receives Federal financial assistance. Sections 25.400 through 25.455 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. 25.300 through 25.310 do not apply, or an entity, not a 
recipient, to which Sec. Sec. 25.300 through 25.310 would not apply if 
the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec. 25.400 
through 25.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 25.405  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.

[[Page 278]]

    (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. 25.410  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. 25.415  Access to course offerings.

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



Sec. 25.420  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. 25.425  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

[[Page 279]]

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. 25.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 25.450.

[[Page 280]]



Sec. 25.435  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. 
25.500 through 25.550.



Sec. 25.440  Health and insurance benefits and services.

    Subject to Sec. 25.235(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. 25.500 through 25.550 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. 25.445  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. 25.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 25.450  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

[[Page 281]]

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. 25.455  Textbooks and curricular material.

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



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



Sec. 25.500  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. 25.500 
through 25.550, including relationships with employment and referral 
agencies, with labor unions, and

[[Page 282]]

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. 25.500 through 25.550 
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. 25.505  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. 25.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec. 25.500 through 25.550.



Sec. 25.515  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. 25.520  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

[[Page 283]]

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. 
25.550.



Sec. 25.525  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. 25.515.
    (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. 25.530  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. 25.235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 25.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec. 25.500 through 25.550 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. 25.540  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.

[[Page 284]]



Sec. 25.545  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. 25.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec. 
25.500 through 25.550 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. 25.600  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. 25.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 49 CFR part 21.

[65 FR 52895, Aug. 30, 2000]



PART 26_PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN 
DEPARTMENT OF TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS--

Table of Contents




                            Subpart A_General

Sec.
26.1 What are the objectives of this part?
26.3 To whom does this part apply?
26.5 What do the terms used in this part mean?
26.7 What discriminatory actions are forbidden?
26.9 How does the Department issue guidance and interpretations under 
          this part?
26.11 What records do recipients keep and report?
26.13 What assurances must recipients and contractors make?
26.15 How can recipients apply for exemptions or waivers?

  Subpart B_Administrative Requirements for DBE Programs for Federally-
                          Assisted Contracting

26.21 Who must have a DBE program?
26.23 What is the requirement for a policy statement?
26.25 What is the requirement for a liaison officer?
26.27 What efforts must recipients make concerning DBE financial 
          institutions?
26.29 What prompt payment mechanisms must recipients have?
26.31 What requirements pertain to the DBE directory?
26.33 What steps must a recipient take to address overconcentration of 
          DBEs in certain types of work?
26.35 What role do business development and mentor-prot[eacute]g[eacute] 
          programs have in the DBE program?
26.37 What are a recipient's responsibilities for monitoring the 
          performance of other program participants?

            Subpart C_Goals, Good Faith Efforts, and Counting

26.41 What is the role of the statutory 10 percent goal in this program?
26.43 Can recipients use set-asides or quotas as part of this program?
26.45 How do recipients set overall goals?

[[Page 285]]

26.47 Can recipients be penalized for failing to meet overall goals?
26.49 How are overall goals established for transit vehicle 
          manufacturers?
26.51 What means do recipients use to meet overall goals?
26.53 What are the good faith efforts procedures recipients follow in 
          situations where there are contract goals?
26.55 How is DBE participation counted toward goals?

                    Subpart D_Certification Standards

26.61 How are burdens of proof allocated in the certification process?
26.63 What rules govern group membership determinations?
26.65 What rules govern business size determinations?
26.67 What rules determine social and economic disadvantage?
26.69 What rules govern determinations of ownership?
26.71 What rules govern determinations concerning control?
26.73 What are other rules affecting certification?

                   Subpart E_Certification Procedures

26.81 What are the requirements for Unified Certification Programs?
26.83 What procedures do recipients follow in making certification 
          decisions?
26.84 How do recipients process applications submitted pursuant to the 
          DOT/SBA MOU?
26.85 How do recipients respond to requests from DBE-certified firms or 
          the SBA made pursuant to the DOT/SBA MOU?
26.86 What rules govern recipients' denials of initial requests for 
          certification?
26.87 What procedures does a recipient use to remove a DBE's 
          eligibility?
26.89 What is the process for certification appeals to the Department of 
          Transportation?
26.91 What actions do recipients take following DOT certification appeal 
          decisions?

                  Subpart F_Compliance and Enforcement

26.101 What compliance procedures apply to recipients?
26.103 What enforcement actions apply in FHWA and FTA programs?
26.105 What enforcement actions apply in FAA programs?
26.107 What enforcement actions apply to firms participating in the DBE 
          program?
26.109 What are the rules governing information, confidentiality, 
          cooperation, and intimidation or retaliation?

Appendix A to Part 26--Guidance Concerning Good Faith Efforts
Appendix B to Part 26--Uniform Report of DBE Awards or Commitments and 
          Payments Form
Appendix C to Part 26--DBE Business Development Program Guidelines
Appendix D to Part 26--Mentor-Prot[eacute]g[eacute] Program Guidelines
Appendix E to Part 26--Individual Determinations of Social and Economic 
          Disadvantage
Appendix F to Part 26--Uniform Certification Application Form

    Authority: 23 U.S.C. 324; 42 U.S.C. 2000d, et seq.; 49 U.S.C 1615, 
47107, 47113, 47123; Sec. 1101(b), Pub. L. 105-178, 112 Stat. 107, 113.

    Source: 64 FR 5126, Feb. 2, 1999, unless otherwise noted.



                            Subpart A_General



Sec. 26.1  What are the objectives of this part?

    This part seeks to achieve several objectives:
    (a) To ensure nondiscrimination in the award and administration of 
DOT-assisted contracts in the Department's highway, transit, and airport 
financial assistance programs;
    (b) To create a level playing field on which DBEs can compete fairly 
for DOT-assisted contracts;
    (c) To ensure that the Department's DBE program is narrowly tailored 
in accordance with applicable law;
    (d) To ensure that only firms that fully meet this part's 
eligibility standards are permitted to participate as DBEs;
    (e) To help remove barriers to the participation of DBEs in DOT-
assisted contracts;
    (f) To assist the development of firms that can compete successfully 
in the marketplace outside the DBE program; and
    (g) To provide appropriate flexibility to recipients of Federal 
financial assistance in establishing and providing opportunities for 
DBEs.



Sec. 26.3  To whom does this part apply?

    (a) If you are a recipient of any of the following types of funds, 
this part applies to you:
    (1) Federal-aid highway funds authorized under Titles I (other than 
Part B) and V of the Intermodal Surface Transportation Efficiency Act of 
1991 (ISTEA), Pub. L. 102-240, 105 Stat. 1914,

[[Page 286]]

or Titles I, III, and V of the Transportation Equity Act for the 21st 
Century (TEA-21), Pub. L. 105-178, 112 Stat. 107.
    (2) Federal transit funds authorized by Titles I, III, V and VI of 
ISTEA, Pub. L. 102-240 or by Federal transit laws in Title 49, U.S. 
Code, or Titles I, III, and V of the TEA-21, Pub. L. 105-178.
    (3) Airport funds authorized by 49 U.S.C. 47101, et seq.
    (b) [Reserved]
    (c) If you are letting a contract, and that contract is to be 
performed entirely outside the United States, its territories and 
possessions, Puerto Rico, Guam, or the Northern Marianas Islands, this 
part does not apply to the contract.
    (d) If you are letting a contract in which DOT financial assistance 
does not participate, this part does not apply to the contract.



Sec. 26.5  What do the terms used in this part mean?

    Affiliation has the same meaning the term has in the Small Business 
Administration (SBA) regulations, 13 CFR part 121.
    (1) Except as otherwise provided in 13 CFR part 121, concerns are 
affiliates of each other when, either directly or indirectly:
    (i) One concern controls or has the power to control the other; or
    (ii) A third party or parties controls or has the power to control 
both; or
    (iii) An identity of interest between or among parties exists such 
that affiliation may be found.
    (2) In determining whether affiliation exists, it is necessary to 
consider all appropriate factors, including common ownership, common 
management, and contractual relationships. Affiliates must be considered 
together in determining whether a concern meets small business size 
criteria and the statutory cap on the participation of firms in the DBE 
program.
    Alaska Native means a citizen of the United States who is a person 
of one-fourth degree or more Alaskan Indian (including Tsimshian Indians 
not enrolled in the Metlaktla Indian Community), Eskimo, or Aleut blood, 
or a combination of those bloodlines. The term includes, in the absence 
of proof of a minimum blood quantum, any citizen whom a Native village 
or Native group regards as an Alaska Native if their father or mother is 
regarded as an Alaska Native.
    Alaska Native Corporation (ANC) means any Regional Corporation, 
Village Corporation, Urban Corporation, or Group Corporation organized 
under the laws of the State of Alaska in accordance with the Alaska 
Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.).
    Compliance means that a recipient has correctly implemented the 
requirements of this part.
    Contract means a legally binding relationship obligating a seller to 
furnish supplies or services (including, but not limited to, 
construction and professional services) and the buyer to pay for them. 
For purposes of this part, a lease is considered to be a contract.
    Contractor means one who participates, through a contract or 
subcontract (at any tier), in a DOT-assisted highway, transit, or 
airport program.
    Department or DOT means the U.S. Department of Transportation, 
including the Office of the Secretary, the Federal Highway 
Administration (FHWA), the Federal Transit Administration (FTA), and the 
Federal Aviation Administration (FAA).
    Disadvantaged business enterprise or DBE means a for-profit small 
business concern--
    (1) That is at least 51 percent owned by one or more individuals who 
are both socially and economically disadvantaged or, in the case of a 
corporation, in which 51 percent of the stock is owned by one or more 
such individuals; and
    (2) Whose management and daily business operations are controlled by 
one or more of the socially and economically disadvantaged individuals 
who own it.
    DOT-assisted contract means any contract between a recipient and a 
contractor (at any tier) funded in whole or in part with DOT financial 
assistance, including letters of credit or loan guarantees, except a 
contract solely for the purchase of land.

[[Page 287]]

    DOT/SBA Memorandum of Understanding or MOU, refers to the agreement 
signed on November 23, 1999, between the Department of Transportation 
(DOT) and the Small Business Administration (SBA) streamlining 
certification procedures for participation in SBA's 8(a) Business 
Development (8(a) BD) and Small Disadvantaged Business (SDB) programs, 
and DOT's Disadvantaged Business Enterprise (DBE) program for small and 
disadvantaged businesses.
    Good faith efforts means efforts to achieve a DBE goal or other 
requirement of this part which, by their scope, intensity, and 
appropriateness to the objective, can reasonably be expected to fulfill 
the program requirement.
    Immediate family member means father, mother, husband, wife, son, 
daughter, brother, sister, grandmother, grandfather, grandson, 
granddaughter, mother-in-law, or father-in-law.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians, including any ANC, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians, or is 
recognized as such by the State in which the tribe, band, nation, group, 
or community resides. See definition of ``tribally-owned concern'' in 
this section.
    Joint venture means an association of a DBE firm and one or more 
other firms to carry out a single, for-profit business enterprise, for 
which the parties combine their property, capital, efforts, skills and 
knowledge, and in which the DBE is responsible for a distinct, clearly 
defined portion of the work of the contract and whose share in the 
capital contribution, control, management, risks, and profits of the 
joint venture are commensurate with its ownership interest.
    Native Hawaiian means any individual whose ancestors were natives, 
prior to 1778, of the area which now comprises the State of Hawaii.
    Native Hawaiian Organization means any community service 
organization serving Native Hawaiians in the State of Hawaii which is a 
not-for-profit organization chartered by the State of Hawaii, is 
controlled by Native Hawaiians, and whose business activities will 
principally benefit such Native Hawaiians.
    Noncompliance means that a recipient has not correctly implemented 
the requirements of this part.
    Operating Administration or OA means any of the following parts of 
DOT: the Federal Aviation Administration (FAA), Federal Highway 
Administration (FHWA), and Federal Transit Administration (FTA). The 
``Administrator'' of an operating administration includes his or her 
designees.
    Personal net worth means the net value of the assets of an 
individual remaining after total liabilities are deducted. An 
individual's personal net worth does not include: The individual's 
ownership interest in an applicant or participating DBE firm; or the 
individual's equity in his or her primary place of residence. An 
individual's personal net worth includes only his or her own share of 
assets held jointly or as community property with the individual's 
spouse.
    Primary industry classification means the North American Industrial 
Classification System (NAICS) designation which best describes the 
primary business of a firm. The NAICS is described in the North American 
Industry Classification Manual--United States, 1997 which is available 
from the National Technical Information Service, 5285 Port Royal Road, 
Springfield, VA, 22161; by calling 1 (800) 553-6847; or via the Internet 
at: http://www.ntis.gov/product/naics.htm.
    Primary recipient means a recipient which receives DOT financial 
assistance and passes some or all of it on to another recipient.
    Principal place of business means the business location where the 
individuals who manage the firm's day-to-day operations spend most 
working hours and where top management's business records are kept. If 
the offices from which management is directed and where business records 
are kept are in different locations, the recipient will determine the 
principal place of business for DBE program purposes.
    Program means any undertaking on a recipient's part to use DOT 
financial assistance, authorized by the laws to which this part applies.

[[Page 288]]

    Race-conscious measure or program is one that is focused 
specifically on assisting only DBEs, including women-owned DBEs.
    Race-neutral measure or program is one that is, or can be, used to 
assist all small businesses. For the purposes of this part, race-neutral 
includes gender-neutrality.
    Recipient is any entity, public or private, to which DOT financial 
assistance is extended, whether directly or through another recipient, 
through the programs of the FAA, FHWA, or FTA, or who has applied for 
such assistance.
    Secretary means the Secretary of Transportation or his/her designee.
    Set-aside means a contracting practice restricting eligibility for 
the competitive award of a contract solely to DBE firms.
    Small Business Administration or SBA means the United States Small 
Business Administration.
    SBA certified firm refers to firms that have a current, valid 
certification from or recognized by the SBA under the 8(a) BD or SDB 
programs.
    Small business concern means, with respect to firms seeking to 
participate as DBEs in DOT-assisted contracts, a small business concern 
as defined pursuant to section 3 of the Small Business Act and Small 
Business Administration regulations implementing it (13 CFR part 121) 
that also does not exceed the cap on average annual gross receipts 
specified in Sec. 26.65(b).
    Socially and economically disadvantaged individual means any 
individual who is a citizen (or lawfully admitted permanent resident) of 
the United States and who is--
    (1) Any individual who a recipient finds to be a socially and 
economically disadvantaged individual on a case-by-case basis.
    (2) Any individual in the following groups, members of which are 
rebuttably presumed to be socially and economically disadvantaged:
    (i) ``Black Americans,'' which includes persons having origins in 
any of the Black racial groups of Africa;
    (ii) ``Hispanic Americans,'' which includes persons of Mexican, 
Puerto Rican, Cuban, Dominican, Central or South American, or other 
Spanish or Portuguese culture or origin, regardless of race;
    (iii) ``Native Americans,'' which includes persons who are American 
Indians, Eskimos, Aleuts, or Native Hawaiians;
    (iv) ``Asian-Pacific Americans,'' which includes persons whose 
origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, 
Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the 
Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the 
Pacific Islands (Republic of Palau), the Commonwealth of the Northern 
Marianas Islands, Macao, Fiji, Tonga, Kirbati, Juvalu, Nauru, Federated 
States of Micronesia, or Hong Kong;
    (v) ``Subcontinent Asian Americans,'' which includes persons whose 
origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives 
Islands, Nepal or Sri Lanka;
    (vi) Women;
    (vii) Any additional groups whose members are designated as socially 
and economically disadvantaged by the SBA, at such time as the SBA 
designation becomes effective.
    Tribally-owned concern means any concern at least 51 percent owned 
by an Indian tribe as defined in this section.
    You refers to a recipient, unless a statement in the text of this 
part or the context requires otherwise (i.e., `You must do XYZ' means 
that recipients must do XYZ).

[64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 68 
FR 35553, June 16, 2003]



Sec. 26.7  What discriminatory actions are forbidden?

    (a) You must never exclude any person from participation in, deny 
any person the benefits of, or otherwise discriminate against anyone in 
connection with the award and performance of any contract covered by 
this part on the basis of race, color, sex, or national origin.
    (b) In administering your DBE program, you must not, directly or 
through contractual or other arrangements, use criteria or methods of 
administration that have the effect of defeating or substantially 
impairing accomplishment of the objectives of the program with respect 
to individuals of

[[Page 289]]

a particular race, color, sex, or national origin.



Sec. 26.9  How does the Department issue guidance and interpretations under this part?

    (a) Only guidance and interpretations (including interpretations set 
forth in certification appeal decisions) consistent with this part 26 
and issued after March 4, 1999 express the official positions and views 
of the Department of Transportation or any of its operating 
administrations.
    (b) The Secretary of Transportation, Office of the Secretary of 
Transportation, FHWA, FTA, and FAA may issue written interpretations of 
or written guidance concerning this part. Written interpretations and 
guidance are valid, and express the official positions and views of the 
Department of Transportation or any of its operating administrations, 
only if they are issued over the signature of the Secretary of 
Transportation or if they contain the following statement:

    The General Counsel of the Department of Transportation has reviewed 
this document and approved it as consistent with the language and intent 
of 49 CFR part 26.

[72 FR 15617, Apr. 2, 2007]



Sec. 26.11  What records do recipients keep and report?

    (a) [Reserved]
    (b) You must continue to provide data about your DBE program to the 
Department as directed by DOT operating administrations.
    (c) You must create and maintain a bidders list.
    (1) The purpose of this list is to provide you as accurate data as 
possible about the universe of DBE and non-DBE contractors and 
subcontractors who seek to work on your Federally-assisted contracts for 
use in helping you set your overall goals.
    (2) You must obtain the following information about DBE and non-DBE 
contractors and subcontractors who seek to work on your Federally-
assisted contracts:
    (i) Firm name;
    (ii) Firm address;
    (iii) Firm's status as a DBE or non-DBE;
    (iv) Age of the firm; and
    (v) The annual gross receipts of the firm. You may obtain this 
information by asking each firm to indicate into what gross receipts 
bracket they fit (e.g., less than $500,000; $500,000-$1 million; $1-2 
million; $2-5 million; etc.) rather than requesting an exact figure from 
the firm.
    (3) You may acquire the information for your bidders list in a 
variety of ways. For example, you can collect the data from all bidders, 
before or after the bid due date. You can conduct a survey that will 
result in statistically sound estimate of the universe of DBE and non-
DBE contractors and subcontractors who seek to work on your Federally-
assisted contracts. You may combine different data collection approaches 
(e.g., collect name and address information from all bidders, while 
conducting a survey with respect to age and gross receipts information).

[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000]



Sec. 26.13  What assurances must recipients and contractors make?

    (a) Each financial assistance agreement you sign with a DOT 
operating administration (or a primary recipient) must include the 
following assurance:

    The recipient shall not discriminate on the basis of race, color, 
national origin, or sex in the award and performance of any DOT-assisted 
contract or in the administration of its DBE program or the requirements 
of 49 CFR part 26. The recipient shall take all necessary and reasonable 
steps under 49 CFR part 26 to ensure nondiscrimination in the award and 
administration of DOT-assisted contracts. The recipient's DBE program, 
as required by 49 CFR part 26 and as approved by DOT, is incorporated by 
reference in this agreement. Implementation of this program is a legal 
obligation and failure to carry out its terms shall be treated as a 
violation of this agreement. Upon notification to the recipient of its 
failure to carry out its approved program, the Department may impose 
sanctions as provided for under part 26 and may, in appropriate cases, 
refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program 
Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).

    (b) Each contract you sign with a contractor (and each subcontract 
the prime contractor signs with a subcontractor) must include the 
following assurance:


[[Page 290]]


    The contractor, sub recipient or subcontractor shall not 
discriminate on the basis of race, color, national origin, or sex in the 
performance of this contract. The contractor shall carry out applicable 
requirements of 49 CFR part 26 in the award and administration of DOT-
assisted contracts. Failure by the contractor to carry out these 
requirements is a material breach of this contract, which may result in 
the termination of this contract or such other remedy as the recipient 
deems appropriate.



Sec. 26.15  How can recipients apply for exemptions or waivers?

    (a) You can apply for an exemption from any provision of this part. 
To apply, you must request the exemption in writing from the Office of 
the Secretary of Transportation, FHWA, FTA, or FAA. The Secretary will 
grant the request only if it documents special or exceptional 
circumstances, not likely to be generally applicable, and not 
contemplated in connection with the rulemaking that established this 
part, that make your compliance with a specific provision of this part 
impractical. You must agree to take any steps that the Department 
specifies to comply with the intent of the provision from which an 
exemption is granted. The Secretary will issue a written response to all 
exemption requests.
    (b) You can apply for a waiver of any provision of Subpart B or C of 
this part including, but not limited to, any provisions regarding 
administrative requirements, overall goals, contract goals or good faith 
efforts. Program waivers are for the purpose of authorizing you to 
operate a DBE program that achieves the objectives of this part by means 
that may differ from one or more of the requirements of Subpart B or C 
of this part. To receive a program waiver, you must follow these 
procedures:
    (1) You must apply through the concerned operating administration. 
The application must include a specific program proposal and address how 
you will meet the criteria of paragraph (b)(2) of this section. Before 
submitting your application, you must have had public participation in 
developing your proposal, including consultation with the DBE community 
and at least one public hearing. Your application must include a summary 
of the public participation process and the information gathered through 
it.
    (2) Your application must show that--
    (i) There is a reasonable basis to conclude that you could achieve a 
level of DBE participation consistent with the objectives of this part 
using different or innovative means other than those that are provided 
in subpart B or C of this part;
    (ii) Conditions in your jurisdiction are appropriate for 
implementing the proposal;
    (iii) Your proposal would prevent discrimination against any 
individual or group in access to contracting opportunities or other 
benefits of the program; and
    (iv) Your proposal is consistent with applicable law and program 
requirements of the concerned operating administration's financial 
assistance program.
    (3) The Secretary has the authority to approve your application. If 
the Secretary grants your application, you may administer your DBE 
program as provided in your proposal, subject to the following 
conditions:
    (i) DBE eligibility is determined as provided in subparts D and E of 
this part, and DBE participation is counted as provided in Sec. 26.49;
    (ii) Your level of DBE participation continues to be consistent with 
the objectives of this part;
    (iii) There is a reasonable limitation on the duration of your 
modified program; and
    (iv) Any other conditions the Secretary makes on the grant of the 
waiver.
    (4) The Secretary may end a program waiver at any time and require 
you to comply with this part's provisions. The Secretary may also extend 
the waiver, if he or she determines that all requirements of paragraphs 
(b)(2) and (3) of this section continue to be met. Any such extension 
shall be for no longer than period originally set for the duration of 
the program.

[[Page 291]]



  Subpart B_Administrative Requirements for DBE Programs for Federally-
                          Assisted Contracting



Sec. 26.21  Who must have a DBE program?

    (a) If you are in one of these categories and let DOT-assisted 
contracts, you must have a DBE program meeting the requirements of this 
part:
    (1) All FHWA recipients receiving funds authorized by a statute to 
which this part applies;
    (2) FTA recipients receiving planning, capital and/or operating 
assistance who will award prime contracts (excluding transit vehicle 
purchases) exceeding $250,000 in FTA funds in a Federal fiscal year;
    (3) FAA recipients receiving grants for airport planning or 
development who will award prime contracts exceeding $250,000 in FAA 
funds in a Federal fiscal year.
    (b)(1) You must submit a DBE program conforming to this part by 
August 31, 1999 to the concerned operating administration (OA). Once the 
OA has approved your program, the approval counts for all of your DOT-
assisted programs (except that goals are reviewed by the particular 
operating administration that provides funding for your DOT-assisted 
contracts).
    (2) You do not have to submit regular updates of your DBE programs, 
as long as you remain in compliance. However, you must submit 
significant changes in the program for approval.
    (c) You are not eligible to receive DOT financial assistance unless 
DOT has approved your DBE program and you are in compliance with it and 
this part. You must continue to carry out your program until all funds 
from DOT financial assistance have been expended.

[64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 
FR 68951, Nov. 15, 2000]



Sec. 26.23  What is the requirement for a policy statement?

    You must issue a signed and dated policy statement that expresses 
your commitment to your DBE program, states its objectives, and outlines 
responsibilities for its implementation. You must circulate the 
statement throughout your organization and to the DBE and non-DBE 
business communities that perform work on your DOT-assisted contracts.



Sec. 26.25  What is the requirement for a liaison officer?

    You must have a DBE liaison officer, who shall have direct, 
independent access to your Chief Executive Officer concerning DBE 
program matters. The liaison officer shall be responsible for 
implementing all aspects of your DBE program. You must also have 
adequate staff to administer the program in compliance with this part.



Sec. 26.27  What efforts must recipients make concerning DBE financial institutions?

    You must thoroughly investigate the full extent of services offered 
by financial institutions owned and controlled by socially and 
economically disadvantaged individuals in your community and make 
reasonable efforts to use these institutions. You must also encourage 
prime contractors to use such institutions.



Sec. 26.29  What prompt payment mechanisms must recipients have?

    (a) You must establish, as part of your DBE program, a contract 
clause to require prime contractors to pay subcontractors for 
satisfactory performance of their contracts no later than 30 days from 
receipt of each payment you make to the prime contractor.
    (b) You must ensure prompt and full payment of retainage from the 
prime contractor to the subcontractor within 30 days after the 
subcontractor's work is satisfactorily completed. You must use one of 
the following methods to comply with this requirement:
    (1) You may decline to hold retainage from prime contractors and 
prohibit prime contractors from holding retainage from subcontractors.
    (2) You may decline to hold retainage from prime contractors and 
require a contract clause obligating prime contractors to make prompt 
and full payment of any retainage kept by prime contractor to the 
subcontractor within

[[Page 292]]

30 days after the subcontractor's work is satisfactorily completed.
    (3) You may hold retainage from prime contractors and provide for 
prompt and regular incremental acceptances of portions of the prime 
contract, pay retainage to prime contractors based on these acceptances, 
and require a contract clause obligating the prime contractor to pay all 
retainage owed to the subcontractor for satisfactory completion of the 
accepted work within 30 days after your payment to the prime contractor.
    (c) For purposes of this section, a subcontractor's work is 
satisfactorily completed when all the tasks called for in the 
subcontract have been accomplished and documented as required by the 
recipient. When a recipient has made an incremental acceptance of a 
portion of a prime contract, the work of a subcontractor covered by that 
acceptance is deemed to be satisfactorily completed.
    (d) Your DBE program must provide appropriate means to enforce the 
requirements of this section. These means may include appropriate 
penalties for failure to comply, the terms and conditions of which you 
set. Your program may also provide that any delay or postponement of 
payment among the parties may take place only for good cause, with your 
prior written approval.
    (e) You may also establish, as part of your DBE program, any of the 
following additional mechanisms to ensure prompt payment:
    (1) A contract clause that requires prime contractors to include in 
their subcontracts language providing that prime contractors and 
subcontractors will use appropriate alternative dispute resolution 
mechanisms to resolve payment disputes. You may specify the nature of 
such mechanisms.
    (2) A contract clause providing that the prime contractor will not 
be reimbursed for work performed by subcontractors unless and until the 
prime contractor ensures that the subcontractors are promptly paid for 
the work they have performed.
    (3) Other mechanisms, consistent with this part and applicable state 
and local law, to ensure that DBEs and other contractors are fully and 
promptly paid.

[68 FR 35553, June 16, 2003]



Sec. 26.31  What requirements pertain to the DBE directory?

    You must maintain and make available to interested persons a 
directory identifying all firms eligible to participate as DBEs in your 
program. In the listing for each firm, you must include its address, 
phone number, and the types of work the firm has been certified to 
perform as a DBE. You must revise your directory at least annually and 
make updated information available to contractors and the public on 
request.



Sec. 26.33  What steps must a recipient take to address overconcentration
of DBEs in certain types of work?

    (a) If you determine that DBE firms are so overconcentrated in a 
certain type of work as to unduly burden the opportunity of non-DBE 
firms to participate in this type of work, you must devise appropriate 
measures to address this overconcentration.
    (b) These measures may include the use of incentives, technical 
assistance, business development programs, mentor-prot[eacute]g[eacute] 
programs, and other appropriate measures designed to assist DBEs in 
performing work outside of the specific field in which you have 
determined that non-DBEs are unduly burdened. You may also consider 
varying your use of contract goals, to the extent consistent with Sec. 
26.51, to unsure that non-DBEs are not unfairly prevented from competing 
for subcontracts.
    (c) You must obtain the approval of the concerned DOT operating 
administration for your determination of overconcentration and the 
measures you devise to address it. Once approved, the measures become 
part of your DBE program.



Sec. 26.35  What role do business development and mentor-prot[eacute]g[eacute]
programs have in the DBE program?

    (a) You may or, if an operating administration directs you to, you 
must establish a DBE business development program (BDP) to assist firms 
in gaining the ability to compete successfully

[[Page 293]]

in the marketplace outside the DBE program. You may require a DBE firm, 
as a condition of receiving assistance through the BDP, to agree to 
terminate its participation in the DBE program after a certain time has 
passed or certain objectives have been reached. See Appendix C of this 
part for guidance on administering BDP programs.
    (b) As part of a BDP or separately, you may establish a ``mentor-
prot[eacute]g[eacute]'' program, in which another DBE or non-DBE firm is 
the principal source of business development assistance to a DBE firm.
    (1) Only firms you have certified as DBEs before they are proposed 
for participation in a mentor-prot[eacute]g[eacute] program are eligible 
to participate in the mentor-prot[eacute]g[eacute] program.
    (2) During the course of the mentor-prot[eacute]g[eacute] 
relationship, you must:
    (i) Not award DBE credit to a non-DBE mentor firm for using its own 
prot[eacute]g[eacute] firm for more than one half of its goal on any 
contract let by the recipient; and
    (ii) Not award DBE credit to a non-DBE mentor firm for using its own 
prot[eacute]g[eacute] firm for more than every other contract performed 
by the prot[eacute]g[eacute] firm.
    (3) For purposes of making determinations of business size under 
this part, you must not treat prot[eacute]g[eacute] firms as affiliates 
of mentor firms, when both firms are participating under an approved 
mentor-prot[eacute]g[eacute] program. See Appendix D of this part for 
guidance concerning the operation of mentor-prot[eacute]g[eacute] 
programs.
    (c) Your BDPs and mentor-prot[eacute]g[eacute] programs must be 
approved by the concerned operating administration before you implement 
them. Once approved, they become part of your DBE program.



Sec. 26.37  What are a recipient's responsibilities for monitoring 
the performance of other program participants?

    (a) You must implement appropriate mechanisms to ensure compliance 
with the part's requirements by all program participants (e.g., applying 
legal and contract remedies available under Federal, state and local 
law). You must set forth these mechanisms in your DBE program.
    (b) Your DBE program must also include a monitoring and enforcement 
mechanism to ensure that work committed to DBEs at contract award is 
actually performed by DBEs.
    (c) This mechanism must provide for a running tally of actual DBE 
attainments (e.g., payments actually made to DBE firms), including a 
means of comparing these attainments to commitments. In your reports of 
DBE participation to the Department, you must display both commitments 
and attainments.

[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 
FR 35554, June 16, 2003]



            Subpart C_Goals, Good Faith Efforts, and Counting



Sec. 26.41  What is the role of the statutory 10 percent goal in this program?

    (a) The statutes authorizing this program provide that, except to 
the extent the Secretary determines otherwise, not less than 10 percent 
of the authorized funds are to be expended with DBEs.
    (b) This 10 percent goal is an aspirational goal at the national 
level, which the Department uses as a tool in evaluating and monitoring 
DBEs' opportunities to participate in DOT-assisted contracts.
    (c) The national 10 percent goal does not authorize or require 
recipients to set overall or contract goals at the 10 percent level, or 
any other particular level, or to take any special administrative steps 
if their goals are above or below 10 percent.



Sec. 26.43  Can recipients use set-asides or quotas as part of this program?

    (a) You are not permitted to use quotas for DBEs on DOT-assisted 
contracts subject to this part.
    (b) You may not set-aside contracts for DBEs on DOT-assisted 
contracts subject to this part, except that, in limited and extreme 
circumstances, you may use set-asides when no other method could be 
reasonably expected to redress egregious instances of discrimination.

[[Page 294]]



Sec. 26.45  How do recipients set overall goals?

    (a)(1) Except as provided in paragraph (a)(2) of this section, you 
must set an overall goal for DBE participation in your DOT-assisted 
contracts.
    (2) If you are a FTA or FAA recipient who reasonably anticipates 
awarding (excluding transit vehicle purchases) $250,000 or less in FTA 
or FAA funds in prime contracts in a Federal fiscal year, you are not 
required to develop overall goals for FTA or FAA respectively for that 
fiscal year. However, if you have an existing DBE program, it must 
remain in effect and you must seek to fulfill the objectives outlined in 
Sec. 26.1.
    (b) Your overall goal must be based on demonstrable evidence of the 
availability of ready, willing and able DBEs relative to all businesses 
ready, willing and able to participate on your DOT-assisted contracts 
(hereafter, the ``relative availability of DBEs''). The goal must 
reflect your determination of the level of DBE participation you would 
expect absent the effects of discrimination. You cannot simply rely on 
either the 10 percent national goal, your previous overall goal or past 
DBE participation rates in your program without reference to the 
relative availability of DBEs in your market.
    (c) Step 1. You must begin your goal setting process by determining 
a base figure for the relative availability of DBEs. The following are 
examples of approaches that you may take toward determining a base 
figure. These examples are provided as a starting point for your goal 
setting process. Any percentage figure derived from one of these 
examples should be considered a basis from which you begin when 
examining all evidence available in your jurisdiction. These examples 
are not intended as an exhaustive list. Other methods or combinations of 
methods to determine a base figure may be used, subject to approval by 
the concerned operating administration.
    (1) Use DBE Directories and Census Bureau Data. Determine the number 
of ready, willing and able DBEs in your market from your DBE directory. 
Using the Census Bureau's County Business Pattern (CBP) data base, 
determine the number of all ready, willing and able businesses available 
in your market that perform work in the same NAICS codes. (Information 
about the CBP data base may be obtained from the Census Bureau at their 
web site, www.census.gov/epcd/cbp/view/cbpview.html.) Divide the number 
of DBEs by the number of all businesses to derive a base figure for the 
relative availability of DBEs in your market.
    (2) Use a bidders list. Determine the number of DBEs that have bid 
or quoted on your DOT-assisted prime contracts or subcontracts in the 
previous year. Determine the number of all businesses that have bid or 
quoted on prime or subcontracts in the same time period. Divide the 
number of DBE bidders and quoters by the number for all businesses to 
derive a base figure for the relative availability of DBEs in your 
market.
    (3) Use data from a disparity study. Use a percentage figure derived 
from data in a valid, applicable disparity study.
    (4) Use the goal of another DOT recipient. If another DOT recipient 
in the same, or substantially similar, market has set an overall goal in 
compliance with this rule, you may use that goal as a base figure for 
your goal.
    (5) Alternative methods. You may use other methods to determine a 
base figure for your overall goal. Any methodology you choose must be 
based on demonstrable evidence of local market conditions and be 
designed to ultimately attain a goal that is rationally related to the 
relative availability of DBEs in your market.
    (d) Step 2. Once you have calculated a base figure, you must examine 
all of the evidence available in your jurisdiction to determine what 
adjustment, if any, is needed to the base figure in order to arrive at 
your overall goal.
    (1) There are many types of evidence that must be considered when 
adjusting the base figure. These include:
    (i) The current capacity of DBEs to perform work in your DOT-
assisted contracting program, as measured by the volume of work DBEs 
have performed in recent years;
    (ii) Evidence from disparity studies conducted anywhere within your 
jurisdiction, to the extent it is not already accounted for in your base 
figure; and

[[Page 295]]

    (iii) If your base figure is the goal of another recipient, you must 
adjust it for differences in your local market and your contracting 
program.
    (2) If available, you must consider evidence from related fields 
that affect the opportunities for DBEs to form, grow and compete. These 
include, but are not limited to:
    (i) Statistical disparities in the ability of DBEs to get the 
financing, bonding and insurance required to participate in your 
program;
    (ii) Data on employment, self-employment, education, training and 
union apprenticeship programs, to the extent you can relate it to the 
opportunities for DBEs to perform in your program.
    (3) If you attempt to make an adjustment to your base figure to 
account for the continuing effects of past discrimination (often called 
the ``but for'' factor) or the effects of an ongoing DBE program, the 
adjustment must be based on demonstrable evidence that is logically and 
directly related to the effect for which the adjustment is sought.
    (e) Once you have determined a percentage figure in accordance with 
paragraphs (c) and (d) of this section, you should express your overall 
goal as follows:
    (1) If you are an FHWA recipient, as a percentage of all Federal-aid 
highway funds you will expend in FHWA-assisted contracts in the 
forthcoming fiscal year;
    (2) If you are an FTA or FAA recipient, as a percentage of all FTA 
or FAA funds (exclusive of FTA funds to be used for the purchase of 
transit vehicles) that you will expend in FTA or FAA-assisted contracts 
in the forthcoming fiscal year. In appropriate cases, the FTA or FAA 
Administrator may permit you to express your overall goal as a 
percentage of funds for a particular grant or project or group of grants 
and/or projects.
    (f)(1) If you set overall goals on a fiscal year basis, you must 
submit them to the applicable DOT operating administration for review on 
August 1 of each year, unless the Administrator of the concerned 
operating administration establishes a different submission date.
    (2) If you are an FTA or FAA recipient and set your overall goal on 
a project or grant basis, you must submit the goal for review at a time 
determined by the FTA or FAA Administrator.
    (3) You must include with your overall goal submission a description 
of the methodology you used to establish the goal, including your base 
figure and the evidence with which it was calculated, and the 
adjustments you made to the base figure and the evidence relied on for 
the adjustments. You should also include a summary listing of the 
relevant available evidence in your jurisdiction and, where applicable, 
an explanation of why you did not use that evidence to adjust your base 
figure. You must also include your projection of the portions of the 
overall goal you expect to meet through race-neutral and race-conscious 
measures, respectively (see Sec. 26.51(c)).
    (4) You are not required to obtain prior operating administration 
concurrence with the your overall goal. However, if the operating 
administration's review suggests that your overall goal has not been 
correctly calculated, or that your method for calculating goals is 
inadequate, the operating administration may, after consulting with you, 
adjust your overall goal or require that you do so. The adjusted overall 
goal is binding on you.
    (5) If you need additional time to collect data or take other steps 
to develop an approach to setting overall goals, you may request the 
approval of the concerned operating administration for an interim goal 
and/or goal-setting mechanism. Such a mechanism must:
    (i) Reflect the relative availability of DBEs in your local market 
to the maximum extent feasible given the data available to you; and
    (ii) Avoid imposing undue burdens on non-DBEs.
    (g) In establishing an overall goal, you must provide for public 
participation. This public participation must include:
    (1) Consultation with minority, women's and general contractor 
groups, community organizations, and other officials or organizations 
which could

[[Page 296]]

be expected to have information concerning the availability of 
disadvantaged and non-disadvantaged businesses, the effects of 
discrimination on opportunities for DBEs, and your efforts to establish 
a level playing field for the participation of DBEs.
    (2) A published notice announcing your proposed overall goal, 
informing the public that the proposed goal and its rationale are 
available for inspection during normal business hours at your principal 
office for 30 days following the date of the notice, and informing the 
public that you and the Department will accept comments on the goals for 
45 days from the date of the notice. The notice must include addresses 
to which comments may be sent, and you must publish it in general 
circulation media and available minority-focused media and trade 
association publications.
    (h) Your overall goals must provide for participation by all 
certified DBEs and must not be subdivided into group-specific goals.

[64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 
FR 68951, Nov. 15, 2000; 68 FR 35553, June 16, 2003]



Sec. 26.47  Can recipients be penalized for failing to meet overall goals?

    (a) You cannot be penalized, or treated by the Department as being 
in noncompliance with this rule, because your DBE participation falls 
short of your overall goal, unless you have failed to administer your 
program in good faith.
    (b) If you do not have an approved DBE program or overall goal, or 
if you fail to implement your program in good faith, you are in 
noncompliance with this part.



Sec. 26.49  How are overall goals established for transit vehicle manufacturers?

    (a) If you are an FTA recipient, you must require in your DBE 
program that each transit vehicle manufacturer, as a condition of being 
authorized to bid or propose on FTA-assisted transit vehicle 
procurements, certify that it has complied with the requirements of this 
section. You do not include FTA assistance used in transit vehicle 
procurements in the base amount from which your overall goal is 
calculated.
    (b) If you are a transit vehicle manufacturer, you must establish 
and submit for FTA's approval an annual overall percentage goal. In 
setting your overall goal, you should be guided, to the extent 
applicable, by the principles underlying Sec. 26.45. The base from 
which you calculate this goal is the amount of FTA financial assistance 
included in transit vehicle contracts you will perform during the fiscal 
year in question. You must exclude from this base funds attributable to 
work performed outside the United States and its territories, 
possessions, and commonwealths. The requirements and procedures of this 
part with respect to submission and approval of overall goals apply to 
you as they do to recipients.
    (c) As a transit vehicle manufacturer, you may make the 
certification required by this section if you have submitted the goal 
this section requires and FTA has approved it or not disapproved it.
    (d) As a recipient, you may, with FTA approval, establish project-
specific goals for DBE participation in the procurement of transit 
vehicles in lieu of complying through the procedures of this section.
    (e) If you are an FHWA or FAA recipient, you may, with FHWA or FAA 
approval, use the procedures of this section with respect to 
procurements of vehicles or specialized equipment. If you choose to do 
so, then the manufacturers of this equipment must meet the same 
requirements (including goal approval by FHWA or FAA) as transit vehicle 
manufacturers must meet in FTA-assisted procurements.



Sec. 26.51  What means do recipients use to meet overall goals?

    (a) You must meet the maximum feasible portion of your overall goal 
by using race-neutral means of facilitating DBE participation. Race-
neutral DBE participation includes any time a DBE wins a prime contract 
through customary competitive procurement procedures, is awarded a 
subcontract on a prime contract that does not carry a DBE goal, or even 
if there is a DBE goal, wins a subcontract from a prime contractor that 
did not consider

[[Page 297]]

its DBE status in making the award (e.g., a prime contractor that uses a 
strict low bid system to award subcontracts).
    (b) Race-neutral means include, but are not limited to, the 
following:
    (1) Arranging solicitations, times for the presentation of bids, 
quantities, specifications, and delivery schedules in ways that 
facilitate DBE, and other small businesses, participation (e.g., 
unbundling large contracts to make them more accessible to small 
businesses, requiring or encouraging prime contractors to subcontract 
portions of work that they might otherwise perform with their own 
forces);
    (2) Providing assistance in overcoming limitations such as inability 
to obtain bonding or financing (e.g., by such means as simplifying the 
bonding process, reducing bonding requirements, eliminating the impact 
of surety costs from bids, and providing services to help DBEs, and 
other small businesses, obtain bonding and financing);
    (3) Providing technical assistance and other services;
    (4) Carrying out information and communications programs on 
contracting procedures and specific contract opportunities (e.g., 
ensuring the inclusion of DBEs, and other small businesses, on recipient 
mailing lists for bidders; ensuring the dissemination to bidders on 
prime contracts of lists of potential subcontractors; provision of 
information in languages other than English, where appropriate);
    (5) Implementing a supportive services program to develop and 
improve immediate and long-term business management, record keeping, and 
financial and accounting capability for DBEs and other small businesses;
    (6) Providing services to help DBEs, and other small businesses, 
improve long-term development, increase opportunities to participate in 
a variety of kinds of work, handle increasingly significant projects, 
and achieve eventual self-sufficiency;
    (7) Establishing a program to assist new, start-up firms, 
particularly in fields in which DBE participation has historically been 
low;
    (8) Ensuring distribution of your DBE directory, through print and 
electronic means, to the widest feasible universe of potential prime 
contractors; and
    (9) Assisting DBEs, and other small businesses, to develop their 
capability to utilize emerging technology and conduct business through 
electronic media.
    (c) Each time you submit your overall goal for review by the 
concerned operating administration, you must also submit your projection 
of the portion of the goal that you expect to meet through race-neutral 
means and your basis for that projection. This projection is subject to 
approval by the concerned operating administration, in conjunction with 
its review of your overall goal.
    (d) You must establish contract goals to meet any portion of your 
overall goal you do not project being able to meet using race-neutral 
means.
    (e) The following provisions apply to the use of contract goals:
    (1) You may use contract goals only on those DOT-assisted contracts 
that have subcontracting possibilities.
    (2) You are not required to set a contract goal on every DOT-
assisted contract. You are not required to set each contract goal at the 
same percentage level as the overall goal. The goal for a specific 
contract may be higher or lower than that percentage level of the 
overall goal, depending on such factors as the type of work involved, 
the location of the work, and the availability of DBEs for the work of 
the particular contract. However, over the period covered by your 
overall goal, you must set contract goals so that they will cumulatively 
result in meeting any portion of your overall goal you do not project 
being able to meet through the use of race-neutral means.
    (3) Operating administration approval of each contract goal is not 
necessarily required. However, operating administrations may review and 
approve or disapprove any contract goal you establish.
    (4) Your contract goals must provide for participation by all 
certified DBEs and must not be subdivided into group-specific goals.
    (f) To ensure that your DBE program continues to be narrowly 
tailored to overcome the effects of discrimination,

[[Page 298]]

you must adjust your use of contract goals as follows:
    (1) If your approved projection under paragraph (c) of this section 
estimates that you can meet your entire overall goal for a given year 
through race-neutral means, you must implement your program without 
setting contract goals during that year.

    Example to Paragraph (f)(1): Your overall goal for Year I is 12 
percent. You estimate that you can obtain 12 percent or more DBE 
participation through the use of race-neutral measures, without any use 
of contract goals. In this case, you do not set any contract goals for 
the contracts that will be performed in Year I.

    (2) If, during the course of any year in which you are using 
contract goals, you determine that you will exceed your overall goal, 
you must reduce or eliminate the use of contract goals to the extent 
necessary to ensure that the use of contract goals does not result in 
exceeding the overall goal. If you determine that you will fall short of 
your overall goal, then you must make appropriate modifications in your 
use of race-neutral and/or race-conscious measures to allow you to meet 
the overall goal.

    Example to Paragraph (f)(2): In Year II, your overall goal is 12 
percent. You have estimated that you can obtain 5 percent DBE 
participation through use of race-neutral measures. You therefore plan 
to obtain the remaining 7 percent participation through use of DBE 
goals. By September, you have already obtained 11 percent DBE 
participation for the year. For contracts let during the remainder of 
the year, you use contract goals only to the extent necessary to obtain 
an additional one percent DBE participation. However, if you determine 
in September that your participation for the year is likely to be only 8 
percent total, then you would increase your use of race-neutral and/or 
race-conscious means during the remainder of the year in order to 
achieve your overall goal.

    (3) If the DBE participation you have obtained by race-neutral means 
alone meets or exceeds your overall goals for two consecutive years, you 
are not required to make a projection of the amount of your goal you can 
meet using such means in the next year. You do not set contract goals on 
any contracts in the next year. You continue using only race-neutral 
means to meet your overall goals unless and until you do not meet your 
overall goal for a year.

    Example to Paragraph (f)(3): Your overall goal for Years I and Year 
II is 10 percent. The DBE participation you obtain through race-neutral 
measures alone is 10 percent or more in each year. (For this purpose, it 
does not matter whether you obtained additional DBE participation 
through using contract goals in these years.) In Year III and following 
years, you do not need to make a projection under paragraph (c) of this 
section of the portion of your overall goal you expect to meet using 
race-neutral means. You simply use race-neutral means to achieve your 
overall goals. However, if in Year VI your DBE participation falls short 
of your overall goal, then you must make a paragraph (c) projection for 
Year VII and, if necessary, resume use of contract goals in that year.

    (4) If you obtain DBE participation that exceeds your overall goal 
in two consecutive years through the use of contract goals (i.e., not 
through the use of race-neutral means alone), you must reduce your use 
of contract goals proportionately in the following year.

    Example to Paragraph (f)(4): In Years I and II, your overall goal is 
12 percent, and you obtain 14 and 16 percent DBE participation, 
respectively. You have exceeded your goals over the two-year period by 
an average of 25 percent. In Year III, your overall goal is again 12 
percent, and your paragraph (c) projection estimates that you will 
obtain 4 percent DBE participation through race-neutral means and 8 
percent through contract goals. You then reduce the contract goal 
projection by 25 percent (i.e., from 8 to 6 percent) and set contract 
goals accordingly during the year. If in Year III you obtain 11 percent 
participation, you do not use this contract goal adjustment mechanism 
for Year IV, because there have not been two consecutive years of 
exceeding overall goals.

    (g) In any year in which you project meeting part of your goal 
through race-neutral means and the remainder through contract goals, you 
must maintain data separately on DBE achievements in those contracts 
with and without contract goals, respectively. You must report this data 
to the concerned operating administration as provided in Sec. 26.11.

[[Page 299]]



Sec. 26.53  What are the good faith efforts procedures recipients follow
in situations where there are contract goals?

    (a) When you have established a DBE contract goal, you must award 
the contract only to a bidder/offeror who makes good faith efforts to 
meet it. You must determine that a bidder/offeror has made good faith 
efforts if the bidder/offeror does either of the following things:
    (1) Documents that it has obtained enough DBE participation to meet 
the goal; or
    (2) Documents that it made adequate good faith efforts to meet the 
goal, even though it did not succeed in obtaining enough DBE 
participation to do so. If the bidder/offeror does document adequate 
good faith efforts, you must not deny award of the contract on the basis 
that the bidder/offeror failed to meet the goal. See Appendix A of this 
part for guidance in determining the adequacy of a bidder/offeror's good 
faith efforts.
    (b) In your solicitations for DOT-assisted contracts for which a 
contract goal has been established, you must require the following:
    (1) Award of the contract will be conditioned on meeting the 
requirements of this section;
    (2) All bidders/offerors will be required to submit the following 
information to the recipient, at the time provided in paragraph (b)(3) 
of this section:
    (i) The names and addresses of DBE firms that will participate in 
the contract;
    (ii) A description of the work that each DBE will perform;
    (iii) The dollar amount of the participation of each DBE firm 
participating;
    (iv) Written documentation of the bidder/offeror's commitment to use 
a DBE subcontractor whose participation it submits to meet a contract 
goal;
    (v) Written confirmation from the DBE that it is participating in 
the contract as provided in the prime contractor's commitment; and
    (vi) If the contract goal is not met, evidence of good faith efforts 
(see Appendix A of this part); and
    (3) At your discretion, the bidder/offeror must present the 
information required by paragraph (b)(2) of this section--
    (i) Under sealed bid procedures, as a matter of responsiveness, or 
with initial proposals, under contract negotiation procedures; or
    (ii) At any time before you commit yourself to the performance of 
the contract by the bidder/offeror, as a matter of responsibility.
    (c) You must make sure all information is complete and accurate and 
adequately documents the bidder/offeror's good faith efforts before 
committing yourself to the performance of the contract by the bidder/
offeror.
    (d) If you determine that the apparent successful bidder/offeror has 
failed to meet the requirements of paragraph (a) of this section, you 
must, before awarding the contract, provide the bidder/offeror an 
opportunity for administrative reconsideration.
    (1) As part of this reconsideration, the bidder/offeror must have 
the opportunity to provide written documentation or argument concerning 
the issue of whether it met the goal or made adequate good faith efforts 
to do so.
    (2) Your decision on reconsideration must be made by an official who 
did not take part in the original determination that the bidder/offeror 
failed to meet the goal or make adequate good faith efforts to do so.
    (3) The bidder/offeror must have the opportunity to meet in person 
with your reconsideration official to discuss the issue of whether it 
met the goal or made adequate good faith efforts to do so.
    (4) You must send the bidder/offeror a written decision on 
reconsideration, explaining the basis for finding that the bidder did or 
did not meet the goal or make adequate good faith efforts to do so.
    (5) The result of the reconsideration process is not 
administratively appealable to the Department of Transportation.
    (e) In a ``design-build'' or ``turnkey'' contracting situation, in 
which the recipient lets a master contract to a contractor, who in turn 
lets subsequent subcontracts for the work of the project, a recipient 
may establish a goal for the project. The master contractor then 
establishes contract goals,

[[Page 300]]

as appropriate, for the subcontracts it lets. Recipients must maintain 
oversight of the master contractor's activities to ensure that they are 
conducted consistent with the requirements of this part.
    (f)(1) You must require that a prime contractor not terminate for 
convenience a DBE subcontractor listed in response to paragraph (b)(2) 
of this section (or an approved substitute DBE firm) and then perform 
the work of the terminated subcontract with its own forces or those of 
an affiliate, without your prior written consent.
    (2) When a DBE subcontractor is terminated, or fails to complete its 
work on the contract for any reason, you must require the prime 
contractor to make good faith efforts to find another DBE subcontractor 
to substitute for the original DBE. These good faith efforts shall be 
directed at finding another DBE to perform at least the same amount of 
work under the contract as the DBE that was terminated, to the extent 
needed to meet the contract goal you established for the procurement.
    (3) You must include in each prime contract a provision for 
appropriate administrative remedies that you will invoke if the prime 
contractor fails to comply with the requirements of this section.
    (g) You must apply the requirements of this section to DBE bidders/
offerors for prime contracts. In determining whether a DBE bidder/
offeror for a prime contract has met a contract goal, you count the work 
the DBE has committed to performing with its own forces as well as the 
work that it has committed to be performed by DBE subcontractors and DBE 
suppliers.



Sec. 26.55  How is DBE participation counted toward goals?

    (a) When a DBE participates in a contract, you count only the value 
of the work actually performed by the DBE toward DBE goals.
    (1) Count the entire amount of that portion of a construction 
contract (or other contract not covered by paragraph (a)(2) of this 
section) that is performed by the DBE's own forces. Include the cost of 
supplies and materials obtained by the DBE for the work of the contract, 
including supplies purchased or equipment leased by the DBE (except 
supplies and equipment the DBE subcontractor purchases or leases from 
the prime contractor or its affiliate).
    (2) Count the entire amount of fees or commissions charged by a DBE 
firm for providing a bona fide service, such as professional, technical, 
consultant, or managerial services, or for providing bonds or insurance 
specifically required for the performance of a DOT-assisted contract, 
toward DBE goals, provided you determine the fee to be reasonable and 
not excessive as compared with fees customarily allowed for similar 
services.
    (3) When a DBE subcontracts part of the work of its contract to 
another firm, the value of the subcontracted work may be counted toward 
DBE goals only if the DBE's subcontractor is itself a DBE. Work that a 
DBE subcontracts to a non-DBE firm does not count toward DBE goals.
    (b) When a DBE performs as a participant in a joint venture, count a 
portion of the total dollar value of the contract equal to the distinct, 
clearly defined portion of the work of the contract that the DBE 
performs with its own forces toward DBE goals.
    (c) Count expenditures to a DBE contractor toward DBE goals only if 
the DBE is performing a commercially useful function on that contract.
    (1) A DBE performs a commercially useful function when it is 
responsible for execution of the work of the contract and is carrying 
out its responsibilities by actually performing, managing, and 
supervising the work involved. To perform a commercially useful 
function, the DBE must also be responsible, with respect to materials 
and supplies used on the contract, for negotiating price, determining 
quality and quantity, ordering the material, and installing (where 
applicable) and paying for the material itself. To determine whether a 
DBE is performing a commercially useful function, you must evaluate the 
amount of work subcontracted, industry practices, whether the amount the 
firm is to be paid under the contract is commensurate with the work it 
is actually performing and the

[[Page 301]]

DBE credit claimed for its performance of the work, and other relevant 
factors.
    (2) A DBE does not perform a commercially useful function if its 
role is limited to that of an extra participant in a transaction, 
contract, or project through which funds are passed in order to obtain 
the appearance of DBE participation. In determining whether a DBE is 
such an extra participant, you must examine similar transactions, 
particularly those in which DBEs do not participate.
    (3) If a DBE does not perform or exercise responsibility for at 
least 30 percent of the total cost of its contract with its own work 
force, or the DBE subcontracts a greater portion of the work of a 
contract than would be expected on the basis of normal industry practice 
for the type of work involved, you must presume that it is not 
performing a commercially useful function.
    (4) When a DBE is presumed not to be performing a commercially 
useful function as provided in paragraph (c)(3) of this section, the DBE 
may present evidence to rebut this presumption. You may determine that 
the firm is performing a commercially useful function given the type of 
work involved and normal industry practices.
    (5) Your decisions on commercially useful function matters are 
subject to review by the concerned operating administration, but are not 
administratively appealable to DOT.
    (d) Use the following factors in determining whether a DBE trucking 
company is performing a commercially useful function:
    (1) The DBE must be responsible for the management and supervision 
of the entire trucking operation for which it is responsible on a 
particular contract, and there cannot be a contrived arrangement for the 
purpose of meeting DBE goals.
    (2) The DBE must itself own and operate at least one fully licensed, 
insured, and operational truck used on the contract.
    (3) The DBE receives credit for the total value of the 
transportation services it provides on the contract using trucks it 
owns, insures, and operates using drivers it employs.
    (4) The DBE may lease trucks from another DBE firm, including an 
owner-operator who is certified as a DBE. The DBE who leases trucks from 
another DBE receives credit for the total value of the transportation 
services the lessee DBE provides on the contract.
    (5) The DBE may also lease trucks from a non-DBE firm, including 
from an owner-operator. The DBE who leases trucks from a non-DBE is 
entitled to credit for the total value of transportation services 
provided by non-DBE lessees not to exceed the value of transportation 
services provided by DBE-owned trucks on the contract. Additional 
participation by non-DBE lessees receives credit only for the fee or 
commission it receives as a result of the lease arrangement. If a 
recipient chooses this approach, it must obtain written consent from the 
appropriate Department Operating Administration.

    Example to this paragraph (d)(5): DBE Firm X uses two of its own 
trucks on a contract. It leases two trucks from DBE Firm Y and six 
trucks from non-DBE Firm Z. DBE credit would be awarded for the total 
value of transportation services provided by Firm X and Firm Y, and may 
also be awarded for the total value of transportation services provided 
by four of the six trucks provided by Firm Z. In all, full credit would 
be allowed for the participation of eight trucks. With respect to the 
other two trucks provided by Firm Z, DBE credit could be awarded only 
for the fees or commissions pertaining to those trucks Firm X receives 
as a result of the lease with Firm Z.

    (6) For purposes of this paragraph (d), a lease must indicate that 
the DBE has exclusive use of and control over the truck. This does not 
preclude the leased truck from working for others during the term of the 
lease with the consent of the DBE, so long as the lease gives the DBE 
absolute priority for use of the leased truck. Leased trucks must 
display the name and identification number of the DBE.
    (e) Count expenditures with DBEs for materials or supplies toward 
DBE goals as provided in the following:
    (1)(i) If the materials or supplies are obtained from a DBE 
manufacturer, count 100 percent of the cost of the materials or supplies 
toward DBE goals.

[[Page 302]]

    (ii) For purposes of this paragraph (e)(1), a manufacturer is a firm 
that operates or maintains a factory or establishment that produces, on 
the premises, the materials, supplies, articles, or equipment required 
under the contract and of the general character described by the 
specifications.
    (2)(i) If the materials or supplies are purchased from a DBE regular 
dealer, count 60 percent of the cost of the materials or supplies toward 
DBE goals.
    (ii) For purposes of this section, a regular dealer is a firm that 
owns, operates, or maintains a store, warehouse, or other establishment 
in which the materials, supplies, articles or equipment of the general 
character described by the specifications and required under the 
contract are bought, kept in stock, and regularly sold or leased to the 
public in the usual course of business.
    (A) To be a regular dealer, the firm must be an established, regular 
business that engages, as its principal business and under its own name, 
in the purchase and sale or lease of the products in question.
    (B) A person may be a regular dealer in such bulk items as petroleum 
products, steel, cement, gravel, stone, or asphalt without owning, 
operating, or maintaining a place of business as provided in this 
paragraph (e)(2)(ii) if the person both owns and operates distribution 
equipment for the products. Any supplementing of regular dealers' own 
distribution equipment shall be by a long-term lease agreement and not 
on an ad hoc or contract-by-contract basis.
    (C) Packagers, brokers, manufacturers' representatives, or other 
persons who arrange or expedite transactions are not regular dealers 
within the meaning of this paragraph (e)(2).
    (3) With respect to materials or supplies purchased from a DBE which 
is neither a manufacturer nor a regular dealer, count the entire amount 
of fees or commissions charged for assistance in the procurement of the 
materials and supplies, or fees or transportation charges for the 
delivery of materials or supplies required on a job site, toward DBE 
goals, provided you determine the fees to be reasonable and not 
excessive as compared with fees customarily allowed for similar 
services. Do not count any portion of the cost of the materials and 
supplies themselves toward DBE goals, however.
    (f) If a firm is not currently certified as a DBE in accordance with 
the standards of subpart D of this part at the time of the execution of 
the contract, do not count the firm's participation toward any DBE 
goals, except as provided for in Sec. 26.87(i)).
    (g) Do not count the dollar value of work performed under a contract 
with a firm after it has ceased to be certified toward your overall 
goal.
    (h) Do not count the participation of a DBE subcontractor toward a 
contractor's final compliance with its DBE obligations on a contract 
until the amount being counted has actually been paid to the DBE.

[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 
FR 35554, June 16, 2003]



                    Subpart D_Certification Standards



Sec. 26.61  How are burdens of proof allocated in the certification process?

    (a) In determining whether to certify a firm as eligible to 
participate as a DBE, you must apply the standards of this subpart.
    (b) The firm seeking certification has the burden of demonstrating 
to you, by a preponderance of the evidence, that it meets the 
requirements of this subpart concerning group membership or individual 
disadvantage, business size, ownership, and control.
    (c) You must rebuttably presume that members of the designated 
groups identified in Sec. 26.67(a) are socially and economically 
disadvantaged. This means they do not have the burden of proving to you 
that they are socially and economically disadvantaged. In order to 
obtain the benefit of the rebuttable presumption, individuals must 
submit a signed, notarized statement that they are a member of one of 
the groups in Sec. 26.67(a). Applicants do have the obligation to 
provide you information concerning their economic disadvantage (see 
Sec. 26.67).
    (d) Individuals who are not presumed to be socially and economically 
disadvantaged, and individuals concerning whom the presumption of 
disadvantage has been rebutted, have the burden of

[[Page 303]]

proving to you, by a preponderance of the evidence, that they are 
socially and economically disadvantaged. (See Appendix E of this part.)
    (e) You must make determinations concerning whether individuals and 
firms have met their burden of demonstrating group membership, 
ownership, control, and social and economic disadvantage (where 
disadvantage must be demonstrated on an individual basis) by considering 
all the facts in the record, viewed as a whole.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35554, June 16, 2003]



Sec. 26.63  What rules govern group membership determinations?

    (a)(1) If, after reviewing the signed notarized statement of 
membership in a presumptively disadvantaged group (see Sec. 26.61(c)), 
you have a well founded reason to question the individual's claim of 
membership in that group, you must require the individual to present 
additional evidence that he or she is a member of the group.
    (2) You must provide the individual a written explanation of your 
reasons for questioning his or her group membership and a written 
request for additional evidence as outlined in paragraph (b) of this 
section.
    (3) In implementing this section, you must take special care to 
ensure that you do not impose a disproportionate burden on members of 
any particular designated group. Imposing a disproportionate burden on 
members of a particular group could violate Sec. 26.7(b) and/or Title 
VI of the Civil Rights Act of 1964 and 49 CFR part 21.
    (b) In making such a determination, you must consider whether the 
person has held himself out to be a member of the group over a long 
period of time prior to application for certification and whether the 
person is regarded as a member of the group by the relevant community. 
You may require the applicant to produce appropriate documentation of 
group membership.
    (1) If you determine that an individual claiming to be a member of a 
group presumed to be disadvantaged is not a member of a designated 
disadvantaged group, the individual must demonstrate social and economic 
disadvantage on an individual basis.
    (2) Your decisions concerning membership in a designated group are 
subject to the certification appeals procedure of Sec. 26.89.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35554, June 16, 2003]



Sec. 26.65  What rules govern business size determinations?

    (a) To be an eligible DBE, a firm (including its affiliates) must be 
an existing small business, as defined by Small Business Administration 
(SBA) standards. As a recipient, you must apply current SBA business 
size standard(s) found in 13 CFR part 121 appropriate to the type(s) of 
work the firm seeks to perform in DOT-assisted contracts.
    (b) Even if it meets the requirements of paragraph (a) of this 
section, a firm is not an eligible DBE in any Federal fiscal year if the 
firm (including its affiliates) has had average annual gross receipts, 
as defined by SBA regulations (see 13 CFR 121.402), over the firm's 
previous three fiscal years, in excess of $22.41 million.
    (c) The Department adjusts the number in paragraph (b) of this 
section annually using the Department of Commerce price deflators for 
purchases by State and local governments as the basis for this 
adjustment.

[74 FR 15224, Apr. 3, 2009]



Sec. 26.67  What rules determine social and economic disadvantage?

    (a) Presumption of disadvantage. (1) You must rebuttably presume 
that citizens of the United States (or lawfully admitted permanent 
residents) who are women, Black Americans, Hispanic Americans, Native 
Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or 
other minorities found to be disadvantaged by the SBA, are socially and 
economically disadvantaged individuals. You must require applicants to 
submit a signed, notarized certification that each presumptively 
disadvantaged owner is, in fact, socially and economically 
disadvantaged.
    (2) (i) You must require each individual owner of a firm applying to 
participate as a DBE (except a firm applying to participate as a DBE 
airport concessionaire) whose ownership and

[[Page 304]]

control are relied upon for DBE certification to certify that he or she 
has a personal net worth that does not exceed $750,000.
    (ii) You must require each individual who makes this certification 
to support it with a signed, notarized statement of personal net worth, 
with appropriate supporting documentation. This statement and 
documentation must not be unduly lengthy, burdensome, or intrusive.
    (iii) In determining an individual's net worth, you must observe the 
following requirements:
    (A) Exclude an individual's ownership interest in the applicant 
firm;
    (B) Exclude the individual's equity in his or her primary residence 
(except any portion of such equity that is attributable to excessive 
withdrawals from the applicant firm).
    (C) Do not use a contingent liability to reduce an individual's net 
worth.
    (D) With respect to assets held in vested pension plans, Individual 
Retirement Accounts, 401(k) accounts, or other retirement savings or 
investment programs in which the assets cannot be distributed to the 
individual at the present time without significant adverse tax or 
interest consequences, include only the present value of such assets, 
less the tax and interest penalties that would accrue if the asset were 
distributed at the present time.
    (iv) Notwithstanding any provision of Federal or state law, you must 
not release an individual's personal net worth statement nor any 
documentation supporting it to any third party without the written 
consent of the submitter. Provided, that you must transmit this 
information to DOT in any certification appeal proceeding under Sec. 
26.89 in which the disadvantaged status of the individual is in 
question.
    (b) Rebuttal of presumption of disadvantage. (1) If the statement of 
personal net worth that an individual submits under paragraph (a)(2) of 
this section shows that the individual's personal net worth exceeds 
$750,000, the individual's presumption of economic disadvantage is 
rebutted. You are not required to have a proceeding under paragraph 
(b)(2) of this section in order to rebut the presumption of economic 
disadvantage in this case.
    (2) If you have a reasonable basis to believe that an individual who 
is a member of one of the designated groups is not, in fact, socially 
and/or economically disadvantaged you may, at any time, start a 
proceeding to determine whether the presumption should be regarded as 
rebutted with respect to that individual. Your proceeding must follow 
the procedures of Sec. 26.87.
    (3) In such a proceeding, you have the burden of demonstrating, by a 
preponderance of the evidence, that the individual is not socially and 
economically disadvantaged. You may require the individual to produce 
information relevant to the determination of his or her disadvantage.
    (4) When an individual's presumption of social and/or economic 
disadvantage has been rebutted, his or her ownership and control of the 
firm in question cannot be used for purposes of DBE eligibility under 
this subpart unless and until he or she makes an individual showing of 
social and/or economic disadvantage. If the basis for rebutting the 
presumption is a determination that the individual's personal net worth 
exceeds $750,000, the individual is no longer eligible for participation 
in the program and cannot regain eligibility by making an individual 
showing of disadvantage.
    (c) [Reserved]
    (d) Individual determinations of social and economic disadvantage. 
Firms owned and controlled by individuals who are not presumed to be 
socially and economically disadvantaged (including individuals whose 
presumed disadvantage has been rebutted) may apply for DBE 
certification. You must make a case-by-case determination of whether 
each individual whose ownership and control are relied upon for DBE 
certification is socially and economically disadvantaged. In such a 
proceeding, the applicant firm has the burden of demonstrating to you, 
by a preponderance of the evidence, that the individuals who own and 
control it are socially and economically disadvantaged. An individual 
whose personal net worth exceeds $750,000 shall not be deemed to be 
economically disadvantaged. In making these determinations, use the 
guidance found in Appendix E

[[Page 305]]

of this part. You must require that applicants provide sufficient 
information to permit determinations under the guidance of Appendix E of 
this part.

[64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 68 
FR 35554, June 16, 2003]



Sec. 26.69  What rules govern determinations of ownership?

    (a) In determining whether the socially and economically 
disadvantaged participants in a firm own the firm, you must consider all 
the facts in the record, viewed as a whole.
    (b) To be an eligible DBE, a firm must be at least 51 percent owned 
by socially and economically disadvantaged individuals.
    (1) In the case of a corporation, such individuals must own at least 
51 percent of the each class of voting stock outstanding and 51 percent 
of the aggregate of all stock outstanding.
    (2) In the case of a partnership, 51 percent of each class of 
partnership interest must be owned by socially and economically 
disadvantaged individuals. Such ownership must be reflected in the 
firm's partnership agreement.
    (3) In the case of a limited liability company, at least 51 percent 
of each class of member interest must be owned by socially and 
economically disadvantaged individuals.
    (c) The firm's ownership by socially and economically disadvantaged 
individuals must be real, substantial, and continuing, going beyond pro 
forma ownership of the firm as reflected in ownership documents. The 
disadvantaged owners must enjoy the customary incidents of ownership, 
and share in the risks and profits commensurate with their ownership 
interests, as demonstrated by the substance, not merely the form, of 
arrangements.
    (d) All securities that constitute ownership of a firm shall be held 
directly by disadvantaged persons. Except as provided in this paragraph 
(d), no securities or assets held in trust, or by any guardian for a 
minor, are considered as held by disadvantaged persons in determining 
the ownership of a firm. However, securities or assets held in trust are 
regarded as held by a disadvantaged individual for purposes of 
determining ownership of the firm, if--
    (1) The beneficial owner of securities or assets held in trust is a 
disadvantaged individual, and the trustee is the same or another such 
individual; or
    (2) The beneficial owner of a trust is a disadvantaged individual 
who, rather than the trustee, exercises effective control over the 
management, policy-making, and daily operational activities of the firm. 
Assets held in a revocable living trust may be counted only in the 
situation where the same disadvantaged individual is the sole grantor, 
beneficiary, and trustee.
    (e) The contributions of capital or expertise by the socially and 
economically disadvantaged owners to acquire their ownership interests 
must be real and substantial. Examples of insufficient contributions 
include a promise to contribute capital, an unsecured note payable to 
the firm or an owner who is not a disadvantaged individual, or mere 
participation in a firm's activities as an employee. Debt instruments 
from financial institutions or other organizations that lend funds in 
the normal course of their business do not render a firm ineligible, 
even if the debtor's ownership interest is security for the loan.
    (f) The following requirements apply to situations in which 
expertise is relied upon as part of a disadvantaged owner's contribution 
to acquire ownership:
    (1) The owner's expertise must be--
    (i) In a specialized field;
    (ii) Of outstanding quality;
    (iii) In areas critical to the firm's operations;
    (iv) Indispensable to the firm's potential success;
    (v) Specific to the type of work the firm performs; and
    (vi) Documented in the records of the firm. These records must 
clearly show the contribution of expertise and its value to the firm.
    (2) The individual whose expertise is relied upon must have a 
significant financial investment in the firm.
    (g) You must always deem as held by a socially and economically 
disadvantaged individual, for purposes of determining ownership, all 
interests in a business or other assets obtained by the individual--

[[Page 306]]

    (1) As the result of a final property settlement or court order in a 
divorce or legal separation, provided that no term or condition of the 
agreement or divorce decree is inconsistent with this section; or
    (2) Through inheritance, or otherwise because of the death of the 
former owner.
    (h)(1) You must presume as not being held by a socially and 
economically disadvantaged individual, for purposes of determining 
ownership, all interests in a business or other assets obtained by the 
individual as the result of a gift, or transfer without adequate 
consideration, from any non-disadvantaged individual or non-DBE firm who 
is--
    (i) Involved in the same firm for which the individual is seeking 
certification, or an affiliate of that firm;
    (ii) Involved in the same or a similar line of business; or
    (iii) Engaged in an ongoing business relationship with the firm, or 
an affiliate of the firm, for which the individual is seeking 
certification.
    (2) To overcome this presumption and permit the interests or assets 
to be counted, the disadvantaged individual must demonstrate to you, by 
clear and convincing evidence, that--
    (i) The gift or transfer to the disadvantaged individual was made 
for reasons other than obtaining certification as a DBE; and
    (ii) The disadvantaged individual actually controls the management, 
policy, and operations of the firm, notwithstanding the continuing 
participation of a non-disadvantaged individual who provided the gift or 
transfer.
    (i) You must apply the following rules in situations in which 
marital assets form a basis for ownership of a firm:
    (1) When marital assets (other than the assets of the business in 
question), held jointly or as community property by both spouses, are 
used to acquire the ownership interest asserted by one spouse, you must 
deem the ownership interest in the firm to have been acquired by that 
spouse with his or her own individual resources, provided that the other 
spouse irrevocably renounces and transfers all rights in the ownership 
interest in the manner sanctioned by the laws of the state in which 
either spouse or the firm is domiciled. You do not count a greater 
portion of joint or community property assets toward ownership than 
state law would recognize as belonging to the socially and economically 
disadvantaged owner of the applicant firm.
    (2) A copy of the document legally transferring and renouncing the 
other spouse's rights in the jointly owned or community assets used to 
acquire an ownership interest in the firm must be included as part of 
the firm's application for DBE certification.
    (j) You may consider the following factors in determining the 
ownership of a firm. However, you must not regard a contribution of 
capital as failing to be real and substantial, or find a firm 
ineligible, solely because--
    (1) A socially and economically disadvantaged individual acquired 
his or her ownership interest as the result of a gift, or transfer 
without adequate consideration, other than the types set forth in 
paragraph (h) of this section;
    (2) There is a provision for the co-signature of a spouse who is not 
a socially and economically disadvantaged individual on financing 
agreements, contracts for the purchase or sale of real or personal 
property, bank signature cards, or other documents; or
    (3) Ownership of the firm in question or its assets is transferred 
for adequate consideration from a spouse who is not a socially and 
economically disadvantaged individual to a spouse who is such an 
individual. In this case, you must give particularly close and careful 
scrutiny to the ownership and control of a firm to ensure that it is 
owned and controlled, in substance as well as in form, by a socially and 
economically disadvantaged individual.



Sec. 26.71  What rules govern determinations concerning control?

    (a) In determining whether socially and economically disadvantaged 
owners control a firm, you must consider all the facts in the record, 
viewed as a whole.
    (b) Only an independent business may be certified as a DBE. An 
independent business is one the viability of which does not depend on 
its relationship with another firm or firms.

[[Page 307]]

    (1) In determining whether a potential DBE is an independent 
business, you must scrutinize relationships with non-DBE firms, in such 
areas as personnel, facilities, equipment, financial and/or bonding 
support, and other resources.
    (2) You must consider whether present or recent employer/employee 
relationships between the disadvantaged owner(s) of the potential DBE 
and non-DBE firms or persons associated with non-DBE firms compromise 
the independence of the potential DBE firm.
    (3) You must examine the firm's relationships with prime contractors 
to determine whether a pattern of exclusive or primary dealings with a 
prime contractor compromises the independence of the potential DBE firm.
    (4) In considering factors related to the independence of a 
potential DBE firm, you must consider the consistency of relationships 
between the potential DBE and non-DBE firms with normal industry 
practice.
    (c) A DBE firm must not be subject to any formal or informal 
restrictions which limit the customary discretion of the socially and 
economically disadvantaged owners. There can be no restrictions through 
corporate charter provisions, by-law provisions, contracts or any other 
formal or informal devices (e.g., cumulative voting rights, voting 
powers attached to different classes of stock, employment contracts, 
requirements for concurrence by non-disadvantaged partners, conditions 
precedent or subsequent, executory agreements, voting trusts, 
restrictions on or assignments of voting rights) that prevent the 
socially and economically disadvantaged owners, without the cooperation 
or vote of any non-disadvantaged individual, from making any business 
decision of the firm. This paragraph does not preclude a spousal co-
signature on documents as provided for in Sec. 26.69(j)(2).
    (d) The socially and economically disadvantaged owners must possess 
the power to direct or cause the direction of the management and 
policies of the firm and to make day-to-day as well as long-term 
decisions on matters of management, policy and operations.
    (1) A disadvantaged owner must hold the highest officer position in 
the company (e.g., chief executive officer or president).
    (2) In a corporation, disadvantaged owners must control the board of 
directors.
    (3) In a partnership, one or more disadvantaged owners must serve as 
general partners, with control over all partnership decisions.
    (e) Individuals who are not socially and economically disadvantaged 
may be involved in a DBE firm as owners, managers, employees, 
stockholders, officers, and/or directors. Such individuals must not, 
however, possess or exercise the power to control the firm, or be 
disproportionately responsible for the operation of the firm.
    (f) The socially and economically disadvantaged owners of the firm 
may delegate various areas of the management, policymaking, or daily 
operations of the firm to other participants in the firm, regardless of 
whether these participants are socially and economically disadvantaged 
individuals. Such delegations of authority must be revocable, and the 
socially and economically disadvantaged owners must retain the power to 
hire and fire any person to whom such authority is delegated. The 
managerial role of the socially and economically disadvantaged owners in 
the firm's overall affairs must be such that the recipient can 
reasonably conclude that the socially and economically disadvantaged 
owners actually exercise control over the firm's operations, management, 
and policy.
    (g) The socially and economically disadvantaged owners must have an 
overall understanding of, and managerial and technical competence and 
experience directly related to, the type of business in which the firm 
is engaged and the firm's operations. The socially and economically 
disadvantaged owners are not required to have experience or expertise in 
every critical area of the firm's operations, or to have greater 
experience or expertise in a given field than managers or key employees. 
The socially and economically disadvantaged owners must have the ability 
to intelligently and critically evaluate information presented by

[[Page 308]]

other participants in the firm's activities and to use this information 
to make independent decisions concerning the firm's daily operations, 
management, and policymaking. Generally, expertise limited to office 
management, administration, or bookkeeping functions unrelated to the 
principal business activities of the firm is insufficient to demonstrate 
control.
    (h) If state or local law requires the persons to have a particular 
license or other credential in order to own and/or control a certain 
type of firm, then the socially and economically disadvantaged persons 
who own and control a potential DBE firm of that type must possess the 
required license or credential. If state or local law does not require 
such a person to have such a license or credential to own and/or control 
a firm, you must not deny certification solely on the ground that the 
person lacks the license or credential. However, you may take into 
account the absence of the license or credential as one factor in 
determining whether the socially and economically disadvantaged owners 
actually control the firm.
    (i)(1) You may consider differences in remuneration between the 
socially and economically disadvantaged owners and other participants in 
the firm in determining whether to certify a firm as a DBE. Such 
consideration shall be in the context of the duties of the persons 
involved, normal industry practices, the firm's policy and practice 
concerning reinvestment of income, and any other explanations for the 
differences proffered by the firm. You may determine that a firm is 
controlled by its socially and economically disadvantaged owner although 
that owner's remuneration is lower than that of some other participants 
in the firm.
    (2) In a case where a non-disadvantaged individual formerly 
controlled the firm, and a socially and economically disadvantaged 
individual now controls it, you may consider a difference between the 
remuneration of the former and current controller of the firm as a 
factor in determining who controls the firm, particularly when the non-
disadvantaged individual remains involved with the firm and continues to 
receive greater compensation than the disadvantaged individual.
    (j) In order to be viewed as controlling a firm, a socially and 
economically disadvantaged owner cannot engage in outside employment or 
other business interests that conflict with the management of the firm 
or prevent the individual from devoting sufficient time and attention to 
the affairs of the firm to control its activities. For example, absentee 
ownership of a business and part-time work in a full-time firm are not 
viewed as constituting control. However, an individual could be viewed 
as controlling a part-time business that operates only on evenings and/
or weekends, if the individual controls it all the time it is operating.
    (k)(1) A socially and economically disadvantaged individual may 
control a firm even though one or more of the individual's immediate 
family members (who themselves are not socially and economically 
disadvantaged individuals) participate in the firm as a manager, 
employee, owner, or in another capacity. Except as otherwise provided in 
this paragraph, you must make a judgment about the control the socially 
and economically disadvantaged owner exercises vis-a-vis other persons 
involved in the business as you do in other situations, without regard 
to whether or not the other persons are immediate family members.
    (2) If you cannot determine that the socially and economically 
disadvantaged owners--as distinct from the family as a whole--control 
the firm, then the socially and economically disadvantaged owners have 
failed to carry their burden of proof concerning control, even though 
they may participate significantly in the firm's activities.
    (l) Where a firm was formerly owned and/or controlled by a non-
disadvantaged individual (whether or not an immediate family member), 
ownership and/or control were transferred to a socially and economically 
disadvantaged individual, and the non-disadvantaged individual remains 
involved with the firm in any capacity, the disadvantaged individual now 
owning the firm must demonstrate to you, by clear and convincing 
evidence, that:

[[Page 309]]

    (1) The transfer of ownership and/or control to the disadvantaged 
individual was made for reasons other than obtaining certification as a 
DBE; and
    (2) The disadvantaged individual actually controls the management, 
policy, and operations of the firm, notwithstanding the continuing 
participation of a non-disadvantaged individual who formerly owned and/
or controlled the firm.
    (m) In determining whether a firm is controlled by its socially and 
economically disadvantaged owners, you may consider whether the firm 
owns equipment necessary to perform its work. However, you must not 
determine that a firm is not controlled by socially and economically 
disadvantaged individuals solely because the firm leases, rather than 
owns, such equipment, where leasing equipment is a normal industry 
practice and the lease does not involve a relationship with a prime 
contractor or other party that compromises the independence of the firm.
    (n) You must grant certification to a firm only for specific types 
of work in which the socially and economically disadvantaged owners have 
the ability to control the firm. To become certified in an additional 
type of work, the firm need demonstrate to you only that its socially 
and economically disadvantaged owners are able to control the firm with 
respect to that type of work. You may not, in this situation, require 
that the firm be recertified or submit a new application for 
certification, but you must verify the disadvantaged owner's control of 
the firm in the additional type of work.
    (o) A business operating under a franchise or license agreement may 
be certified if it meets the standards in this subpart and the 
franchiser or licenser is not affiliated with the franchisee or 
licensee. In determining whether affiliation exists, you should 
generally not consider the restraints relating to standardized quality, 
advertising, accounting format, and other provisions imposed on the 
franchisee or licensee by the franchise agreement or license, provided 
that the franchisee or licensee has the right to profit from its efforts 
and bears the risk of loss commensurate with ownership. Alternatively, 
even though a franchisee or licensee may not be controlled by virtue of 
such provisions in the franchise agreement or license, affiliation could 
arise through other means, such as common management or excessive 
restrictions on the sale or transfer of the franchise interest or 
license.
    (p) In order for a partnership to be controlled by socially and 
economically disadvantaged individuals, any non-disadvantaged partners 
must not have the power, without the specific written concurrence of the 
socially and economically disadvantaged partner(s), to contractually 
bind the partnership or subject the partnership to contract or tort 
liability.
    (q) The socially and economically disadvantaged individuals 
controlling a firm may use an employee leasing company. The use of such 
a company does not preclude the socially and economically disadvantaged 
individuals from controlling their firm if they continue to maintain an 
employer-employee relationship with the leased employees. This includes 
being responsible for hiring, firing, training, assigning, and otherwise 
controlling the on-the-job activities of the employees, as well as 
ultimate responsibility for wage and tax obligations related to the 
employees.



Sec. 26.73  What are other rules affecting certification?

    (a)(1) Consideration of whether a firm performs a commercially 
useful function or is a regular dealer pertains solely to counting 
toward DBE goals the participation of firms that have already been 
certified as DBEs. Except as provided in paragraph (a)(2) of this 
section, you must not consider commercially useful function issues in 
any way in making decisions about whether to certify a firm as a DBE.
    (2) You may consider, in making certification decisions, whether a 
firm has exhibited a pattern of conduct indicating its involvement in 
attempts to evade or subvert the intent or requirements of the DBE 
program.
    (b) You must evaluate the eligibility of a firm on the basis of 
present circumstances. You must not refuse to certify a firm based 
solely on historical information indicating a lack of ownership or 
control of the firm by socially

[[Page 310]]

and economically disadvantaged individuals at some time in the past, if 
the firm currently meets the ownership and control standards of this 
part. Nor must you refuse to certify a firm solely on the basis that it 
is a newly formed firm.
    (c) DBE firms and firms seeking DBE certification shall cooperate 
fully with your requests (and DOT requests) for information relevant to 
the certification process. Failure or refusal to provide such 
information is a ground for a denial or removal of certification.
    (d) Only firms organized for profit may be eligible DBEs. Not-for-
profit organizations, even though controlled by socially and 
economically disadvantaged individuals, are not eligible to be certified 
as DBEs.
    (e) An eligible DBE firm must be owned by individuals who are 
socially and economically disadvantaged. Except as provided in this 
paragraph, a firm that is not owned by such individuals, but instead is 
owned by another firm--even a DBE firm--cannot be an eligible DBE.
    (1) If socially and economically disadvantaged individuals own and 
control a firm through a parent or holding company, established for tax, 
capitalization or other purposes consistent with industry practice, and 
the parent or holding company in turn owns and controls an operating 
subsidiary, you may certify the subsidiary if it otherwise meets all 
requirements of this subpart. In this situation, the individual owners 
and controllers of the parent or holding company are deemed to control 
the subsidiary through the parent or holding company.
    (2) You may certify such a subsidiary only if there is cumulatively 
51 percent ownership of the subsidiary by socially and economically 
disadvantaged individuals. The following examples illustrate how this 
cumulative ownership provision works:

    Example 1: Socially and economically disadvantaged individuals own 
100 percent of a holding company, which has a wholly-owned subsidiary. 
The subsidiary may be certified, if it meets all other requirements.
    Example 2: Disadvantaged individuals own 100 percent of the holding 
company, which owns 51 percent of a subsidiary. The subsidiary may be 
certified, if all other requirements are met.
    Example 3: Disadvantaged individuals own 80 percent of the holding 
company, which in turn owns 70 percent of a subsidiary. In this case, 
the cumulative ownership of the subsidiary by disadvantaged individuals 
is 56 percent (80 percent of the 70 percent). This is more than 51 
percent, so you may certify the subsidiary, if all other requirements 
are met.
    Example 4: Same as Example 2 or 3, but someone other than the 
socially and economically disadvantaged owners of the parent or holding 
company controls the subsidiary. Even though the subsidiary is owned by 
disadvantaged individuals, through the holding or parent company, you 
cannot certify it because it fails to meet control requirements.
    Example 5: Disadvantaged individuals own 60 percent of the holding 
company, which in turn owns 51 percent of a subsidiary. In this case, 
the cumulative ownership of the subsidiary by disadvantaged individuals 
is about 31 percent. This is less than 51 percent, so you cannot certify 
the subsidiary.
    Example 6: The holding company, in addition to the subsidiary 
seeking certification, owns several other companies. The combined gross 
receipts of the holding companies and its subsidiaries are greater than 
the size standard for the subsidiary seeking certification and/or the 
gross receipts cap of Sec. 26.65(b). Under the rules concerning 
affiliation, the subsidiary fails to meet the size standard and cannot 
be certified.

    (f) Recognition of a business as a separate entity for tax or 
corporate purposes is not necessarily sufficient to demonstrate that a 
firm is an independent business, owned and controlled by socially and 
economically disadvantaged individuals.
    (g) You must not require a DBE firm to be prequalified as a 
condition for certification unless the recipient requires all firms that 
participate in its contracts and subcontracts to be prequalified.
    (h) A firm that is owned by an Indian tribe or Native Hawaiian 
organization, rather than by Indians or Native Hawaiians as individuals, 
may be eligible for certification. Such a firm must meet the size 
standards of Sec. 26.35. Such a firm must be controlled by socially and 
economically disadvantaged individuals, as provided in Sec. 26.71.
    (i) The following special rules apply to the certification of firms 
related to Alaska Native Corporations (ANCs).
    (1) Notwithstanding any other provisions of this subpart, a direct 
or indirect subsidiary corporation, joint venture, or partnership entity 
of an ANC is

[[Page 311]]

eligible for certification as a DBE if it meets all of the following 
requirements:
    (i) The Settlement Common Stock of the underlying ANC and other 
stock of the ANC held by holders of the Settlement Common Stock and by 
Natives and descendents of Natives represents a majority of both the 
total equity of the ANC and the total voting power of the corporation 
for purposes of electing directors;
    (ii) The shares of stock or other units of common ownership interest 
in the subsidiary, joint venture, or partnership entity held by the ANC 
and by holders of its Settlement Common Stock represent a majority of 
both the total equity of the entity and the total voting power of the 
entity for the purpose of electing directors, the general partner, or 
principal officers; and
    (iii) The subsidiary, joint venture, or partnership entity has been 
certified by the Small Business Administration under the 8(a) or small 
disadvantaged business program.
    (2) As a recipient to whom an ANC-related entity applies for 
certification, you do not use the DOT uniform application form (see 
Appendix F of this part). You must obtain from the firm documentation 
sufficient to demonstrate that entity meets the requirements of 
paragraph (i)(1) of this section. You must also obtain sufficient 
information about the firm to allow you to administer your program 
(e.g., information that would appear in your DBE Directory).
    (3) If an ANC-related firm does not meet all the conditions of 
paragraph (i)(1) of this section, then it must meet the requirements of 
paragraph (h) of this section in order to be certified, on the same 
basis as firms owned by Indian Tribes or Native Hawaiian Organizations.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003]



                   Subpart E_Certification Procedures



Sec. 26.81  What are the requirements for Unified Certification Programs?

    (a) You and all other DOT recipients in your state must participate 
in a Unified Certification Program (UCP).
    (1) Within three years of March 4, 1999, you and the other 
recipients in your state must sign an agreement establishing the UCP for 
that state and submit the agreement to the Secretary for approval. The 
Secretary may, on the basis of extenuating circumstances shown by the 
recipients in the state, extend this deadline for no more than one 
additional year.
    (2) The agreement must provide for the establishment of a UCP 
meeting all the requirements of this section. The agreement must specify 
that the UCP will follow all certification procedures and standards of 
this part, on the same basis as recipients; that the UCP shall cooperate 
fully with oversight, review, and monitoring activities of DOT and its 
operating administrations; and that the UCP shall implement DOT 
directives and guidance concerning certification matters. The agreement 
shall also commit recipients to ensuring that the UCP has sufficient 
resources and expertise to carry out the requirements of this part. The 
agreement shall include an implementation schedule ensuring that the UCP 
is fully operational no later than 18 months following the approval of 
the agreement by the Secretary.
    (3) Subject to approval by the Secretary, the UCP in each state may 
take any form acceptable to the recipients in that state.
    (4) The Secretary shall review the UCP and approve it, disapprove 
it, or remand it to the recipients in the state for revisions. A 
complete agreement which is not disapproved or remanded within 180 days 
of its receipt is deemed to be accepted.
    (5) If you and the other recipients in your state fail to meet the 
deadlines set forth in this paragraph (a), you shall have the 
opportunity to make an explanation to the Secretary why a deadline could 
not be met and why meeting the deadline was beyond your control. If you 
fail to make such an explanation, or the explanation does not justify 
the failure to meet the deadline, the Secretary shall direct you to 
complete the required action by a date certain. If you and the other 
recipients fail to carry out this direction in a timely manner, you are 
collectively in noncompliance with this part.

[[Page 312]]

    (b) The UCP shall make all certification decisions on behalf of all 
DOT recipients in the state with respect to participation in the DOT DBE 
Program.
    (1) Certification decisions by the UCP shall be binding on all DOT 
recipients within the state.
    (2) The UCP shall provide ``one-stop shopping'' to applicants for 
certification, such that an applicant is required to apply only once for 
a DBE certification that will be honored by all recipients in the state.
    (3) All obligations of recipients with respect to certification and 
nondiscrimination must be carried out by UCPs, and recipients may use 
only UCPs that comply with the certification and nondiscrimination 
requirements of this part.
    (c) All certifications by UCPs shall be pre-certifications; i.e., 
certifications that have been made final before the due date for bids or 
offers on a contract on which a firm seeks to participate as a DBE.
    (d) A UCP is not required to process an application for 
certification from a firm having its principal place of business outside 
the state if the firm is not certified by the UCP in the state in which 
it maintains its principal place of business. The ``home state'' UCP 
shall share its information and documents concerning the firm with other 
UCPs that are considering the firm's application.
    (e) Subject to DOT approval as provided in this section, the 
recipients in two or more states may form a regional UCP. UCPs may also 
enter into written reciprocity agreements with other UCPs. Such an 
agreement shall outline the specific responsibilities of each 
participant. A UCP may accept the certification of any other UCP or DOT 
recipient.
    (f) Pending the establishment of UCPs meeting the requirements of 
this section, you may enter into agreements with other recipients, on a 
regional or inter-jurisdictional basis, to perform certification 
functions required by this part. You may also grant reciprocity to other 
recipient's certification decisions.
    (g) Each UCP shall maintain a unified DBE directory containing, for 
all firms certified by the UCP (including those from other states 
certified under the provisions of this section), the information 
required by Sec. 26.31. The UCP shall make the directory available to 
the public electronically, on the internet, as well as in print. The UCP 
shall update the electronic version of the directory by including 
additions, deletions, and other changes as soon as they are made.
    (h) Except as otherwise specified in this section, all provisions of 
this subpart and subpart D of this part pertaining to recipients also 
apply to UCPs.



Sec. 26.83  What procedures do recipients follow in making certification
decisions?

    (a) You must ensure that only firms certified as eligible DBEs under 
this section participate as DBEs in your program.
    (b) You must determine the eligibility of firms as DBEs consistent 
with the standards of subpart D of this part. When a UCP is formed, the 
UCP must meet all the requirements of subpart D of this part and this 
subpart that recipients are required to meet.
    (c) You must take all the following steps in determining whether a 
DBE firm meets the standards of subpart D of this part:
    (1) Perform an on-site visit to the offices of the firm. You must 
interview the principal officers of the firm and review their 
r[eacute]sum[eacute]s and/or work histories. You must also perform an 
on-site visit to job sites if there are such sites on which the firm is 
working at the time of the eligibility investigation in your 
jurisdiction or local area. You may rely upon the site visit report of 
any other recipient with respect to a firm applying for certification;
    (2) If the firm is a corporation, analyze the ownership of stock in 
the firm;
    (3) Analyze the bonding and financial capacity of the firm;
    (4) Determine the work history of the firm, including contracts it 
has received and work it has completed;
    (5) Obtain a statement from the firm of the type of work it prefers 
to perform as part of the DBE program and its preferred locations for 
performing the work, if any;

[[Page 313]]

    (6) Obtain or compile a list of the equipment owned by or available 
to the firm and the licenses the firm and its key personnel possess to 
perform the work it seeks to do as part of the DBE program;
    (7) Require potential DBEs to complete and submit an appropriate 
application form, unless the potential DBE is an SBA certified firm 
applying pursuant to the DOT/SBA MOU.
    (i) You must use the application form provided in Appendix F to this 
part without change or revision. However, you may provide in your DBE 
program, with the approval of the concerned operating administration, 
for supplementing the form by requesting additional information not 
inconsistent with this part.
    (ii) You must make sure that the applicant attests to the accuracy 
and truthfulness of the information on the application form. This shall 
be done either in the form of an affidavit sworn to by the applicant 
before a person who is authorized by state law to administer oaths or in 
the form of an unsworn declaration executed under penalty of perjury of 
the laws of the United States.
    (iii) You must review all information on the form prior to making a 
decision about the eligibility of the firm.
    (d) When another recipient, in connection with its consideration of 
the eligibility of a firm, makes a written request for certification 
information you have obtained about that firm (e.g., including 
application materials or the report of a site visit, if you have made 
one to the firm), you must promptly make the information available to 
the other recipient.
    (e) When another DOT recipient has certified a firm, you have 
discretion to take any of the following actions:
    (1) Certify the firm in reliance on the certification decision of 
the other recipient;
    (2) Make an independent certification decision based on 
documentation provided by the other recipient, augmented by any 
additional information you require the applicant to provide; or
    (3) Require the applicant to go through your application process 
without regard to the action of the other recipient.
    (f) Subject to the approval of the concerned operating 
administration as part of your DBE program, you may impose a reasonable 
application fee for certification. Fee waivers shall be made in 
appropriate cases.
    (g) You must safeguard from disclosure to unauthorized persons 
information gathered as part of the certification process that may 
reasonably be regarded as proprietary or other confidential business 
information, consistent with applicable Federal, state, and local law.
    (h) Once you have certified a DBE, it shall remain certified for a 
period of at least three years unless and until its certification has 
been removed through the procedures of Sec. 26.87. You may not require 
DBEs to reapply for certification as a condition of continuing to 
participate in the program during this three-year period, unless the 
factual basis on which the certification was made changes.
    (i) If you are a DBE, you must inform the recipient or UCP in 
writing of any change in circumstances affecting your ability to meet 
size, disadvantaged status, ownership, or control requirements of this 
part or any material change in the information provided in your 
application form.
    (1) Changes in management responsibility among members of a limited 
liability company are covered by this requirement.
    (2) You must attach supporting documentation describing in detail 
the nature of such changes.
    (3) The notice must take the form of an affidavit sworn to by the 
applicant before a person who is authorized by state law to administer 
oaths or of an unsworn declaration executed under penalty of perjury of 
the laws of the United States. You must provide the written notification 
within 30 days of the occurrence of the change. If you fail to make 
timely notification of such a change, you will be deemed to have failed 
to cooperate under Sec. 26.109(c).
    (j) If you are a DBE, you must provide to the recipient, every year 
on the anniversary of the date of your certification, an affidavit sworn 
to by the firm's owners before a person who is authorized by state law 
to administer

[[Page 314]]

oaths or an unsworn declaration executed under penalty of perjury of the 
laws of the United States. This affidavit must affirm that there have 
been no changes in the firm's circumstances affecting its ability to 
meet size, disadvantaged status, ownership, or control requirements of 
this part or any material changes in the information provided in its 
application form, except for changes about which you have notified the 
recipient under paragraph (i) of this section. The affidavit shall 
specifically affirm that your firm continues to meet SBA business size 
criteria and the overall gross receipts cap of this part, documenting 
this affirmation with supporting documentation of your firm's size and 
gross receipts. If you fail to provide this affidavit in a timely 
manner, you will be deemed to have failed to cooperate under Sec. 
26.109(c).
    (k) If you are a recipient, you must make decisions on applications 
for certification within 90 days of receiving from the applicant firm 
all information required under this part. You may extend this time 
period once, for no more than an additional 60 days, upon written notice 
to the firm, explaining fully and specifically the reasons for the 
extension. You may establish a different time frame in your DBE program, 
upon a showing that this time frame is not feasible, and subject to the 
approval of the concerned operating administration. Your failure to make 
a decision by the applicable deadline under this paragraph is deemed a 
constructive denial of the application, on the basis of which the firm 
may appeal to DOT under Sec. 26.89.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003]



Sec. 26.84  How do recipients process applications submitted pursuant
to the DOT/SBA MOU?

    (a) When an SBA-certified firm applies for certification pursuant to 
the DOT/SBA MOU, you must accept the certification applications, forms 
and packages submitted by a firm to the SBA for either the 8(a) BD or 
SDB programs, in lieu of requiring the applicant firm to complete your 
own application forms and packages. The applicant may submit the package 
directly, or may request that the SBA forward the package to you. 
Pursuant to the MOU, the SBA will forward the package within thirty 
days.
    (b) If necessary, you may request additional relevant information 
from the SBA. The SBA will provide this additional material within 
forty-five days of your written request.
    (c) Before certifying a firm based on its 8(a) BD or SDB 
certification, you must conduct an on-site review of the firm (see Sec. 
26.83(c)(1)). If the SBA conducted an on-site review, you may rely on 
the SBA's report of the on-site review. In connection with this review, 
you may also request additional relevant information from the firm.
    (d) Unless you determine, based on the on-site review and 
information obtained in connection with it, that the firm does not meet 
the eligibility requirements of Subpart D of this part, you must certify 
the firm.
    (e) You are not required to process an application for certification 
from an SBA-certified firm having its principal place of business 
outside the state(s) in which you operate unless there is a report of a 
``home state'' on-site review on which you may rely.
    (f) You are not required to process an application for certification 
from an SBA-certified firm if the firm does not provide products or 
services that you use in your DOT-assisted programs or airport 
concessions.

[68 FR 35555, June 16, 2003]



Sec. 26.85  How do recipients respond to requests from DBE-certified
firms or the SBA made pursuant to the DOT/SBA MOU?

    (a) Upon receipt of a signed, written request from a DBE-certified 
firm, you must transfer to the SBA a copy of the firm's application 
package. You must transfer this information within thirty days of 
receipt of the request.
    (b) If necessary, the SBA may make a written request to the 
recipient for additional materials (e.g., the report of the on-site 
review). You must provide a copy of this material to the SBA within 
forty-five days of the additional request.
    (c) You must provide appropriate assistance to SBA-certified firms, 
including providing information pertaining

[[Page 315]]

to the DBE application process, filing locations, required documentation 
and status of applications.

[68 FR 35555, June 16, 2003]



Sec. 26.86  What rules govern recipients' denials of initial requests 
for certification?

    (a) When you deny a request by a firm, which is not currently 
certified with you, to be certified as a DBE, you must provide the firm 
a written explanation of the reasons for the denial, specifically 
referencing the evidence in the record that supports each reason for the 
denial. All documents and other information on which the denial is based 
must be made available to the applicant, on request.
    (b) When you deny DBE certification to a firm certified by the SBA, 
you must notify the SBA in writing. The notification must include the 
reason for denial.
    (c) When a firm is denied certification, you must establish a time 
period of no more than twelve months that must elapse before the firm 
may reapply to the recipient for certification. You may provide, in your 
DBE program, subject to approval by the concerned operating 
administration, a shorter waiting period for reapplication. The time 
period for reapplication begins to run on the date the explanation 
required by paragraph (a) of this section is received by the firm.
    (d) When you make an administratively final denial of certification 
concerning a firm, the firm may appeal the denial to the Department 
under Sec. 26.89.

[64 FR 5126, Feb. 2, 1999. Redesignated and amended at 68 FR 35555, June 
16, 2003]



Sec. 26.87  What procedures does a recipient use to remove a 
DBE's eligibility?

    (a) Ineligibility complaints. (1) Any person may file with you a 
written complaint alleging that a currently-certified firm is ineligible 
and specifying the alleged reasons why the firm is ineligible. You are 
not required to accept a general allegation that a firm is ineligible or 
an anonymous complaint. The complaint may include any information or 
arguments supporting the complainant's assertion that the firm is 
ineligible and should not continue to be certified. Confidentiality of 
complainants' identities must be protected as provided in Sec. 
26.109(b).
    (2) You must review your records concerning the firm, any material 
provided by the firm and the complainant, and other available 
information. You may request additional information from the firm or 
conduct any other investigation that you deem necessary.
    (3) If you determine, based on this review, that there is reasonable 
cause to believe that the firm is ineligible, you must provide written 
notice to the firm that you propose to find the firm ineligible, setting 
forth the reasons for the proposed determination. If you determine that 
such reasonable cause does not exist, you must notify the complainant 
and the firm in writing of this determination and the reasons for it. 
All statements of reasons for findings on the issue of reasonable cause 
must specifically reference the evidence in the record on which each 
reason is based.
    (b) Recipient-initiated proceedings. If, based on notification by 
the firm of a change in its circumstances or other information that 
comes to your attention, you determine that there is reasonable cause to 
believe that a currently certified firm is ineligible, you must provide 
written notice to the firm that you propose to find the firm ineligible, 
setting forth the reasons for the proposed determination. The statement 
of reasons for the finding of reasonable cause must specifically 
reference the evidence in the record on which each reason is based.
    (c) DOT directive to initiate proceeding. (1) If the concerned 
operating administration determines that information in your 
certification records, or other information available to the concerned 
operating administration, provides reasonable cause to believe that a 
firm you certified does not meet the eligibility criteria of this part, 
the concerned operating administration may direct you to initiate a 
proceeding to remove the firm's certification.
    (2) The concerned operating administration must provide you and the 
firm a notice setting forth the reasons for the directive, including any 
relevant documentation or other information.

[[Page 316]]

    (3) You must immediately commence and prosecute a proceeding to 
remove eligibility as provided by paragraph (b) of this section.
    (d) Hearing. When you notify a firm that there is reasonable cause 
to remove its eligibility, as provided in paragraph (a), (b), or (c) of 
this section, you must give the firm an opportunity for an informal 
hearing, at which the firm may respond to the reasons for the proposal 
to remove its eligibility in person and provide information and 
arguments concerning why it should remain certified.
    (1) In such a proceeding, you bear the burden of proving, by a 
preponderance of the evidence, that the firm does not meet the 
certification standards of this part.
    (2) You must maintain a complete record of the hearing, by any means 
acceptable under state law for the retention of a verbatim record of an 
administrative hearing. If there is an appeal to DOT under Sec. 26.89, 
you must provide a transcript of the hearing to DOT and, on request, to 
the firm. You must retain the original record of the hearing. You may 
charge the firm only for the cost of copying the record.
    (3) The firm may elect to present information and arguments in 
writing, without going to a hearing. In such a situation, you bear the 
same burden of proving, by a preponderance of the evidence, that the 
firm does not meet the certification standards, as you would during a 
hearing.
    (e) Separation of functions. You must ensure that the decision in a 
proceeding to remove a firm's eligibility is made by an office and 
personnel that did not take part in actions leading to or seeking to 
implement the proposal to remove the firm's eligibility and are not 
subject, with respect to the matter, to direction from the office or 
personnel who did take part in these actions.
    (1) Your method of implementing this requirement must be made part 
of your DBE program.
    (2) The decisionmaker must be an individual who is knowledgeable 
about the certification requirements of your DBE program and this part.
    (3) Before a UCP is operational in its state, a small airport or 
small transit authority (i.e., an airport or transit authority serving 
an area with less than 250,000 population) is required to meet this 
requirement only to the extent feasible.
    (f) Grounds for decision. You must not base a decision to remove 
eligibility on a reinterpretation or changed opinion of information 
available to the recipient at the time of its certification of the firm. 
You may base such a decision only on one or more of the following:
    (1) Changes in the firm's circumstances since the certification of 
the firm by the recipient that render the firm unable to meet the 
eligibility standards of this part;
    (2) Information or evidence not available to you at the time the 
firm was certified;
    (3) Information that was concealed or misrepresented by the firm in 
previous certification actions by a recipient;
    (4) A change in the certification standards or requirements of the 
Department since you certified the firm; or
    (5) A documented finding that your determination to certify the firm 
was factually erroneous.
    (g) Notice of decision. Following your decision, you must provide 
the firm written notice of the decision and the reasons for it, 
including specific references to the evidence in the record that 
supports each reason for the decision. The notice must inform the firm 
of the consequences of your decision and of the availability of an 
appeal to the Department of Transportation under Sec. 26.89. You must 
send copies of the notice to the complainant in an ineligibility 
complaint or the concerned operating administration that had directed 
you to initiate the proceeding.
    (h) When you decertify a DBE firm certified by the SBA, you must 
notify the SBA in writing. The notification must include the reason for 
denial.
    (i) Status of firm during proceeding. (1) A firm remains an eligible 
DBE during the pendancy of your proceeding to remove its eligibility.
    (2) The firm does not become ineligible until the issuance of the 
notice provided for in paragraph (g) of this section.

[[Page 317]]

    (j) Effects of removal of eligibility. When you remove a firm's 
eligibility, you must take the following action:
    (1) When a prime contractor has made a commitment to using the 
ineligible firm, or you have made a commitment to using a DBE prime 
contractor, but a subcontract or contract has not been executed before 
you issue the decertification notice provided for in paragraph (g) of 
this section, the ineligible firm does not count toward the contract 
goal or overall goal. You must direct the prime contractor to meet the 
contract goal with an eligible DBE firm or demonstrate to you that it 
has made a good faith effort to do so.
    (2) If a prime contractor has executed a subcontract with the firm 
before you have notified the firm of its ineligibility, the prime 
contractor may continue to use the firm on the contract and may continue 
to receive credit toward its DBE goal for the firm's work. In this case, 
or in a case where you have let a prime contract to the DBE that was 
later ruled ineligible, the portion of the ineligible firm's performance 
of the contract remaining after you issued the notice of its 
ineligibility shall not count toward your overall goal, but may count 
toward the contract goal.
    (3) Exception: If the DBE's ineligibility is caused solely by its 
having exceeded the size standard during the performance of the 
contract, you may continue to count its participation on that contract 
toward overall and contract goals.
    (k) Availability of appeal. When you make an administratively final 
removal of a firm's eligibility under this section, the firm may appeal 
the removal to the Department under Sec. 26.89.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003]



Sec. 26.89  What is the process for certification appeals to the 
Department of Transportation?

    (a)(1) If you are a firm that is denied certification or whose 
eligibility is removed by a recipient, including SBA-certified firms 
applying pursuant to the DOT/SBA MOU, you may make an administrative 
appeal to the Department.
    (2) If you are a complainant in an ineligibility complaint to a 
recipient (including the concerned operating administration in the 
circumstances provided in Sec. 26.87(c)), you may appeal to the 
Department if the recipient does not find reasonable cause to propose 
removing the firm's eligibility or, following a removal of eligibility 
proceeding, determines that the firm is eligible.
    (3) Send appeals to the following address: Department of 
Transportation, Office of Civil Rights, 1200 New Jersey Avenue, SE., 
Washington, DC 20590.
    (b) Pending the Department's decision in the matter, the recipient's 
decision remains in effect. The Department does not stay the effect of 
the recipient's decision while it is considering an appeal.
    (c) If you want to file an appeal, you must send a letter to the 
Department within 90 days of the date of the recipient's final decision, 
including information and arguments concerning why the recipient's 
decision should be reversed. The Department may accept an appeal filed 
later than 90 days after the date of the decision if the Department 
determines that there was good cause for the late filing of the appeal.
    (1) If you are an appellant who is a firm which has been denied 
certification, whose certification has been removed, whose owner is 
determined not to be a member of a designated disadvantaged group, or 
concerning whose owner the presumption of disadvantage has been 
rebutted, your letter must state the name and address of any other 
recipient which currently certifies the firm, which has rejected an 
application for certification from the firm or removed the firm's 
eligibility within one year prior to the date of the appeal, or before 
which an application for certification or a removal of eligibility is 
pending. Failure to provide this information may be deemed a failure to 
cooperate under Sec. 26.109(c).
    (2) If you are an appellant other than one described in paragraph 
(c)(1) of this section, the Department will request, and the firm whose 
certification has been questioned shall promptly provide, the 
information called for in paragraph (c)(1) of this section. Failure to 
provide this information may be

[[Page 318]]

deemed a failure to cooperate under Sec. 26.109(c).
    (d) When it receives an appeal, the Department requests a copy of 
the recipient's complete administrative record in the matter. If you are 
the recipient, you must provide the administrative record, including a 
hearing transcript, within 20 days of the Department's request. The 
Department may extend this time period on the basis of a recipient's 
showing of good cause. To facilitate the Department's review of a 
recipient's decision, you must ensure that such administrative records 
are well organized, indexed, and paginated. Records that do not comport 
with these requirements are not acceptable and will be returned to you 
to be corrected immediately. If an appeal is brought concerning one 
recipient's certification decision concerning a firm, and that recipient 
relied on the decision and/or administrative record of another 
recipient, this requirement applies to both recipients involved.
    (e) The Department makes its decision based solely on the entire 
administrative record. The Department does not make a de novo review of 
the matter and does not conduct a hearing. The Department may supplement 
the administrative record by adding relevant information made available 
by the DOT Office of Inspector General; Federal, state, or local law 
enforcement authorities; officials of a DOT operating administration or 
other appropriate DOT office; a recipient; or a firm or other private 
party.
    (f) As a recipient, when you provide supplementary information to 
the Department, you shall also make this information available to the 
firm and any third-party complainant involved, consistent with Federal 
or applicable state laws concerning freedom of information and privacy. 
The Department makes available, on request by the firm and any third-
party complainant involved, any supplementary information it receives 
from any source.
    (1) The Department affirms your decision unless it determines, based 
on the entire administrative record, that your decision is unsupported 
by substantial evidence or inconsistent with the substantive or 
procedural provisions of this part concerning certification.
    (2) If the Department determines, after reviewing the entire 
administrative record, that your decision was unsupported by substantial 
evidence or inconsistent with the substantive or procedural provisions 
of this part concerning certification, the Department reverses your 
decision and directs you to certify the firm or remove its eligibility, 
as appropriate. You must take the action directed by the Department's 
decision immediately upon receiving written notice of it.
    (3) The Department is not required to reverse your decision if the 
Department determines that a procedural error did not result in 
fundamental unfairness to the appellant or substantially prejudice the 
opportunity of the appellant to present its case.
    (4) If it appears that the record is incomplete or unclear with 
respect to matters likely to have a significant impact on the outcome of 
the case, the Department may remand the record to you with instructions 
seeking clarification or augmentation of the record before making a 
finding. The Department may also remand a case to you for further 
proceedings consistent with Department instructions concerning the 
proper application of the provisions of this part.
    (5) The Department does not uphold your decision based on grounds 
not specified in your decision.
    (6) The Department's decision is based on the status and 
circumstances of the firm as of the date of the decision being appealed.
    (7) The Department provides written notice of its decision to you, 
the firm, and the complainant in an ineligibility complaint. A copy of 
the notice is also sent to any other recipient whose administrative 
record or decision has been involved in the proceeding (see paragraph 
(d) of this section). The Department will also notify the SBA in writing 
when DOT takes an action on an appeal that results in or confirms a loss 
of eligibility to any SBA-certified firm. The notice includes the 
reasons for the Department's decision, including specific references to 
the evidence in the record that supports each reason for the decision.

[[Page 319]]

    (8) The Department's policy is to make its decision within 180 days 
of receiving the complete administrative record. If the Department does 
not make its decision within this period, the Department provides 
written notice to concerned parties, including a statement of the reason 
for the delay and a date by which the appeal decision will be made.
    (g) All decisions under this section are administratively final, and 
are not subject to petitions for reconsideration.

[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 
FR 35556, June 16, 2003; 73 FR 33329, June 12, 2008]



Sec. 26.91  What actions do recipients take following DOT certification
appeal decisions?

    (a) If you are the recipient from whose action an appeal under Sec. 
26.89 is taken, the decision is binding. It is not binding on other 
recipients.
    (b) If you are a recipient to which a DOT determination under Sec. 
26.89 is applicable, you must take the following action:
    (1) If the Department determines that you erroneously certified a 
firm, you must remove the firm's eligibility on receipt of the 
determination, without further proceedings on your part. Effective on 
the date of your receipt of the Department's determination, the 
consequences of a removal of eligibility set forth in Sec. 26.87(i) 
take effect.
    (2) If the Department determines that you erroneously failed to find 
reasonable cause to remove the firm's eligibility, you must 
expeditiously commence a proceeding to determine whether the firm's 
eligibility should be removed, as provided in Sec. 26.87.
    (3) If the Department determines that you erroneously declined to 
certify or removed the eligibility of the firm, you must certify the 
firm, effective on the date of your receipt of the written notice of 
Department's determination.
    (4) If the Department determines that you erroneously determined 
that the presumption of social and economic disadvantage either should 
or should not be deemed rebutted, you must take appropriate corrective 
action as determined by the Department.
    (5) If the Department affirms your determination, no further action 
is necessary.
    (c) Where DOT has upheld your denial of certification to or removal 
of eligibility from a firm, or directed the removal of a firm's 
eligibility, other recipients with whom the firm is certified may 
commence a proceeding to remove the firm's eligibility under Sec. 
26.87. Such recipients must not remove the firm's eligibility absent 
such a proceeding. Where DOT has reversed your denial of certification 
to or removal of eligibility from a firm, other recipients must take the 
DOT action into account in any certification action involving the firm. 
However, other recipients are not required to certify the firm based on 
the DOT decision.



                  Subpart F_Compliance and Enforcement



Sec. 26.101  What compliance procedures apply to recipients?

    (a) If you fail to comply with any requirement of this part, you may 
be subject to formal enforcement action under Sec. 26.103 or Sec. 
26.105 or appropriate program sanctions by the concerned operating 
administration, such as the suspension or termination of Federal funds, 
or refusal to approve projects, grants or contracts until deficiencies 
are remedied. Program sanctions may include, in the case of the FHWA 
program, actions provided for under 23 CFR 1.36; in the case of the FAA 
program, actions consistent with 49 U.S.C. 47106(d), 47111(d), and 
47122; and in the case of the FTA program, any actions permitted under 
49 U.S.C. chapter 53 or applicable FTA program requirements.
    (b) As provided in statute, you will not be subject to compliance 
actions or sanctions for failing to carry out any requirement of this 
part because you have been prevented from complying because a Federal 
court has issued a final order in which the court found that the 
requirement is unconstitutional.



Sec. 26.103  What enforcement actions apply in FHWA and FTA programs?

    The provisions of this section apply to enforcement actions under 
FHWA and FTA programs:

[[Page 320]]

    (a) Noncompliance complaints. Any person who believes that a 
recipient has failed to comply with its obligations under this part may 
file a written complaint with the concerned operating administration's 
Office of Civil Rights. If you want to file a complaint, you must do so 
no later than 180 days after the date of the alleged violation or the 
date on which you learned of a continuing course of conduct in violation 
of this part. In response to your written request, the Office of Civil 
Rights may extend the time for filing in the interest of justice, 
specifying in writing the reason for so doing. The Office of Civil 
Rights may protect the confidentiality of your identity as provided in 
Sec. 26.109(b). Complaints under this part are limited to allegations 
of violation of the provisions of this part.
    (b) Compliance reviews. The concerned operating administration may 
review the recipient's compliance with this part at any time, including 
reviews of paperwork and on-site reviews, as appropriate. The Office of 
Civil Rights may direct the operating administration to initiate a 
compliance review based on complaints received.
    (c) Reasonable cause notice. If it appears, from the investigation 
of a complaint or the results of a compliance review, that you, as a 
recipient, are in noncompliance with this part, the appropriate DOT 
office promptly sends you, return receipt requested, a written notice 
advising you that there is reasonable cause to find you in 
noncompliance. The notice states the reasons for this finding and 
directs you to reply within 30 days concerning whether you wish to begin 
conciliation.
    (d) Conciliation. (1) If you request conciliation, the appropriate 
DOT office shall pursue conciliation for at least 30, but not more than 
120, days from the date of your request. The appropriate DOT office may 
extend the conciliation period for up to 30 days for good cause, 
consistent with applicable statutes.
    (2) If you and the appropriate DOT office sign a conciliation 
agreement, then the matter is regarded as closed and you are regarded as 
being in compliance. The conciliation agreement sets forth the measures 
you have taken or will take to ensure compliance. While a conciliation 
agreement is in effect, you remain eligible for FHWA or FTA financial 
assistance.
    (3) The concerned operating administration shall monitor your 
implementation of the conciliation agreement and ensure that its terms 
are complied with. If you fail to carry out the terms of a conciliation 
agreement, you are in noncompliance.
    (4) If you do not request conciliation, or a conciliation agreement 
is not signed within the time provided in paragraph (d)(1) of this 
section, then enforcement proceedings begin.
    (e) Enforcement actions. (1) Enforcement actions are taken as 
provided in this subpart.
    (2) Applicable findings in enforcement proceedings are binding on 
all DOT offices.



Sec. 26.105  What enforcement actions apply in FAA programs?

    (a) Compliance with all requirements of this part by airport 
sponsors and other recipients of FAA financial assistance is enforced 
through the procedures of Title 49 of the United States Code, including 
49 U.S.C. 47106(d), 47111(d), and 47122, and regulations implementing 
them.
    (b) The provisions of Sec. 26.103(b) and this section apply to 
enforcement actions in FAA programs.
    (c) Any person who knows of a violation of this part by a recipient 
of FAA funds may file a complaint under 14 CFR part 16 with the Federal 
Aviation Administration Office of Chief Counsel.



Sec. 26.107  What enforcement actions apply to firms participating 
in the DBE program?

    (a) If you are a firm that does not meet the eligibility criteria of 
subpart D of this part and that attempts to participate in a DOT-
assisted program as a DBE on the basis of false, fraudulent, or 
deceitful statements or representations or under circumstances 
indicating a serious lack of business integrity or honesty, the 
Department may initiate suspension or debarment proceedings against you 
under 49 CFR part 29.
    (b) If you are a firm that, in order to meet DBE contract goals or 
other DBE program requirements, uses or attempts to use, on the basis of 
false,

[[Page 321]]

fraudulent or deceitful statements or representations or under 
circumstances indicating a serious lack of business integrity or 
honesty, another firm that does not meet the eligibility criteria of 
subpart D of this part, the Department may initiate suspension or 
debarment proceedings against you under 49 CFR part 29.
    (c) In a suspension or debarment proceeding brought under paragraph 
(a) or (b) of this section, the concerned operating administration may 
consider the fact that a purported DBE has been certified by a 
recipient. Such certification does not preclude the Department from 
determining that the purported DBE, or another firm that has used or 
attempted to use it to meet DBE goals, should be suspended or debarred.
    (d) The Department may take enforcement action under 49 CFR Part 31, 
Program Fraud and Civil Remedies, against any participant in the DBE 
program whose conduct is subject to such action under 49 CFR part 31.
    (e) The Department may refer to the Department of Justice, for 
prosecution under 18 U.S.C. 1001 or other applicable provisions of law, 
any person who makes a false or fraudulent statement in connection with 
participation of a DBE in any DOT-assisted program or otherwise violates 
applicable Federal statutes.



Sec. 26.109  What are the rules governing information, confidentiality,
cooperation, and intimidation or retaliation?

    (a) Availability of records. (1) In responding to requests for 
information concerning any aspect of the DBE program, the Department 
complies with provisions of the Federal Freedom of Information and 
Privacy Acts (5 U.S.C. 552 and 552a). The Department may make available 
to the public any information concerning the DBE program release of 
which is not prohibited by Federal law.
    (2) Notwithstanding any provision of Federal or state law, you must 
not release information that may be reasonably be construed as 
confidential business information to any third party without the written 
consent of the firm that submitted the information. This includes 
applications for DBE certification and supporting documentation. 
However, you must transmit this information to DOT in any certification 
appeal proceeding under Sec. 26.89 in which the disadvantaged status of 
the individual is in question.
    (b) Confidentiality of information on complainants. Notwithstanding 
the provisions of paragraph (a) of this section, the identity of 
complainants shall be kept confidential, at their election. If such 
confidentiality will hinder the investigation, proceeding or hearing, or 
result in a denial of appropriate administrative due process to other 
parties, the complainant must be advised for the purpose of waiving the 
privilege. Complainants are advised that, in some circumstances, failure 
to waive the privilege may result in the closure of the investigation or 
dismissal of the proceeding or hearing. FAA follows the procedures of 14 
CFR part 16 with respect to confidentiality of information in 
complaints.
    (c) Cooperation. All participants in the Department's DBE program 
(including, but not limited to, recipients, DBE firms and applicants for 
DBE certification, complainants and appellants, and contractors using 
DBE firms to meet contract goals) are required to cooperate fully and 
promptly with DOT and recipient compliance reviews, certification 
reviews, investigations, and other requests for information. Failure to 
do so shall be a ground for appropriate action against the party 
involved (e.g., with respect to recipients, a finding of noncompliance; 
with respect to DBE firms, denial of certification or removal of 
eligibility and/or suspension and debarment; with respect to a 
complainant or appellant, dismissal of the complaint or appeal; with 
respect to a contractor which uses DBE firms to meet goals, findings of 
non-responsibility for future contracts and/or suspension and 
debarment).
    (d) Intimidation and retaliation. If you are a recipient, 
contractor, or any other participant in the program, you must not 
intimidate, threaten, coerce, or discriminate against any individual or 
firm for the purpose of interfering with any right or privilege secured 
by this part or because the individual or firm has made a complaint, 
testified,

[[Page 322]]

assisted, or participated in any manner in an investigation, proceeding, 
or hearing under this part. If you violate this prohibition, you are in 
noncompliance with this part.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003]



   Sec. Appendix A to Part 26--Guidance Concerning Good Faith Efforts

    I. When, as a recipient, you establish a contract goal on a DOT-
assisted contract, a bidder must, in order to be responsible and/or 
responsive, make good faith efforts to meet the goal. The bidder can 
meet this requirement in either of two ways. First, the bidder can meet 
the goal, documenting commitments for participation by DBE firms 
sufficient for this purpose. Second, even if it doesn't meet the goal, 
the bidder can document adequate good faith efforts. This means that the 
bidder must show that it took all necessary and reasonable steps to 
achieve a DBE goal or other requirement of this part which, by their 
scope, intensity, and appropriateness to the objective, could reasonably 
be expected to obtain sufficient DBE participation, even if they were 
not fully successful.
    II. In any situation in which you have established a contract goal, 
part 26 requires you to use the good faith efforts mechanism of this 
part. As a recipient, it is up to you to make a fair and reasonable 
judgment whether a bidder that did not meet the goal made adequate good 
faith efforts. It is important for you to consider the quality, 
quantity, and intensity of the different kinds of efforts that the 
bidder has made. The efforts employed by the bidder should be those that 
one could reasonably expect a bidder to take if the bidder were actively 
and aggressively trying to obtain DBE participation sufficient to meet 
the DBE contract goal. Mere pro forma efforts are not good faith efforts 
to meet the DBE contract requirements. We emphasize, however, that your 
determination concerning the sufficiency of the firm's good faith 
efforts is a judgment call: meeting quantitative formulas is not 
required.
    III. The Department also strongly cautions you against requiring 
that a bidder meet a contract goal (i.e., obtain a specified amount of 
DBE participation) in order to be awarded a contract, even though the 
bidder makes an adequate good faith efforts showing. This rule 
specifically prohibits you from ignoring bona fide good faith efforts.
    IV. The following is a list of types of actions which you should 
consider as part of the bidder's good faith efforts to obtain DBE 
participation. It is not intended to be a mandatory checklist, nor is it 
intended to be exclusive or exhaustive. Other factors or types of 
efforts may be relevant in appropriate cases.
    A. Soliciting through all reasonable and available means (e.g. 
attendance at pre-bid meetings, advertising and/or written notices) the 
interest of all certified DBEs who have the capability to perform the 
work of the contract. The bidder must solicit this interest within 
sufficient time to allow the DBEs to respond to the solicitation. The 
bidder must determine with certainty if the DBEs are interested by 
taking appropriate steps to follow up initial solicitations.
    B. Selecting portions of the work to be performed by DBEs in order 
to increase the likelihood that the DBE goals will be achieved. This 
includes, where appropriate, breaking out contract work items into 
economically feasible units to facilitate DBE participation, even when 
the prime contractor might otherwise prefer to perform these work items 
with its own forces.
    C. Providing interested DBEs with adequate information about the 
plans, specifications, and requirements of the contract in a timely 
manner to assist them in responding to a solicitation.
    D. (1) Negotiating in good faith with interested DBEs. It is the 
bidder's responsibility to make a portion of the work available to DBE 
subcontractors and suppliers and to select those portions of the work or 
material needs consistent with the available DBE subcontractors and 
suppliers, so as to facilitate DBE participation. Evidence of such 
negotiation includes the names, addresses, and telephone numbers of DBEs 
that were considered; a description of the information provided 
regarding the plans and specifications for the work selected for 
subcontracting; and evidence as to why additional agreements could not 
be reached for DBEs to perform the work.
    (2) A bidder using good business judgment would consider a number of 
factors in negotiating with subcontractors, including DBE 
subcontractors, and would take a firm's price and capabilities as well 
as contract goals into consideration. However, the fact that there may 
be some additional costs involved in finding and using DBEs is not in 
itself sufficient reason for a bidder's failure to meet the contract DBE 
goal, as long as such costs are reasonable. Also, the ability or desire 
of a prime contractor to perform the work of a contract with its own 
organization does not relieve the bidder of the responsibility to make 
good faith efforts. Prime contractors are not, however, required to 
accept higher quotes from DBEs if the price difference is excessive or 
unreasonable.
    E. Not rejecting DBEs as being unqualified without sound reasons 
based on a thorough investigation of their capabilities. The 
contractor's standing within its industry, membership in specific 
groups, organizations, or

[[Page 323]]

associations and political or social affiliations (for example union vs. 
non-union employee status) are not legitimate causes for the rejection 
or non-solicitation of bids in the contractor's efforts to meet the 
project goal.
    F. Making efforts to assist interested DBEs in obtaining bonding, 
lines of credit, or insurance as required by the recipient or 
contractor.
    G. Making efforts to assist interested DBEs in obtaining necessary 
equipment, supplies, materials, or related assistance or services.
    H. Effectively using the services of available minority/women 
community organizations; minority/women contractors' groups; local, 
state, and Federal minority/women business assistance offices; and other 
organizations as allowed on a case-by-case basis to provide assistance 
in the recruitment and placement of DBEs.
    V. In determining whether a bidder has made good faith efforts, you 
may take into account the performance of other bidders in meeting the 
contract. For example, when the apparent successful bidder fails to meet 
the contract goal, but others meet it, you may reasonably raise the 
question of whether, with additional reasonable efforts, the apparent 
successful bidder could have met the goal. If the apparent successful 
bidder fails to meet the goal, but meets or exceeds the average DBE 
participation obtained by other bidders, you may view this, in 
conjunction with other factors, as evidence of the apparent successful 
bidder having made good faith efforts.

[[Page 324]]



Sec. Appendix B to Part 26--Uniform Report of DBE Awards or Commitments 
                            and Payments Form
[GRAPHIC] [TIFF OMITTED] TR16JN03.051


[[Page 325]]


[GRAPHIC] [TIFF OMITTED] TR16JN03.052


[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003]



 Sec. Appendix C to Part 26--DBE Business Development Program Guidelines

    The purpose of this program element is to further the development of 
DBEs, including but not limited to assisting them to move into non-
traditional areas of work and/or compete in the marketplace outside the 
DBE program, via the provision of training and assistance from the 
recipient.
    (A) Each firm that participates in a recipient's business 
development program (BDP) program is subject to a program term 
determined by the recipient. The term should consist of two stages; a 
developmental stage and a transitional stage.

[[Page 326]]

    (B) In order for a firm to remain eligible for program 
participation, it must continue to meet all eligibility criteria 
contained in part 26.
    (C) By no later than 6 months of program entry, the participant 
should develop and submit to the recipient a comprehensive business plan 
setting forth the participant's business targets, objectives and goals. 
The participant will not be eligible for program benefits until such 
business plan is submitted and approved by the recipient. The approved 
business plan will constitute the participant's short and long term 
goals and the strategy for developmental growth to the point of economic 
viability in non-traditional areas of work and/or work outside the DBE 
program.
    (D) The business plan should contain at least the following:
    (1) An analysis of market potential, competitive environment and 
other business analyses estimating the program participant's prospects 
for profitable operation during the term of program participation and 
after graduation from the program.
    (2) An analysis of the firm's strengths and weaknesses, with 
particular attention paid to the means of correcting any financial, 
managerial, technical, or labor conditions which could impede the 
participant from receiving contracts other than those in traditional 
areas of DBE participation.
    (3) Specific targets, objectives, and goals for the business 
development of the participant during the next two years, utilizing the 
results of the analysis conducted pursuant to paragraphs (C) and (D)(1) 
of this appendix;
    (4) Estimates of contract awards from the DBE program and from other 
sources which are needed to meet the objectives and goals for the years 
covered by the business plan; and
    (5) Such other information as the recipient may require.
    (E) Each participant should annually review its currently approved 
business plan with the recipient and modify the plan as may be 
appropriate to account for any changes in the firm's structure and 
redefined needs. The currently approved plan should be considered the 
applicable plan for all program purposes until the recipient approves in 
writing a modified plan. The recipient should establish an anniversary 
date for review of the participant's business plan and contract 
forecasts.
    (F) Each participant should annually forecast in writing its need 
for contract awards for the next program year and the succeeding program 
year during the review of its business plan conducted under paragraph 
(E) of this appendix. Such forecast should be included in the 
participant's business plan. The forecast should include:
    (1) The aggregate dollar value of contracts to be sought under the 
DBE program, reflecting compliance with the business plan;
    (2) The aggregate dollar value of contracts to be sought in areas 
other than traditional areas of DBE participation;
    (3) The types of contract opportunities being sought, based on the 
firm's primary line of business; and
    (4) Such other information as may be requested by the recipient to 
aid in providing effective business development assistance to the 
participant.
    (G) Program participation is divided into two stages; (1) a 
developmental stage and (2) a transitional stage. The developmental 
stage is designed to assist participants to overcome their social and 
economic disadvantage by providing such assistance as may be necessary 
and appropriate to enable them to access relevant markets and strengthen 
their financial and managerial skills. The transitional stage of program 
participation follows the developmental stage and is designed to assist 
participants to overcome, insofar as practical, their social and 
economic disadvantage and to prepare the participant for leaving the 
program.
    (H) The length of service in the program term should not be a pre-
set time frame for either the developmental or transitional stages but 
should be figured on the number of years considered necessary in normal 
progression of achieving the firm's established goals and objectives. 
The setting of such time could be factored on such items as, but not 
limited to, the number of contracts, aggregate amount of the contract 
received, years in business, growth potential, etc.
    (I) Beginning in the first year of the transitional stage of program 
participation, each participant should annually submit for inclusion in 
its business plan a transition management plan outlining specific steps 
to promote profitable business operations in areas other than 
traditional areas of DBE participation after graduation from the 
program. The transition management plan should be submitted to the 
recipient at the same time other modifications are submitted pursuant to 
the annual review under paragraph (E) of this section. The plan should 
set forth the same information as required under paragraph (F) of steps 
the participant will take to continue its business development after the 
expiration of its program term.
    (J) When a participant is recognized as successfully completing the 
program by substantially achieving the targets, objectives and goals set 
forth in its program term, and has demonstrated the ability to compete 
in the marketplace, its further participation within the program may be 
determined by the recipient.

[[Page 327]]

    (K) In determining whether a concern has substantially achieved the 
goals and objectives of its business plan, the following factors, among 
others, should be considered by the recipient:
    (1) Profitability;
    (2) Sales, including improved ratio of non-traditional contracts to 
traditional-type contracts;
    (3) Net worth, financial ratios, working capital, capitalization, 
access to credit and capital;
    (4) Ability to obtain bonding;
    (5) A positive comparison of the DBE's business and financial 
profile with profiles of non-DBE businesses in the same area or similar 
business category; and
    (6) Good management capacity and capability.
    (L) Upon determination by the recipient that the participant should 
be graduated from the developmental program, the recipient should notify 
the participant in writing of its intent to graduate the firm in a 
letter of notification. The letter of notification should set forth 
findings, based on the facts, for every material issue relating to the 
basis of the program graduation with specific reasons for each finding. 
The letter of notification should also provide the participant 45 days 
from the date of service of the letter to submit in writing information 
that would explain why the proposed basis of graduation is not 
warranted.
    (M) Participation of a DBE firm in the program may be discontinued 
by the recipient prior to expiration of the firm's program term for good 
cause due to the failure of the firm to engage in business practices 
that will promote its competitiveness within a reasonable period of time 
as evidenced by, among other indicators, a pattern of inadequate 
performance or unjustified delinquent performance. Also, the recipient 
can discontinue the participation of a firm that does not actively 
pursue and bid on contracts, and a firm that, without justification, 
regularly fails to respond to solicitations in the type of work it is 
qualified for and in the geographical areas where it has indicated 
availability under its approved business plan. The recipient should take 
such action if over a 2-year period a DBE firm exhibits such a pattern.



    Sec. Appendix D to Part 26--Mentor-Prot[eacute]g[eacute] Program 
                               Guidelines

    (A) The purpose of this program element is to further the 
development of DBEs, including but not limited to assisting them to move 
into non-traditional areas of work and/or compete in the marketplace 
outside the DBE program, via the provision of training and assistance 
from other firms. To operate a mentor-prot[eacute]g[eacute] program, a 
recipient must obtain the approval of the concerned operating 
administration.
    (B)(1) Any mentor-prot[eacute]g[eacute] relationship shall be based 
on a written development plan, approved by the recipient, which clearly 
sets forth the objectives of the parties and their respective roles, the 
duration of the arrangement and the services and resources to be 
provided by the mentor to the prot[eacute]g[eacute]. The formal mentor-
prot[eacute]g[eacute] agreement may set a fee schedule to cover the 
direct and indirect cost for such services rendered by the mentor for 
specific training and assistance to the prot[eacute]g[eacute] through 
the life of the agreement. Services provided by the mentor may be 
reimbursable under the FTA, FHWA, and FAA programs.
    (2) To be eligible for reimbursement, the mentor's services provided 
and associated costs must be directly attributable and properly 
allowable to specific individual contracts. The recipient may establish 
a line item for the mentor to quote the portion of the fee schedule 
expected to be provided during the life of the contract. The amount 
claimed shall be verified by the recipient and paid on an incremental 
basis representing the time the prot[eacute]g[eacute] is working on the 
contract. The total individual contract figures accumulated over the 
life of the agreement shall not exceed the amount stipulated in the 
original mentor/prot[eacute]g[eacute] agreement.
    (C) DBEs involved in a mentor-prot[eacute]g[eacute] agreement must 
be independent business entities which meet the requirements for 
certification as defined in subpart D of this part. A 
prot[eacute]g[eacute] firm must be certified before it begins 
participation in a mentor-prot[eacute]g[eacute] arrangement. If the 
recipient chooses to recognize mentor/prot[eacute]g[eacute] agreements, 
it should establish formal general program guidelines. These guidelines 
must be submitted to the operating administration for approval prior to 
the recipient executing an individual contractor/ subcontractor mentor-
prot[eacute]g[eacute] agreement.



  Sec. Appendix E to Part 26--Individual Determinations of Social and 
                          Economic Disadvantage

    The following guidance is adapted, with minor modifications, from 
SBA regulations concerning social and economic disadvantage 
determinations (see 13 CFR 124.103(c) and 124.104).

                           Social Disadvantage

    I. Socially disadvantaged individuals are those who have been 
subjected to racial or ethnic prejudice or cultural bias within American 
society because of their identities as members of groups and without 
regard to their individual qualities. Social disadvantage must stem from 
circumstances beyond their control. Evidence of individual social 
disadvantage must include the following elements:

[[Page 328]]

    (A) At least one objective distinguishing feature that has 
contributed to social disadvantage, such as race, ethnic origin, gender, 
disability, long-term residence in an environment isolated from the 
mainstream of American society, or other similar causes not common to 
individuals who are not socially disadvantaged;
    (B) Personal experiences of substantial and chronic social 
disadvantage in American society, not in other countries; and
    (C) Negative impact on entry into or advancement in the business 
world because of the disadvantage. Recipients will consider any relevant 
evidence in assessing this element. In every case, however, recipients 
will consider education, employment and business history, where 
applicable, to see if the totality of circumstances shows disadvantage 
in entering into or advancing in the business world.
    (1) Education. Recipients will consider such factors as denial of 
equal access to institutions of higher education and vocational 
training, exclusion from social and professional association with 
students or teachers, denial of educational honors rightfully earned, 
and social patterns or pressures which discouraged the individual from 
pursuing a professional or business education.
    (2) Employment. Recipients will consider such factors as unequal 
treatment in hiring, promotions and other aspects of professional 
advancement, pay and fringe benefits, and other terms and conditions of 
employment; retaliatory or discriminatory behavior by an employer or 
labor union; and social patterns or pressures which have channeled the 
individual into non-professional or non-business fields.
    (3) Business history. The recipient will consider such factors as 
unequal access to credit or capital, acquisition of credit or capital 
under commercially unfavorable circumstances, unequal treatment in 
opportunities for government contracts or other work, unequal treatment 
by potential customers and business associates, and exclusion from 
business or professional organizations.
    II. With respect to paragraph I.(A) of this appendix, the Department 
notes that people with disabilities have disproportionately low incomes 
and high rates of unemployment. Many physical and attitudinal barriers 
remain to their full participation in education, employment, and 
business opportunities available to the general public. The Americans 
with Disabilities Act (ADA) was passed in recognition of the 
discrimination faced by people with disabilities. It is plausible that 
many individuals with disabilities--especially persons with severe 
disabilities (e.g., significant mobility, vision, or hearing 
impairments)--may be socially and economically disadvantaged.
    III. Under the laws concerning social and economic disadvantage, 
people with disabilities are not a group presumed to be disadvantaged. 
Nevertheless, recipients should look carefully at individual showings of 
disadvantage by individuals with disabilities, making a case-by-case 
judgment about whether such an individual meets the criteria of this 
appendix. As public entities subject to Title II of the ADA, recipients 
must also ensure their DBE programs are accessible to individuals with 
disabilities. For example, physical barriers or the lack of application 
and information materials in accessible formats cannot be permitted to 
thwart the access of potential applicants to the certification process 
or other services made available to DBEs and applicants.

                          Economic Disadvantage

    (A) General. Economically disadvantaged individuals are socially 
disadvantaged individuals whose ability to compete in the free 
enterprise system has been impaired due to diminished capital and credit 
opportunities as compared to others in the same or similar line of 
business who are not socially disadvantaged.
    (B) Submission of narrative and financial information.
    (1) Each individual claiming economic disadvantage must describe the 
conditions which are the basis for the claim in a narrative statement, 
and must submit personal financial information.
    (2) [Reserved]
    (C) Factors to be considered. In considering diminished capital and 
credit opportunities, recipients will examine factors relating to the 
personal financial condition of any individual claiming disadvantaged 
status, including personal income for the past two years (including 
bonuses and the value of company stock given in lieu of cash), personal 
net worth, and the fair market value of all assets, whether encumbered 
or not. Recipients will also consider the financial condition of the 
applicant compared to the financial profiles of small businesses in the 
same primary industry classification, or, if not available, in similar 
lines of business, which are not owned and controlled by socially and 
economically disadvantaged individuals in evaluating the individual's 
access to credit and capital. The financial profiles that recipients 
will compare include total assets, net sales, pre-tax profit, sales/
working capital ratio, and net worth.
    (D) Transfers within two years.
    (1) Except as set forth in paragraph (D)(2) of this appendix, 
recipients will attribute to an individual claiming disadvantaged status 
any assets which that individual has transferred to an immediate family 
member, or to

[[Page 329]]

a trust, a beneficiary of which is an immediate family member, for less 
than fair market value, within two years prior to a concern's 
application for participation in the DBE program, unless the individual 
claiming disadvantaged status can demonstrate that the transfer is to or 
on behalf of an immediate family member for that individual's education, 
medical expenses, or some other form of essential support.
    (2) Recipients will not attribute to an individual claiming 
disadvantaged status any assets transferred by that individual to an 
immediate family member that are consistent with the customary 
recognition of special occasions, such as birthdays, graduations, 
anniversaries, and retirements.
    (3) In determining an individual's access to capital and credit, 
recipients may consider any assets that the individual transferred 
within such two-year period described by paragraph (D)(1) of this 
appendix that are not considered in evaluating the individual's assets 
and net worth (e.g., transfers to charities).

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35559, June 16, 2003]

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[68 FR 35559, June 16, 2003]

[[Page 344]]



PART 27_NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                            Subpart A_General

Sec.
27.1 Purpose.
27.3 Applicability.
27.5 Definitions.
27.7 Discrimination prohibited.
27.9 Assurance required.
27.11 Remedial action, voluntary action, and compliance planning.
27.13 Designation of responsible employee and adoption of grievance 
          procedures.
27.15 Notice.
27.17 Effect of State or local law.
27.19 Compliance with Americans with Disabilities Act requirements and 
          FTA policy.

       Subpart B_Accessibility Requirements in Specific Operating 
       Administration Programs: Airports, Railroads, and Highways

27.71 Airport facilities.
27.72 Boarding assistance for aircraft.
27.75 Federal Highway Administration--highways.
27.77 Recipients of Essential Air Service subsidies.

                          Subpart C_Enforcement

27.121 Compliance information.
27.123 Conduct of investigations.
27.125 Compliance procedure.
27.127 Hearings.
27.129 Decisions and notices.

    Authority: Sec. 504 of the Rehabilitation Act of 1973, as amended 
(29 U.S.C. 794); sec. 16 (a) and (d) of the Federal Transit Act of 1964, 
as amended (49 U.S.C. 5310 (a) and (f); sec. 165(b) of the Federal-Aid 
Highway Act of 1973, as amended (23 U.S.C. 142 nt.).

    Source: 44 FR 3l468, May 31, 1979, unless otherwise noted.



                            Subpart A_General



Sec. 27.1  Purpose.

    The purpose of this part is to carry out the intent of section 504 
of the Rehabilitation Act of 1973 (29 U.S.C. 794) as amended, to the end 
that no otherwise qualified individual with a disability in the United 
States shall, solely by reason of his or her disability, be excluded 
from the participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal financial 
assistance.



Sec. 27.3  Applicability.

    (a) This part applies to each recipient of Federal financial 
assistance from the Department of Transportation and to each program or 
activity that receives such assistance.
    (b) Design, construction, or alteration of buildings or other fixed 
facilities by public entities subject to part 37 of this title shall be 
in conformance with appendix A to part 37 of this title. All other 
entities subject to section 504 shall design, construct or alter a 
building, or other fixed facilities shall be in conformance with either 
appendix A to part 37 of this title or the Uniform Federal Accessibility 
Standards, 41 CFR part 101-19 subpart 101-19.6, appendix A.

[44 FR 31468, May 31, 1979, as amended at 56 FR 45621, Sept. 6, 1991; 68 
FR 51390, Aug. 26, 2003]



Sec. 27.5  Definitions.

    As used in this part:
    Act means the Rehabilitation Act of 1973, Public Law 93-112, as 
amended.
    Applicant means one who submits an application, request, or plan to 
be approved by a Departmental official or by a primary recipient as a 
condition to eligibility for Federal financial assistance, and 
application means such an application, request, or plan.
    Commercial service airport means an airport that is defined as a 
commercial service airport for purposes of the Federal Aviation 
Administration's Airport Improvement Program and that enplanes annually 
2500 or more passengers and receives scheduled passenger service of 
aircraft.
    Department means the Department of Transportation.
    Discrimination means denying handicapped persons the opportunity to 
participate in or benefit from any program or activity receiving Federal 
financial assistance.
    Facility means all or any portion of buildings, structures, 
vehicles, equipment, roads, walks, parking lots, or other real or 
personal property or interest in such property.

[[Page 345]]

    Federal financial assistance means any grant, loan, contract (other 
than a procurement contract or a contract of insurance or guaranty), or 
any other arrangement by which the Department provides or otherwise 
makes available assistance in the form of:
    (a) Funds;
    (b) Services of Federal personnel; or
    (c) Real or personal property or any interest in, or use of such 
property, including:
    (1) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (2) Proceeds from a subsequent transfer or lease of such property if 
the Federal share of its fair market value is not returned to the 
Federal Government.
    Handicapped person means (1) any person who (a) has a physical or 
mental impairment that substantially limits one or more major life 
activities, (b) has a record of such an impairment, or (c) is regarded 
as having such an impairment. (2) As used in this definition, the 
phrase:
    (a) Physical or mental impairment means (i) any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: neurological; 
musculoskeletal; special sense organs; respiratory, including speech 
organs; cardiovascular, reproductive; digestive; genito-urinary; hemic 
and lymphatic; skin; and endocrine; or (ii) any mental or psychological 
disorder, such as mental retardation, organic brain syndrome, emotional 
or mental illness, and specific learning disabilities. The term physical 
or mental impairment includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments; 
cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; 
cancer; heart disease; mental retardation; emotional illness; drug 
addiction; and alcoholism.
    (b) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (c) Has a record of such an impairment means has a history of, or 
has been classified, or misclassified, as having a mental or physical 
impairment that substantially limits one or more major life activities.
    (d) Is regarded as having an impairment means:
    (1) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a recipient as 
constituting such a limitation;
    (2) Has a physical or mental impairment that substantially limits 
major life activity only as a result of the attitudes of others toward 
such an impairment; or
    (3) Has none of the impairments set forth in paragraph (1) of this 
definition, but is treated by a recipient as having such an impairment.
    Head of Operating Administration means the head of an operating 
administration within the Department (U.S. Coast Guard, Federal Highway 
Administration, Federal Aviation Administration, Federal Railroad 
Administration, National Highway Traffic Safety Administration, Federal 
Transit Administration, and Research and Special Programs 
Administration) providing Federal financial assistance to the recipient.
    Primary recipient means any recipient that is authorized or required 
to extend Federal financial assistance from the Department to another 
recipient.
    Program or activity means all of the operations of any entity 
described in paragraphs (1) through (4) of this definition, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;

[[Page 346]]

    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this definition.
    Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation and within normal safety requirements, can 
perform the essential functions of the job in question, but the term 
does not include any individual who is an alcoholic or drug abuser whose 
current use of alcohol or drugs prevents such person from performing the 
duties of the job in question or whose employment, by reason of such 
current alcohol or drug abuse, would constitute a direct threat to 
property or the safety of others; and
    (2) With respect to other services, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    Recipient means any State, territory, possession, the District of 
Columbia, or Puerto Rico, or any political subdivision thereof, or 
instrumentality thereof, any public or private agency, institution, 
organization, or other entity, or any individual in any State, 
territory, possession, the District of Columbia, or Puerto Rico, to whom 
Federal financial assistance from the Department is extended directly or 
through another recipient, including any successor, assignee, or 
transferee thereof, but such term does not include any ultimate 
beneficiary.
    Secretary means the Secretary of Transportation.
    Section 504 means section 504 of the Act.
    Special service system means a transportation system specifically 
designed to serve the needs of persons who, by reason of disability, are 
physically unable to use bus systems designed for use by the general 
public. Special service is characterized by the use of vehicles smaller 
than a standard transit bus which are usable by handicapped persons, 
demand-responsive service, point of origin to point of destination 
service, and flexible routing and scheduling.

[44 FR 31468, May 31, 1979, as amended by Amdt. 1, 46 FR 37492, July 20, 
1981; Amdt. 27-3, 51 FR 19017, May 23, 1986; 56 FR 45621, Sept. 6, 1991; 
61 FR 32354, June 24, 1996; 61 FR 56424, Nov. 1, 1996; 68 FR 51390, Aug. 
26, 2003]



Sec. 27.7  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, solely by reason 
of his disability, be excluded from participation in, be denied the 
benefits of, or otherwise be subjected to discrimination under any 
program or activity that receives Federal financial assistance 
administered by the Department of Transportation.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
any aid, benefit, or service, may not, directly or through contractual, 
licensing, or other arrangements, on the basis of disability:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
substantially equal to that afforded persons who are not handicapped;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as persons who are not handicapped;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons unless such 
action is necessary to provide qualified handicapped persons with aid, 
benefits or services that

[[Page 347]]

are as effective as those provided to persons who are not handicapped;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing financial or other assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the 
recipient's program or activity;
    (vi) Deny a qualified handicapped person the opportunity to 
participate in conferences, in planning or advising recipients, 
applicants or would-be applicants, or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit, or service.
    (2) For purposes of this part, aids, benefits, and services, to be 
equally effective, are not required to produce the identical result or 
level of achievement for handicapped and nonhandicapped persons, but 
must afford handicapped persons equal opportunity to obtain the same 
result, to gain the same benefit, or to reach the same level of 
achievement, in the most integrated setting that is reasonably 
achievable.
    (3) Even if separate or different aid, benefits, or services are 
available to handicapped persons, a recipient may not deny a qualified 
handicapped person the opportunity to participate in the programs or 
activities that are not separate or different.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified handicapped persons 
to discrimination on the basis of disability,
    (ii) That have the purpose or effect of defeating or substantially 
reducing the likelihood that handicapped persons can benefit by the 
objectives of the recipient's program or activity, or
    (iii) That yield or perpetuate discrimination against another 
recipient if both recipients are subject to common administrative 
control or are agencies of the same State.
    (5) In determining the site or location of a facility, an applicant 
or a recipient may not make selections:
    (i) That have the effect of excluding handicapped persons from, 
denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives Federal 
financial assistance, or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (6) As used in this section, the aid benefit, or service provided 
under a program or activity receiving Federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole or in part, with Federal financial 
assistance.
    (c) Communications. Recipients shall take appropriate steps to 
ensure that communications with their applicants, employees, and 
beneficiaries are available to persons with impaired vision and hearing.
    (d) Aid, benefits, or services limited by Federal law. For aid, 
benefits, or services authorized by Federal statute or executive order 
that are designed especially for the handicapped, or for a particular 
class of handicapped persons, the exclusion of nonhandicapped or other 
classes of handicapped persons is not prohibited by this part.

[44 FR 3l468, May 31, 1979, as amended at 68 FR 51390, Aug. 26, 2003]



Sec. 27.9  Assurance required.

    (a) General. Each application for Federal financial assistance to 
which this part applies, and each application to provide a facility, 
shall, as a condition to approval or extension of any Federal financial 
assistance pursuant to the application, contain, or be accompanied by, 
written assurance that the program or activity will be conducted or the 
facility operated in compliance with all the requirements imposed by or 
pursuant to this part. An applicant may incorporate these assurances by 
reference in subsequent applications to the Department.
    (b) Future effect of assurances. Recipients of Federal financial 
assistance, and transferees of property obtained by a recipient with the 
participation of

[[Page 348]]

Federal financial assistance, are bound by the recipient's assurance 
under the following circumstances:
    (1) When Federal financial assistance is provided in the form of a 
conveyance of real property or an interest in real property from the 
Department of Transportation to a recipient, the instrument of 
conveyance shall include a convenant running with the land binding the 
recipient and subsequent transferees to comply with the requirements of 
this part for so long as the property is used for the purpose for which 
the Federal financial assistance was provided or for a similar purpose.
    (2) When Federal financial assistance is used by a recipient to 
purchase or improve real property, the assurance provided by the 
recipient shall obligate the recipient to comply with the requirements 
of this part and require any subsequent transferee of the property, who 
is using the property for the purpose for which the Federal financial 
assistance was provided, to agree in writing to comply with the 
requirements of this part. The obligations of the recipient and 
transferees under this part shall continue in effect for as long as the 
property is used for the purpose for which Federal financial assistance 
was provided or for a similar purpose.
    (3) When Federal financial assistance is provided to the recipient 
in the form of, or is used by the recipient to obtain, personal 
property, the assurance provided by the recipient shall obligate the 
recipient to comply with the requirements of this part for the period it 
retains ownership or possession of the property or the property is used 
by a transferee for purposes directly related to the operations of the 
recipient.
    (4) When Federal financial assistance is used by a recipient for 
purposes other than to obtain property, the assurance provided shall 
obligate the recipient to comply with the requirements of this part for 
the period during which the Federal financial assistance is extended to 
the program or activity.

[44 FR 3l468, May 31, 1979, as amended at 68 FR 51390, Aug. 26, 2003]



Sec. 27.11  Remedial action, voluntary action and compliance planning.

    (a) Remedial action. (1) If the responsible Departmental official 
finds that a qualified handicapped person has been excluded from 
participation in, denied the benefits of, or otherwise subjected to 
discrimination under, any program or activity in violation of this part, 
the recipient shall take such remedial action as the responsible 
Departmental official deems necessary to overcome the effects of the 
violation.
    (2) Where a recipient is found to have violated this part, and where 
another recipient exercises control over the recipient that has violated 
this part, the responsible Departmental official, where appropriate, may 
require either or both recipients to take remedial action.
    (3) The responsible Departmental official may, where necessary to 
overcome the effects of a violation of this part, require a recipient to 
take remedial action:
    (i) With respect to handicapped persons who are no longer 
participants in the recipient's program or activity but who were 
participants in the program or activity when such discrimination 
occurred, and
    (ii) With respect to handicapped persons who would have been 
participants in the program or activity had the discrimination not 
occurred.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to assure the full participation 
in the recipient's program or activity by qualified handicapped persons.
    (c) Compliance planning. (1) A recipient shall, within 90 days from 
the effective date of this part, designate and forward to the head of 
any operating administration providing financial assistance, with a copy 
to the responsible Departmental official the names, addresses, and 
telephone numbers of the persons responsible for evaluating the 
recipient's compliance with this part.
    (2) A recipient shall, within 180 days from the effective date of 
this part, after consultation at each step in paragraphs (c)(2) (i)-
(iii) of this section with interested persons, including handicapped 
persons and organizations representing the handicapped:

[[Page 349]]

    (i) Evaluate its current policies and practices for implementing 
these regulations, and notify the head of the operating administration 
of the completion of this evaluation;
    (ii) Identify shortcomings in compliance and describe the methods 
used to remedy them;
    (iii) Begin to modify, with official approval of recipient's 
management, any policies or practices that do not meet the requirements 
of this part according to a schedule or sequence that includes 
milestones or measures of achievement. These modifications shall be 
completed within one year from the effective date of this part;
    (iv) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from previous policies and practices; and
    (v) Establish a system for periodically reviewing and updating the 
evaluation.
    (3) A recipient shall, for at least three years following completion 
of the evaluation required under paragraph (c)(2) of this section, 
maintain on file, make available for public inspection, and furnish upon 
request to the head of the operating administration:
    (i) A list of the interested persons consulted;
    (ii) A description of areas examined and any problems indentified; 
and
    (iii) A description of any modifications made and of any remedial 
steps taken.

[44 FR 3l468, May 31, 1979, as amended at 68 FR 51390, Aug. 26, 2003]



Sec. 27.13  Designation of responsible employee and adoption of grievance 
procedures.

    (a) Designation of responsible employee. Each recipient that employs 
fifteen or more persons shall, within 90 days of the effective date of 
this regulation, forward to the head of the operating administration 
that provides financial assistance to the recipient, with a copy to the 
responsible Departmental official, the name, address, and telephone 
number of at least one person designated to coordinate its efforts to 
comply with this part. Each such recipient shall inform the head of the 
operating administration of any subsequent change.
    (b) Adoption of complaint procedures. A recipient that employs 
fifteen or more persons shall, within 180 days, adopt and file with the 
head of the operating administration procedures that incorporate 
appropriate due process standards and provide for the prompt and 
equitable resolution of complaints alleging any action prohibited by 
this part.



Sec. 27.15  Notice.

    (a) A recipient shall take appropriate initial and continuing steps 
to notify participants, beneficiaries, applicants, and employees, 
including those with impaired vision or hearing, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient, that it does not discriminate on the 
basis of disability. The notification shall state, where appropriate, 
that the recipient does not discriminate in admission or access to, or 
treatment or employment in, its programs or activities. The notification 
shall also include an identification of the responsible employee 
designated pursuant to Sec. 27.13(a). A recipient shall make the 
initial notification required by this section within 90 days of the 
effective date of this part. Methods of initial and continuing 
notification may include the posting of notices, publication in 
newspapers and magazines, placement of notices in recipients' 
publications and distribution of memoranda or other written 
communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications. In either case, the addition or revision must be 
specially noted.



Sec. 27.17  Effect of State or local law.

    The obligation to comply with this part is not obviated or affected 
by any State or local law.

[[Page 350]]



Sec. 27.19  Compliance with Americans with Disabilities Act requirements
and FTA policy.

    (a) Recipients subject to this part (whether public or private 
entities as defined in 49 CFR part 37) shall comply with all applicable 
requirements of the Americans with Disabilities Act (ADA) of 1990 (42 
U.S.C. 12101-12213) including the Department's ADA regulations (49 CFR 
parts 37 and 38), the regulations of the Department of Justice 
implementing titles II and III of the ADA (28 CFR parts 35 and 36), and 
the regulations of the Equal Employment Opportunity Commission (EEOC) 
implementing title I of the ADA (29 CFR part 1630). Compliance with the 
EEOC title I regulations is required as a condition of compliance with 
section 504 for DOT recipients even for organizations which, because 
they have fewer than 25 or 15 employees, would not be subject to the 
EEOC regulation in its own right. Compliance with all these regulations 
is a condition of receiving Federal financial assistance from the 
Department of Transportation. Any recipient not in compliance with this 
requirement shall be subject to enforcement action under subpart F of 
this part.
    (b) Consistent with FTA policy, any recipient of Federal financial 
assistance from the Federal Transit Administration whose solicitation 
was made before August 26, 1990, and is for one or more inaccessible 
vehicles, shall provide written notice to the Secretary (e.g., in the 
case of a solicitation made in the past under which the recipient can 
order additional new buses after the effective date of this section). 
The Secretary shall review each case individually, and determine whether 
the Department will continue to participate in the Federal grant, 
consistent with the provisions in the grant agreement between the 
Department and the recipient.

[55 FR 40763, Oct. 4, 1990, as amended at 56 FR 45621, Sept. 6, 1991; 61 
FR 32354, June 24, 1996]



       Subpart B_Accessibility Requirements in Specific Operating 
       Administration Programs: Airports, Railroads, and Highways



Sec. 27.71  Airport facilities.

    (a) This section applies to all terminal facilities and services 
owned, leased, or operated on any basis by a recipient of DOT financial 
assistance at a commercial service airport, including parking and ground 
transportation facilities.
    (b) Airport operators shall ensure that the terminal facilities and 
services subject to this section shall be readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs. Airport operators shall be deemed to comply with this 
section 504 obligation if they meet requirements applying to state and 
local government programs or activities and facilities under Department 
of Justice (DOJ) regulations implementing Title II of the Americans with 
Disabilities Act (ADA).
    (c) The airport shall ensure that there is an accessible path 
between the gate and the area from which aircraft are boarded.
    (d) Systems of inter-terminal transportation, including, but not 
limited to, shuttle vehicles and people movers, shall comply with 
applicable requirements of the Department of Transportation's ADA rules.
    (e) The Americans with Disabilities Act Accessibility Guidelines 
(ADAAGs), including section 10.4 concerning airport facilities, shall be 
the standard for accessibility under this section.
    (f) Contracts or leases between carriers and airport operators 
concerning the use of airport facilities shall set forth the respective 
responsibilities of the parties for the provision of accessible 
facilities and services to individuals with disabilities as required by 
this part and applicable ADA rules of the Department of Transportation 
and Department of Justice for airport operators and applicable Air 
Carrier Access Act rules (49 CFR part 382) for carriers.
    (g) If an airport operator who receives Federal financial assistance 
for

[[Page 351]]

an existing airport facility has not already done so, the recipient 
shall submit a transition plan meeting the requirements of Sec. 
27.65(d) of this part to the FAA no later than March 3, 1997.

[61 FR 56424, Nov. 1, 1996, as amended at 68 FR 51391, Aug. 26, 2003]



Sec. 27.72  Boarding assistance for aircraft.

    (a) Paragraphs (b)-(e) of this section apply to airports with 10,000 
or more annual enplanements.
    (b) Airports shall, in cooperation with carriers serving the 
airports, provide boarding assistance to individuals with disabilities 
using mechanical lifts, ramps, or other devices that do not require 
employees to lift or carry passengers up stairs. Paragraph (c) of this 
section applies to aircraft with a seating capacity of 19 through 30 
passengers. Paragraph (d) of this section applies to aircraft with a 
seating capacity of 31 or more passengers.
    (c)(1) Each airport operator shall negotiate in good faith with each 
carrier serving the airport concerning the acquisition and use of 
boarding assistance devices for aircraft with a seating capacity of 19 
through 30 passengers. The airport operator and the carrier(s) shall, by 
no later than September 2, 1997, sign a written agreement allocating 
responsibility for meeting the boarding assistance requirements of this 
section between or among the parties. The agreement shall be made 
available, on request, to representatives of the Department of 
Transportation.
    (2) The agreement shall provide that all actions necessary to ensure 
accessible boarding for passengers with disabilities are completed as 
soon as practicable, but no later than December 2, 1998, at large and 
medium commercial service hub airports (those with 1,200,000 or more 
annual enplanements); December 2, 1999, for small commercial service hub 
airports (those with between 250,000 and 1,199,999 annual enplanements); 
or December 2, 2000, for non-hub commercial service primary airports 
(those with between 10,000 and 249,999 annual enplanements). All air 
carriers and airport operators involved are jointly responsible for the 
timely and complete implementation of the agreement.
    (3) Boarding assistance under the agreement is not required in the 
following situations:
    (i) Access to aircraft with a capacity of fewer than 19 or more than 
30 seats;
    (ii) Access to float planes;
    (iii) Access to the following 19-seat capacity aircraft models: the 
Fairchild Metro, the Jetstream 31, and the Beech 1900 (C and D models);
    (iv) Access to any other 19-seat aircraft model determined by the 
Department of Transportation to be unsuitable for boarding assistance by 
lift, ramp or other suitable device on the basis of a significant risk 
of serious damage to the aircraft or the presence of internal barriers 
that preclude passengers who use a boarding or aisle chair to reach a 
non-exit row seat.
    (4) When boarding assistance is not required to be provided under 
paragraph (c)(3) of this section, or cannot be provided as required by 
paragraphs (b) and (c) of this section (e.g., because of mechanical 
problems with a lift), boarding assistance shall be provided by any 
available means to which the passenger consents, except hand-carrying as 
defined in 14 CFR 382.39(a)(2).
    (5) The agreement shall ensure that all lifts and other 
accessibility equipment are maintained in proper working condition.
    (d)(1) Each airport operator shall negotiate in good faith with each 
carrier serving the airport concerning the acquisition and use of 
boarding assistance devices for aircraft with a seating capacity of 31 
or more passengers where level entry boarding is not otherwise 
available. The airport operator and the carrier(s) shall, by no later 
than March 4, 2002 sign a written agreement allocating responsibility 
for meeting the boarding assistance requirements of this section between 
or among the parties. The agreement shall be made available, on request, 
to representatives of the Department of Transportation.
    (2) The agreement shall provide that all actions necessary to ensure 
accessible boarding for passengers with disabilities are completed as 
soon as practicable, but no later than December 4,

[[Page 352]]

2002. All air carriers and airport operators involved are jointly 
responsible for the timely and complete implementation of the agreement.
    (3) Level-entry boarding assistance under the agreement is not 
required with respect to float planes or with respect to any widebody 
aircraft determined by the Department of Transportation to be unsuitable 
for boarding assistance by lift, ramp, or other device on the basis that 
no existing boarding assistance device on the market will accommodate 
the aircraft without a significant risk of serious damage to the 
aircraft or injury to passengers or employees.
    (4) When level-entry boarding assistance is not required to be 
provided under paragraph (d)(3) of this section, or cannot be provided 
as required by paragraphs (b) and (d) of this section (e.g., because of 
mechanical problems with a lift), boarding assistance shall be provided 
by any available means to which the passenger consents, except hand-
carrying as defined in 14 CFR 382.39(a)(2).
    (5) The agreement shall ensure that all lifts and other 
accessibility equipment are maintained in proper working condition.
    (e) In the event that airport personnel are involved in providing 
boarding assistance, the airport shall ensure that they are trained to 
proficiency in the use of the boarding assistance equipment used at the 
airport and appropriate boarding assistance procedures that safeguard 
the safety and dignity of passengers.

[66 FR 22115, May 3, 2001]



Sec. 27.75  Federal Highway Administration--highways.

    (a) New facilities--(1) Highway rest area facilities. All such 
facilities that will be constructed with Federal financial assistance 
shall be designed and constructed in accordance with the accessibility 
standards referenced in Sec. 27.3(b) of this part.
    (2) Curb cuts. All pedestrian crosswalks constructed with Federal 
financial assistance shall have curb cuts or ramps to accommodate 
persons in wheelchairs, pursuant to section 228 of the Federal-Aid 
Highway Act of 1973 (23 U.S.C. 402(b)(1)(F)).
    (3) Pedestrian over-passes, under-passes and ramps. Pedestrian over-
passes, under-passes and ramps, constructed with Federal financial 
assistance, shall be accessible to handicapped persons, including having 
gradients no steeper than 10 percent, unless:
    (i) Alternate safe means are provided to enable mobility-limited 
persons to cross the roadway at that location; or
    (ii) It would be infeasible for mobility-limited persons to reach 
the over-passes, under-passes or ramps because of unusual topographical 
or architectural obstacles unrelated to the federally assisted facility.
    (b) Existing facilities--Rest area facilities. Rest area facilities 
on Interstate highways shall be made accessible to handicapped persons, 
including wheelchair users, within a three-year period after the 
effective date of this part. Other rest area facilities shall be made 
accessible when Federal financial assistance is used to improve the rest 
area, or when the roadway adjacent to or in the near vicinity of the 
rest area is constructed, reconstructed or otherwise altered with 
Federal financial assistance.

[44 FR 31468, May 31, 1979, as amended by Amdt. 27-3, 51 FR 19017, May 
23, 1986. Redesignated at 56 FR 45621, Sept. 6, 1991]



Sec. 27.77  Recipients of Essential Air Service subsidies.

    Any air carrier receiving Federal financial assistance from the 
Department of Transportation under the Essential Air Service Program 
shall, as a condition of receiving such assistance, comply with 
applicable requirements of this part and applicable section 504 and ACAA 
rules of the Department of Transportation.

[61 FR 56425, Nov. 1, 1996, as amended at 68 FR 51391, Aug. 26, 2003]



                          Subpart C_Enforcement

    Source: 44 FR 31468, May 31, 1979, unless otherwise noted. 
Redesignated at 56 FR 45621, Sept. 6, 1991.



Sec. 27.121  Compliance information.

    (a) Cooperation and assistance. The responsible Departmental 
official, to the

[[Page 353]]

fullest extent practicable, seeks the cooperation of recipients in 
securing compliance with this part and provides assistance and guidance 
to recipients to help them comply with this part.
    (b) Compliance reports. Each recipient shall keep on file for one 
year all complaints of noncompliance received. A record of all such 
complaints, which may be in summary form, shall be kept for five years. 
Each recipient shall keep such other records and submit to the 
responsible Departmental official or his/her designee timely, complete, 
and accurate compliance reports at such times, and in such form, and 
containing such information as the responsible Department official may 
prescribe. In the case in which a primary recipient extends Federal 
financial assistance to any other recipient, the other recipient shall 
also submit compliance reports to the primary recipient so as to enable 
the primary recipient to prepare its report.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible Departmental official or his/her designee 
during normal business hours to books, records, accounts, and other 
sources of information, and to facilities that are pertinent to 
compliance with this part. Where required information is in the 
exclusive possession of another agency or person who fails or refuses to 
furnish the information, the recipient shall so certify in its report 
and describe the efforts made to obtain the information. Considerations 
of privacy or confidentiality do not bar the Department from evaluating 
or seeking to enforce compliance with this part. Information of a 
confidential nature obtained in connection with compliance evaluation or 
enforcement is not disclosed by the Department, except in formal 
enforcement proceedings, where necessary, or where otherwise required by 
law.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
regulation and its application to the program or activity for which the 
recipient receives Federal financial assistance, and make such 
information available to them in such manner, as the responsible 
Departmental official finds necessary to apprise them of the protections 
against discrimination provided by the Act and this part.

[44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621, Sept. 6, 1991. 
68 FR 51391, Aug. 26, 2003]



Sec. 27.123  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible Departmental 
official or his/her designee, from time to time, reviews the practices 
of recipients to determine whether they are complying with this part.
    (b) Complaints. Any person who believes himself/herself or any 
specific class of individuals to be harmed by failure to comply with 
this part may, personally or through a representative, file a written 
complaint with the responsible Departmental official. A Complaint must 
be filed not later than 180 days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible Departmental official or his/her designee.
    (c) Investigations. The responsible Departmental official or his/her 
designee makes a prompt investigation whenever a compliance review, 
report, complaint, or any other information indicates a possible failure 
to comply with this part. The investigation includes, where appropriate, 
a review of the pertinent practices and policies of the recipient, and 
the circumstances under which the possible noncompliance with this part 
occurred.
    (d) Resolution of matters. (1) If, after an investigation pursuant 
to paragraph (c) of this section, the responsible Departmental official 
finds reasonable cause to believe that there is a failure to comply with 
this part, the responsible Departmental official will inform the 
recipient. The matter is resolved by informal means whenever possible. 
If the responsible Departmental official determines that the matter 
cannot be resolved by informal means, action is taken as provided in 
Sec. 27.125.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section, the responsible Departmental official 
or his/her designee so informs the recipient and the complainant, if 
any, in writing.

[[Page 354]]

    (e) Intimidating and retaliatory acts prohibited. No employee or 
contractor of a recipient shall intimidate, threaten, coerce, or 
discriminate against any individual for the purpose of interfering with 
any right or privilege secured by section 504 of the Act or this part, 
or because the individual has made a complaint, testified, assisted, or 
participated in any manner in an investigation, hearing, or proceeding, 
under this part. The identity of complainants is kept confidential at 
their election during the conduct of any investigation, hearing or 
proceeding under this part. However, when such confidentiality is likely 
to hinder the investigation, the complainant will be advised for the 
purpose of waiving the privilege.



Sec. 27.125  Compliance procedure.

    (a) General. If there is reasonable cause for the responsible 
Departmental official to believe that there is a failure to comply with 
any provision of this part that cannot be corrected by informal means, 
the responsible Departmental official may recommend suspension or 
termination of, or refusal to grant or to continue Federal financial 
assistance, or take any other steps authorized by law. Such other steps 
may include, but are not limited to:
    (1) A referral to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States (including other titles 
of the Act), or any assurance or other contractural undertaking; and
    (2) Any applicable proceeding under State or local law.
    (b) Refusal of Federal financial assistance. (1) No order 
suspending, terminating, or refusing to grant or continue Federal 
financial assistance becomes effective until:
    (i) The responsible Departmental official has advised the applicant 
or recipient of its failure to comply and has determined that compliance 
cannot be secured by voluntary means; and
    (ii) There has been an express finding by the Secretary on the 
record, after opportunity for hearing, of a failure by the applicant or 
recipient to comply with a requirement imposed by or pursuant to this 
part.
    (2) Any action to suspend, terminate, or refuse to grant or to 
continue Federal financial assistance is limited to the particular 
recipient who has failed to comply, and is limited in its effect to the 
particular program or activity, or part thereof, in which noncompliance 
has been found.
    (c) Other means authorized by law. No other action is taken until:
    (1) The responsible Departmental official has determined that 
compliance cannot be secured by voluntary means;
    (2) The recipient or other person has been notified by the 
responsible Departmental official of its failure to comply and of the 
proposed action;
    (3) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person. During this period, additional 
efforts are made to persuade the recipient or other person to comply 
with the regulations and to take such corrective action as may be 
appropriate.

[44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621, Sept. 6, 1991. 
68 FR 51391, Aug. 26, 2003]



Sec. 27.127  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 27.125(b), reasonable notice is given by the 
responsible Departmental official by registered or certified mail, 
return receipt requested, to the affected applicant or recipient. This 
notice advises the applicant or recipient of the action proposed to be 
taken, the specific provision under which the proposed action is to be 
taken, and the matters of fact or law asserted as the basis for this 
action, and either:
    (1) Fixes a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request a hearing; or
    (2) Advises the applicant or recipient that the matter in question 
has been set for hearing at a stated place and time.

The time and place shall be reasonable and subject to change for cause. 
The complainant, if any, also is advised of the time and place of the 
hearing. An applicant or recipient may waive a

[[Page 355]]

hearing and submit written information and argument for the record. The 
failure of an applicant or recipient to request a hearing constitutes a 
waiver of the right to a hearing under section 504 of the Act and Sec. 
27.125(b), and consent to the making of a decision on the basis of such 
information as may be part of the record.
    (b) If the applicant or recipient waives its opportunity for a 
hearing, the responsible Departmental official shall notify the 
applicant or recipient that it has the opportunity to submit written 
information and argument for the record. The responsible Departmental 
official may also place written information and argument into the 
record.
    (c) Time and place of hearing. Hearings are held at the office of 
the Department in Washington, DC, at a time fixed by the responsible 
Departmental official unless he/she determines that the convenience of 
the applicant or recipient or of the Department requires that another 
place be selected. Hearings are held before an Administrative Law Judge 
designated in accordance with 5 U.S.C. 3105 and 3344 (section 11 of the 
Administrative Procedure Act).
    (d) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the responsible Departmental official have 
the right to be represented by counsel.
    (e) Procedures, evidence and record. (1) The hearing, decision, and 
any administrative review thereof are conducted in conformity with 
sections 554 through 557 of title 5 of the United States Code, and in 
accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving notice subsequent to those provided for in paragraph (a) of this 
section, taking testimony, exhibits, arguments and briefs, requests for 
findings, and other related matters. The responsible Departmental 
official and the applicant or recipient are entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting the hearing. Any person (other 
than a government employee considered to be on official business) who, 
having been invited or requested to appear and testify as a witness on 
the government's behalf, attends at a time and place scheduled for a 
hearing provided for by this part may be reimbursed for his/her travel 
and actual expenses in an amount not to exceed the amount payable under 
the standardized travel regulations applicable to a government employee 
traveling on official business.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to cross examination are applied where reasonably necessary by 
the Administrative Law Judge conducting the hearing. The Administrative 
Law Judge may exclude irrelevant, immaterial, or unduly repetitious 
evidence. All documents and other evidence offered or taken for the 
record are open to examination by the parties and opportunity is given 
to refute facts and arguments advanced by either side. A transcript is 
made of the oral evidence except to the extent the substance thereof is 
stipulated for the record. All decisions are based on the hearing record 
and written findings shall be made.
    (f) Consolidation or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this 
regulation with respect to two or more Federal statutes, authorities, or 
other means by which Federal financial assistance is extended and to 
which this part applies, or noncompliance with this part and the 
regulations of one or more other Federal departments or agencies issued 
under section 504 of the Act, the responsible Departmental official may, 
in agreement with such other departments or agencies, where applicable, 
provide for consolidated or joint hearings. Final decisions in such 
cases, insofar as this regulation is concerned, are made in accordance 
with Sec. 27.129.

[44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621, Sept. 6, 1991. 
68 FR 51391, Aug. 26, 2003]



Sec. 27.129  Decisions and notices.

    (a) Decisions by Administrative Law Judge. After the hearing, the 
Administrative Law Judge certifies the entire

[[Page 356]]

record including his recommended findings and proposed decision to the 
Secretary for a final decision. A copy of the certification is mailed to 
the applicant or recipient and to the complainant, if any. The 
responsible Departmental official and the applicant or recipient may 
submit written arguments to the Secretary concerning the Administrative 
Law Judge's recommended findings and proposed decision.
    (b) Final decision by the Secretary. When the record is certified to 
the Secretary by the Administrative Law Judge, the Secretary reviews the 
record and accepts, rejects, or modifies the Administrative Law Judge's 
recommended findings and proposed decision, stating the reasons 
therefor.
    (c) Decisions if hearing is waived. Whenever a hearing pursuant to 
Sec. 27.125(b) is waived, the Secretary makes his/her final decision on 
the record, stating the reasons therefor.
    (d) Rulings required. Each decision of the Administrative Law Judge 
or the Secretary contains a ruling on each finding or conclusion 
presented and specifies any failures to comply with this part.
    (e) Content of orders. The final decision may provide for suspension 
or termination, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this first regulation applies. 
The decision may contain such terms, conditions, and other provisions as 
are consistent with and will effectuate the purposes of the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance to which this regulation applies will thereafter be extended 
unless and until the recipient corrects its noncompliance and satisfies 
the Secretary that it will fully comply with this part.
    (f) Subsequent proceedings. (1) An applicant or recipient adversely 
affected by an order issued under paragraph (e) of this section is 
restored to full eligibility to receive Federal financial assistance if 
it satisfies the terms and conditions of that order or if it brings 
itself into compliance with this part and provides reasonable assurance 
that it will fully comply with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (e) of this section may, at any time, 
request the responsible Departmental official to restore its 
eligibility, to receive Federal financial assistance. Any request must 
be supported by information showing that the applicant or recipient has 
met the requirements of paragraph (f)(1) of this section. If the 
responsible Departmental official determines that those requirements 
have been satisfied, he/she may restore such eligibility, subject to the 
approval of the Secretary.
    (3) If the responsible Departmental official denies any such 
request, the applicant or recipient may submit a request, in writing, 
for a hearing specifying why it believes the responsible Departmental 
official should restore it to full eligibility. It is thereupon given a 
prompt hearing, with a decision on the record. The applicant or 
recipient is restored to eligibility if it demonstrates to the 
satisfaction of the Secretary at the hearing that it satisfied the 
requirements of paragraph (f)(1) of this section.
    (4) The hearing procedures of Sec. 27.127(b) through (c) and 
paragraphs (a) through (d) of this section apply to hearings held under 
paragraph (f)(3) of this section.
    (5) While proceedings under this paragraph are pending, the 
sanctions imposed by the order issued under paragraph (e) of this 
section shall remain in effect.

[44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621, Sept. 6, 1991. 
68 FR 51391, Aug. 26, 2003]



PART 28_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 
PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF TRANSPORTATION--

Table of Contents




Sec.
28.101 Purpose.
28.102 Application.
28.103 Definitions.
28.104-28.109 [Reserved]
28.110 Self-evaluation.
28.111 Notice.
28.112-28.129 [Reserved]

[[Page 357]]

28.130 General prohibition against discrimination.
28.131 Illegal use of drugs.
28.132-28.139 [Reserved]
28.140 Employment.
28.141-28.148 [Reserved]
28.149 Program accessibility: Discrimination prohibited.
28.150 Program accessibility: Existing facilities.
28.151 Program accessibility: New construction and alterations.
28.152-28.159 [Reserved]
28.160 Communications.
28.161-28.169 [Reserved]
28.170 Compliance procedures.
28.171-28.999 [Reserved]

    Authority: 29 U.S.C. 794

    Source: 56 FR 37296, Aug. 6, 1991, unless otherwise noted.



Sec. 28.101  Purpose.

    The purpose of this part is to carry out section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies, including this 
Department, or the United States Postal Service. 49 CFR part 27 
implements section 504 in the Department's financial assistance 
programs.



Sec. 28.102  Application.

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



Sec. 28.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Department. For example, auxiliary aids 
useful for persons with impaired vision include readers, Brailled 
materials, audio recordings, and other similar services and devices. 
Auxiliary aids useful for persons with impaired hearing include 
telephone handset amplifiers, telephones compatible with hearing aids, 
telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the Department's alleged 
discriminatory actions in sufficient detail to inform the Department of 
the nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Drug means a controlled substance, as defined in schedules I through 
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
    Department or DOT means the U.S. Department of Transportation, 
including the Office of the Secretary and all operating administrations.
    Departmental Element (or ``DOT element'') means any one of the 
following organizations within the Department:
    (a) Office of the Secretary (OST).
    (b) United States Coast Guard (USCG).
    (c) Federal Aviation Administration (FAA).
    (d) Federal Highway Administration (FHWA).
    (e) Federal Railroad Administration (FRA).
    (f) National Highway Traffic Safety Administration (NHTSA).
    (g) Federal Transit Administration (FTA).
    (h) Research and Special Programs Administration (RSPA).
    (i) Maritime Administration (MARAD).
    (j) St. Lawrence Seaway Development Corporation (SLSDC).

[[Page 358]]

    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812) The term ``illegal use of drugs'' does 
not include the use of a drug taken under supervision by a licensed 
health care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment--
    (i) Includes any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the following 
body systems: Neurological; muscular; skeletal; special sense organs; 
respiratory, including speech organs; cardiovascular; reproductive; 
digestive; genitourinary; hemic and lymphatic; skin; and endocrine;
    (ii) Includes any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities; and
    (iii) Includes, but is not limited to, such diseases or conditions 
as orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, drug addiction, and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Department as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the Department as having such an 
impairment.
    Qualified individual with handicaps means--
    (1) With respect to education services provided by the U.S. Merchant 
Marine Academy or the U.S. Coast Guard Academy, an individual with 
handicaps who meets the essential eligibility requirements for 
participation in and receipt of such services, including the physical 
standards applicable to the U.S. Naval Reserve or the U.S. Coast Guard.
    (2) With respect to any other Department program or activity under 
which a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
Department can demonstrate would result in a fundamental alteration in 
its nature. The essential eligibility requirements include the ability 
to participate without endangering the safety of the individual or 
others.
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity 
and
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this part by Sec. 28.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88

[[Page 359]]

Stat. 1617), the Rehabilitation, Comprehensive Services, and 
Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 
2955); the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 
Stat. 1810); the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 
102 Stat. 28), and Handicapped Program Technical Amendments Act of 1988 
(Pub. L. 100-630, 102 Stat. 3312). As used in this part, section 504 
applies only to programs or activities conducted by Executive agencies 
and not to federally assisted programs.

[56 FR 37296, Aug. 6, 1991, as amended at 61 FR 32354, June 24, 1996]



Sec. Sec. 28.104-28.109  [Reserved]



Sec. 28.110  Self-evaluation.

    (a) The Department shall, by one year of the effective date of this 
part, evaluate its current policies and practices, and effects thereof, 
that do not or may not meet the requirements of this part, and, to the 
extent modification of any such policies and practices is required, the 
Department shall proceed to make the necessary modifications.
    (b) The Department shall provide an opportunity to interested 
persons, including individuals with handicaps, agency employees with 
handicaps, and organizations representing individuals with handicaps, to 
participate in the self-evaluation process by submitting comments (both 
oral and written).
    (c) The Department shall, until at least three years following 
completion of the evaluation required under paragraph (a) of this 
section, or until such time as all modifications identified by the self-
evaluation to be necessary to comply with section 504 have been 
completed, whichever occurs later, maintain on file and make available 
for public inspection--
    (1) A description of areas examined, regulations and nonregulatory 
criteria reviewed, and any problems identified; and
    (2) A description of any modifications made.



Sec. 28.111  Notice.

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



Sec. Sec. 28.112-28.129  [Reserved]



Sec. 28.130  General prohibition against discrimination.

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

[[Page 360]]

    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Department may not deny a qualified individual with 
handicaps the opportunity to participate in programs or activities that 
are not separate or different, despite the existence of permissibly 
separate or different programs or activities.
    (3) The Department may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The Department may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the Department; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The Department, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The Department may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the Department 
establish requirements for the programs or activities of licensees or 
certified entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the Department 
are not, themselves, covered by this part. The Department may limit the 
programs or activities of a licensee or certificate holder, who is a 
qualified individual with handicaps, to the extent necessary to ensure 
the safety of that person or the safety of others.
    (c) The exclusion of individuals without handicaps from the benefits 
of a program limited by Federal statute or Executive Order to 
individuals with handicaps or the exclusion of a specific class of 
individuals with handicaps from a program limited by Federal statute or 
Executive Order to a different class of individuals with handicaps is 
not prohibited by this part.
    (d) The Department shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with handicaps.



Sec. 28.131  Illegal use of drugs.

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) The agency shall not discriminate on the basis of illegal use of 
drugs against an individual who is not engaging in current illegal use 
of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Health and rehabilitation services. The agency shall not deny 
health services or services provided under titles I, II, and III of the 
Rehabilitation Act to an individual on the basis of that individual's 
current illegal use of drugs, if the individual is otherwise entitled to 
such services.
    (c) Drug testing. (1) This part does not prohibit the agency from 
adopting or administering reasonable policies or procedures, including 
but not limited to drug testing, designed to ensure that an individual 
who formerly engaged in the illegal use of drugs is not engaging in 
current illegal use of drugs.
    (2) Nothing in paragraph (c) of this section shall be construed to 
encourage, prohibit, restrict, or authorize the conduct of testing for 
the illegal use of drugs.

[[Page 361]]



Sec. Sec. 28.132-28.139  [Reserved]



Sec. 28.140  Employment.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the Department.
    (b) The definitions, requirements, and procedures of section 501 of 
the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the 
Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply 
to employment in federally conducted programs or activities. The 
provisions of this section do not apply to military personnel of the 
U.S. Coast Guard.



Sec. Sec. 28.141-28.148  [Reserved]



Sec. 28.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 28.150, no qualified 
individual with handicaps shall, because the Department's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the Department.



Sec. 28.150  Program accessibility: Existing facilities.

    (a) General. The Department shall operate each program or activity 
so that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the Department to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) [Reserved]
    (3) Require the Department to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
program or activity or in undue financial and administrative burdens. In 
those circumstances where personnel of a DOT element believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the DOT 
element has the burden of proving that compliance with Sec. 28.150(a) 
would result in such alteration or burdens. The decision that compliance 
would result in such alteration or burdens must be made by the Secretary 
or his or her designee, after considering all resources available for 
use in the funding and operation of the program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the Department shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that individuals with handicaps receive the benefits and services 
of the program or activity.
    (b) Methods. The Department may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with handicaps. The Department is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The Department, in 
making alterations to existing buildings, shall meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the Department shall give priority to 
those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (c) Time period for compliance. The Department shall comply with the 
obligations established under this section within sixty days of the 
effective date of this part except that where structural changes in 
facilities are undertaken, such changes shall be made within three years 
of the effective date

[[Page 362]]

of this part, but in any event as expeditiously as possible. Provided 
that, where major restructuring of fixed facilities to accommodate 
technological changes is planned to occur within five years from the 
effective date of this part, changes needed to comply with this section 
are not required to be made until the planned restructuring takes place. 
However, alternative means for participation by individuals with 
handicaps in DOT programs and activities in the most integrated setting 
possible during this interim waiting period shall be available.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Department shall develop, within six months of the effective date of 
this part, a transition plan setting forth the steps necessary to 
complete such changes. The agency shall provide an opportunity to 
interested persons, including individuals with handicaps, agency 
employees with handicaps, or organizations representing individuals with 
handicaps, to participate in the development of the transition plan by 
submitting comments (both oral and written). A copy of the transition 
plan shall be made available for public inspection. The plan shall, at a 
minimum--
    (1) Identify physical obstacles in the Department's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 28.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Department shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600-607, apply to buildings covered by this section, 
except for military facilities of the Coast Guard, which are covered by 
32 CFR part 56.



Sec. Sec. 28.152-28.159  [Reserved]



Sec. 28.160  Communications.

    (a) The Department shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Department shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the Department.
    (i) In determining what type of auxiliary aid is necessary, the 
Department shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The Department need not provide individually prescribed 
devices, readers for personal use or study, or other devices of a 
personal nature to applicants or participants in programs.
    (2) Where the Department communicates with applicants and 
beneficiaries by telephone, telecommunications devices for deaf persons 
(TDDs) or equally effective telecommunication systems, shall be used to 
communicate with persons with impaired hearing.
    (b) The Department shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Department shall provide signs at each primary entrance to 
each of its inaccessible facilities, directing users to a location at 
which they can obtain information as to the location of accessible 
facilities. The international symbol for accessibility shall be used at 
each primary entrance of an accessible facility.
    (d) This section does not require the Department to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a

[[Page 363]]

program or activity or in undue financial and administrative burdens. In 
those circumstances where personnel of a DOT element believe that the 
proposed action would fundamentally alter the program or activity or 
would result in an undue financial and administrative burden, the DOT 
element has the burden of proving that compliance with Sec. 28.160 
would result in such alteration or burden. The decision that compliance 
would result in such alteration or burden must be made by the Secretary 
or his or her designee, after considering all resources available for 
use in the funding and operation of the program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the Department shall take 
any other action that would not result in such an alteration or such a 
burden but would nevertheless ensure that, to the maximum extent 
possible, individuals with handicaps receive the benefits and services 
of the program or activity.



Sec. Sec. 28.161-28.169  [Reserved]



Sec. 28.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, paragraphs 
(c)-(k) of this section apply to all allegations of discrimination on 
the basis of handicap in programs of activities conducted by the 
Department;
    (b)(1) The Department shall process complaints alleging violations 
of section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (2) The Department shall process complaints alleging violations of 
section 504 with respect to requirements of any Department safety 
regulation, concerning an individual's qualifications to perform a 
function or to receive a certificate or license, according to the 
procedures for a petition for an individual waiver or request for review 
of a standard for possible amendment or recession. The Departmental 
element shall inform the complainant, in writing, or the decision on the 
request. The complainant may request reconsideration by the Departmental 
element of the decision. The decision on the petition or request shall 
constitute the Department's final action in the matter.
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Director, Departmental Office of Civil Rights.
    (d)(1) The Department shall accept and investigate all complete 
complaints for which it has jurisdiction. All complete complaints must 
be filed within 180 days of the alleged act of discrimination. The 
Department may extend this time period for good cause.
    (2) If the subject matter of a complete complaint concerns a 
decision by a Departmental element, under a safety regulation, 
concerning an individual's qualifications to perform a function or to 
receive a certificate or license, and the complainant has available 
within the Departmental element a formal review or appeal mechanism 
concerning that decision, the Department shall not take action on the 
complaint until the Departmental element's review or appeal process has 
been completed.
    (e) If the Department receives a complaint over which it does not 
have jurisdiction, it shall promptly notify the complainant and shall 
make reasonable efforts to refer the complaint to the appropriate 
Government entity.
    (f) The Department shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the Department shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be

[[Page 364]]

filed by the complainant within 90 days of receipt from the Department 
of the letter required by Sec. 28.170(g). The Department may extend 
this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Assistant 
Secretary for Transportation Policy. The appeal will not be heard by the 
same person who made the initial determination on the request. The 
decision on the appeal shall constitute the Department's final action in 
the matter.
    (j) The Department shall notify the complainant of the results of 
the appeal within 60 days of the receipt of the request. If the 
Department determines that it needs additional information from the 
complainant, it shall have 60 days from the date it receives the 
additional information to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The Department may delegate its authority for conducting 
complaint investigations to other Federal agencies, except that the 
authority for making the final determination may not be delegated to 
another agency.

[56 FR 37296, Aug. 6, 1991, as amended at 59 FR 10061, Mar. 3, 1994]



Sec. Sec. 28.171-28.999  [Reserved]



PART 30_DENIAL OF PUBLIC WORKS CONTRACTS TO SUPPLIERS OF GOODS AND 
SERVICES OF COUNTRIES THAT DENY PROCUREMENT MARKET ACCESS TO

U.S. CONTRACTORS--Table of Contents




Sec.
30.1 Purpose.
30.3 Applicability.
30.5 Effective dates.
30.7 Definitions.
30.9 Citizenship: Direct or indirect control.
30.11 Use of solicitation provisions and contract clauses.
30.13 Restrictions on Federal public works projects: Certification.
30.15 Restrictions on Federal public works projects.
30.17 Waivers.
30.19 Buy American Act.

    Authority: 49 U.S.C. 322(a); Containing Resolution on the Fiscal 
Year 1988 Budget 109(a), Pub. L. 100-202; Airport and Airways Safety and 
Capacity Expansion Act of 1987, 115, Pub. L. 100-223.

    Source: 53 FR 19916, June 1, 1988, unless otherwise noted.



Sec. 30.1  Purpose.

    The rules in this part implement section 109(a) of the Continuing 
Resolution on the Fiscal Year 1988 Budget, Public Law No. 100-202 
(signed December 22, 1987) [the Continuing Resolution], and section 115 
of the Airport and Airways Safety and Capacity Expansion Act of 1987, 
Public Law No. 100-223 (signed December 30, 1987) [the Airport Safety 
Act]. These rules are intended to give uniform implementation to these 
statutes throughout DOT procurement and grant programs.



Sec. 30.3  Applicability.

    (a) The restrictions imposed by section 109(a) of the Continuing 
Resolution extend to all DOT agencies as well as all recipients of DOT 
funds. The restrictions apply to all projects for which funds are 
obligated or contracts or subcontracts are awarded during fiscal year 
1988, including projects and contracts under all DOT financial 
assistance programs. The prohibition applies to public buildings and 
public works projects everywhere in the United States or any territory 
or possession of the United States. U.S. overseas bases, installations, 
and embassies are not subject to this part.
    (b) The restrictions imposed by section 115 of the Airport Safety 
Act extend to all projects for which funds are made available by that 
Act, whether or not the contracts are awarded during fiscal year 1988. 
The restrictions apply to all contracts entered into under grants 
authorized by the Airport Safety Act.
    (c) This part applies to projects covered by section 109(a) of the 
Continuing Resolution, section 115 of the Airport Safety Act, or both. 
Whether one or the other statute or both apply, the effect on the 
project shall be the same, subject to paragraph (e) of this section.
    (d) In addition to construction, alteration, and repair contracts, 
the restrictions of this part cover all architect, engineering, and 
other services related to the preparation and performance of

[[Page 365]]

construction, alteration, and repair of public projects and public 
works.
    (e) The restrictions of this part also apply to all products used in 
the construction, alteration, or repair of public projects and public 
works; Provided, however, That
    (1) The restrictions of this part do not apply to construction 
equipment or vehicles that do not become part of a delivered structure, 
product, or project and
    (2) Notwithstanding paragraph (c) of this section, the restrictions 
of section 109(a) of the Continuing Resolution do not apply to vehicles 
to be used by the project, including, but not limited to, buses, trucks, 
automobiles, rail rolling stock, and aircraft.



Sec. 30.5  Effective dates.

    The provisions of section 109(a) of the Continuing Resolution apply 
to contracts (or new subcontracts under existing contracts, whether or 
not subject to the restriction) entered into after December 22, 1987, 
its date of enactment, and before October 1, 1988. The provisions of 
section 115 of the Airport Safety Act apply to contracts funded by the 
Act and entered into after December 30, 1987, its date of enactment; the 
restrictions remain effective so long as money provided by the Airport 
Safety Act is used. Accordingly, any contracts or subcontracts subject 
to the restrictions of this part entered into with contractors or 
subcontractors owned or controlled by citizens of subject countries, as 
defined by Sec. Sec. 30.7 and 30.9 of this part, since December 22, 
1987 shall be canceled at no cost to the Government, subject to the 
waiver provisions of Sec. 30.17 of this part. All public works or 
public buildings contracts entered into after December 22, 1987, shall 
include, or be modified to include, a provision prohibiting 
subcontracting with citizens of subject countries, as defined by 
Sec. Sec. 30.7 and 30.9 of this part.



Sec. 30.7  Definitions.

    (a) Funds appropriated for FY 1988 by this resolution or any other 
law, as used in this part with reference to section 109(a) of the 
Continuing Resolution, means all appropriated and trust funds available 
to DOT, its modal administration, or their grantees for expenditure or 
obligation in fiscal year 1988, regardless of the fiscal year in which 
the funds were appropriated.
    (b) Funds made available by this Act, as used in this part with 
reference to section 115(a) of the Airport Safety Act, means all funds, 
including trust funds, made available to DOT, its modal administrations, 
or their grantees by that Act, whether or not the contracts to be funded 
are awarded during fiscal year 1988.
    (c) Contractor and subcontractor means any person, other than a 
supplier of products, performing any architectural, engineering, or 
other service directly related to the preparation for or performance of 
the construction, alteration, or repair of any public building or public 
work in the United States or any territory or possession of the United 
States.
    (d) Contractor or subcontractor of a foreign country means any 
contractor or subcontractor that is a citizen or national of a foreign 
country, or is controlled directly or indirectly by one or more citizens 
or nationals of a foreign country.
    (e) Service of a foreign country means any service provided by a 
person that is a citizen or national of a foreign country, or is 
controlled by one or more citizens or nationals of a foreign country.
    (f) Product of a foreign country means construction materials, i.e., 
articles, materials, and supplies brought to the construction site for 
incorporation into the public works project. A product is considered to 
have been produced in a foreign country if more than fifty percent of 
the total cost of the product is allocable to production or manufacture 
in the foreign country.
    (g) Foreign country means a country included in the list of 
countries that discriminate against U.S. firms published by the U.S.T.R.



Sec. 30.9  Citizenship: Direct or indirect control.

    A contractor, subcontractor, or person providing a service shall be 
considered to be a citizen or national of a foreign country, or 
controlled directly or indirectly by citizens or nationals of a

[[Page 366]]

foreign country, within the meaning of this part.
    (a) If 50 percent or more of the contractor or subcontractor is 
owned by one or more citizens or nationals of the foreign country;
    (b) If the title to 50 percent or more of the stock of the 
contractor or subcontractor is held subject to trust or fiduciary 
obligation in favor of one or more citizens or nationals of the foreign 
country;
    (c) If 50 percent or more of the voting power in the contractor or 
subcontractor is vested in or exercisable on behalf of one or more 
citizens or nationals of the foreign country;
    (d) In the case of a partnership, if any general partner is a 
citizen or national of the foreign country;
    (e) In the case of a corporation, if the number of its directors 
necessary to constitute a quorum are citizens of the foreign country or 
the corporation is organized under the laws of the foreign country or 
any subdivision, territory, or possession thereof; or
    (f) In the case of a contractor or subcontractor that is a joint 
venture, if any participant meets any of the criteria in paragraphs (a) 
through (e) of this section.



Sec. 30.11  Use of solicitation provisions and contract clauses.

    (a) Unless the President or the Secretary waives the restrictions 
imposed by section 109(a) of the Continuing Resolution in accordance 
with Sec. 30.17 of this part, the contracting officer shall insert a 
clause similar to the clause at Sec. 30.15, Restrictions on Federal 
Public Works Projects, in contractions and solicitations, if--
    (1) The contract is awarded on or after December 22, 1987, and 
before October 1, 1988; and
    (2) The contract obligates funds appropriated for use in FY 1988 by 
the Continuing Resolution or any other law; and
    (3) The contract is for the acquisition of construction, alteration 
and repair, architectural, engineering, or other services directly 
related to the preparation for, or performance of, construction, 
alteration, and repair for Federal public works projects inside the 
United States, U.S. territories, or U.S. possessions.
    (b) Unless the Secretary waives the restrictions imposed by section 
115 of the Airport Safety Act in accordance with Sec. 30.17 of this 
part, the contracting officer shall insert a clause similar to the 
clause at Sec. 30.15, Restrictions on Federal Public Works Projects, in 
contracts and solicitations relating to any project for which funds, 
including grant funds, are made available by that Act, whether or not 
the contract is awarded during fiscal year 1988.
    (c) Any contract already awarded that should have contained the 
clause prescribed in paragraph (a) or (b) of this section, but did not, 
shall be modified to include the clause. In the event that the 
contracting officer is unable to modify such contract, the contract 
shall be canceled at no cost to the Government, unless a waiver is 
granted in accordance with Sec. 30.17 of this part.
    (d) Contracting officers shall insert a provision similar to the 
solicitation provision at Sec. 30.13 of this part, Restrictions on 
Public Works Projects--Certification, in solicitations containing the 
clause at Sec. 30.15 of this part, Restrictions on Federal Public Works 
Projects.
    (e) Any solicitation issued before December 22, 1987, that will 
result in the award of a contract covered by paragraph (a) of this 
section after December 22, 1987, and before October 1, 1988, and that 
should have contained a provision similar to that Sec. 30.13 of this 
part, but did not, shall be amended to include the provision if the 
contract has not yet been awarded.



Sec. 30.13  Restrictions on Federal public works projects: Certification.

    As prescribed in Sec. 30.11(c) of this part, the contracting 
officer shall insert the following provision in solicitations containing 
the clause at Sec. 30.15, Restrictions on Federal Public Works 
Projects:

      Restrictions on Federal Public Works Projects--Certification

    (a) Definitions. The definitions pertaining to this provision are 
those that are set forth in 49 CFR 30.7-30.9.
    (b) Certification. By signing this solicitation, the Offeror 
certifies that with respect to this solicitation, and any resultant 
contract, the Offeror--

[[Page 367]]

    (1) Is [ ] is not [ ] a contractor of a foreign country included on 
the list of countries that discriminated against U.S. firms published by 
the Office of the United States Trade Representative (U.S.T.R.);
    (2) Has [ ] has not [ ] entered into any contract or subcontract 
with a subcontractor of a foreign country included on the list of 
countries that discriminate against U.S. firms published by the 
U.S.T.R.; and
    (3) Has [ ] has not [ ] entered into any subcontract for any product 
to be used on the Federal public works project that is produced in a 
foreign country included on the list of countries that discriminate 
against U.S. firms published by the U.S.T.R.
    (c) Applicability of 18 U.S.C. 1001. This certification in this 
solicitation provision concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the maker subject to prosecution 
under Title 18, United States Code, Section 1001.
    (d) Notice. The Offeror shall provide immediate written notice to 
the Contracting Officer if, at any time prior to contract award, the 
Offeror learns that its certification was erroneous when submitted or 
has become erroneous by reason of changed circumstances.
    (e) Restrictions on contract award. No contract will be awarded to 
an offeror (1) who is owned or controlled by one or more citizens or 
nationals of a foreign country included on the list of countries that 
discriminate against U.S. firms published by the U.S.T.R. or (2) whose 
subcontractors are owned or controlled by one or more citizens or 
nationals of a foreign country on such U.S.T.R. list or (3) who 
incorporates in the public works project any product of a foreign 
country on such U.S.T.R. list; unless a waiver to these restrictions is 
granted by the President of the United States or the Secretary of 
Transportation. (Notice of the granting of a waiver will be published in 
the Federal Register.)
    (f) System. Nothing contained in the foregoing shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by paragraph (b) of this provision. 
The knowledge and information of an Offeror is not required to exceed 
that which is normally possessed by a prudent person in the ordinary 
course of business dealings.
    (g) Subcontracts. The Offeror agrees that, if awarded a contract 
resulting from this solicitation, it will incorporate this solicitation 
provision, including this paragraph (g), in each solicitation issued 
under such contract.

                           (End of provision)



Sec. 30.15  Restrictions on Federal public works projects.

    The contracting officer shall insert the following clause in 
solicitations and contracts as prescribed at Sec. 30.11(a) through (b) 
of this part:

              Restrictions on Federal Public Works Projects

    (a) Definitions. The definitions pertaining to this clause are those 
that are set forth in 49 CFR 30.7-30.9
    (b) General. This clause implements the procurement provisions 
contained in the Continuing Resolution on the Fiscal Year 1988 Budget, 
Public Law No. 100-202, and the Airport and Airway Safety and Capacity 
Expansion Act of 1987, Public Law No. 100-223.
    (c) Restrictions. The Contractor shall not knowingly enter into any 
subcontract under this contract: (1) With a subcontractor of a foreign 
country included on the list of countries that discriminate against U.S. 
firms published by the United States Trade Representative (U.S.T.R.); or 
(2) for the supply of any product for use on the Federal Public works 
project under this contract that is produced or manufactured in a 
foreign country included on the list of countries that discriminate 
against U.S. firms published by the U.S.T.R.
    (d) Certification. The Contractor may rely upon the certification of 
a prospective subcontractor that it is not a subcontractor of a foreign 
country included on the list of countries that discriminates against 
U.S. firms published by the U.S.T.R. and that products supplied by such 
subcontractor for use on the Federal public works project under this 
contract are not products of a foreign country included on the list of 
countries that discriminate against U.S. firms published by the 
U.S.T.R., unless the contractor has knowledge that the certification is 
erroneous.
    (e) Erroneous certification. The certification in paragraph (b) of 
the provision entitled ``Restriction on Federal Public Works Projects--
Certification,'' is a material representation of fact upon which 
reliance was placed when making the award. If it is later determined 
that the Contractor knowingly rendered an erroneous certification, in 
addition to other remedies available to the Government, the Contracting 
Officer may cancel this contract for default at no cost to the 
Government.
    (f) Cancellation. Unless the restrictions of this clause are waived 
as provided in paragraph (e) of the provision entitled ``Restriction on 
Federal Public Works Projects--Certification,'' if the Contractor 
knowingly enters into a subcontract with a subcontractor that is a 
subcontractor of a foreign country

[[Page 368]]

included on the list of countries that discriminate against U.S. firms 
published by the U.S.T.R. or that supplies any product for use on the 
Federal public works project under this contract of a foreign country 
included on the list of countries that discriminate against U.S. firms 
published by the U.S.T.R., the Contracting Officer may cancel this 
contract for default, at no cost to the Government.
    (g) Subcontracts. The Contractor shall incorporate this clause, 
without modification, including this paragraph (g) in all solicitations 
and subcontracts under this contract:

 Certification Regarding Restrictions on Federal Public Works Projects--
                             Subcontractors

    (1) The Offeror/Contractor, by submission of an offer and/or 
execution of a contract certifies that the Offeror/Contractor is (i) not 
an Offeror/Contractor owned or controlled by one or more citizens or 
nationals of a foreign country included on the list of countries that 
discriminate against U.S. firms published by the United States Trade 
Representative (U.S.T.R.) or (2) not supplying any product for use on 
the Federal public works project that is produced or manufactured in a 
foreign country included on the list of foreign countries that 
discriminate against U.S. firms published by the U.S.T.R.

   THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN 
  AGENCY OF THE UNITED STATES AND THE MAKING OF A FALSE FICTITIOUS, OR 
  FRAUDULENT CERTIFICATION MAY RENDER THE MAKER SUBJECT TO PROSECUTION 
            UNDER TITLE 18, UNITED STATES CODE, SECTION 1001

    (2) The Offeror shall provide immediate written notice to the 
Contractor if, at any time, the Offeror learns that its certification 
was erroneous by reason of changed circumstances.
    (3) The Contractor shall not knowingly enter into any subcontract 
under this contract: (i) with a subcontractor of a foreign country 
included on the list of countries that discriminate against U.S. firms 
published by the U.S.T.R.; or (ii) for the supply of any product for use 
on the Federal public works project under this contract that is produced 
or manufactured in a foreign country included on the list of countries 
that discriminate against U.S. firms published by the U.S.T.R. The 
contractor may rely upon the certification in paragraph (g)(1) of this 
clause unless it has knowledge that the certification is erroneous.
    (4) Unless the restrictions of this clause have been waived under 
the contract for the Federal public works project, if a contractor 
knowingly enters into a subcontract with a subcontractor that is a 
subcontractor of a foreign country included on the list of countries 
that discriminate against U.S. firms published by the U.S.T.R. or that 
supplies any product for use on the Federal public works project under 
this contract that is produced or manufactured in a foreign country 
included on the list of countries that discriminate against U.S. firms 
published by the U.S.T.R., the Government Contracting Officer may 
direct, through higher-tier contractors, cancellation of this contract 
at no cost to the Government.
    (5) Definitions. The definitions pertaining to this clause are those 
that are set forth in 49 CFR 30.7-30.9.
    (6) The certification in paragraph (g)(1) of this clause is a 
material representation of fact upon which reliance was placed when 
making the award. If it is later determined that the Contractor 
knowingly rendered an erroneous certification, in addition to other 
remedies available to the Government, the Government Contracting Officer 
may direct, through higher-tier Contractors, cancellation of this 
subcontract at no cost to the Government.
    (7) The Contractor agrees to insert this clause, without 
modification, including this paragraph, in all solicitations and 
subcontracts under this clause.

                             (End of clause)



Sec. 30.17  Waivers.

    (a) The Secretary may waive the restrictions imposed by section 115 
of the Airport Safety Act on the use of a product or service in a 
project if the Secretary determines that:
    (1) Application of the restriction to such product, service, or 
project would not be in the public interest;
    (2) Products or services of the same class or kind are not produced 
or offered in the United States, or in any foreign country that is not 
listed by the U.S.T.R. in sufficient and reasonable available quantities 
and of a satisfactory quality; or
    (3) Exclusion of such product or service from the project would 
increase the cost of the overall project contract by more than 20 
percent.
    (b) The President or the Secretary may waive the restrictions 
imposed by section 109(a) of the Continuing Resolution with respect to 
an individual contract if the President or the Secretary

[[Page 369]]

determines that such action is necessary in the public interest, on a 
contract-by-contract basis. The Secretary may apply the factors listed 
in paragraphs (a)(2) and (a)(3) of this section in determining whether a 
waiver is in the public interest.
    (c) The authority of the President or the Secretary to issue waivers 
may not be delegated. The Department shall publish notice of any waiver 
granted pursuant to this part by the President or the Secretary in the 
Federal Register within ten days. The notice shall describe in detail 
the contract involved, the specific reasons for granting the waiver, and 
how the waiver meets the criteria of this section.



Sec. 30.19  Buy American Act.

    The restrictions of this part are in addition to any other 
restrictions contained in Federal law, including the Buy American Act, 
41 U.S.C. 10a-10d, and Buy American provisions in legislation governing 
DOT provisions. Normal evaluation methods for implementing the 
provisions of the Buy American Act in contracts for the construction, 
alteration, or repair of public buildings or public works will be 
applied after determining the offeror's eligible for award on the basis 
of application of the provisions in this part.



PART 31_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents




Sec.
31.1 Basis and purpose.
31.2 Definitions.
31.3 Basis for civil penalties and assessments.
31.4 Investigation.
31.5 Review by the reviewing official.
31.6 Prerequisites for issuing a complaint.
31.7 Complaint.
31.8 Service of complaint.
31.9 Answer.
31.10 Default upon failure to answer.
31.11 Referral of complaint and answer to the ALJ.
31.12 Notice of hearing.
31.13 Parties to the hearing.
31.14 Separation of functions.
31.15 Ex parte contacts.
31.16 Disqualification of reviewing official or ALJ.
31.17 Rights of parties.
31.18 Authority of the ALJ.
31.19 Prehearing conferences.
31.20 Disclosure of documents.
31.21 Discovery.
31.22 Exchange of witness lists, statements, and exhibits.
31.23 Subpoenas for attendance at hearing.
31.24 Protective order.
31.25 Fees.
31.26 Filing, form, and service of papers.
31.27 Computation of time.
31.28 Motions.
31.29 Sanctions.
31.30 The hearing and burden of proof.
31.31 Determining the amount of penalties and assessments.
31.32 Location of hearing.
31.33 Witnesses.
31.34 Evidence.
31.35 The record.
31.36 Post-hearing briefs.
31.37 Initial decision.
31.38 Reconsideration of initial decision.
31.39 Appeal to authority head.
31.40 Stays ordered by the Department of Justice.
31.41 Stay pending appeal.
31.42 Judicial review.
31.43 Collection of civil penalties and assessments.
31.44 Right to administrative offset.
31.45 Deposit in Treasury of United States.
31.46 Compromise or settlement.
31.47 Limitations.

    Authority: 31 U.S.C. 3801-3812.

    Source: 53 FR 881, Jan. 14, 1988, unless otherwise noted.



Sec. 31.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law No. 99-509, sections 6101-6104, 100 Stat. 1874 
(October 21, 1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 
3809 of the statute requires each authority head to promulgate 
regulations necessary to implement the provisions of the statute.
    (b) Purpose. This part (1) establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to the authority 
or to certain others, and (2) specifies the hearing and appeal rights of 
persons subject to allegations of liability for such penalties and 
assessments.

[[Page 370]]



Sec. 31.2  Definitions.

    ALJ means an Administrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    Authority means the Department of Transportation.
    Authority head means the Assistant Secretary or Deputy Assistant 
Secretary for Budget and Programs, Department of Transportation.
    Benefit means, in the context of ``statement,'' anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status, or loan guarantee.
    Claim means any request, demand, or submission--
    (a) Made to the authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (b) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority--
    (1) For property or services if the United States--
    (i) Provided such property or services;
    (ii) Provided any portion of the funds for the purchase of such 
property or services; or
    (iii) Will reimburse such recipient or party for the purchase of 
such property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (i) Provided any portion of the money requested or demanded; or
    (ii) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (c) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    Complaint means the administrative complaint served by the reviewing 
official on the defendant under Sec. 31.7.
    Defendant means any person alleged in a complaint under Sec. 31.7 
to be liable for a civil penalty or assessment under Sec. 31.3.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec. Sec. 31.10 or 31.37 and includes a revised initial decision issued 
following a remand or a motion for reconsideration.
    Investigating official means the Inspector General of the Department 
of Transportation or an officer or employee of the Office of Inspector 
General designated by the Inspector General and serving in a position 
for which the rate of basic pay is not less than the minimum rate of 
basic pay for grade GS-16 under the General Schedule.
    Knows or has reason to know, means that a person, with respect to a 
claim or statement--
    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made, shall likewise include the corresponding forms 
of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization, and includes the plural of that term.
    Representative means an attorney who is a member in good standing of 
the bar of any State, Territory, or possession of the United States or 
of the District of Columbia or the Commonwealth of Puerto Rico. This 
definition is not intended to foreclose pro se appearances. An 
individual may appear for himself or herself, and a corporation or other 
entity may appear by an owner, officer, or employee of the corporation 
or entity.
    Reviewing official means the Deputy General Counsel of the 
Department of Transportation, or other officer or employee of the 
Department who is designated by the Deputy General Counsel and eligible 
under 31 U.S.C. 3801(a)(8).
    Statement means any representation, certification, affirmation, 
document,

[[Page 371]]

record, or accounting or bookkeeping entry made--
    (a) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (b) With respect to (including relating to eligibility for)--
    (1) A contract with, or bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from,

the authority, or any State, political subdivision of a State, or other 
party, if the United States Government provides any portion of the money 
or property under such contract or for such grant, loan, or benefit, or 
if the Government will reimburse such State, political subdivision, or 
party for any portion of the money or property under such contract or 
for such grant, loan, or benefit.



Sec. 31.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $5,500 for each such claim. \1\
---------------------------------------------------------------------------

    \1\ As adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-140), as amended by the 
Debt Collection Improvement Act of 1996 (Pub. L. 104-143, section 
31001).
---------------------------------------------------------------------------

    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains, or is accompanied by, an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,500. \2\
---------------------------------------------------------------------------

    \2\ As adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-140), as amended by the 
Debt Collection Improvement Act of 1996 (Pub. L. 104-143, section 
31001).
---------------------------------------------------------------------------

    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.

[[Page 372]]

    (3) A statement shall be considered made to the authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the authority.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

[53 FR 881, Jan. 14, 1988, as amended at 62 FR 6720, Feb. 13, 1997]



Sec. 31.4  Investigation.

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



Sec. 31.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 31.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 31.3 of this 
part, the reviewing official shall transmit to the Attorney General a 
written notice of the reviewing official's intention to issue a 
complaint under Sec. 31.7.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of Sec. 
31.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec. 31.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 31.7 
only if--
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1), and

[[Page 373]]

    (2) In the case of allegations of liability under Sec. 31.3(a) with 
respect to a claim, the reviewing official determines that, with respect 
to such claim or a group of related claims submitted at the same time 
such claim is submitted (as defined in paragraph (b) of this section), 
the amount of money or the value of property or services demanded or 
requested in violation of Sec. 31.3(a) does not exceed $150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person's claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec. 31.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec. 31.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in Sec. 
31.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec. 31.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service of a complaint is complete upon 
receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the defendant or his or her 
representative.



Sec. 31.9  Answer.

    (a) The defendant may request a hearing by serving an answer on the 
reviewing official within 30 days of service of the complaint. Service 
of an answer shall be made by delivering a copy to the reviewing 
official or by placing a copy in the United States mail, postage prepaid 
and addressed to the reviewing official. Service of an answer is 
complete upon such delivery or mailing. An answer shall be deemed to be 
a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from

[[Page 374]]

service of the complaint, serve on the reviewing official a general 
answer denying liability and requesting a hearing, and a request for an 
extension of time within which to serve an answer meeting the 
requirements of paragraph (b) of this section. The reviewing official 
shall file promptly the complaint, the general answer denying liability, 
and the request for an extension of time as provided in Sec. 31.11. For 
good cause shown, the ALJ may grant the defendant up to 30 additional 
days from the original due date within which to serve an answer meeting 
the requirements of paragraph (b) of this section.



Sec. 31.10  Default upon failure to answer.

    (a) If the defendant does not answer within the time prescribed in 
Sec. 31.9(a), the reviewing official may refer the complaint to an ALJ 
by filing the complaint and a statement that defendant has failed to 
answer on time.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec. 31.8, a notice that an 
initial decision will be issued under this section.
    (c) In addition, the ALJ shall assume the facts alleged in the 
complaint to be true, and, if such facts establish liability under Sec. 
31.3, the ALJ shall issue an initial decision imposing the maximum 
amount of penalties and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to 
answer on time, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion seeking to reopen on the grounds that extraordinary 
circumstances prevented the defendant from answering, the initial 
decision shall be stayed pending the ALJ's decision on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to answer on time, the ALJ shall 
withdraw the initial decision in paragraph (c) of this section, if such 
a decision has been issued, and shall grant the defendant an opportunity 
to answer the complaint.
    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec. 31.38.
    (h) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal in accordance 
with Sec. 31.26 within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the defendant files a timely notice of appeal, the Docket 
Clerk shall forward two copies of the notice of appeal to the authority 
head, and shall forward or make available the record of the proceeding 
to the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to answer on 
time based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to answer on time, the authority head 
shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (l) If the authority head decides that the defendant's failure to 
answer on time is not excused, the authority head shall reinstate the 
initial decision of the ALJ, which shall become final and binding upon 
the parties 30 days after the authority head issues such decision.



Sec. 31.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall refer the 
matter to an ALJ by filing the complaint and answer in accordance with 
Sec. 31.26.



Sec. 31.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec. 31.8. At the time, the ALJ shall send a copy of such 
notice to the representative for the Government and shall file a copy 
with the Docket Clerk.

[[Page 375]]

    (b) Such notice shall include--
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 31.13  Parties to the hearing.

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



Sec. 31.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of, the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.



Sec. 31.15  Ex parte contacts.

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



Sec. 31.16  Disqualification of reviewing official or ALJ.

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



Sec. 31.17  Rights of parties.

    Except as otherwise limited by this part, all parties may--
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;

[[Page 376]]

    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 31.18  Authority of the ALJ.

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



Sec. 31.19  Prehearing conferences.

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



Sec. 31.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 31.4(b) are based, unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a

[[Page 377]]

document that would otherwise be privileged. If the document would 
otherwise be privileged, only that portion containing exculpatory 
information must be disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 31.5 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed following the serving of an answer pursuant to Sec. 31.9.



Sec. 31.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Sec. Sec. 31.22 and 31.23, 
the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and documentary 
evidence. Nothing contained herein shall be interpreted to require the 
creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion. Such a motion shall be accompanied by a copy of the request for 
production of documents, request for admissions, or interrogatories, or 
in the case of depositions, a summary of the scope of the proposed 
deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in Sec. 
31.24.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 31.24.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 31.8.
    (3) The deponent may file a motion to quash the subpoena or a motion 
for a protective order within ten days of service. If the ALJ has not 
acted on such a motion by the return date, such date shall be suspended 
pending the ALJ's final action on the motion.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 31.22  Exchange of witness lists, statements, and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 31.33(b). At the time the above documents are exchanged, any party 
that intends to rely on the transcript of deposition testimony in lieu 
of live testimony at the hearing, if permitted by the ALJ, shall provide 
each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
of any exhibit not provided to the opposing party as

[[Page 378]]

provided above unless the ALJ finds good cause for the failure or that 
there is no prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 31.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall be 
accompanied by a proposed subpoena, which shall specify and documents to 
be produced and shall designate the witnesses and describe the address 
and location thereof with sufficient particularity to permit such 
witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 31.8. A subpoena on a party or upon an individual 
under the control of party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file a motion to quash the subpoena within ten days after service or on 
or before the time specified in the subpoena for compliance if it is 
less than ten days after service. If the ALJ has not acted on such a 
motion by the return date, such date shall be suspended pending the 
ALJ's final action on the motion.



Sec. 31.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously submit to the ALJ specified 
documents or information enclosed in sealed envelopes to be opened as 
directed by the ALJ.



Sec. 31.25  Fees.

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



Sec. 31.26  Filing, form, and service of papers.

    (a) Filing and form. (1) A party filing any document under this part 
shall submit (i) the original and two copies

[[Page 379]]

to the Docket Operation Services, Department of Transportation, 1200 New 
Jersey Avenue, SE., Washington, DC 20590; and (ii) two copies 
simultaneously to the ALJ or, if on appeal, to the authority head. The 
requirements of this paragraph apply to all filings under this part, 
regardless of whether there is a cross-reference to Sec. 31.26.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the Docket Clerk, and a designation of the paper (e.g., motion to 
quash subpoena).
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone nunber of, the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document shall, at the time of filing, 
serve a copy of such document on every other party. Service upon any 
party of any document other than those required to be served as 
prescribed in Sec. 31.8 shall be made by delivering a copy, or by 
placing a copy of the document in the United States mail, postage 
prepaid and addressed, to the party's last known address. When a party 
is represented by a representative, service shall be made upon such 
representative in lieu of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.

[53 FR 881, Jan. 14, 1988, as amended at 73 FR 33329, June 12, 2008]



Sec. 31.27  Computation of time.

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



Sec. 31.28  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed and served on all other 
parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing response thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.
    (f) Except as provided by Sec. Sec. 31.21(e)(3) and 31.23(f), which 
concern subpoenas, the filing or pendency of a motion shall not 
automatically alter or extend a deadline or return date.



Sec. 31.29  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative, for--
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Sanctions include but are not limited to those specifically set 
forth in

[[Page 380]]

paragraph (c), (d), and (e) of this section. Any such sanction shall 
reasonably relate to the severity and nature of the failure or 
misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposition penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 31.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec. 31.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove defendent's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec. 31.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, ordinarily double damages 
and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false fictitious, of fraudulent claims or 
statements) charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;

[[Page 381]]

    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
State, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 31.32  Location of hearing.

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



Sec. 31.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in Sec. 
31.22(a).
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to (1) 
make the interrogation and presentation effective for the ascertainment 
of the truth, (2) avoid needless consumption of time, and (3) protect 
witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party (i) appearing for the entity pro se or (ii) 
designated by the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.

[[Page 382]]



Sec. 31.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 31.24.



Sec. 31.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected at the offices of the Docket Clerk 
(see Sec. 31.26(a)(1) for address) and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 31.24.



Sec. 31.36  Post-hearing briefs.

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



Sec. 31.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 31.3;
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 31.31.
    (c) The ALJ shall promptly serve the intitial decision on all 
parties within 90 days after the time for submission of post-hearing 
briefs and reply briefs (if permitted) has expired. The ALJ shall at the 
same time serve all parties with a statement describing the right of any 
defendant determined to be liable for a civil penalty or assessment to 
file a motion for reconsideration with the ALJ or a notice of appeal 
with the authority head. If the ALJ fails to meet the deadline contained 
in this paragraph, he or she shall notify the parties of the reason for 
the delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
authority head, or a motion for reconsideration of the intitial decision 
is timely filed, the initial decision shall constitute the final 
decision of the authority head and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec. 31.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.

[[Page 383]]

    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the authority head and 
shall be final and binding on the parties 30 days after the ALJ denies 
the motion, unless the initial decision is timely appealed to the 
authority head in accordance with Sec. 31.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the authority head in accordance with Sec. 31.39.



Sec. 31.39  Appeal to authority head.

    (a) Any defendant who has served a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the authority head by filing a 
notice of appeal in accordance with this section and Sec. 31.26.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if another party 
files a motion for reconsideration under Sec. 31.38, consideration of 
the appeal shall be stayed automatically pending resolution of the 
motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) The authority head may extend the initial 30-day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30-day period and shows good 
cause.
    (c) If the defendant files a timely notice of appeal and the time 
for filing motions for reconsideration under Sec. 31.38 has expired, 
the Docket Clerk shall forward two copies of the notice of appeal to the 
authority head, and shall forward or make available the record of the 
proceeding to the authority head.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the authority 
head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (j) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment determined by the ALJ in any 
initial decision.
    (k) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and with a statement 
describing the right of any person determined to be liable for a penalty 
or assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the defendant with a copy of the authority head's

[[Page 384]]

decision, a determination that a defendant is liable under Sec. 31.3 is 
final and is not subject to judicial review.



Sec. 31.40  Stays ordered by the Department of Justice.

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



Sec. 31.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    (b) No administrative stay is available following a final decision 
of the authority head.



Sec. 31.42  Judicial review.

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



Sec. 31.43  Collection of civil penalties and assessments.

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



Sec. 31.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 31.42 or Sec. 31.43, 
or any amount agreed upon in a compromise or settlement under Sec. 
31.46, may be collected by administrative offset under 31 U.S.C. 3716, 
except that an administrative offset may not be made under this 
subsection against a refund of an overpayment of Federal taxes, then or 
later owing by the United States to the defendant.



Sec. 31.45  Deposit in Treasury of United States.

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



Sec. 31.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec. 31.42 or during the pendency of any action to collect 
penalties and assessments under Sec. 31.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 31.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 31.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 31.8 within 6 years after the 
date on which such claim or statement is made.
    (b) If the defendant fails to serve a timely answer, service of a 
notice under Sec. 31.10(b) shall be deemed a notice of hearing for 
purposes of this section.

[[Page 385]]

    (c) The statute of limitations may be extended by agreement of the 
parties.



PART 32_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)--Table of Contents




                     Subpart A_Purpose and Coverage

Sec.
32.100 What does this part do?
32.105 Does this part apply to me?
32.110 Are any of my Federal assistance awards exempt from this part?
32.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

32.200 What must I do to comply with this part?
32.205 What must I include in my drug-free workplace statement?
32.210 To whom must I distribute my drug-free workplace statement?
32.215 What must I include in my drug-free awareness program?
32.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
32.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
32.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

32.300 What must I do to comply with this part if I am an individual 
          recipient?
32.301 [Reserved]

          Subpart D_Responsibilities of DOT Awarding Officials

32.400 What are my responsibilities as a DOT awarding official?

           Subpart E_Violations of This Part and Consequences

32.500 How are violations of this part determined for recipients other 
          than individuals?
32.505 How are violations of this part determined for recipients who are 
          individuals?
32.510 What actions will the Federal Government take against a recipient 
          determined to have violated this part?
32.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

32.605 Award.
32.610 Controlled substance.
32.615 Conviction.
32.620 Cooperative agreement.
32.625 Criminal drug statute.
32.630 Debarment.
32.635 Drug-free workplace.
32.640 Employee.
32.645 Federal agency or agency.
32.650 Grant.
32.655 Individual.
32.660 Recipient.
32.665 State.
32.670 Suspension.

    Authority: 41 U.S.C. 701 et seq.

    Source: 68 FR 66645, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 32.100  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. 32.105  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 Department of 
Transportation; or
    (2) A(n) DOT awarding official. (See definitions of award and 
recipient in Sec. Sec. 32.605 and 32.660, 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) DOT awarding official............  A, D and E.
------------------------------------------------------------------------



Sec. 32.110  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award that the Secretary of 
Transportation 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 386]]



Sec. 32.115  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. 32. 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. 32.200  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. 32.205 through 
32.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec. 32.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. 32.230).



Sec. 32.205  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. 32.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec. 
32.205 be given to each employee who will be engaged in the performance 
of any Federal award.



Sec. 32.215  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. 32.220  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. 32.205 and an ongoing awareness program 
as described in Sec. 32.215, 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 387]]

 
(c) You believe there are extraordinary     may ask the DOT 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. 32.225  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. 32.205(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. 32.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each DOT award. A 
failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces--
    (1) To the DOT 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 DOT 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 DOT 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 DOT awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 32.300  What must I do to comply with this part if I am an 
individual recipient?

    As a condition of receiving a(n) DOT 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 DOT awarding official or other designee for each award 
that you currently have, unless Sec. 32.301 or the award document 
designates a central point for the receipt of the notices. When notice 
is made to a central point,

[[Page 388]]

it must include the identification number(s) of each affected award.



Sec. 32.301  [Reserved]



          Subpart D_Responsibilities of DOT Awarding Officials



Sec. 32.400  What are my responsibilities as a(n) DOT awarding official?

    As a(n) DOT 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. 32.500  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 Secretary of Transportation 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. 32.505  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 Secretary of Transportation 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. 32.510  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. 32.500 or Sec. 32.505, the Department of 
Transportation 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 49 CFR part 29, 
for a period not to exceed five years.



Sec. 32.515  Are there any exceptions to those actions?

    The Secretary of Transportation 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 Secretary of Transportation 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. 32.605  Award.

    Award means an award of financial assistance by the Department of 
Transportation 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 49 
CFR part 18 that implements OMB Circular A-102 (for availability, see 5 
CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).

[[Page 389]]



Sec. 32.610  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. 32.615  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. 32.620  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. 32.650), 
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. 32.625  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. 32.630  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. 32.635  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. 32.640  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. 32.645  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. 32.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.

[[Page 390]]



Sec. 32.655  Individual.

    Individual means a natural person.



Sec. 32.660  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. 32.665  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. 32.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order 12689. Suspension of a recipient is a distinct and separate action 
from suspension of an award or suspension of payments under an award.



PART 37_TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES 
(ADA)--Table of Contents




                            Subpart A_General

Sec.
37.1 Purpose.
37.3 Definitions.
37.5 Nondiscrimination.
37.7 Standards for accessible vehicles.
37.9 Standards for accessible transportation facilities.
37.11 Administrative enforcement.
37.13 Effective date for certain vehicle specifications.
37.15 Temporary suspension of certain detectable warning requirements.
37.16-37.19 [Reserved]

                         Subpart B_Applicability

37.21 Applicability: General.
37.23 Service under contract.
37.25 University transportation systems.
37.27 Transportation for elementary and secondary education systems.
37.29 Private entities providing taxi service.
37.31 Vanpools.
37.33 Airport transportation systems.
37.35 Supplemental service for other transportation modes.
37.37 Other applications.
37.39 [Reserved]

                   Subpart C_Transportation Facilities

37.41 Construction of transportation facilities by public entities.
37.43 Alteration of transportation facilities by public entities.
37.45 Construction and alteration of transportation facilities by 
          private entities.
37.47 Key stations in light and rapid rail systems.
37.49 Designation of responsible person(s) for intercity and commuter 
          rail stations.
37.51 Key stations in commuter rail systems.
37.53 Exception for New York and Philadelphia.
37.55 Intercity rail station accessibility.
37.57 Required cooperation.
37.59 Differences in accessibility completion dates.
37.61 Public transportation programs and activities in existing 
          facilities.
37.63-37.69 [Reserved]

     Subpart D_Acquisition of Accessible Vehicles by Public Entities

37.71 Purchase or lease of new non-rail vehicles by public entities 
          operating fixed route systems.
37.73 Purchase or lease of used non-rail vehicles by public entities 
          operating fixed route systems.
37.75 Remanufacture of non-rail vehicles and purchase or lease of 
          remanufactured non-rail vehicles by public entities operating 
          fixed route systems.
37.77 Purchase or lease of new non-rail vehicles by public entities 
          operating a demand responsive system for the general public.
37.79 Purchase or lease of new rail vehicles by public entities 
          operating rapid or light rail systems.
37.81 Purchase or lease of used rail vehicles by public entities 
          operating rapid or light rail systems.
37.83 Remanufacture of rail vehicles and purchase or lease of 
          remanufactured rail vehicles by public entities operating 
          rapid or light rail systems.
37.85 Purchase or lease of new intercity and commuter rail cars.

[[Page 391]]

37.87 Purchase or lease of used intercity and commuter rail cars.
37.89 Remanufacture of intercity and commuter rail cars and purchase or 
          lease of remanufactured intercity and commuter rail cars.
37.91 Wheelchair locations and food service on intercity rail trains.
37.93 One car per train rule.
37.95 Ferries and other passenger vessels operated by public entities. 
          [Reserved]
37.97-37.99 [Reserved]

    Subpart E_Acquisition of Accessible Vehicles by Private Entities

37.101 Purchase or lease of vehicles by private entities not primarily 
          engaged in the business of transporting people.
37.103 Purchase or lease of new non-rail vehicles by private entities 
          primarily engaged in the business of transporting people.
37.105 Equivalent service standard.
37.107 Acquisition of passenger rail cars by private entities primarily 
          engaged in the business of transporting people.
37.109 Ferries and other passenger vessels operated by private entities. 
          [Reserved]
37.111-37.119 [Reserved]

      Subpart F_Paratransit as a Complement to Fixed Route Service

37.121 Requirement for comparable complementary paratransit service.
37.123 ADA paratransit eligibility: Standards.
37.125 ADA paratransit eligibility: Process.
37.127 Complementary paratransit service for visitors.
37.129 Types of service.
37.131 Service criteria for complementary paratransit.
37.133 Subscription service.
37.135 Submission of paratransit plan.
37.137 Paratransit plan development.
37.139 Plan contents.
37.141 Requirements for a joint paratransit plan.
37.143 Paratransit plan implementation.
37.145 State comment on plans.
37.147 Considerations during FTA review.
37.149 Disapproved plans.
37.151 Waiver for undue financial burden.
37.153 FTA waiver determination.
37.155 Factors in decision to grant an undue financial burden waiver.
37.157-37.159 [Reserved]

                     Subpart G_Provision of Service

37.161 Maintenance of accessible features: General.
37.163 Keeping vehicle lifts in operative condition: Public entities.
37.165 Lift and securement use.
37.167 Other service requirements.
37.169 Interim requirements for over-the-road bus service operated by 
          private entities.
37.171 Equivalency requirement for demand responsive service operated by 
          private entities not primarily engaged in the business of 
          transporting people.
37.173 Training requirements.

                  Subpart H_Over-the-Road Buses (OTRBs)

37.181 Applicability dates.
37.183 Purchase or lease of new OTRBs by operators of fixed-route 
          systems.
37.185 Fleet accessibility requirement for OTRB fixed-route systems of 
          large operators.
37.187 Interline service.
37.189 Service requirement for OTRB demand-responsive systems.
37.191 Special provision for small mixed-service operators.
37.193 Interim service requirements.
37.195 Purchase or lease of OTRBs by private entities not primarily in 
          the business of transporting people.
37.197 Remanufactured OTRBs.
37.199 [Reserved]
37.201 Intermediate and rest stops.
37.203 Lift maintenance.
37.205 Additional passengers who use wheelchairs.
37.207 Discriminatory practices.
37.209 Training and other requirements.
37.211 Effect of NHTSA and FHWA safety rules.
37.213 Information collection requirements.
37.215 Review of requirements.

Appendix A to Subpart H of Part 37--Service Request Form
Appendix A to Part 37--Modifications to Standards for Accessible 
          Transportation Facilities
Appendix B to Part 37--FTA Regional Offices
Appendix C to Part 37--Certifications
Appendix D to Part 37--Construction and Interpretation of Provisions of 
          49 CFR Part 37

    Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.

    Source: 56 FR 45621, Sept. 6, 1991, unless otherwise noted.



                            Subpart A_General



Sec. 37.1  Purpose.

    The purpose of this part is to implement the transportation and 
related provisions of titles II and III of the Americans with 
Disabilities Act of 1990.

[[Page 392]]



Sec. 37.3  Definitions.

    As used in this part:
    Accessible means, with respect to vehicles and facilities, complying 
with the accessibility requirements of parts 37 and 38 of this title.
    The Act or ADA means the Americans with Disabilities Act of 1990 
(Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 
and 611), as it may be amended from time to time.
    Administrator means Administrator of the Federal Transit 
Administration, or his or her designee.
    Alteration means a change to an existing facility, including, but 
not limited to, remodeling, renovation, rehabilitation, reconstruction, 
historic restoration, changes or rearrangement in structural parts or 
elements, and changes or rearrangement in the plan configuration of 
walls and full-height partitions. Normal maintenance, reroofing, 
painting or wallpapering, asbestos removal, or changes to mechanical or 
electrical systems are not alterations unless they affect the usability 
of the building or facility.
    Automated guideway transit system or AGT means a fixed-guideway 
transit system which operates with automated (driverless) individual 
vehicles or multi-car trains. Service may be on a fixed schedule or in 
response to a passenger-activated call button.
    Auxiliary aids and services includes:
    (1) Qualified interpreters, notetakers, transcription services, 
written materials, telephone headset amplifiers, assistive listening 
devices, assistive listening systems, telephones compatible with hearing 
aids, closed caption decoders, closed and open captioning, text 
telephones (also known as telephone devices for the deaf, or TDDs), 
videotext displays, or other effective methods of making aurally 
delivered materials available to individuals with hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, Brailled 
materials, large print materials, or other effective methods of making 
visually delivered materials available to individuals with visual 
impairments;
    (3) Acquisition or modification of equipment or devices; or
    (4) Other similar services or actions.
    Bus means any of several types of self-propelled vehicles, generally 
rubber-tired, intended for use on city streets, highways, and busways, 
including but not limited to minibuses, forty- and thirty-foot buses, 
articulated buses, double-deck buses, and electrically powered trolley 
buses, used by public entities to provide designated public 
transportation service and by private entities to provide transportation 
service including, but not limited to, specified public transportation 
services. Self-propelled, rubber-tired vehicles designed to look like 
antique or vintage trolleys are considered buses.
    Commerce means travel, trade, transportation, or communication among 
the several states, between any foreign country or any territory or 
possession and any state, or between points in the same state but 
through another state or foreign country.
    Commuter authority means any state, local, regional authority, 
corporation, or other entity established for purposes of providing 
commuter rail transportation (including, but not necessarily limited to, 
the New York Metropolitan Transportation Authority, the Connecticut 
Department of Transportation, the Maryland Department of Transportation, 
the Southeastern Pennsylvania Transportation Authority, the New Jersey 
Transit Corporation, the Massachusetts Bay Transportation Authority, the 
Port Authority Trans-Hudson Corporation, and any successor agencies) and 
any entity created by one or more such agencies for the purposes of 
operating, or contracting for the operation of, commuter rail 
transportation.
    Commuter bus service means fixed route bus service, characterized by 
service predominantly in one direction during peak periods, limited 
stops, use of multi-ride tickets, and routes of extended length, usually 
between the central business district and outlying suburbs. Commuter bus 
service may also include other service, characterized by a limited route 
structure, limited stops, and a coordinated relationship to another mode 
of transportation.

[[Page 393]]

    Commuter rail car means a rail passenger car obtained by a commuter 
authority for use in commuter rail transportation.
    Commuter rail transportation means short-haul rail passenger service 
operating in metropolitan and suburban areas, whether within or across 
the geographical boundaries of a state, usually characterized by reduced 
fare, multiple ride, and commutation tickets and by morning and evening 
peak period operations. This term does not include light or rapid rail 
transportation.
    Demand responsive system means any system of transporting 
individuals, including the provision of designated public transportation 
service by public entities and the provision of transportation service 
by private entities, including but not limited to specified public 
transportation service, which is not a fixed route system.
    Designated public transportation means transportation provided by a 
public entity (other than public school transportation) by bus, rail, or 
other conveyance (other than transportation by aircraft or intercity or 
commuter rail transportation) that provides the general public with 
general or special service, including charter service, on a regular and 
continuing basis.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1) The phrase physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological, musculoskeletal, special sense organs, respiratory 
including speech organs, cardiovascular, reproductive, digestive, 
genito-urinary, hemic and lymphatic, skin, and endocrine;
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;
    (iii) The term physical or mental impairment includes, but is not 
limited to, such contagious or noncontagious diseases and conditions as 
orthopedic, visual, speech, and hearing impairments; cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease, tuberculosis, drug addiction and alcoholism;
    (iv) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and work.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having such an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities, but which is treated by a public or private 
entity as constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits a 
major life activity only as a result of the attitudes of others toward 
such an impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a public or private entity as having such 
an impairment.
    (5) The term disability does not include--
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania;
    (iii) Psychoactive substance abuse disorders resulting from the 
current illegal use of drugs.
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, roads, walks, passageways, parking lots, or other 
real or personal property, including the site where the building, 
property, structure, or equipment is located.

[[Page 394]]

    Fixed route system means a system of transporting individuals (other 
than by aircraft), including the provision of designated public 
transportation service by public entities and the provision of 
transportation service by private entities, including, but not limited 
to, specified public transportation service, on which a vehicle is 
operated along a prescribed route according to a fixed schedule.
    FT Act means the Federal Transit Act of 1964, as amended (49 U.S.C. 
App. 1601 et seq.).
    High speed rail means a rail service having the characteristics of 
intercity rail service which operates primarily on a dedicated guideway 
or track not used, for the most part, by freight, including, but not 
limited to, trains on welded rail, magnetically levitated (maglev) 
vehicles on a special guideway, or other advanced technology vehicles, 
designed to travel at speeds in excess of those possible on other types 
of railroads.
    Individual with a disability means a person who has a disability, 
but does not include an individual who is currently engaging in the 
illegal use of drugs, when a public or private entity acts on the basis 
of such use.
    Intercity rail passenger car means a rail car, intended for use by 
revenue passengers, obtained by the National Railroad Passenger 
Corporation (Amtrak) for use in intercity rail transportation.
    Intercity rail transportation means transportation provided by 
Amtrak.
    Light rail means a streetcar-type vehicle operated on city streets, 
semi-exclusive rights of way, or exclusive rights of way. Service may be 
provided by step-entry vehicles or by level boarding.
    New vehicle means a vehicle which is offered for sale or lease after 
manufacture without any prior use.
    Operates includes, with respect to a fixed route or demand 
responsive system, the provision of transportation service by a public 
or private entity itself or by a person under a contractual or other 
arrangement or relationship with the entity.
    Over-the-road bus means a bus characterized by an elevated passenger 
deck located over a baggage compartment.
    Paratransit means comparable transportation service required by the 
ADA for individuals with disabilities who are unable to use fixed route 
transportation systems.
    Private entity means any entity other than a public entity.
    Public entity means:
    (1) Any state or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of one or more state or local governments; and
    (3) The National Railroad Passenger Corporation (Amtrak) and any 
commuter authority.
    Purchase or lease, with respect to vehicles, means the time at which 
an entity is legally obligated to obtain the vehicles, such as the time 
of contract execution.
    Public school transportation means transportation by schoolbus 
vehicles of schoolchildren, personnel, and equipment to and from a 
public elementary or secondary school and school-related activities.
    Rapid rail means a subway-type transit vehicle railway operated on 
exclusive private rights of way with high level platform stations. Rapid 
rail also may operate on elevated or at grade level track separated from 
other traffic.
    Remanufactured vehicle means a vehicle which has been structurally 
restored and has had new or rebuilt major components installed to extend 
its service life.
    Secretary means the Secretary of Transportation or his/her designee.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 794), as amended.
    Service animal means any guide dog, signal dog, or other animal 
individually trained to work or perform tasks for an individual with a 
disability, including, but not limited to, guiding individuals with 
impaired vision, alerting individuals with impaired hearing to intruders 
or sounds, providing minimal protection or rescue work, pulling a 
wheelchair, or fetching dropped items.
    Small operator means, in the context of over-the-road buses (OTRBs), 
a private entity primarily in the business of

[[Page 395]]

transporting people that is not a Class I motor carrier. To determine 
whether an operator has sufficient average annual gross transportation 
operating revenues to be a Class I motor carrier, its revenues are 
combined with those of any other OTRB operator with which it is 
affiliated.
    Solicitation means the closing date for the submission of bids or 
offers in a procurement.
    Specified public transportation means transportation by bus, rail, 
or any other conveyance (other than aircraft) provided by a private 
entity to the general public, with general or special service (including 
charter service) on a regular and continuing basis.
    Station means, with respect to intercity and commuter rail 
transportation, the portion of a property located appurtenant to a right 
of way on which intercity or commuter rail transportation is operated, 
where such portion is used by the general public and is related to the 
provision of such transportation, including passenger platforms, 
designated waiting areas, restrooms, and, where a public entity 
providing rail transportation owns the property, concession areas, to 
the extent that such public entity exercises control over the selection, 
design, construction, or alteration of the property, but this term does 
not include flag stops (i.e., stations which are not regularly scheduled 
stops but at which trains will stop to board or detrain passengers only 
on signal or advance notice).
    Transit facility means, for purposes of determining the number of 
text telephones needed consistent with section 10.3.1(12) of appendix A 
to this part, a physical structure the primary function of which is to 
facilitate access to and from a transportation system which has 
scheduled stops at the structure. The term does not include an open 
structure or a physical structure the primary purpose of which is other 
than providing transportation services.
    Used vehicle means a vehicle with prior use.
    Vanpool means a voluntary commuter ridesharing arrangement, using 
vans with a seating capacity greater than 7 persons (including the 
driver) or buses, which provides transportation to a group of 
individuals traveling directly from their homes to their regular places 
of work within the same geographical area, and in which the commuter/
driver does not receive compensation beyond reimbursement for his or her 
costs of providing the service.
    Vehicle, as the term is applied to private entities, does not 
include a rail passenger car, railroad locomotive, railroad freight car, 
or railroad caboose, or other rail rolling stock described in section 
242 of title III of the Act.
    Wheelchair means a mobility aid belonging to any class of three or 
four-wheeled devices, usable indoors, designed for and used by 
individuals with mobility impairments, whether operated manually or 
powered. A ``common wheelchair'' is such a device which does not exceed 
30 inches in width and 48 inches in length measured two inches above the 
ground, and does not weigh more than 600 pounds when occupied.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63101, Nov. 30, 1993; 
61 FR 25415, May 21, 1996; 63 FR 51690, Sept. 28, 1998]



Sec. 37.5  Nondiscrimination.

    (a) No entity shall discriminate against an individual with a 
disability in connection with the provision of transportation service.
    (b) Notwithstanding the provision of any special transportation 
service to individuals with disabilities, an entity shall not, on the 
basis of disability, deny to any individual with a disability the 
opportunity to use the entity's transportation service for the general 
public, if the individual is capable of using that service.
    (c) An entity shall not require an individual with a disability to 
use designated priority seats, if the individual does not choose to use 
these seats.
    (d) An entity shall not impose special charges, not authorized by 
this part, on individuals with disabilities, including individuals who 
use wheelchairs, for providing services required by this part or 
otherwise necessary to accommodate them.
    (e) An entity shall not require that an individual with disabilities 
be accompanied by an attendant.

[[Page 396]]

    (f) Private entities that are primarily engaged in the business of 
transporting people and whose operations affect commerce shall not 
discriminate against any individual on the basis of disability in the 
full and equal enjoyment of specified transportation services. This 
obligation includes, with respect to the provision of transportation 
services, compliance with the requirements of the rules of the 
Department of Justice concerning eligibility criteria, making reasonable 
modifications, providing auxiliary aids and services, and removing 
barriers (28 CFR 36.301-36.306).
    (g) An entity shall not refuse to serve an individual with a 
disability or require anything contrary to this part because its 
insurance company conditions coverage or rates on the absence of 
individuals with disabilities or requirements contrary to this part.
    (h) It is not discrimination under this part for an entity to refuse 
to provide service to an individual with disabilities because that 
individual engages in violent, seriously disruptive, or illegal conduct. 
However, an entity shall not refuse to provide service to an individual 
with disabilities solely because the individual's disability results in 
appearance or involuntary behavior that may offend, annoy, or 
inconvenience employees of the entity or other persons.



Sec. 37.7  Standards for accessible vehicles.

    (a) For purposes of this part, a vehicle shall be considered to be 
readily accessible to and usable by individuals with disabilities if it 
meets the requirements of this part and the standards set forth in part 
38 of this title.
    (b)(1) For purposes of implementing the equivalent facilitation 
provision in Sec. 38.2 of this subtitle, the following parties may 
submit to the Administrator of the applicable operating administration a 
request for a determination of equivalent facilitation:
    (i) A public or private entity that provides transportation services 
and is subject to the provisions of subpart D or subpart E this part; or
    (ii) The manufacturer of a vehicle or a vehicle component or 
subsystem to be used by such entity to comply with this part.
    (2) The requesting party shall provide the following information 
with its request:
    (i) Entity name, address, contact person and telephone;
    (ii) Specific provision of part 38 of this title concerning which 
the entity is seeking a determination of equivalent facilitation.
    (iii) [Reserved]
    (iv) Alternative method of compliance, with demonstration of how the 
alternative meets or exceeds the level of accessibility or usability of 
the vehicle provided in part 38 of this subtitle; and
    (v) Documentation of the public participation used in developing an 
alternative method of compliance.
    (3) In the case of a request by a public entity that provides 
transportation services subject to the provisions of subpart D of this 
part, the required public participation shall include the following:
    (i) The entity shall contact individuals with disabilities and 
groups representing them in the community. Consultation with these 
individuals and groups shall take place at all stages of the development 
of the request for equivalent facilitation. All documents and other 
information concerning the request shall be available, upon request, to 
members of the public.
    (ii) The entity shall make its proposed request available for public 
comment before the request is made final or transmitted to DOT. In 
making the request available for public review, the entity shall ensure 
that it is available, upon request, in accessible formats.
    (iii) The entity shall sponsor at least one public hearing on the 
request and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements.
    (4) In the case of a request by a private entity that provides 
transportation services subject to the provisions of subpart E of this 
part or a manufacturer, the private entity or manufacturer shall 
consult, in person, in writing, or by other appropriate

[[Page 397]]

means, with representatives of national and local organizations 
representing people with those disabilities who would be affected by the 
request.
    (5) A determination of compliance will be made by the Administrator 
of the concerned operating administration on a case-by-case basis, with 
the concurrence of the Assistant Secretary for Policy and International 
Affairs.
    (6) Determinations of equivalent facilitation are made only with 
respect to vehicles or vehicle components used in the provision of 
transportation services covered by subpart D or subpart E of this part, 
and pertain only to the specific situation concerning which the 
determination is made. Entities shall not cite these determinations as 
indicating that a product or method constitute equivalent facilitations 
in situations other than those to which the determinations specifically 
pertain. Entities shall not claim that a determination of equivalent 
facilitation indicates approval or endorsement of any product or method 
by the Federal government, the Department of Transportation, or any of 
its operating administrations.
    (c) Over-the-road buses acquired by public entities (or by a 
contractor to a public entity as provided in Sec. 37.23 of this part) 
shall comply with Sec. 38.23 and subpart G of part 38 of this title.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63101, Nov. 30, 1993; 
61 FR 25416, May 21, 1996]



Sec. 37.9  Standards for accessible transportation facilities.

    (a) For purposes of this part, a transportation facility shall be 
considered to be readily accessible to and usable by individuals with 
disabilities if it meets the requirements of this part and the 
requirements set forth in Appendices B and D to 36 CFR part 1191, which 
apply to buildings and facilities covered by the Americans with 
Disabilities Act, as modified by Appendix A to this part.
    (b) Facility alterations begun before January 26, 1992, in a good 
faith effort to make a facility accessible to individuals with 
disabilities may be used to meet the key station requirements set forth 
in Sec. Sec. 37.47 and 37.51 of this part, even if these alterations 
are not consistent with the requirements set forth in Appendices B and D 
to 36 CFR part 1191 and Appendix A to this part, if the modifications 
complied with the Uniform Federal Accessibility Standards (UFAS) or ANSI 
A117.1(1980) (American National Standards Specification for Making 
Buildings and Facilities Accessible to and Usable by the Physically 
Handicapped). This paragraph applies only to alterations of individual 
elements and spaces and only to the extent that provisions covering 
those elements or spaces are contained in UFAS or ANSI A117.1, as 
applicable.
    (c) (1) New construction or alterations of buildings or facilities 
on which construction has begun, or all approvals for final design have 
been received, before November 29, 2006, are not required to be 
consistent with the requirements set forth in Appendices B and D to 36 
CFR part 1191 and Appendix A to this part, if the construction or 
alterations comply with the former Appendix A to this part, as codified 
in the October 1, 2006, edition of the Code of Federal Regulations.
    (2) Existing buildings and facilities that are not altered after 
November 29, 2006, and which comply with the former Appendix A to this 
part, are not required to be retrofitted to comply with the requirements 
set forth in Appendices B and D to 36 CFR part 1191 and Appendix A to 
this part.
    (d)(1) For purposes of implementing the equivalent facilitation 
provision in ADA Chapter 1, Section 103, of Appendix B to 36 CFR part 
1191, the following parties may submit to the Administrator of the 
applicable operating administration a request for a determination of 
equivalent facilitation:
    (i)(A) A public or private entity that provides transportation 
facilities subject to the provisions of subpart C of this part, or other 
appropriate party with the concurrence of the Administrator.
    (B) With respect to airport facilities, an entity that is an airport 
operator subject to the requirements of 49 CFR part 27 or regulations 
implementing the Americans with Disabilities Act, an air carrier subject 
to the requirements of 14 CFR part 382, or other appropriate party with 
the concurrence of the Administrator.

[[Page 398]]

    (ii) The manufacturer of a product or accessibility feature to be 
used in a transportation facility or facilities.
    (2) The requesting party shall provide the following information 
with its request:
    (i) Entity name, address, contact person and telephone;
    (ii) Specific provision(s) of Appendices B and D to 36 CFR part 1191 
or Appendix A to this part concerning which the entity is seeking a 
determination of equivalent facilitation.
    (iii) [Reserved]
    (iv) Alternative method of compliance, with demonstration of how the 
alternative meets or exceeds the level of accessibility or usability 
provided in Appendices B and D to 36 CFR part 1191 or Appendix A to this 
part; and
    (v) Documentation of the public participation used in developing an 
alternative method of compliance.
    (3) In the case of a request by a public entity that provides 
transportation facilities (including an airport operator), or a request 
by an air carrier with respect to airport facilities, the required 
public participation shall include the following:
    (i) The entity shall contact individuals with disabilities and 
groups representing them in the community. Consultation with these 
individuals and groups shall take place at all stages of the development 
of the request for equivalent facilitation. All documents and other 
information concerning the request shall be available, upon request, to 
Department of Transportation officials and members of the public.
    (ii) The entity shall make its proposed request available for public 
comment before the request is made final or transmitted to DOT. In 
making the request available for public review, the entity shall ensure 
that it is available, upon request, in accessible formats.
    (iii) The entity shall sponsor at least one public hearing on the 
request and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements.
    (4) In the case of a request by a manufacturer or a private entity 
other than an air carrier, the manufacturer or private entity shall 
consult, in person, in writing, or by other appropriate means, with 
representatives of national and local organizations representing people 
with those disabilities who would be affected by the request.
    (5) A determination of compliance will be made by the Administrator 
of the concerned operating administration on a case-by-case basis, with 
the concurrence of the Assistant Secretary for Transportation Policy.
    (6)(i) Determinations of equivalent facilitation are made only with 
respect to transportation facilities, and pertain only to the specific 
situation concerning which the determination is made. Provided, however, 
that with respect to a product or accessibility feature that the 
Administrator determines can provide an equivalent facilitation in a 
class of situations, the Administrator may make an equivalent 
facilitation determination applying to that class of situations.
    (ii) Entities shall not cite these determinations as indicating that 
a product or method constitutes equivalent facilitation in situations, 
or classes of situations, other than those to which the determinations 
specifically pertain.
    (iii) Entities shall not claim that a determination of equivalent 
facilitation indicates approval or endorsement of any product or method 
by the Federal government, the Department of Transportation, or any of 
its operating administrations.

[71 FR 63265, Oct. 30, 2006]



Sec. 37.11  Administrative enforcement.

    (a) Recipients of Federal financial assistance from the Department 
of Transportation are subject to administrative enforcement of the 
requirements of this part under the provisions of 49 CFR part 27, 
subpart C.
    (b) Public entities, whether or not they receive Federal financial 
assistance, also are subject to enforcement action as provided by the 
Department of Justice.
    (c) Private entities, whether or not they receive Federal financial 
assistance, are also subject to enforcement action as provided in the 
regulations of

[[Page 399]]

the Department of Justice implementing title III of the ADA (28 CFR part 
36).

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec. 37.13  Effective date for certain vehicle specifications.

    (a) The vehicle lift specifications identified in Sec. Sec. 
38.23(b)(6), 38.83(b)(6), 38.95(b)(6), and 38.125(b)(6) of this title 
apply to solicitations for vehicles under this part after January 25, 
1992.
    (b) The vehicle door height requirements for vehicles over 22 feet 
identified in Sec. 38.25(c) of this title apply to solicitations for 
vehicles under this part after January 25, 1992.

[56 FR 64215, Dec. 9, 1991]



Sec. 37.15  Temporary suspension of certain detectable warning requirements.

    The detectable warning requirements contained in sections 4.7.7, 
4.29.5, and 4.29.6 of appendix A to this part are suspended temporarily 
until July 26, 2001.

[64 FR 64837, 64838, Nov. 23, 1998]



Sec. Sec. 37.16-37.19  [Reserved]



                         Subpart B_Applicability



Sec. 37.21  Applicability: General.

    (a) This part applies to the following entities, whether or not they 
receive Federal financial assistance from the Department of 
Transportation:
    (1) Any public entity that provides designated public transportation 
or intercity or commuter rail transportation;
    (2) Any private entity that provides specified public 
transportation; and
    (3) Any private entity that is not primarily engaged in the business 
of transporting people but operates a demand responsive or fixed route 
system.
    (b) For entities receiving Federal financial assistance from the 
Department of Transportation, compliance with applicable requirements of 
this part is a condition of compliance with section 504 of the 
Rehabilitation Act of 1973 and of receiving financial assistance.
    (c) Entities to which this part applies also may be subject to ADA 
regulations of the Department of Justice (28 CFR parts 35 or 36, as 
applicable). The provisions of this part shall be interpreted in a 
manner that will make them consistent with applicable Department of 
Justice regulations. In any case of apparent inconsistency, the 
provisions of this part shall prevail.



Sec. 37.23  Service under contract.

    (a) When a public entity enters into a contractual or other 
arrangement or relationship with a private entity to operate fixed route 
or demand responsive service, the public entity shall ensure that the 
private entity meets the requirements of this part that would apply to 
the public entity if the public entity itself provided the service.
    (b) A private entity which purchases or leases new, used, or 
remanufactured vehicles, or remanufactures vehicles, for use, or in 
contemplation of use, in fixed route or demand responsive service under 
contract or other arrangement or relationship with a public entity, 
shall acquire accessible vehicles in all situations in which the public 
entity itself would be required to do so by this part.
    (c) A public entity which enters into a contractual or other 
arrangement or relationship with a private entity to provide fixed route 
service shall ensure that the percentage of accessible vehicles operated 
by the public entity in its overall fixed route or demand responsive 
fleet is not diminished as a result.
    (d) A private entity that provides fixed route or demand responsive 
transportation service under contract or other arrangement with another 
private entity shall be governed, for purposes of the transportation 
service involved, by the provisions of this part applicable to the other 
entity.



Sec. 37.25  University transportation systems.

    (a) Transportation services operated by private institutions of 
higher education are subject to the provisions of this part governing 
private entities not primarily engaged in the business of transporting 
people.
    (b) Transportation systems operated by public institutions of higher 
education are subject to the provisions of this part governing public 
entities. If a

[[Page 400]]

public institution of higher education operates a fixed route system, 
the requirements of this part governing commuter bus service apply to 
that system.



Sec. 37.27  Transportation for elementary and secondary education systems.

    (a) The requirements of this part do not apply to public school 
transportation.
    (b) The requirements of this part do not apply to the transportation 
of school children to and from a private elementary or secondary school, 
and its school-related activities, if the school is providing 
transportation service to students with disabilities equivalent to that 
provided to students without disabilities. The test of equivalence is 
the same as that provided in Sec. 37.105. If the school does not meet 
the requirement of this paragraph for exemption from the requirements of 
this part, it is subject to the requirements of this part for private 
entities not primarily engaged in transporting people.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25415, May 21, 1996]



Sec. 37.29  Private entities providing taxi service.

    (a) Providers of taxi service are subject to the requirements of 
this part for private entities primarily engaged in the business of 
transporting people which provide demand responsive service.
    (b) Providers of taxi service are not required to purchase or lease 
accessible automobiles. When a provider of taxi service purchases or 
leases a vehicle other than an automobile, the vehicle is required to be 
accessible unless the provider demonstrates equivalency as provided in 
Sec. 37.105 of this part. A provider of taxi service is not required to 
purchase vehicles other than automobiles in order to have a number of 
accessible vehicles in its fleet.
    (c) Private entities providing taxi service shall not discriminate 
against individuals with disabilities by actions including, but not 
limited to, refusing to provide service to individuals with disabilities 
who can use taxi vehicles, refusing to assist with the stowing of 
mobility devices, and charging higher fares or fees for carrying 
individuals with disabilities and their equipment than are charged to 
other persons.



Sec. 37.31  Vanpools.

    Vanpool systems which are operated by public entities, or in which 
public entities own or purchase or lease the vehicles, are subject to 
the requirements of this part for demand responsive service for the 
general public operated by public entities. A vanpool system in this 
category is deemed to be providing equivalent service to individuals 
with disabilities if a vehicle that an individual with disabilities can 
use is made available to and used by a vanpool in which such an 
individual chooses to participate.



Sec. 37.33  Airport transportation systems.

    (a) Transportation systems operated by public airport operators, 
which provide designated public transportation and connect parking lots 
and terminals or provide transportation among terminals, are subject to 
the requirements of this part for fixed route or demand responsive 
systems, as applicable, operated by public entities. Public airports 
which operate fixed route transportation systems are subject to the 
requirements of this part for commuter bus service operated by public 
entities. The provision by an airport of additional accommodations 
(e.g., parking spaces in a close-in lot) is not a substitute for meeting 
the requirements of this part.
    (b) Fixed-route transportation systems operated by public airport 
operators between the airport and a limited number of destinations in 
the area it serves are subject to the provisions of this part for 
commuter bus systems operated by public entities.
    (c) Private jitney or shuttle services that provide transportation 
between an airport and destinations in the area it serves in a route-
deviation or other variable mode are subject to the requirements of this 
part for private entities primarily engaged in the business of 
transporting people which provide demand responsive service. They may 
meet equivalency requirements by such means as sharing or pooling 
accessible vehicles among operators, in a way that ensures the provision 
of equivalent service.

[[Page 401]]



Sec. 37.35  Supplemental service for other transportation modes.

    (a) Transportation service provided by bus or other vehicle by an 
intercity commuter or rail operator, as an extension of or supplement to 
its rail service, and which connects an intercity rail station and 
limited other points, is subject to the requirements of this part for 
fixed route commuter bus service operated by a public entity.
    (b) Dedicated bus service to commuter rail systems, with through 
ticketing arrangements and which is available only to users of the 
commuter rail system, is subject to the requirements of this part for 
fixed route commuter bus service operated by a public entity.



Sec. 37.37  Other applications.

    (a) A private entity does not become subject to the requirements of 
this part for public entities, because it receives an operating subsidy 
from, is regulated by, or is granted a franchise or permit to operate by 
a public entity.
    (b) Shuttle systems and other transportation services operated by 
privately-owned hotels, car rental agencies, historical or theme parks, 
and other public accommodations are subject to the requirements of this 
part for private entities not primarily engaged in the business of 
transporting people. Either the requirements for demand responsive or 
fixed route service may apply, depending upon the characteristics of 
each individual system of transportation.
    (c) Conveyances used by members of the public primarily for 
recreational purposes rather than for transportation (e.g., amusement 
park rides, ski lifts, or historic rail cars or trolleys operated in 
museum settings) are not subject to the requirements of this part. Such 
conveyances are subject to Department of Justice regulations 
implementing title II or title III of the ADA (28 CFR part 35 or 36), as 
applicable.
    (d) Transportation services provided by an employer solely for its 
own employees are not subject to the requirements of this part. Such 
services are subject to the regulations of the Equal Employment 
Opportunity Commission under title I of the ADA (29 CFR part 1630) and, 
with respect to public entities, the regulations of the Department of 
Justice under title II of the ADA (28 CFR part 35).
    (e) Transportation systems operated by private clubs or 
establishments exempted from coverage under title II of the Civil Rights 
Act of 1964 (42 U.S.C. 2000-a(e)) or religious organizations or entities 
controlled by religious organizations are not subject to the 
requirements of this part.
    (f) If a parent private company is not primarily engaged in the 
business of transporting people, or is not a place of public 
accommodation, but a subsidiary company or an operationally distinct 
segment of the company is primarily engaged in the business of 
transporting people, the transportation service provided by the 
subsidiary or segment is subject to the requirements of this part for 
private entities primarily engaged in the business of transporting 
people.
    (g) High-speed rail systems operated by public entities are subject 
to the requirements of this part governing intercity rail systems.
    (h) Private rail systems providing fixed route or specified public 
transportation service are subject to the requirements of Sec. 37.107 
with respect to the acquisition of rail passenger cars. Such systems are 
subject to the requirements of the regulations of the Department of 
Justice implementing title III of the ADA (28 CFR part 36) with respect 
to stations and other facilities.



Sec. 37.39  [Reserved]



                   Subpart C_Transportation Facilities



Sec. 37.41  Construction of transportation facilities by public entities.

    (a) A public entity shall construct any new facility to be used in 
providing designated public transportation services so that the facility 
is readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs. This requirement also applies 
to the construction of a

[[Page 402]]

new station for use in intercity or commuter rail transportation. For 
purposes of this section, a facility or station is ``new'' if its 
construction begins (i.e., issuance of notice to proceed) after January 
25, 1992, or, in the case of intercity or commuter rail stations, after 
October 7, 1991.
    (b) (1) Full compliance with the requirements of this section is not 
required where an entity can demonstrate that it is structurally 
impracticable to meet the requirements. Full compliance will be 
considered structurally impracticable only in those rare circumstances 
when the unique characteristics of terrain prevent the incorporation of 
accessibility features.
    (2) If full compliance with this section would be structurally 
impracticable, compliance with this section is required to the extent 
that it is not structurally impracticable. In that case, any portion of 
the facility that can be made accessible shall be made accessible to the 
extent that it is not structurally impracticable.
    (3) If providing accessibility in conformance with this section to 
individuals with certain disabilities (e.g., those who use wheelchairs) 
would be structurally impracticable, accessibility shall nonetheless be 
ensured to persons with other types of disabilities (e.g., those who use 
crutches or who have sight, hearing, or mental impairments) in 
accordance with this section.

[56 FR 45621, Sept. 6, 1991, as amended by 71 FR 63266, Oct. 30, 2006]



Sec. 37.43  Alteration of transportation facilities by public entities.

    (a)(1) When a public entity alters an existing facility or a part of 
an existing facility used in providing designated public transportation 
services in a way that affects or could affect the usability of the 
facility or part of the facility, the entity shall make the alterations 
(or ensure that the alterations are made) in such a manner, to the 
maximum extent feasible, that the altered portions of the facility are 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, upon the completion of such 
alterations.
    (2) When a public entity undertakes an alteration that affects or 
could affect the usability of or access to an area of a facility 
containing a primary function, the entity shall make the alteration in 
such a manner that, to the maximum extent feasible, the path of travel 
to the altered area and the bathrooms, telephones, and drinking 
fountains serving the altered area are readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs, upon completion of the alterations. Provided, that 
alterations to the path of travel, drinking fountains, telephones and 
bathrooms are not required to be made readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs, if the cost and scope of doing so would be 
disproportionate.
    (3) The requirements of this paragraph also apply to the alteration 
of existing intercity or commuter rail stations by the responsible 
person for, owner of, or person in control of the station.
    (4) The requirements of this section apply to any alteration which 
begins (i.e., issuance of notice to proceed or work order, as 
applicable) after January 25, 1992, or, in the case of intercity and 
commuter rail stations, after October 7, 1991.
    (b) As used in this section, the phrase to the maximum extent 
feasible applies to the occasional case where the nature of an existing 
facility makes it impossible to comply fully with applicable 
accessibility standards through a planned alteration. In these 
circumstances, the entity shall provide the maximum physical 
accessibility feasible. Any altered features of the facility or portion 
of the facility that can be made accessible shall be made accessible. If 
providing accessibility to certain individuals with disabilities (e.g., 
those who use wheelchairs) would not be feasible, the facility shall be 
made accessible to individuals with other types of disabilities (e.g., 
those who use crutches, those who have impaired vision or hearing, or 
those who have other impairments).
    (c) As used in this section, a primary function is a major activity 
for which the facility is intended. Areas of transportation facilities 
that involve primary functions include, but are not

[[Page 403]]

necessarily limited to, ticket purchase and collection areas, passenger 
waiting areas, train or bus platforms, baggage checking and return areas 
and employment areas (except those involving non-occupiable spaces 
accessed only by ladders, catwalks, crawl spaces, very narrow 
passageways, or freight (non-passenger) elevators which are frequented 
only by repair personnel).
    (d) As used in this section, a ``path of travel'' includes a 
continuous, unobstructed way of pedestrian passage by means of which the 
altered area may be approached, entered, and exited, and which connects 
the altered area with an exterior approach (including sidewalks, parking 
areas, and streets), an entrance to the facility, and other parts of the 
facility. The term also includes the restrooms, telephones, and drinking 
fountains serving the altered area. An accessible path of travel may 
include walks and sidewalks, curb ramps and other interior or exterior 
pedestrian ramps, clear floor paths through corridors, waiting areas, 
concourses, and other improved areas, parking access aisles, elevators 
and lifts, bridges, tunnels, or other passageways between platforms, or 
a combination of these and other elements.
    (e)(1) Alterations made to provide an accessible path of travel to 
the altered area will be deemed disproportionate to the overall 
alteration when the cost exceeds 20 percent of the cost of the 
alteration to the primary function area (without regard to the costs of 
accessibility modifications).
    (2) Costs that may be counted as expenditures required to provide an 
accessible path of travel include:
    (i) Costs associated with providing an accessible entrance and an 
accessible route to the altered area (e.g., widening doorways and 
installing ramps);
    (ii) Costs associated with making restrooms accessible (e.g., grab 
bars, enlarged toilet stalls, accessible faucet controls);
    (iii) Costs associated with providing accessible telephones (e.g., 
relocation of phones to an accessible height, installation of 
amplification devices or TDDs);
    (iv) Costs associated with relocating an inaccessible drinking 
fountain.
    (f)(1) When the cost of alterations necessary to make a path of 
travel to the altered area fully accessible is disproportionate to the 
cost of the overall alteration, then such areas shall be made accessible 
to the maximum extent without resulting in disproportionate costs;
    (2) In this situation, the public entity should give priority to 
accessible elements that will provide the greatest access, in the 
following order:
    (i) An accessible entrance;
    (ii) An accessible route to the altered area;
    (iii) At least one accessible restroom for each sex or a single 
unisex restroom (where there are one or more restrooms);
    (iv) Accessible telephones;
    (v) Accessible drinking fountains;
    (vi) When possible, other accessible elements (e.g., parking, 
storage, alarms).
    (g) If a public entity performs a series of small alterations to the 
area served by a single path of travel rather than making the 
alterations as part of a single undertaking, it shall nonetheless be 
responsible for providing an accessible path of travel.
    (h)(1) If an area containing a primary function has been altered 
without providing an accessible path of travel to that area, and 
subsequent alterations of that area, or a different area on the same 
path of travel, are undertaken within three years of the original 
alteration, the total cost of alteration to the primary function areas 
on that path of travel during the preceding three year period shall be 
considered in determining whether the cost of making that path of travel 
is disproportionate;
    (2) For the first three years after January 26, 1992, only 
alterations undertaken between that date and the date of the alteration 
at issue shall be considered in determining if the cost of providing 
accessible features is disproportionate to the overall cost of the 
alteration.
    (3) Only alterations undertaken after January 26, 1992, shall be 
considered in determining if the cost of providing an accessible path of 
travel is disproportionate to the overall cost of the alteration.

[[Page 404]]



Sec. 37.45  Construction and alteration of transportation facilities 
by private entities.

    In constructing and altering transit facilities, private entities 
shall comply with the regulations of the Department of Justice 
implementing Title III of the ADA (28 CFR part 36).



Sec. 37.47  Key stations in light and rapid rail systems.

    (a) Each public entity that provides designated public 
transportation by means of a light or rapid rail system shall make key 
stations on its system readily accessible to and usable by individuals 
with disabilities, including individuals who use wheelchairs. This 
requirement is separate from and in addition to requirements set forth 
in Sec. 37.43 of this part.
    (b) Each public entity shall determine which stations on its system 
are key stations. The entity shall identify key stations, using the 
planning and public participation process set forth in paragraph (d) of 
this section, and taking into consideration the following criteria:
    (1) Stations where passenger boardings exceed average station 
passenger boardings on the rail system by at least fifteen percent, 
unless such a station is close to another accessible station;
    (2) Transfer stations on a rail line or between rail lines;
    (3) Major interchange points with other transportation modes, 
including stations connecting with major parking facilities, bus 
terminals, intercity or commuter rail stations, passenger vessel 
terminals, or airports;
    (4) End stations, unless an end station is close to another 
accessible station; and
    (5) Stations serving major activity centers, such as employment or 
government centers, institutions of higher education, hospitals or other 
major health care facilities, or other facilities that are major trip 
generators for individuals with disabilities.
    (c)(1) Unless an entity receives an extension under paragraph (c)(2) 
of this section, the public entity shall achieve accessibility of key 
stations as soon as possible, but in no case later than July 26, 1993, 
except that an entity is not required to complete installation of 
detectable warnings required by section 10.3.2(2) of appendix A to this 
part until July 26, 1994.
    (2) The FTA Administrator may grant an extension of this completion 
date for key station accessibility for a period up to July 26, 2020, 
provided that two-thirds of key stations are made accessible by July 26, 
2010. Extensions may be granted as provided in paragraph (e) of this 
section.
    (d) The public entity shall develop a plan for compliance for this 
section. The plan shall be submitted to the appropriate FTA regional 
office by July 26, 1992. (See appendix B to this part for list.)
    (1) The public entity shall consult with individuals with 
disabilities affected by the plan. The public entity also shall hold at 
least one public hearing on the plan and solicit comments on it. The 
plan submitted to FTA shall document this public participation, 
including summaries of the consultation with individuals with 
disabilities and the comments received at the hearing and during the 
comment period. The plan also shall summarize the public entity's 
responses to the comments and consultation.
    (2) The plan shall establish milestones for the achievement of 
required accessibility of key stations, consistent with the requirements 
of this section.
    (e) A public entity wishing to apply for an extension of the July 
26, 1993, deadline for key station accessibility shall include a request 
for an extension with its plan submitted to FTA under paragraph (d) of 
this section. Extensions may be granted only with respect to key 
stations which need extraordinarily expensive structural changes to, or 
replacement of, existing facilities (e.g., installations of elevators, 
raising the entire passenger platform, or alterations of similar 
magnitude and cost). Requests for extensions shall provide for 
completion of key station accessibility within the time limits set forth 
in paragraph (c) of this section. The FTA Administrator may approve, 
approve with conditions, modify, or

[[Page 405]]

disapprove any request for an extension.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63102, Nov. 30, 1993]



Sec. 37.49  Designation of responsible person(s) for intercity and
commuter rail stations.

    (a) The responsible person(s) designated in accordance with this 
section shall bear the legal and financial responsibility for making a 
key station accessible in the same proportion as determined under this 
section.
    (b) In the case of a station more than fifty percent of which is 
owned by a public entity, the public entity is the responsible party.
    (c) In the case of a station more than fifty percent of which is 
owned by a private entity the persons providing commuter or intercity 
rail service to the station are the responsible parties, in a proportion 
equal to the percentage of all passenger boardings at the station 
attributable to the service of each, over the entire period during which 
the station is made accessible.
    (d) In the case of a station of which no entity owns more than fifty 
percent, the owners of the station (other than private entity owners) 
and persons providing intercity or commuter rail service to the station 
are the responsible persons.
    (1) Half the responsibility for the station shall be assumed by the 
owner(s) of the station. The owners shall share this responsibility in 
proportion to their ownership interest in the station, over the period 
during which the station is made accessible.
    (2) The person(s) providing commuter or intercity rail service to 
the station shall assume the other half of the responsibility. These 
persons shall share this responsibility. These persons shall share this 
responsibility for the station in a proportion equal to the percentage 
of all passenger boardings at the station attributable to the service of 
each, over the period during which the station is made accessible.
    (e) Persons who must share responsibility for station accessibility 
under paragraphs (c) and (d) of this section may, by agreement, allocate 
their responsibility in a manner different from that provided in this 
section.



Sec. 37.51  Key stations in commuter rail systems.

    (a) The responsible person(s) shall make key stations on its system 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs. This requirement is separate 
from and in addition to requirements set forth in Sec. 37.43 of this 
part.
    (b) Each commuter authority shall determine which stations on its 
system are key stations. The commuter authority shall identify key 
stations, using the planning and public participation process set forth 
in paragraph (d) of this section, and taking into consideration the 
following criteria:
    (1) Stations where passenger boardings exceed average station 
passenger boardings on the rail system by at least fifteen percent, 
unless such a station is close to another accessible station;
    (2) Transfer stations on a rail line or between rail lines;
    (3) Major interchange points with other transportation modes, 
including stations connecting with major parking facilities, bus 
terminals, intercity or commuter rail stations, passenger vessel 
terminals, or airports;
    (4) End stations, unless an end station is close to another 
accessible station; and
    (5) Stations serving major activity centers, such as employment or 
government centers, institutions of higher education, hospitals or other 
major health care facilities, or other facilities that are major trip 
generators for individuals with disabilities.
    (c)(1) Except as provided in this paragraph, the responsible 
person(s) shall achieve accessibility of key stations as soon as 
possible, but in no case later than July 26, 1993, except that an entity 
is not required to complete installation of detectable warnings required 
by section 10.3.2(2) of appendix A to this part until July 26, 1994.
    (2) The FTA Administrator may grant an extension of this deadline 
for key station accessibility for a period up to July 26, 2010. 
Extensions may be granted as provided in paragraph (e) of this section.

[[Page 406]]

    (d) The commuter authority and responsible person(s) for stations 
involved shall develop a plan for compliance for this section. This plan 
shall be completed and submitted to FTA by July 26, 1992.
    (1) The commuter authority and responsible person(s) shall consult 
with individuals with disabilities affected by the plan. The commuter 
authority and responsible person(s) also shall hold at least one public 
hearing on the plan and solicit comments on it. The plan shall document 
this public participation, including summaries of the consultation with 
individuals with disabilities and the comments received at the hearing 
and during the comment period. The plan also shall summarize the 
responsible person(s) responses to the comments and consultation.
    (2) The plan shall establish milestones for the achievement of 
required accessibility of key stations, consistent with the requirements 
of this section.
    (3) The commuter authority and responsible person(s) of each key 
station identified in the plan shall, by mutual agreement, designate a 
project manager for the purpose of undertaking the work of making the 
key station accessible.
    (e) Any commuter authority and/or responsible person(s) wishing to 
apply for an extension of the July 26, 1993, deadline for key station 
accessibility shall include a request for extension with its plan 
submitted to under paragraph (d) of this section. Extensions may be 
granted only in a case where raising the entire passenger platform is 
the only means available of attaining accessibility or where other 
extraordinarily expensive structural changes (e.g., installations of 
elevators, or alterations of magnitude and cost similar to installing an 
elevator or raising the entire passenger platform) are necessary to 
attain accessibility. Requests for extensions shall provide for 
completion of key station accessibility within the time limits set forth 
in paragraph (c) of this section. The FTA Administrator may approve, 
approve with conditions, modify, or disapprove any request for an 
extension.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63102, Nov. 30, 1993]



Sec. 37.53  Exception for New York and Philadelphia.

    (a) The following agreements entered into in New York, New York, and 
Philadelphia, Pennsylvania, contain lists of key stations for the public 
entities that are a party to those agreements for those service lines 
identified in the agreements. The identification of key stations under 
these agreements is deemed to be in compliance with the requirements of 
this Subpart.
    (1) Settlement Agreement by and among Eastern Paralyzed Veterans 
Association, Inc., James J. Peters, Terrance Moakley, and Denise 
Figueroa, individually and as representatives of the class of all 
persons similarly situated (collectively, ``the EPVA class 
representatives''); and Metropolitan Transportation Authority, New York 
City Transit Authority, and Manhattan and Bronx Surface Transit 
Operating Authority (October 4, 1984).
    (2) Settlement Agreement by and between Eastern Paralyzed Veterans 
Association of Pennsylvania, Inc., and James J. Peters, individually; 
and Dudley R. Sykes, as Commissioner of the Philadelphia Department of 
Public Property, and his successors in office and the City of 
Philadelphia (collectively ``the City'') and Southeastern Pennsylvania 
Transportation Authority (June 28, 1989).
    (b) To comply with Sec. Sec. 37.47 (b) and (d) or 37.51 (b) and (d) 
of this part, the entities named in the agreements are required to use 
their public participation and planning processes only to develop and 
submit to the FTA Administrator plans for timely completion of key 
station accessibilty, as provided in this subpart.
    (c) In making accessible the key stations identified under the 
agreements cited in this section, the entities named in the agreements 
are subject to the requirements of Sec. 37.9 of this part.



Sec. 37.55  Intercity rail station accessibility.

    All intercity rail stations shall be made readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs, as soon as practicable, but in no event

[[Page 407]]

later than July 26, 2010. This requirement is separate from and in 
addition to requirements set forth in Sec. 37.43 of this part.



Sec. 37.57  Required cooperation.

    An owner or person in control of an intercity or commuter rail 
station shall provide reasonable cooperation to the responsible 
person(s) for that station with respect to the efforts of the 
responsible person to comply with the requirements of this subpart.



Sec. 37.59  Differences in accessibility completion dates.

    Where different completion dates for accessible stations are 
established under this part for a station or portions of a station 
(e.g., extensions of different periods of time for a station which 
serves both rapid and commuter rail systems), accessibility to the 
following elements of the station shall be achieved by the earlier of 
the completion dates involved:
    (a) Common elements of the station;
    (b) Portions of the facility directly serving the rail system with 
the earlier completion date; and
    (c) An accessible path from common elements of the station to 
portions of the facility directly serving the rail system with the 
earlier completion date.



Sec. 37.61  Public transportation programs and activities in existing 
facilities.

    (a) A public entity shall operate a designated public transportation 
program or activity conducted in an existing facility so that, when 
viewed in its entirety, the program or activity is readily accessible to 
and usable by individuals with disabilities.
    (b) This section does not require a public entity to make structural 
changes to existing facilities in order to make the facilities 
accessible by individuals who use wheelchairs, unless and to the extent 
required by Sec. 37.43 (with respect to alterations) or Sec. Sec. 
37.47 or 37.51 of this part (with respect to key stations). Entities 
shall comply with other applicable accessibility requirements for such 
facilities.
    (c) Public entities, with respect to facilities that, as provided in 
paragraph (b) of this section, are not required to be made accessible to 
individuals who use wheelchairs, are not required to provide to such 
individuals services made available to the general public at such 
facilities when the individuals could not utilize or benefit from the 
services.



Sec. Sec. 37.63-37.69  [Reserved]



     Subpart D_Acquisition of Accessible Vehicles By Public Entities



Sec. 37.71  Purchase or lease of new non-rail vehicles by public entities
operating fixed route systems.

    (a) Except as provided elsewhere in this section, each public entity 
operating a fixed route system making a solicitation after August 25, 
1990, to purchase or lease a new bus or other new vehicle for use on the 
system, shall ensure that the vehicle is readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs.
    (b) A pubilc entity may purchase or lease a new bus that is not 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, if it applies for, and the 
FTA Administrator grants, a waiver as provided for in this section.
    (c) Before submitting a request for such a waiver, the public entity 
shall hold at least one public hearing concerning the proposed request.
    (d) The FTA Administrator may grant a request for such a waiver if 
the public entity demonstrates to the FTA Administrator's satisfaction 
that--
    (1) The initial solicitation for new buses made by the public entity 
specified that all new buses were to be lift-equipped and were to be 
otherwise accessible to and usable by individuals with disabilities;
    (2) Hydraulic, electromechanical, or other lifts for such new buses 
could not be provided by any qualified lift manufacturer to the 
manufacturer of such new buses in sufficient time to comply with the 
solicitation; and
    (3) Any further delay in purchasing new buses equipped with such 
necessary lifts would significantly impair transportation services in 
the community served by the public entity.

[[Page 408]]

    (e) The public entity shall include with its waiver request a copy 
of the initial solicitation and written documentation from the bus 
manufacturer of its good faith efforts to obtain lifts in time to comply 
with the solicitation, and a full justification for the assertion that 
the delay in bus procurement needed to obtain a lift-equipped bus would 
significantly impair transportation services in the community. This 
documentation shall include a specific date at which the lifts could be 
supplied, copies of advertisements in trade publications and inquiries 
to trade associations seeking lifts, and documentation of the public 
hearing.
    (f) Any waiver granted by the FTA Administrator under this section 
shall be subject to the following conditions:
    (1) The waiver shall apply only to the particular bus delivery to 
which the waiver request pertains;
    (2) The waiver shall include a termination date, which will be based 
on information concerning when lifts will become available for 
installation on the new buses the public entity is purchasing. Buses 
delivered after this date, even though procured under a solicitation to 
which a waiver applied, shall be equipped with lifts;
    (3) Any bus obtained subject to the waiver shall be capable of 
accepting a lift, and the public entity shall install a lift as soon as 
one becomes available;
    (4) Such other terms and conditions as the FTA Administrator may 
impose.
    (g)(1) When the FTA Administrator grants a waiver under this 
section, he/she shall promptly notify the appropriate committees of 
Congress.
    (2) If the FTA Administrator has reasonable cause to believe that a 
public entity fraudulently applied for a waiver under this section, the 
FTA Administrator shall:
    (i) Cancel the waiver if it is still in effect; and
    (ii) Take other appropriate action.



Sec. 37.73  Purchase or lease of used non-rail vehicles by public
entities operating fixed route systems.

    (a) Except as provided elsewhere in this section, each public entity 
operating a fixed route system purchasing or leasing, after August 25, 
1990, a used bus or other used vehicle for use on the system, shall 
ensure that the vehicle is readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    (b) A public entity may purchase or lease a used vehicle for use on 
its fixed route system that is not readily accessible to and usable by 
individuals with disabilities if, after making demonstrated good faith 
efforts to obtain an accessible vehicle, it is unable to do so.
    (c) Good faith efforts shall include at least the following steps:
    (1) An initial solicitation for used vehicles specifying that all 
used vehicles are to be lift-equipped and otherwise accessible to and 
usable by individuals with disabilities, or, if an initial solicitation 
is not used, a documented communication so stating;
    (2) A nationwide search for accessible vehicles, involving specific 
inquiries to used vehicle dealers and other transit providers; and
    (3) Advertising in trade publications and contacting trade 
associations.
    (d) Each public entity purchasing or leasing used vehicles that are 
not readily accessible to and usable by individuals with disabilities 
shall retain documentation of the specific good faith efforts it made 
for three years from the date the vehicles were purchased. These records 
shall be made available, on request, to the FTA Administrator and the 
public.



Sec. 37.75  Remanufacture of non-rail vehicles and purchase or lease 
of remanufactured non-rail vehicles by public entities operating fixed

route systems.

    (a) This section applies to any public entity operating a fixed 
route system which takes one of the following actions:
    (1) After August 25, 1990, remanufactures a bus or other vehicle so 
as to extend its useful life for five years or more or makes a 
solicitation for such remanufacturing; or
    (2) Purchases or leases a bus or other vehicle which has been 
remanufactured so as to extend its useful life for five years or more, 
where the purchase or lease occurs after August 25, 1990, and during the 
period in which the useful life of the vehicle is extended.

[[Page 409]]

    (b) Vehicles acquired through the actions listed in paragraph (a) of 
this section shall, to the maximum extent feasible, be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (c) For purposes of this section, it shall be considered feasible to 
remanufacture a bus or other motor vehicle so as to be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless an engineering analysis 
demonstrates that including accessibility features required by this part 
would have a significant adverse effect on the structural integrity of 
the vehicle.
    (d) If a public entity operates a fixed route system, any segment of 
which is included on the National Register of Historic Places, and if 
making a vehicle of historic character used solely on such segment 
readily accessible to and usable by individuals with disabilities would 
significantly alter the historic character of such vehicle, the public 
entity has only to make (or purchase or lease a remanufactured vehicle 
with) those modifications to make the vehicle accessible which do not 
alter the historic character of such vehicle, in consultation with the 
National Register of Historic Places.
    (e) A public entity operating a fixed route system as described in 
paragraph (d) of this section may apply in writing to the FTA 
Administrator for a determination of the historic character of the 
vehicle. The FTA Administrator shall refer such requests to the National 
Register of Historic Places, and shall rely on its advice in making 
determinations of the historic character of the vehicle.



Sec. 37.77  Purchase or lease of new non-rail vehicles by public entities
operating a demand responsive system for the general public.

    (a) Except as provided in this section, a public entity operating a 
demand responsive system for the general public making a solicitation 
after August 25, 1990, to purchase or lease a new bus or other new 
vehicle for use on the system, shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (b) If the system, when viewed in its entirety, provides a level of 
service to individuals with disabilities, including individuals who use 
wheelchairs, equivalent to the level of service it provides to 
individuals without disabilities, it may purchase new vehicles that are 
not readily accessible to and usable by individuals with disabilities.
    (c) For purposes of this section, a demand responsive system, when 
viewed in its entirety, shall be deemed to provide equivalent service if 
the service available to individuals with disabilities, including 
individuals who use wheelchairs, is provided in the most integrated 
setting appropriate to the needs of the individual and is equivalent to 
the service provided other individuals with respect to the following 
service characteristics:
    (1) Response time;
    (2) Fares;
    (3) Geographic area of service;
    (4) Hours and days of service;
    (5) Restrictions or priorities based on trip purpose;
    (6) Availability of information and reservations capability; and
    (7) Any constraints on capacity or service availability.
    (d) A public entity receiving FTA funds under section 18 or a public 
entity in a small urbanized area which receives FTA funds under Section 
9 from a state administering agency rather than directly from FTA, which 
determines that its service to individuals with disabilities is 
equivalent to that provided other persons shall, before any procurement 
of an inaccessible vehicle, file with the appropriate state program 
office a certificate that it provides equivalent service meeting the 
standards of paragraph (c) of this section. Public entities operating 
demand responsive service receiving funds under any other section of the 
FT Act shall file the certificate with the appropriate FTA regional 
office. A public entity which does not receive FTA funds shall make such 
a certificate and retain it in its files, subject to inspection on 
request of FTA. All certificates under this paragraph may be made and 
filed in connection with a particular

[[Page 410]]

procurement or in advance of a procurement; however, no certificate 
shall be valid for more than one year. A copy of the required 
certificate is found in appendix C to this part.
    (e) The waiver mechanism set forth in Sec. 37.71(b)-(g) 
(unavailability of lifts) of this subpart shall also be available to 
public entities operating a demand responsive system for the general 
public.



Sec. 37.79  Purchase or lease of new rail vehicles by public entities
operating rapid or light rail systems.

    Each public entity operating a rapid or light rail system making a 
solicitation after August 25, 1990, to purchase or lease a new rapid or 
light rail vehicle for use on the system shall ensure that the vehicle 
is readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs.



Sec. 37.81  Purchase or lease of used rail vehicles by public entities
operating rapid or light rail systems.

    (a) Except as provided elsewhere in this section, each public entity 
operating a rapid or light rail system which, after August 25, 1990, 
purchases or leases a used rapid or light rail vehicle for use on the 
system shall ensure that the vehicle is readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs.
    (b) A public entity may purchase or lease a used rapid or light rail 
vehicle for use on its rapid or light rail system that is not readily 
accessible to and usable by individuals if, after making demonstrated 
good faith efforts to obtain an accessible vehicle, it is unable to do 
so.
    (c) Good faith efforts shall include at least the following steps:
    (1) The initial solicitation for used vehicles made by the public 
entity specifying that all used vehicles were to be accessible to and 
usable by individuals with disabilities, or, if a solicitation is not 
used, a documented communication so stating;
    (2) A nationwide search for accessible vehicles, involving specific 
inquiries to manufacturers and other transit providers; and
    (3) Advertising in trade publications and contacting trade 
associations.
    (d) Each public entity purchasing or leasing used rapid or light 
rail vehicles that are not readily accessible to and usable by 
individuals with disabilities shall retain documentation of the specific 
good faith efforts it made for three years from the date the vehicles 
were purchased. These records shall be made available, on request, to 
the FTA Administrator and the public.



Sec. 37.83  Remanufacture of rail vehicles and purchase or lease of
remanufactured rail vehicles by public entities operating rapid or 

light rail systems.

    (a) This section applies to any public entity operating a rapid or 
light rail system which takes one of the following actions:
    (1) After August 25, 1990, remanufactures a light or rapid rail 
vehicle so as to extend its useful life for five years or more or makes 
a solicitation for such remanufacturing;
    (2) Purchases or leases a light or rapid rail vehicle which has been 
remanufactured so as to extend its useful life for five years or more, 
where the purchase or lease occurs after August 25, 1990, and during the 
period in which the useful life of the vehicle is extended.
    (b) Vehicles acquired through the actions listed in paragraph (a) of 
this section shall, to the maximum extent feasible, be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (c) For purposes of this section, it shall be considered feasible to 
remanufacture a rapid or light rail vehicle so as to be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless an engineering analysis 
demonstrates that doing so would have a significant adverse effect on 
the structural integrity of the vehicle.
    (d) If a public entity operates a rapid or light rail system any 
segment of which is included on the National Register of Historic Places 
and if making a rapid or light rail vehicle of historic character used 
solely on such segment

[[Page 411]]

readily accessible to and usable by individuals with disabilities would 
significantly alter the historic character of such vehicle, the public 
entity need only make (or purchase or lease a remanufactured vehicle 
with) those modifications that do not alter the historic character of 
such vehicle.
    (e) A public entity operating a fixed route system as described in 
paragraph (d) of this section may apply in writing to the FTA 
Administrator for a determination of the historic character of the 
vehicle. The FTA Administrator shall refer such requests to the National 
Register of Historic Places and shall rely on its advice in making a 
determination of the historic character of the vehicle.



Sec. 37.85  Purchase or lease of new intercity and commuter rail cars.

    Amtrak or a commuter authority making a solicitation after August 
25, 1990, to purchase or lease a new intercity or commuter rail car for 
use on the system shall ensure that the vehicle is readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.



Sec. 37.87  Purchase or lease of used intercity and commuter rail cars.

    (a) Except as provided elsewhere in this section, Amtrak or a 
commuter authority purchasing or leasing a used intercity or commuter 
rail car after August 25, 1990, shall ensure that the car is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (b) Amtrak or a commuter authority may purchase or lease a used 
intercity or commuter rail car that is not readily accessible to and 
usable by individuals if, after making demonstrated good faith efforts 
to obtain an accessible vehicle, it is unable to do so.
    (c) Good faith efforts shall include at least the following steps:
    (1) An initial solicitation for used vehicles specifying that all 
used vehicles accessible to and usable by individuals with disabilities;
    (2) A nationwide search for accessible vehicles, involving specific 
inquiries to used vehicle dealers and other transit providers; and
    (3) Advertising in trade publications and contacting trade 
associations.
    (d) When Amtrak or a commuter authority leases a used intercity or 
commuter rail car for a period of seven days or less, Amtrak or the 
commuter authority may make and document good faith efforts as provided 
in this paragraph instead of in the ways provided in paragraph (c) of 
this section:
    (1) By having and implementing, in its agreement with any intercity 
railroad or commuter authority that serves as a source of used intercity 
or commuter rail cars for a lease of seven days or less, a provision 
requiring that the lessor provide all available accessible rail cars 
before providing any inaccessible rail cars.
    (2) By documenting that, when there is more than one source of 
intercity or commuter rail cars for a lease of seven days or less, the 
lessee has obtained all available accessible intercity or commuter rail 
cars from all sources before obtaining inaccessible intercity or 
commuter rail cars from any source.
    (e) Amtrak and commuter authorities purchasing or leasing used 
intercity or commuter rail cars that are not readily accessible to and 
usable by individuals with disabilities shall retain documentation of 
the specific good faith efforts that were made for three years from the 
date the cars were purchased. These records shall be made available, on 
request, to the Federal Railroad Administration or FTA Administrator, as 
applicable. These records shall be made available to the public, on 
request.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63102, Nov. 30, 1993]



Sec. 37.89  Remanufacture of intercity and commuter rail cars and 
purchase or lease of remanufactured intercity and commuter rail cars.

    (a) This section applies to Amtrak or a commuter authority which 
takes one of the following actions:
    (1) Remanufactures an intercity or commuter rail car so as to extend 
its useful life for ten years or more;
    (2) Purchases or leases an intercity or commuter rail car which has 
been remanufactured so as to extend its useful life for ten years or 
more.

[[Page 412]]

    (b) Intercity and commuter rail cars listed in paragraph (a) of this 
section shall, to the maximum extent feasible, be readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.
    (c) For purposes of this section, it shall be considered feasible to 
remanufacture an intercity or commuter rail car so as to be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless an engineering analysis 
demonstrates that remanufacturing the car to be accessible would have a 
significant adverse effect on the structural integrity of the car.



Sec. 37.91  Wheelchair locations and food service on intercity rail trains.

    (a) As soon as practicable, but in no event later than July 26, 
1995, each person providing intercity rail service shall provide on each 
train a number of spaces--
    (1) To park wheelchairs (to accommodate individuals who wish to 
remain in their wheelchairs) equal to not less than one half of the 
number of single level rail passenger coaches in the train; and
    (2) To fold and store wheelchairs (to accommodate individuals who 
wish to transfer to coach seats) equal to not less than one half the 
number of single level rail passenger coaches in the train.
    (b) As soon as practicable, but in no event later than July 26, 
2000, each person providing intercity rail service shall provide on each 
train a number of spaces--
    (1) To park wheelchairs (to accommodate individuals who wish to 
remain in their wheelchairs) equal to not less than the total number of 
single level rail passenger coaches in the train; and
    (2) To fold and store wheelchairs (to accommodate individuals who 
wish to transfer to coach seats) equal to not less than the total number 
of single level rail passenger coaches in the train.
    (c) In complying with paragraphs (a) and (b) of this section, a 
person providing intercity rail service may not provide more than two 
spaces to park wheelchairs nor more than two spaces to fold and store 
wheelchairs in any one coach or food service car.
    (d) Unless not practicable, a person providing intercity rail 
transportation shall place an accessible car adjacent to the end of a 
single level dining car through which an individual who uses a 
wheelchair may enter.
    (e) On any train in which either a single level or bi-level dining 
car is used to provide food service, a person providing intercity rail 
service shall provide appropriate aids and services to ensure that 
equivalent food service is available to individuals with disabilities, 
including individuals who use wheelchairs, and to passengers traveling 
with such individuals. Appropriate auxiliary aids and services include 
providing a hard surface on which to eat.
    (f) This section does not require the provision of securement 
devices on intercity rail cars.



Sec. 37.93  One car per train rule.

    (a) The definition of accessible for purposes of meeting the one car 
per train rule is spelled out in the applicable subpart for each 
transportation system type in part 38 of this title.
    (b) Each person providing intercity rail service and each commuter 
rail authority shall ensure that, as soon as practicable, but in no 
event later than July 26, 1995, that each train has one car that is 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs.
    (c) Each public entity providing light or rapid rail service shall 
ensure that each train, consisting of two or more vehicles, includes at 
least one car that is readily accessible to and usable by individuals 
with disabilities, including individuals who use wheelchairs, as soon as 
practicable but in no case later than July 25, 1995.

[[Page 413]]



Sec. 37.95  Ferries and other passenger vessels operated by public 
entities. [Reserved]



Sec. Sec. 37.97-37.99  [Reserved]



    Subpart E_Acquisition of Accessible Vehicles by Private Entities



Sec. 37.101  Purchase or lease of vehicles by private entities not 
primarily engaged in the business of transporting people.

    (a) Application. This section applies to all purchases or leases of 
vehicles by private entities which are not primarily engaged in the 
business of transporting people, in which a solicitation for the vehicle 
is made after August 25, 1990.
    (b) Fixed Route System. Vehicle Capacity Over 16. If the entity 
operates a fixed route system and purchases or leases a vehicle with a 
seating capacity of over 16 passengers (including the driver) for use on 
the system, it shall ensure that the vehicle is readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.
    (c) Fixed Route System. Vehicle Capacity of 16 or Fewer. If the 
entity operates a fixed route system and purchases or leases a vehicle 
with a seating capacity of 16 or fewer passengers (including the driver) 
for use on the system, it shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless the system, when viewed in its 
entirety, meets the standard for equivalent service of Sec. 37.105 of 
this part.
    (d) Demand Responsive System, Vehicle Capacity Over 16. If the 
entity operates a demand responsive system, and purchases or leases a 
vehicle with a seating capacity of over 16 passengers (including the 
driver) for use on the system, it shall ensure that the vehicle is 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, unless the system, when 
viewed in its entirety, meets the standard for equivalent service of 
Sec. 37.105 of this part.
    (e) Demand Responsive System, Vehicle Capacity of 16 or Fewer. 
Entities providing demand responsive transportation covered under this 
section are not specifically required to ensure that new vehicles with 
seating capacity of 16 or fewer are accessible to individuals with 
wheelchairs. These entities are required to ensure that their systems, 
when viewed in their entirety, meet the equivalent service requirements 
of Sec. Sec. 37.171 and 37.105, regardless of whether or not the 
entities purchase a new vehicle.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec. 37.103  Purchase or lease of new non-rail vehicles by private 
entities primarily engaged in the business of transporting people.

    (a) Application. This section applies to all acquisitions of new 
vehicles by private entities which are primarily engaged in the business 
of transporting people and whose operations affect commerce, in which a 
solicitation for the vehicle is made (except as provided in paragraph 
(d) of this section) after August 25, 1990.
    (b) Fixed route systems. If the entity operates a fixed route 
system, and purchases or leases a new vehicle other than an automobile, 
a van with a seating capacity of less than eight persons (including the 
driver), or an over-the-road bus, it shall ensure that the vehicle is 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs.
    (c) Demand responsive systems. If the entity operates a demand 
responsive system, and purchases or leases a new vehicle other than an 
automobile, a van with a seating capacity of less than eight persons 
(including the driver), or an over-the-road bus, it shall ensure that 
the vehicle is readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs, unless the 
system, when viewed in its entirety, meets the standard for equivalent 
service of Sec. 37.105 of this part.
    (d) Vans with a capacity of fewer than 8 persons. If the entity 
operates either a fixed route or demand responsive system, and purchases 
or leases a new van with a seating capacity of fewer than eight persons 
including the driver (the solicitation for the vehicle being made

[[Page 414]]

after February 25, 1992), the entity shall ensure that the vehicle is 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, unless the system, when 
viewed in its entirety, meets the standard for equivalent service of 
Sec. 37.105 of this part.



Sec. 37.105  Equivalent service standard.

    For purposes of Sec. Sec. 37.101 and 37.103 of this part, a fixed 
route system or demand responsive system, when viewed in its entirety, 
shall be deemed to provide equivalent service if the service available 
to individuals with disabilities, including individuals who use 
wheelchairs, is provided in the most integrated setting appropriate to 
the needs of the individual and is equivalent to the service provided 
other individuals with respect to the following service characteristics:
    (a) (1) Schedules/headways (if the system is fixed route);
    (2) Response time (if the system is demand responsive);
    (b) Fares;
    (c) Geographic area of service;
    (d) Hours and days of service;
    (e) Availability of information;
    (f) Reservations capability (if the system is demand responsive);
    (g) Any constraints on capacity or service availability;
    (h) Restrictions priorities based on trip purpose (if the system is 
demand responsive).



Sec. 37.107  Acquisition of passenger rail cars by private entities
primarily engaged in the business of transporting people.

    (a) A private entity which is primarily engaged in the business of 
transporting people and whose operations affect commerce, which makes a 
solicitation after February 25, 1992, to purchase or lease a new rail 
passenger car to be used in providing specified public transportation, 
shall ensure that the car is readily accessible to, and usable by, 
individuals with disabilities, including individuals who use 
wheelchairs. The accessibility standards in part 38 of this title which 
apply depend upon the type of service in which the car will be used.
    (b) Except as provided in paragraph (c) of this section, a private 
entity which is primarily engaged in transporting people and whose 
operations affect commerce, which remanufactures a rail passenger car to 
be used in providing specified public transportation to extend its 
useful life for ten years or more, or purchases or leases such a 
remanufactured rail car, shall ensure that the rail car, to the maximum 
extent feasible, is made readily accessible to and usable by individuals 
with disabilities, including individuals who use wheelchairs. For 
purposes of this paragraph, it shall be considered feasible to 
remanufacture a rail passenger car to be readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs, unless an engineering analysis demonstrates that doing so 
would have a significant adverse effect on the structural integrity of 
the car.
    (c) Compliance with paragraph (b) of this section is not required to 
the extent that it would significantly alter the historic or antiquated 
character of a historic or antiquated rail passenger car, or a rail 
station served exclusively by such cars, or would result in the 
violation of any rule, regulation, standard or order issued by the 
Secretary under the Federal Railroad Safety Act of 1970. For purposes of 
this section, a historic or antiquated rail passenger car means a rail 
passenger car--
    (1) Which is not less than 30 years old at the time of its use for 
transporting individuals;
    (2) The manufacturer of which is no longer in the business of 
manufacturing rail passenger cars; and
    (3) Which--
    (i) Has a consequential association with events or persons 
significant to the past; or
    (ii) Embodies, or is being restored to embody, the distinctive 
characteristics of a type of rail passenger car used in the past, or to 
represent a time period which has passed.

[[Page 415]]



Sec. 37.109  Ferries and other passenger vessels operated by private
entities. [Reserved]



Sec. Sec. 37.111-37.119  [Reserved]



      Subpart F_Paratransit as a Complement to Fixed Route Service



Sec. 37.121  Requirement for comparable complementary paratransit service.

    (a) Except as provided in paragraph (c) of this section, each public 
entity operating a fixed route system shall provide paratransit or other 
special service to individuals with disabilities that is comparable to 
the level of service provided to individuals without disabilities who 
use the fixed route system.
    (b) To be deemed comparable to fixed route service, a complementary 
paratransit system shall meet the requirements of Sec. Sec. 37.123-
37.133 of this subpart. The requirement to comply with Sec. 37.131 may 
be modified in accordance with the provisions of this subpart relating 
to undue financial burden.
    (c) Requirements for complementary paratransit do not apply to 
commuter bus, commuter rail, or intercity rail systems.



Sec. 37.123  ADA paratransit eligibility: Standards.

    (a) Public entities required by Sec. 37.121 of this subpart to 
provide complementary paratransit service shall provide the service to 
the ADA paratransit eligible individuals described in paragraph (e) of 
this section.
    (b) If an individual meets the eligibility criteria of this section 
with respect to some trips but not others, the individual shall be ADA 
paratransit eligible only for those trips for which he or she meets the 
criteria.
    (c) Individuals may be ADA paratransit eligible on the basis of a 
permanent or temporary disability.
    (d) Public entities may provide complementary paratransit service to 
persons other than ADA paratransit eligible individuals. However, only 
the cost of service to ADA paratransit eligible individuals may be 
considered in a public entity's request for an undue financial burden 
waiver under Sec. Sec. 37.151-37.155 of this part.
    (e) The following individuals are ADA paratransit eligible:
    (1) Any individual with a disability who is unable, as the result of 
a physical or mental impairment (including a vision impairment), and 
without the assistance of another individual (except the operator of a 
wheelchair lift or other boarding assistance device), to board, ride, or 
disembark from any vehicle on the system which is readily accessible to 
and usable individuals with disabilities.
    (2) Any individual with a disability who needs the assistance of a 
wheelchair lift or other boarding assistance device and is able, with 
such assistance, to board, ride and disembark from any vehicle which is 
readily accessible to and usable by individuals with disabilities if the 
individual wants to travel on a route on the system during the hours of 
operation of the system at a time, or within a reasonable period of such 
time, when such a vehicle is not being used to provide designated public 
transportation on the route.
    (i) An individual is eligible under this paragraph with respect to 
travel on an otherwise accessible route on which the boarding or 
disembarking location which the individual would use is one at which 
boarding or disembarking from the vehicle is precluded as provided in 
Sec. 37.167(g) of this part.
    (ii) An individual using a common wheelchair is eligible under this 
paragraph if the individual's wheelchair cannot be accommodated on an 
existing vehicle (e.g., because the vehicle's lift does not meet the 
standards of part 38 of this title), even if that vehicle is accessible 
to other individuals with disabilities and their mobility wheelchairs.
    (iii) With respect to rail systems, an individual is eligible under 
this paragraph if the individual could use an accessible rail system, 
but--
    (A) There is not yet one accessible car per train on the system; or
    (B) Key stations have not yet been made accessible.
    (3) Any individual with a disability who has a specific impairment-
related

[[Page 416]]

condition which prevents such individual from traveling to a boarding 
location or from a disembarking location on such system.
    (i) Only a specific impairment-related condition which prevents the 
individual from traveling to a boarding location or from a disembarking 
location is a basis for eligibility under this paragraph. A condition 
which makes traveling to boarding location or from a disembarking 
location more difficult for a person with a specific impairment-related 
condition than for an individual who does not have the condition, but 
does not prevent the travel, is not a basis for eligibility under this 
paragraph.
    (ii) Architectural barriers not under the control of the public 
entity providing fixed route service and environmental barriers (e.g., 
distance, terrain, weather) do not, standing alone, form a basis for 
eligibility under this paragraph. The interaction of such barriers with 
an individual's specific impairment-related condition may form a basis 
for eligibility under this paragraph, if the effect is to prevent the 
individual from traveling to a boarding location or from a disembarking 
location.
    (f) Individuals accompanying an ADA paratransit eligible individual 
shall be provided service as follows:
    (1) One other individual accompanying the ADA paratransit eligible 
individual shall be provided service--
    (i) If the ADA paratransit eligible individual is traveling with a 
personal care attendant, the entity shall provide service to one other 
individual in addition to the attendant who is accompanying the eligible 
individual;
    (ii) A family member or friend is regarded as a person accompanying 
the eligible individual, and not as a personal care attendant, unless 
the family member or friend registered is acting in the capacity of a 
personal care attendant;
    (2) Additional individuals accompanying the ADA paratransit eligible 
individual shall be provided service, provided that space is available 
for them on the paratransit vehicle carrying the ADA paratransit 
eligible individual and that transportation of the additional 
individuals will not result in a denial of service to ADA paratransit 
eligible individuals;
    (3) In order to be considered as ``accompanying'' the eligible 
individual for purposes of this paragraph (f), the other individual(s) 
shall have the same origin and destination as the eligible individual.



Sec. 37.125  ADA paratransit eligibility: Process.

    Each public entity required to provide complementary paratransit 
service by Sec. 37.121 of this part shall establish a process for 
determining ADA paratransit eligibility.
    (a) The process shall strictly limit ADA paratransit eligibility to 
individuals specified in Sec. 37.123 of this part.
    (b) All information about the process, materials necessary to apply 
for eligibility, and notices and determinations concerning eligibility 
shall be made available in accessible formats, upon request.
    (c) If, by a date 21 days following the submission of a complete 
application, the entity has not made a determination of eligibility, the 
applicant shall be treated as eligible and provided service until and 
unless the entity denies the application.
    (d) The entity's determination concerning eligibility shall be in 
writing. If the determination is that the individual is ineligible, the 
determination shall state the reasons for the finding.
    (e) The public entity shall provide documentation to each eligible 
individual stating that he or she is ``ADA Paratransit Eligible.'' The 
documentation shall include the name of the eligible individual, the 
name of the transit provider, the telephone number of the entity's 
paratransit coordinator, an expiration date for eligibility, and any 
conditions or limitations on the individual's eligibility including the 
use of a personal care attendant.
    (f) The entity may require recertification of the eligibility of ADA 
paratransit eligible individuals at reasonable intervals.
    (g) The entity shall establish an administrative appeal process 
through which individuals who are denied eligibility can obtain review 
of the denial.

[[Page 417]]

    (1) The entity may require that an appeal be filed within 60 days of 
the denial of an individual's application.
    (2) The process shall include an opportunity to be heard and to 
present information and arguments, separation of functions (i.e., a 
decision by a person not involved with the initial decision to deny 
eligibility), and written notification of the decision, and the reasons 
for it.
    (3) The entity is not required to provide paratransit service to the 
individual pending the determination on appeal. However, if the entity 
has not made a decision within 30 days of the completion of the appeal 
process, the entity shall provide paratransit service from that time 
until and unless a decision to deny the appeal is issued.
    (h) The entity may establish an administrative process to suspend, 
for a reasonable period of time, the provision of complementary 
paratransit service to ADA eligible individuals who establish a pattern 
or practice of missing scheduled trips.
    (1) Trips missed by the individual for reasons beyond his or her 
control (including, but not limited to, trips which are missed due to 
operator error) shall not be a basis for determining that such a pattern 
or practice exists.
    (2) Before suspending service, the entity shall take the following 
steps:
    (i) Notify the individual in writing that the entity proposes to 
suspend service, citing with specificity the basis of the proposed 
suspension and setting forth the proposed sanction.
    (ii) Provide the individual an opportunity to be heard and to 
present information and arguments;
    (iii) Provide the individual with written notification of the 
decision and the reasons for it.
    (3) The appeals process of paragraph (g) of this section is 
available to an individual on whom sanctions have been imposed under 
this paragraph. The sanction is stayed pending the outcome of the 
appeal.
    (i) In applications for ADA paratransit eligibility, the entity may 
require the applicant to indicate whether or not he or she travels with 
a personal care attendant.



Sec. 37.127  Complementary paratransit service for visitors.

    (a) Each public entity required to provide complementary paratransit 
service under Sec. 37.121 of this part shall make the service available 
to visitors as provided in this section.
    (b) For purposes of this section, a visitor is an individual with 
disabilities who does not reside in the jurisdiction(s) served by the 
public entity or other entities with which the public entity provides 
coordinated complementary paratransit service within a region.
    (c) Each public entity shall treat as eligible for its complementary 
paratransit service all visitors who present documentation that they are 
ADA paratransit eligible, under the criteria of Sec. 37.125 of this 
part, in the jurisdiction in which they reside.
    (d) With respect to visitors with disabilities who do not present 
such documentation, the public entity may require the documentation of 
the individual's place of residence and, if the individual's disability 
is not apparent, of his or her disability. The entity shall provide 
paratransit service to individuals with disabilities who qualify as 
visitors under paragraph (b) of this section. The entity shall accept a 
certification by such individuals that they are unable to use fixed 
route transit.
    (e) A public entity shall make the service to a visitor required by 
this section available for any combination of 21 days during any 365-day 
period beginning with the visitor's first use of the service during such 
365-day period. In no case shall the public entity require a visitor to 
apply for or receive eligibility certification from the public entity 
before receiving the service required by this section.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec. 37.129  Types of service.

    (a) Except as provided in this section, complementary paratransit 
service for ADA paratransit eligible persons shall be origin-to-
destination service.
    (b) Complementary paratransit service for ADA paratransit eligible 
persons described in Sec. 37.123(e)(2) of this part may also be 
provided by on-call

[[Page 418]]

bus service or paratransit feeder service to an accessible fixed route, 
where such service enables the individual to use the fixed route bus 
system for his or her trip.
    (c) Complementary paratransit service for ADA eligible persons 
described in Sec. 37.123(e)(3) of this part also may be provided by 
paratransit feeder service to and/or from an accessible fixed route.



Sec. 37.131  Service criteria for complementary paratransit.

    The following service criteria apply to complementary paratransit 
required by Sec. 37.121 of this part.
    (a) Service Area--(1) Bus. (i) The entity shall provide 
complementary paratransit service to origins and destinations within 
corridors with a width of three-fourths of a mile on each side of each 
fixed route. The corridor shall include an area with a three-fourths of 
a mile radius at the ends of each fixed route.
    (ii) Within the core service area, the entity also shall provide 
service to small areas not inside any of the corridors but which are 
surrounded by corridors.
    (iii) Outside the core service area, the entity may designate 
corridors with widths from three-fourths of a mile up to one and one 
half miles on each side of a fixed route, based on local circumstances.
    (iv) For purposes of this paragraph, the core service area is that 
area in which corridors with a width of three-fourths of a mile on each 
side of each fixed route merge together such that, with few and small 
exceptions, all origins and destinations within the area would be 
served.
    (2) Rail. (i) For rail systems, the service area shall consist of a 
circle with a radius of \3/4\ of a mile around each station.
    (ii) At end stations and other stations in outlying areas, the 
entity may designate circles with radii of up to 1\1/2\ miles as part of 
its service area, based on local circumstances.
    (3) Jurisdictional boundaries. Notwithstanding any other provision 
of this paragraph, an entity is not required to provide paratransit 
service in an area outside the boundaries of the jurisdiction(s) in 
which it operates, if the entity does not have legal authority to 
operate in that area. The entity shall take all practicable steps to 
provide paratransit service to any part of its service area.
    (b) Response time. The entity shall schedule and provide paratransit 
service to any ADA paratransit eligible person at any requested time on 
a particular day in response to a request for service made the previous 
day. Reservations may be taken by reservation agents or by mechanical 
means.
    (1) The entity shall make reservation service available during at 
least all normal business hours of the entity's administrative offices, 
as well as during times, comparable to normal business hours, on a day 
when the entity's offices are not open before a service day.
    (2) The entity may negotiate pickup times with the individual, but 
the entity shall not require an ADA paratransit eligible individual to 
schedule a trip to begin more than one hour before or after the 
individual's desired departure time.
    (3) The entity may use real-time scheduling in providing 
complementary paratransit service.
    (4) The entity may permit advance reservations to be made up to 14 
days in advance of an ADA paratransit eligible individual's desired 
trips. When an entity proposes to change its reservations system, it 
shall comply with the public participation requirements equivalent to 
those of Sec. 37.137 (b) and (c).
    (c) Fares. The fare for a trip charged to an ADA paratransit 
eligible user of the complementary paratransit service shall not exceed 
twice the fare that would be charged to an individual paying full fare 
(i.e., without regard to discounts) for a trip of similar length, at a 
similar time of day, on the entity's fixed route system.
    (1) In calculating the full fare that would be paid by an individual 
using the fixed route system, the entity may include transfer and 
premium charges applicable to a trip of similar length, at a similar 
time of day, on the fixed route system.

[[Page 419]]

    (2) The fares for individuals accompanying ADA paratransit eligible 
individuals, who are provided service under Sec. 37.123 (f) of this 
part, shall be the same as for the ADA paratransit eligible individuals 
they are accompanying.
    (3) A personal care attendant shall not be charged for complementary 
paratransit service.
    (4) The entity may charge a fare higher than otherwise permitted by 
this paragraph to a social service agency or other organization for 
agency trips (i.e., trips guaranteed to the organization).
    (d) Trip purpose restrictions. The entity shall not impose 
restrictions or priorities based on trip purpose.
    (e) Hours and days of service. The complementary paratransit service 
shall be available throughout the same hours and days as the entity's 
fixed route service.
    (f) Capacity constraints. The entity shall not limit the 
availability of complementary paratransit service to ADA paratransit 
eligible individuals by any of the following:
    (1) Restrictions on the number of trips an individual will be 
provided;
    (2) Waiting lists for access to the service; or
    (3) Any operational pattern or practice that significantly limits 
the availability of service to ADA paratransit eligible persons.
    (i) Such patterns or practices include, but are not limited to, the 
following:
    (A) Substantial numbers of significantly untimely pickups for 
initial or return trips;
    (B) Substantial numbers of trip denials or missed trips;
    (C) Substantial numbers of trips with excessive trip lengths.
    (ii) Operational problems attributable to causes beyond the control 
of the entity (including, but not limited to, weather or traffic 
conditions affecting all vehicular traffic that were not anticipated at 
the time a trip was scheduled) shall not be a basis for determining that 
such a pattern or practice exists.
    (g) Additional service. Public entities may provide complementary 
paratransit service to ADA paratransit eligible individuals exceeding 
that provided for in this section. However, only the cost of service 
provided for in this section may be considered in a public entity's 
request for an undue financial burden waiver under Sec. Sec. 37.151-
37.155 of this part.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996; 71 
FR 63266, Oct. 30, 2006]



Sec. 37.133  Subscription service.

    (a) This part does not prohibit the use of subscription service by 
public entities as part of a complementary paratransit system, subject 
to the limitations in this section.
    (b) Subscription service may not absorb more than fifty percent of 
the number of trips available at a given time of day, unless there is 
non-subscription capacity.
    (c) Notwithstanding any other provision of this part, the entity may 
establish waiting lists or other capacity constraints and trip purpose 
restrictions or priorities for participation in the subscription service 
only.



Sec. 37.135  Submission of paratransit plan.

    (a) General. Each public entity operating fixed route transportation 
service, which is required by Sec. 37.121 to provide complementary 
paratransit service, shall develop a paratransit plan.
    (b) Initial submission. Except as provided in Sec. 37.141 of this 
part, each entity shall submit its initial plan for compliance with the 
complementary paratransit service provision by January 26, 1992, to the 
appropriate location identified in paragraph (f) of this section.
    (c) Annual Updates. Except as provided in this paragraph, each 
entity shall submit an annual update to its plan on January 26 of each 
succeeding year.
    (1) If an entity has met and is continuing to meet all requirements 
for complementary paratransit in Sec. Sec. 37.121-37.133 of this part, 
the entity may submit to FTA an annual certification of continued 
compliance in lieu of a plan update. Entities that have submitted a 
joint plan under Sec. 37.141 may submit a joint certification under 
this paragraph. The requirements of Sec. Sec. 37.137 (a) and (b), 
37.138 and 37.139 do not apply

[[Page 420]]

when a certification is submitted under this paragraph.
    (2) In the event of any change in circumstances that results in an 
entity which has submitted a certification of continued compliance 
falling short of compliance with Sec. Sec. 37.121-37.133, the entity 
shall immediately notify FTA in writing of the problem. In this case, 
the entity shall also file a plan update meeting the requirements of 
Sec. Sec. 37.137-37.139 of this part on the next following January 26 
and in each succeeding year until the entity returns to full compliance.
    (3) An entity that has demonstrated undue financial burden to the 
FTA shall file a plan update meeting the requirements of Sec. Sec. 
37.137-37.139 of this part on each January 26 until full compliance with 
Sec. Sec. 37.121-37.133 is attained.
    (4) If FTA reasonably believes that an entity may not be fully 
complying with all service criteria, FTA may require the entity to 
provide an annual update to its plan.
    (d) Phase-in of implementation. Each plan shall provide full 
compliance by no later than January 26, 1997, unless the entity has 
received a waiver based on undue financial burden. If the date for full 
compliance specified in the plan is after January 26, 1993, the plan 
shall include milestones, providing for measured, proportional progress 
toward full compliance.
    (e) Plan implementation. Each entity shall begin implementation of 
its plan on January 26, 1992.
    (f) Submission locations. An entity shall submit its plan to one of 
the following offices, as appropriate:
    (1) The individual state administering agency, if it is--
    (i) A section 18 recipient;
    (ii) A small urbanized area recipient of section 9 funds 
administered by the State;
    (iii) A participant in a coordinated plan, in which all of the 
participating entities are eligible to submit their plans to the State; 
or
    (2) The FTA Regional Office (as listed in appendix B to this part) 
for all other entities required to submit a paratransit plan. This 
includes an FTA recipient under section 9 of the FT Act; entities 
submitting a joint plan (unless they meet the requirements of paragraph 
(f)(1)(iii) of this section), and a public entity not an FT Act 
recipient.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996; 61 
FR 26468, May 28, 1996]



Sec. 37.137  Paratransit plan development.

    (a) Survey of existing services. Each submitting entity shall survey 
the area to be covered by the plan to identify any person or entity 
(public or private) which provides a paratransit or other special 
transportation service for ADA paratransit eligible individuals in the 
service area to which the plan applies.
    (b) Public participation. Each submitting entity shall ensure public 
participation in the development of its paratransit plan, including at 
least the following:
    (1) Outreach. Each submitting entity shall solicit participation in 
the development of its plan by the widest range of persons anticipated 
to use its paratransit service. Each entity shall develop contacts, 
mailing lists and other appropriate means for notification of 
opportunities to participate in the development of the paratransit plan;
    (2) Consultation with individuals with disabilities. Each entity 
shall contact individuals with disabilities and groups representing them 
in the community. Consultation shall begin at an early stage in the plan 
development and should involve persons with disabilities in all phases 
of plan development. All documents and other information concerning the 
planning procedure and the provision of service shall be available, upon 
request, to members of the public, except where disclosure would be an 
unwarranted invasion of personal privacy;
    (3) Opportunity for public comment. The submitting entity shall make 
its plan available for review before the plan is finalized. In making 
the plan available for public review, the entity shall ensure that the 
plan is available upon request in accessible formats;
    (4) Public hearing. The entity shall sponsor at a minimum one public 
hearing and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements; and

[[Page 421]]

    (5) Special requirements. If the entity intends to phase-in its 
paratransit service over a multi-year period, or request a waiver based 
on undue financial burden, the public hearing shall afford the 
opportunity for interested citizens to express their views concerning 
the phase-in, the request, and which service criteria may be delayed in 
implementation.
    (c) Ongoing requirement. The entity shall create an ongoing 
mechanism for the participation of individuals with disabilities in the 
continued development and assessment of services to persons with 
disabilities. This includes, but is not limited to, the development of 
the initial plan, any request for an undue financial burden waiver, and 
each annual submission.



Sec. 37.139  Plan contents.

    Each plan shall contain the following information:
    (a) Identification of the entity or entities submitting the plan, 
specifying for each--
    (1) Name and address; and
    (2) Contact person for the plan, with telephone number and facsimile 
telephone number (FAX), if applicable.
    (b) A description of the fixed route system as of January 26, 1992 
(or subsequent year for annual updates), including--
    (1) A description of the service area, route structure, days and 
hours of service, fare structure, and population served. This includes 
maps and tables, if appropriate;
    (2) The total number of vehicles (bus, van, or rail) operated in 
fixed route service (including contracted service), and percentage of 
accessible vehicles and percentage of routes accessible to and usable by 
persons with disabilities, including persons who use wheelchairs;
    (3) Any other information about the fixed route service that is 
relevant to establishing the basis for comparability of fixed route and 
paratransit service.
    (c) A description of existing paratransit services, including:
    (1) An inventory of service provided by the public entity submitting 
the plan;
    (2) An inventory of service provided by other agencies or 
organizations, which may in whole or in part be used to meet the 
requirement for complementary paratransit service; and
    (3) A description of the available paratransit services in 
paragraphs (c)(2) and (c)(3) of this section as they relate to the 
service criteria described in Sec. 37.131 of this part of service area, 
response time, fares, restrictions on trip purpose, hours and days of 
service, and capacity constraints; and to the requirements of ADA 
paratransit eligibility.
    (d) A description of the plan to provide comparable paratransit, 
including:
    (1) An estimate of demand for comparable paratransit service by ADA 
eligible individuals and a brief description of the demand estimation 
methodology used;
    (2) An analysis of differences between the paratransit service 
currently provided and what is required under this part by the 
entity(ies) submitting the plan and other entities, as described in 
paragraph (c) of this section;
    (3) A brief description of planned modifications to existing 
paratransit and fixed route service and the new paratransit service 
planned to comply with the ADA paratransit service criteria;
    (4) A description of the planned comparable paratransit service as 
it relates to each of the service criteria described in Sec. 37.131 of 
this part--service area, absence of restrictions or priorities based on 
trip purpose, response time, fares, hours and days of service, and lack 
of capacity constraints. If the paratransit plan is to be phased in, 
this paragraph shall be coordinated with the information being provided 
in paragraphs (d)(5) and (d)(6) of this paragraph;
    (5) A timetable for implementing comparable paratransit service, 
with a specific date indicating when the planned service will be 
completely operational. In no case may full implementation be completed 
later than January 26, 1997. The plan shall include milestones for 
implementing phases of the plan, with progress that can be objectively 
measured yearly;
    (6) A budget for comparable paratransit service, including capital 
and operating expenditures over five years.
    (e) A description of the process used to certify individuals with 
disabilities

[[Page 422]]

as ADA paratransit eligible. At a minimum, this must include--
    (1) A description of the application and certification process, 
including--
    (i) The availability of information about the process and 
application materials inaccessible formats;
    (ii) The process for determining eligibility according to the 
provisions of Sec. Sec. 37.123-37.125 of this part and notifying 
individuals of the determination made;
    (iii) The entity's system and timetable for processing applications 
and allowing presumptive eligibility; and
    (iv) The documentation given to eligible individuals.
    (2) A description of the administrative appeals process for 
individuals denied eligibility.
    (3) A policy for visitors, consistent with Sec. 37.127 of this 
part.
    (f) Description of the public participation process including--
    (1) Notice given of opportunity for public comment, the date(s) of 
completed public hearing(s), availability of the plan in accessible 
formats, outreach efforts, and consultation with persons with 
disabilities.
    (2) A summary of significant issues raised during the public comment 
period, along with a response to significant comments and discussion of 
how the issues were resolved.
    (g) Efforts to coordinate service with other entities subject to the 
complementary paratransit requirements of this part which have 
overlapping or contiguous service areas or jurisdictions.
    (h) The following endorsements or certifications:
    (1) A resolution adopted by the board of the entity authorizing the 
plan, as submitted. If more than one entity is submitting the plan there 
must be an authorizing resolution from each board. If the entity does 
not function with a board, a statement shall be submitted by the 
entity's chief executive;
    (2) In urbanized areas, certification by the Metropolitan Planning 
Organization (MPO) that it has reviewed the plan and that the plan is in 
conformance with the transportation plan developed under the Federal 
Transit/Federal Highway Administration joint planning regulation (49 CFR 
part 613 and 23 CFR part 450). In a service area which is covered by 
more than one MPO, each applicable MPO shall certify conformity of the 
entity's plan. The provisions of this paragraph do not apply to non-FTA 
recipients;
    (3) A certification that the survey of existing paratransit service 
was conducted as required in Sec. 37.137(a) of this part;
    (4) To the extent service provided by other entities is included in 
the entity's plan for comparable paratransit service, the entity must 
certify that:
    (i) ADA paratransit eligible individuals have access to the service;
    (ii) The service is provided in the manner represented; and
    (iii) Efforts will be made to coordinate the provision of 
paratransit service by other providers.
    (i) A request for a waiver based on undue financial burden, if 
applicable. The waiver request should include information sufficient for 
FTA to consider the factors in Sec. 37.155 of this part. If a request 
for an undue financial burden waiver is made, the plan must include a 
description of additional paratransit services that would be provided to 
achieve full compliance with the requirement for comparable paratransit 
in the event the waiver is not granted, and the timetable for the 
implementation of these additional services.
    (j) Annual plan updates. (1) The annual plan updates submitted 
January 26, 1993, and annually thereafter, shall include information 
necessary to update the information requirements of this section. 
Information submitted annually must include all significant changes and 
revisions to the timetable for implementation;
    (2) If the paratransit service is being phased in over more than one 
year, the entity must demonstrate that the milestones identified in the 
current paratransit plans have been achieved. If the milestones have not 
been achieved, the plan must explain any slippage and what actions are 
being taken to compensate for the slippage.
    (3) The annual plan must describe specifically the means used to 
comply with the public participation requirements, as described in Sec. 
37.137 of this part.

[[Page 423]]



Sec. 37.141  Requirements for a joint paratransit plan.

    (a) Two or more entities with overlapping or contiguous service 
areas or jurisdictions may develop and submit a joint plan providing for 
coordinated paratransit service. Joint plans shall identify the 
participating entities and indicate their commitment to participate in 
the plan.
    (b) To the maximum extent feasible, all elements of the coordinated 
plan shall be submitted on January 26, 1992. If a coordinated plan is 
not completed by January 26, 1992, those entities intending to 
coordinate paratransit service must submit a general statement declaring 
their intention to provide coordinated service and each element of the 
plan specified in Sec. 37.139 to the extent practicable. In addition, 
the plan must include the following certifications from each entity 
involved in the coordination effort:
    (1) A certification that the entity is committed to providing ADA 
paratransit service as part of a coordinated plan.
    (2) A certification from each public entity participating in the 
plan that it will maintain current levels of paratransit service until 
the coordinated plan goes into effect.
    (c) Entities submitting the above certifications and plan elements 
in lieu of a completed plan on January 26, 1992, must submit a complete 
plan by July 26, 1992.
    (d) Filing of an individual plan does not preclude an entity from 
cooperating with other entities in the development or implementation of 
a joint plan. An entity wishing to join with other entities after its 
initial submission may do so by meeting the filing requirements of this 
section.



Sec. 37.143  Paratransit plan implementation.

    (a) Each entity shall begin implementation of its complementary 
paratransit plan, pending notice from FTA. The implementation of the 
plan shall be consistent with the terms of the plan, including any 
specified phase-in period.
    (b) If the plan contains a request for a wavier based on undue 
financial burden, the entity shall begin implementation of its plan, 
pending a determination on its waiver request.



Sec. 37.145  State comment on plans.

    Each state required to receive plans under Sec. 37.135 of this part 
shall:
    (a) Ensure that all applicable section 18 and section 9 recipients 
have submitted plans.
    (b) Certify to FTA that all plans have been received.
    (c) Forward the required certification with comments on each plan to 
FTA. The plans, with comments, shall be submitted to FTA no later than 
April 1, 1992, for the first year and April 1 annually thereafter.
    (d) The State shall develop comments to on each plan, responding to 
the following points:
    (1) Was the plan filed on time?
    (2) Does the plan appear reasonable?
    (3) Are there circumstances that bear on the ability of the grantee 
to carry out the plan as represented? If yes, please elaborate.
    (4) Is the plan consistent with statewide planning activities?
    (5) Are the necessary anticipated financial and capital resources 
identified in the plan accurately estimated?



Sec. 37.147  Considerations during FTA review.

    In reviewing each plan, at a minimum FTA will consider the 
following:
    (a) Whether the plan was filed on time;
    (b) Comments submitted by the state, if applicable;
    (c) Whether the plan contains responsive elements for each component 
required under Sec. 37.139 of this part;
    (d) Whether the plan, when viewed in its entirety, provides for 
paratransit service comparable to the entity's fixed route service;
    (e) Whether the entity complied with the public participation 
efforts required by this part; and
    (f) The extent to which efforts were made to coordinate with other 
public entities with overlapping or contiguous service areas or 
jurisdictions.



Sec. 37.149  Disapproved plans.

    (a) If a plan is disapproved in whole or in part, FTA will specify 
which provisions are disapproved. Each entity

[[Page 424]]

shall amend its plan consistent with this information and resubmit the 
plan to the appropriate FTA Regional Office within 90 days of receipt of 
the disapproval letter.
    (b) Each entity revising its plan shall continue to comply with the 
public participation requirements applicable to the initial development 
of the plan (set out in Sec. 37.137 of this part).



Sec. 37.151  Waiver for undue financial burden.

    If compliance with the service criteria of Sec. 37.131 of this part 
creates an undue financial burden, an entity may request a waiver from 
all or some of the provisions if the entity has complied with the public 
participation requirements in Sec. 37.137 of this part and if the 
following conditions apply:
    (a) At the time of submission of the initial plan on January 26, 
1992--
    (1) The entity determines that it cannot meet all of the service 
criteria by January 26, 1997; or
    (2) The entity determines that it cannot make measured progress 
toward compliance in any year before full compliance is required. For 
purposes of this part, measured progress means implementing milestones 
as scheduled, such as incorporating an additional paratransit service 
criterion or improving an aspect of a specific service criterion.
    (b) At the time of its annual plan update submission, if the entity 
believes that circumstances have changed since its last submission, and 
it is no longer able to comply by January 26, 1997, or make measured 
progress in any year before 1997, as described in paragraph (a)(2) of 
this section.



Sec. 37.153  FTA waiver determination.

    (a) The Administrator will determine whether to grant a waiver for 
undue financial burden on a case-by-case basis, after considering the 
factors identified in Sec. 37.155 of this part and the information 
accompanying the request. If necessary, the Administrator will return 
the application with a request for additional information.
    (b) Any waiver granted will be for a limited and specified period of 
time.
    (c) If the Administrator grants the applicant a waiver, the 
Administrator will do one of the following:
    (1) Require the public entity to provide complementary paratransit 
to the extent it can do so without incurring an undue financial burden. 
The entity shall make changes in its plan that the Administrator 
determines are appropriate to maximize the complementary paratransit 
service that is provided to ADA paratransit eligible individuals. When 
making changes to its plan, the entity shall use the public 
participation process specified for plan development and shall consider 
first a reduction in number of trips provided to each ADA paratransit 
eligible person per month, while attempting to meet all other service 
criteria.
    (2) Require the public entity to provide basic complementary 
paratransit services to all ADA paratransit eligible individuals, even 
if doing so would cause the public entity to incur an undue financial 
burden. Basic complementary paratransit service in corridors defined as 
provided in Sec. 37.131(a) along the public entity's key routes during 
core service hours.
    (i) For purposes of this section, key routes are defined as routes 
along which there is service at least hourly throughout the day.
    (ii) For purposes of this section, core service hours encompass at 
least peak periods, as these periods are defined locally for fixed route 
service, consistent with industry practice.
    (3) If the Administrator determines that the public entity will 
incur an undue financial burden as the result of providing basic 
complementary paratransit service, such that it is infeasible for the 
entity to provide basic complementary paratransit service, the 
Administrator shall require the public entity to coordinate with other 
available providers of demand responsive service in the area served by 
the public entity to maximize the service to ADA paratransit eligible 
individuals to the maximum extent feasible.

[[Page 425]]



Sec. 37.155  Factors in decision to grant an undue financial burden waiver.

    (a) In making an undue financial burden determination, the FTA 
Administrator will consider the following factors:
    (1) Effects on current fixed route service, including reallocation 
of accessible fixed route vehicles and potential reduction in service, 
measured by service miles;
    (2) Average number of trips made by the entity's general population, 
on a per capita basis, compared with the average number of trips to be 
made by registered ADA paratransit eligible persons, on a per capita 
basis;
    (3) Reductions in other services, including other special services;
    (4) Increases in fares;
    (5) Resources available to implement complementary paratransit 
service over the period covered by the plan;
    (6) Percentage of budget needed to implement the plan, both as a 
percentage of operating budget and a percentage of entire budget;
    (7) The current level of accessible service, both fixed route and 
paratransit;
    (8) Cooperation/coordination among area transportation providers;
    (9) Evidence of increased efficiencies, that have been or could be 
effectuated, that would benefit the level and quality of available 
resources for complementary paratransit service; and
    (10) Unique circumstances in the submitting entity's area that 
affect the ability of the entity to provide paratransit, that militate 
against the need to provide paratransit, or in some other respect create 
a circumstance considered exceptional by the submitting entity.
    (b)(1) Costs attributable to complementary paratransit shall be 
limited to costs of providing service specifically required by this part 
to ADA paratransit eligible individuals, by entities responsible under 
this part for providing such service.
    (2) If the entity determines that it is impracticable to distinguish 
between trips mandated by the ADA and other trips on a trip-by-trip 
basis, the entity shall attribute to ADA complementary paratransit 
requirements a percentage of its overall paratransit costs. This 
percentage shall be determined by a statistically valid methodology that 
determines the percentage of trips that are required by this part. The 
entity shall submit information concerning its methodology and the data 
on which its percentage is based with its request for a waiver. Only 
costs attributable to ADA-mandated trips may be considered with respect 
to a request for an undue financial burden waiver.
    (3) Funds to which the entity would be legally entitled, but which, 
as a matter of state or local funding arrangements, are provided to 
another entity and used by that entity to provide paratransit service 
which is part of a coordinated system of paratransit meeting the 
requirements of this part, may be counted in determining the burden 
associated with the waiver request.



Sec. Sec. 37.157-37.159  [Reserved]



                     Subpart G_Provision of Service



Sec. 37.161  Maintenance of accessible features: General.

    (a) Public and private entities providing transportation services 
shall maintain in operative condition those features of facilities and 
vehicles that are required to make the vehicles and facilities readily 
accessible to and usable by individuals with disabilities. These 
features include, but are not limited to, lifts and other means of 
access to vehicles, securement devices, elevators, signage and systems 
to facilitate communications with persons with impaired vision or 
hearing.
    (b) Accessibility features shall be repaired promptly if they are 
damaged or out of order. When an accessibility feature is out of order, 
the entity shall take reasonable steps to accommodate individuals with 
disabilities who would otherwise use the feature.
    (c) This section does not prohibit isolated or temporary 
interruptions in service or access due to maintenance or repairs.



Sec. 37.163  Keeping vehicle lifts in operative condition: Public entities.

    (a) This section applies only to public entities with respect to 
lifts in non-rail vehicles.

[[Page 426]]

    (b) The entity shall establish a system of regular and frequent 
maintenance checks of lifts sufficient to determine if they are 
operative.
    (c) The entity shall ensure that vehicle operators report to the 
entity, by the most immediate means available, any failure of a lift to 
operate in service.
    (d) Except as provided in paragraph (e) of this section, when a lift 
is discovered to be inoperative, the entity shall take the vehicle out 
of service before the beginning of the vehicle's next service day and 
ensure that the lift is repaired before the vehicle returns to service.
    (e) If there is no spare vehicle available to take the place of a 
vehicle with an inoperable lift, such that taking the vehicle out of 
service will reduce the transportation service the entity is able to 
provide, the public entity may keep the vehicle in service with an 
inoperable lift for no more than five days (if the entity serves an area 
of 50,000 or less population) or three days (if the entity serves an 
area of over 50,000 population) from the day on which the lift is 
discovered to be inoperative.
    (f) In any case in which a vehicle is operating on a fixed route 
with an inoperative lift, and the headway to the next accessible vehicle 
on the route exceeds 30 minutes, the entity shall promptly provide 
alternative transportation to individuals with disabilities who are 
unable to use the vehicle because its lift does not work.



Sec. 37.165  Lift and securement use.

    (a) This section applies to public and private entities.
    (b) All common wheelchairs and their users shall be transported in 
the entity's vehicles or other conveyances. The entity is not required 
to permit wheelchairs to ride in places other than designated securement 
locations in the vehicle, where such locations exist.
    (c)(1) For vehicles complying with part 38 of this title, the entity 
shall use the securement system to secure wheelchairs as provided in 
that Part.
    (2) For other vehicles transporting individuals who use wheelchairs, 
the entity shall provide and use a securement system to ensure that the 
wheelchair remains within the securement area.
    (3) The entity may require that an individual permit his or her 
wheelchair to be secured.
    (d) The entity may not deny transportation to a wheelchair or its 
user on the ground that the device cannot be secured or restrained 
satisfactorily by the vehicle's securement system.
    (e) The entity may recommend to a user of a wheelchair that the 
individual transfer to a vehicle seat. The entity may not require the 
individual to transfer.
    (f) Where necessary or upon request, the entity's personnel shall 
assist individuals with disabilities with the use of securement systems, 
ramps and lifts. If it is necessary for the personnel to leave their 
seats to provide this assistance, they shall do so.
    (g) The entity shall permit individuals with disabilities who do not 
use wheelchairs, including standees, to use a vehicle's lift or ramp to 
enter the vehicle. Provided, that an entity is not required to permit 
such individuals to use a lift Model 141 manufactured by EEC, Inc. If 
the entity chooses not to allow such individuals to use such a lift, it 
shall clearly notify consumers of this fact by signage on the exterior 
of the vehicle (adjacent to and of equivalent size with the 
accessibility symbol).

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993]



Sec. 37.167  Other service requirements.

    (a) This section applies to public and private entities.
    (b) On fixed route systems, the entity shall announce stops as 
follows:
    (1) The entity shall announce at least at transfer points with other 
fixed routes, other major intersections and destination points, and 
intervals along a route sufficient to permit individuals with visual 
impairments or other disabilities to be oriented to their location.
    (2) The entity shall announce any stop on request of an individual 
with a disability.
    (c) Where vehicles or other conveyances for more than one route 
serve the same stop, the entity shall provide a means by which an 
individual with a

[[Page 427]]

visual impairment or other disability can identify the proper vehicle to 
enter or be identified to the vehicle operator as a person seeking a 
ride on a particular route.
    (d) The entity shall permit service animals to accompany individuals 
with disabilities in vehicles and facilities.
    (e) The entity shall ensure that vehicle operators and other 
personnel make use of accessibility-related equipment or features 
required by part 38 of this title.
    (f) The entity shall make available to individuals with disabilities 
adequate information concerning transportation services. This obligation 
includes making adequate communications capacity available, through 
accessible formats and technology, to enable users to obtain information 
and schedule service.
    (g) The entity shall not refuse to permit a passenger who uses a 
lift to disembark from a vehicle at any designated stop, unless the lift 
cannot be deployed, the lift will be damaged if it is deployed, or 
temporary conditions at the stop, not under the control of the entity, 
preclude the safe use of the stop by all passengers.
    (h) The entity shall not prohibit an individual with a disability 
from traveling with a respirator or portable oxygen supply, consistent 
with applicable Department of Transportation rules on the transportation 
of hazardous materials (49 CFR subtitle B, chapter 1, subchapter C).
    (i) The entity shall ensure that adequate time is provided to allow 
individuals with disabilities to complete boarding or disembarking from 
the vehicle.
    (j)(1) When an individual with a disability enters a vehicle, and 
because of a disability, the individual needs to sit in a seat or occupy 
a wheelchair securement location, the entity shall ask the following 
persons to move in order to allow the individual with a disability to 
occupy the seat or securement location:
    (i) Individuals, except other individuals with a disability or 
elderly persons, sitting in a location designated as priority seating 
for elderly and handicapped persons (or other seat as necessary);
    (ii) Individuals sitting in or a fold-down or other movable seat in 
a wheelchair securement location.
    (2) This requirement applies to light rail, rapid rail, and commuter 
rail systems only to the extent practicable.
    (3) The entity is not required to enforce the request that other 
passengers move from priority seating areas or wheelchair securement 
locations.
    (4) In all signage designating priority seating areas for elderly 
persons and persons with disabilities, or designating wheelchair 
securement areas, the entity shall include language informing persons 
sitting in these locations that they should comply with requests by 
transit provider personnel to vacate their seats to make room for an 
individual with a disability. This requirement applies to all fixed 
route vehicles when they are acquired by the entity or to new or 
replacement signage in the entity's existing fixed route vehicles.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993]



Sec. 37.169  Interim requirements for over-the-road bus service
operated by private entities.

    (a) Private entities operating over-the-road buses, in addition to 
compliance with other applicable provisions of this part, shall provide 
accessible service as provided in this section.
    (b) The private entity shall provide assistance, as needed, to 
individuals with disabilities in boarding and disembarking, including 
moving to and from the bus seat for the purpose of boarding and 
disembarking. The private entity shall ensure that personnel are trained 
to provide this assistance safely and appropriately.
    (c) To the extent that they can be accommodated in the areas of the 
passenger compartment provided for passengers' personal effects, 
wheelchairs or other mobility aids and assistive devices used by 
individuals with disabilities, or components of such devices, shall be 
permitted in the passenger compartment. When the bus is at rest at a 
stop, the driver or other personnel shall assist individuals with 
disabilities with the stowage and retrieval of mobility aids, assistive 
devices, or other items that can be accommodated

[[Page 428]]

in the passenger compartment of the bus.
    (d) Wheelchairs and other mobility aids or assistive devices that 
cannot be accommodated in the passenger compartment (including electric 
wheelchairs) shall be accommodated in the baggage compartment of the 
bus, unless the size of the baggage compartment prevents such 
accommodation.
    (e) At any given stop, individuals with disabilities shall have the 
opportunity to have their wheelchairs or other mobility aids or 
assistive devices stowed in the baggage compartment before other baggage 
or cargo is loaded, but baggage or cargo already on the bus does not 
have to be off-loaded in order to make room for such devices.
    (f) The entity may require up to 48 hours' advance notice only for 
providing boarding assistance. If the individual does not provide such 
notice, the entity shall nonetheless provide the service if it can do so 
by making a reasonable effort, without delaying the bus service.



Sec. 37.171  Equivalency requirement for demand responsive service
operated by private entities not primarily engaged in the business 

of transporting people.

    A private entity not primarily engaged in the business of 
transporting people which operates a demand responsive system shall 
ensure that its system, when viewed in its entirety, provides equivalent 
service to individuals with disabilities, including individuals who use 
wheelchairs, as it does to individuals without disabilities. The 
standards of Sec. 37.105 shall be used to determine if the entity is 
providing equivalent service.



Sec. 37.173  Training requirements.

    Each public or private entity which operates a fixed route or demand 
responsive system shall ensure that personnel are trained to 
proficiency, as appropriate to their duties, so that they operate 
vehicles and equipment safely and properly assist and treat individuals 
with disabilities who use the service in a respectful and courteous way, 
with appropriate attention to the difference among individuals with 
disabilities.



                  Subpart H_Over-the-Road Buses (OTRBs)

    Source: 63 FR 51690, Sept. 28, 1998, unless otherwise noted.



Sec. 37.181  Applicability dates.

    This subpart applies to all private entities that operate OTRBs. The 
requirements of the subpart begin to apply to large operators beginning 
October 30, 2000 and to small operators beginning October 29, 2001.



Sec. 37.183  Purchase or lease of new OTRBs by operators of 
fixed-route systems.

    The following requirements apply to private entities that are 
primarily in the business of transporting people, whose operations 
affect commerce, and that operate a fixed-route system, with respect to 
OTRBs delivered to them on or after the date on which this subpart 
applies to them:
    (a) Large operators. If a large entity operates a fixed-route 
system, and purchases or leases a new OTRB for or in contemplation of 
use in that system, it shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (b) Small operators. If a small entity operates a fixed-route 
system, and purchases or leases a new OTRB for or in contemplation of 
use in that system, it must do one of the following two things:
    (1) Ensure that the vehicle is readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs; or
    (2) Ensure that equivalent service, as defined in Sec. 37.105, is 
provided to individuals with disabilities, including individuals who use 
wheelchairs. To meet this equivalent service standard, the service 
provided by the operator must permit a wheelchair user to travel in his 
or her own mobility aid.



Sec. 37.185  Fleet accessibility requirement for OTRB fixed-route 
systems of large operators.

    Each large operator subject to the requirements of Sec. 37.183 
shall ensure that--

[[Page 429]]

    (a) By October 30, 2006 no less than 50 percent of the buses in its 
fleet with which it provides fixed-route service are readily accessible 
to and usable by individuals with disabilities, including individuals 
who use wheelchairs.
    (b) By October 29, 2012, 100 percent of the buses in its fleet with 
which it provides fixed-route service are readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs.
    (c) Request for time extension. An operator may apply to the 
Secretary for a time extension of the fleet accessibility deadlines of 
this section. If he or she grants the request, the Secretary sets a 
specific date by which the operator must meet the fleet accessibility 
requirement. In determining whether to grant such a request, the 
Secretary considers the following factors:
    (1) Whether the operator has purchased or leased, since October 30, 
2000, enough new OTRBs to replace 50 percent of the OTRBs with which it 
provides fixed-route service by October 30, 2006 or 100 percent of such 
OTRBs by October 29, 2012;
    (2) Whether the operator has purchased or leased, between October 
28, 1998 and October 30, 2000, a number of new inaccessible OTRBs 
significantly exceeding the number of buses it would normally obtain in 
such a period;
    (3) The compliance with all requirements of this part by the 
operator over the period between October 28, 1998 and the request for 
time extension.



Sec. 37.187  Interline service.

    (a) When the general public can purchase a ticket or make a 
reservation with one operator for a fixed-route trip of two or more 
stages in which another operator provides service, the first operator 
must arrange for an accessible bus, or equivalent service, as 
applicable, to be provided for each stage of the trip to a passenger 
with a disability. The following examples illustrate the provisions of 
this paragraph (a):

    Example 1. By going to Operator X's ticket office or calling X for a 
reservation, a passenger can buy or reserve a ticket from Point A 
through to Point C, transferring at intermediate Point B to a bus 
operated by Operator Y. Operator X is responsible for communicating 
immediately with Operator Y to ensure that Y knows that a passenger 
needing accessible transportation or equivalent service, as applicable, 
is traveling from Point B to Point C. By immediate communication, we 
mean that the ticket or reservation agent for Operator X, by phone, fax, 
computer, or other instantaneous means, contacts Operator Y the minute 
the reservation or ticketing transaction with the passenger, as 
applicable, has been completed. It is the responsibility of each carrier 
to know how to contact carriers with which it interlines (e.g., Operator 
X must know Operator Y's phone number).
    Example 2. Operator X fails to provide the required information in a 
timely manner to Operator Y. Operator X is responsible for compensating 
the passenger for the consequent unavailability of an accessible bus or 
equivalent service, as applicable, on the B-C leg of the interline trip.

    (b) Each operator retains the responsibility for providing the 
transportation required by this subpart to the passenger for its portion 
of an interline trip. The following examples illustrate the provisions 
of this paragraph (b):

    Example 1. In Example 1 to paragraph (a) of this section, Operator X 
provides the required information to Operator Y in a timely fashion. 
However, Operator Y fails to provide an accessible bus or equivalent 
service to the passenger at Point B as the rules require. Operator Y is 
responsible for compensating the passenger as provided in Sec. 37. 199.
    Example 2. Operator X provides the required information to Operator 
Y in a timely fashion. However, the rules require Operator Y to provide 
an accessible bus on 48 hours' advance notice (i.e., as a matter of 
interim service under Sec. 37.193(a) or service by a small mixed-
service operator under Sec. 37.191), and the passenger has purchased 
the ticket or made the reservation for the interline trip only 8 hours 
before Operator Y's bus leaves from Point B to go to Point C. In this 
situation, Operator Y is not responsible for providing an accessible bus 
to the passenger at Point B, any more than that it would be had the 
passenger directly contacted Operator Y to travel from Point B to Point 
C.

    (c) All fixed-route operators involved in interline service shall 
ensure that they have the capacity to receive communications at all 
times concerning interline service for passengers with disabilities. The 
following examples illustrate the provisions of this paragraph (c):

    Example 1. Operator Y's office is staffed only during normal weekday 
business hours. Operator Y must have a means of receiving communications 
from carriers with which it

[[Page 430]]

interlines (e.g., telephone answering machine, fax, computer) when no 
one is in the office.
    Example 2. Operator Y has the responsibility to monitor its 
communications devices at reasonable intervals to ensure that it can act 
promptly on the basis of messages received. If Operator Y receives a 
message from Operator X on its answering machine on Friday night, 
notifying Y of the need for an accessible bus on Monday morning, it has 
the responsibility of making sure that the accessible bus is there on 
Monday morning. Operator Y is not excused from its obligation because no 
one checked the answering machine over the weekend.



Sec. 37.189  Service requirement for OTRB demand-responsive systems.

    (a) This section applies to private entities primarily in the 
business of transporting people, whose operations affect commerce, and 
that provide demand-responsive OTRB service. Except as needed to meet 
the other requirements of this section, these entities are not required 
to purchase or lease accessible buses in connection with providing 
demand-responsive service.
    (b) Demand-responsive operators shall ensure that, beginning one 
year from the date on which the requirements of this subpart begin to 
apply to the entity, any individual with a disability who requests 
service in an accessible OTRB receives such service. This requirement 
applies to both large and small operators.
    (c) The operator may require up to 48 hours' advance notice to 
provide this service.
    (d) If the individual with a disability does not provide the advance 
notice the operator requires under paragraph (a) of this section, the 
operator shall nevertheless provide the service if it can do so by 
making a reasonable effort.
    (e) To meet this requirement, an operator is not required to 
fundamentally alter its normal reservation policies or to displace 
another passenger who has reserved a seat on the bus. The following 
examples illustrate the provisions of this paragraph (e):

    Example 1. A tour bus operator requires all passengers to reserve 
space on the bus three months before the trip date. This requirement 
applies to passengers with disabilities on the same basis as other 
passengers. Consequently, an individual passenger who is a wheelchair 
user would have to request an accessible bus at the time he or she made 
his reservation, at least three months before the trip date. If the 
individual passenger with a disability makes a request for space on the 
trip and an accessible OTRB 48 hours before the trip date, the operator 
could refuse the request because all passengers were required to make 
reservations three months before the trip date.
    Example 2. A group makes a reservation to charter a bus for a trip 
four weeks in advance. A week before the trip date, the group discovers 
that someone who signed up for the trip is a wheelchair user who needs 
an accessible bus, or someone who later buys a seat in the block of 
seats the group has reserved needs an accessible bus. A group 
representative or the passenger with a disability informs the bus 
company of this need more than 48 hours before the trip date. The bus 
company must provide an accessible bus.
    Example 3. While the operator's normal deadline for reserving space 
on a charter or tour trip has passed, a number of seats for a trip are 
unfilled. The operator permits members of the public to make late 
reservations for the unfilled seats. If a passenger with a disability 
calls 48 hours before the trip is scheduled to leave and requests a seat 
and the provision of an accessible OTRB, the operator must meet this 
request, as long as it does not displace another passenger with a 
reservation.
    Example 4. A tour bus trip is nearly sold out three weeks in advance 
of the trip date. A passenger with a disability calls 48 hours before 
the trip is scheduled to leave and requests a seat and the provision of 
an accessible OTRB. The operator need not meet this request if it will 
have the effect of displacing a passenger with an existing reservation. 
If other passengers would not be displaced, the operator must meet this 
request.



Sec. 37.191  Special provision for small mixed-service operators.

    (a) For purposes of this section, a small mixed-service operator is 
a small operator that provides both fixed-route and demand-responsive 
service and does not use more than 25 percent of its buses for fixed-
route service.
    (b) An operator meeting the criteria of paragraph (a) of this 
section may conduct all its trips, including fixed-route trips, on an 
advance-reservation basis as provided for demand-responsive trips in 
Sec. 37.189. Such an operator is not required to comply with the 
accessible bus acquisition/equivalent service obligations of Sec. 
37.183(b).

[[Page 431]]



Sec. 37.193  Interim service requirements.

    (a) Until 100 percent of the fleet of a large or small operator uses 
to provide fixed-route service is composed of accessible OTRBs, the 
operator shall meet the following interim service requirements:
    (1) Beginning one year from the date on which the requirements of 
this subpart begin to apply to the operator, it shall ensure that any 
individual with a disability that requests service in an accessible OTRB 
receives such service.
    (i) The operator may require up to 48 hours' advance notice to 
provide this service.
    (ii) If the individual with a disability does not provide the 
advance notice the operator requires, the operator shall nevertheless 
provide the service if it can do so by making a reasonable effort.
    (iii) If the trip on which the person with a disability wishes to 
travel is already provided by an accessible bus, the operator has met 
this requirement.
    (2) Before a date one year from the date on which this subpart 
applies to the operator, an operator which is unable to provide the 
service specified in paragraph (a) of this section shall comply with the 
requirements of Sec. 37.169.
    (3) Interim service under this paragraph (a) is not required to be 
provided by a small operator who is providing equivalent service to its 
fixed-route service as provided in Sec. 37.183(b)(2).
    (b) Some small fixed-route operators may never have a fleet 100 
percent of which consists of accessible buses (e.g., a small fixed-route 
operator who exclusively or primarily purchases or leases used buses). 
Such an operator must continue to comply with the requirements of this 
section with respect to any service that is not provided entirely with 
accessible buses.
    (c) Before a date one year from the date on which this subpart 
applies to an operator providing demand-responsive service, an operator 
which is unable to provide the service described in Sec. 37.189 shall 
comply with the requirements of Sec. 37.169.



Sec. 37.195  Purchase or lease of OTRBs by private entities not primarily
in the business of transporting people.

    This section applies to all purchases or leases of new vehicles by 
private entities which are not primarily engaged in the business of 
transporting people, with respect to buses delivered to them on or after 
the date on which this subpart begins to apply to them.
    (a) Fixed-route systems. If the entity operates a fixed-route system 
and purchases or leases an OTRB for or in contemplation of use on the 
system, it shall meet the requirements of Sec. 37.183 (a) or (b), as 
applicable.
    (b) Demand-responsive systems. The requirements of Sec. 37.189 
apply to demand-responsive systems operated by private entities not 
primarily in the business of transporting people. If such an entity 
operates a demand-responsive system, and purchases or leases an OTRB for 
or in contemplation of use on the system, it is not required to purchase 
or lease an accessible bus except as needed to meet the requirements of 
Sec. 37.189.



Sec. 37.197  Remanufactured OTRBs.

    (a) This section applies to any private entity operating OTRBs that 
takes one of the following actions:
    (1) On or after the date on which this subpart applies to the 
entity, it remanufactures an OTRB so as to extend its useful life for 
five years or more or makes a solicitation for such remanufacturing; or
    (2) Purchases or leases an OTRB which has been remanufactured so as 
to extend its useful life for five years or more, where the purchase or 
lease occurs after the date on which this subpart applies to the entity 
and during the period in which the useful life of the vehicle is 
extended.
    (b) In any situation in which this subpart requires an entity 
purchasing or leasing a new OTRB to purchase or lease an accessible 
OTRB, OTRBs acquired through the actions listed in paragraph (a) of this 
section shall, to the maximum extent feasible, be readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.

[[Page 432]]

    (c) For purposes of this section, it shall be considered feasible to 
remanufacture an OTRB so as to be readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs, unless an engineering analysis demonstrates that including 
accessibility features required by this part would have a significant 
adverse effect on the structural integrity of the vehicle.



Sec. 37.199  [Reserved]



Sec. 37.201  Intermediate and rest stops.

    (a) Whenever an OTRB makes an intermediate or rest stop, a passenger 
with a disability, including an individual using a wheelchair, shall be 
permitted to leave and return to the bus on the same basis as other 
passengers. The operator shall ensure that assistance is provided to 
passengers with disabilities as needed to enable the passenger to get on 
and off the bus at the stop (e.g., operate the lift and provide 
assistance with securement; provide other boarding assistance if needed, 
as in the case of a wheelchair user who has transferred to a vehicle 
seat because other wheelchair users occupied all securement locations).
    (b) If an OTRB operator owns, leases, or controls the facility at 
which a rest or intermediate stop is made, or if an OTRB operator 
contracts with the person who owns, leases, or controls such a facility 
to provide rest stop services, the OTRB operator shall ensure the 
facility complies fully with applicable requirements of the Americans 
with Disabilities Act.
    (c) If an OTRB equipped with an inaccessible restroom is making an 
express run of three hours or more without a rest stop, and a passenger 
with a disability who is unable to use the inaccessible restroom 
requests an unscheduled rest stop, the operator shall make a good faith 
effort to accommodate the request. The operator is not required to make 
the stop. However, if the operator does not make the stop, the operator 
shall explain to the passenger making the request the reason for its 
decision not to do so.



Sec. 37.203  Lift maintenance.

    (a) The entity shall establish a system of regular and frequent 
maintenance checks of lifts sufficient to determine if they are 
operative.
    (b) The entity shall ensure that vehicle operators report to the 
entity, by the most immediate means available, any failure of a lift to 
operate in service.
    (c) Except as provided in paragraph (d) of this section, when a lift 
is discovered to be inoperative, the entity shall take the vehicle out 
of service before the beginning of the vehicle's next trip and ensure 
that the lift is repaired before the vehicle returns to service.
    (d) If there is no other vehicle available to take the place of an 
OTRB with an inoperable lift, such that taking the vehicle out of 
service before its next trip will reduce the transportation service the 
entity is able to provide, the entity may keep the vehicle in service 
with an inoperable lift for no more than five days from the day on which 
the lift is discovered to be inoperative.



Sec. 37.205  Additional passengers who use wheelchairs.

    If a number of wheelchair users exceeding the number of securement 
locations on the bus seek to travel on a trip, the operator shall assign 
the securement locations on a first come-first served basis. The 
operator shall offer boarding assistance and the opportunity to sit in a 
vehicle seat to passengers who are not assigned a securement location. 
If the passengers who are not assigned securement locations are unable 
or unwilling to accept this offer, the operator is not required to 
provide transportation to them on the bus.



Sec. 37.207  Discriminatory practices.

    It shall be considered discrimination for any operator to--
    (a) Deny transportation to passengers with disabilities, except as 
provided in Sec. 37.5(h);
    (b) Use or request the use of persons other than the operator's 
employees (e.g., family members or traveling companions of a passenger 
with a disability, medical or public safety personnel) for routine 
boarding or other

[[Page 433]]

assistance to passengers with disabilities, unless the passenger 
requests or consents to assistance from such persons;
    (c) Require or request a passenger with a disability to reschedule 
his or her trip, or travel at a time other than the time the passenger 
has requested, in order to receive transportation as required by this 
subpart;
    (d) Fail to provide reservation services to passengers with 
disabilities equivalent to those provided other passengers; or
    (e) Fail or refuse to comply with any applicable provision of this 
part.



Sec. 37.209  Training and other requirements.

    OTRB operators shall comply with the requirements of Sec. Sec. 
37.161, 37.165-37.167, and 37.173. For purposes of Sec. 37.173, 
``training to proficiency'' is deemed to include, as appropriate to the 
duties of particular employees, training in proper operation and 
maintenance of accessibility features and equipment, boarding 
assistance, securement of mobility aids, sensitive and appropriate 
interaction with passengers with disabilities, handling and storage of 
mobility devices, and familiarity with the requirements of this subpart. 
OTRB operators shall provide refresher training to personnel as needed 
to maintain proficiency.



Sec. 37.211  Effect of NHTSA and FHWA safety rules.

    OTRB operators are not required to take any action under this 
subpart that would violate an applicable National Highway Traffic Safety 
Administration or Federal Highway Administration safety rule.



Sec. 37.213  Information collection requirements.

    (a) This paragraph (a) applies to demand-responsive operators under 
Sec. 37.189 and fixed-route operators under Sec. 37.193(a)(1) that are 
required to, and small mixed-service operators under Sec. 37.191 that 
choose to, provide accessible OTRB service on 48 hours' advance notice.
    (1) When the operator receives a request for an accessible bus or 
equivalent service, the operator shall complete lines 1-9 of the Service 
Request Form in Appendix A to this subpart. The operator shall transmit 
a copy of the form to the passenger no later than the end of the next 
business day following the receipt of the request. The passenger shall 
be required to make only one request, which covers all legs of the 
requested trip (e.g., in the case of a round trip, both the outgoing and 
return legs of the trip; in the case of a multi-leg trip, all connecting 
legs).
    (2) The passenger shall be required to make only one request, which 
covers all legs of the requested trip (e.g., in the case of a round 
trip, both the outgoing and return legs of the trip; in the case of a 
multi-leg trip, all connecting legs). The operator shall transmit a copy 
of the form to the passenger in one of the following ways:
    (i) By first-class United States mail. The operator shall transmit 
the form no later than the end of the next business day following the 
request;
    (ii) By telephone or email. If the passenger can receive the 
confirmation by this method, then the operator shall provide a unique 
confirmation number to the passenger when the request is made and 
provide a paper copy of the form when the passenger arrives for the 
requested trip; or
    (iii) By facsimile transmission. If the passenger can receive the 
confirmation by this method, then the operator shall transmit the form 
within twenty-four hours of the request for transportation.
    (3) The operator shall retain its copy of the completed form for 
five years. The operator shall make these forms available to Department 
of Transportation or Department of Justice officials at their request.
    (4) Beginning October 29, 2001, for large operators, and October 28, 
2002, for small operators, and on the last Monday in October in each 
year thereafter, each operator shall submit a summary of its forms to 
the Department of Transportation. The summary shall state the number of 
requests for accessible bus service and the number of times these 
requests were met. It shall also include the name, address, telephone 
number, and contact person name for the operator.
    (b) This paragraph (b) applies to small fixed route operators who 
choose

[[Page 434]]

to provide equivalent service to passengers with disabilities under 
Sec. 37.183(b)(2).
    (1) The operator shall complete the Service Request Form in Appendix 
A to this subpart on every occasion on which a passenger with a 
disability needs equivalent service in order to be provided 
transportation.
    (2) The passenger shall be required to make only one request, which 
covers all legs of the requested trip (e.g., in the case of a round 
trip, both the outgoing and return legs of the trip; in the case of a 
multi-leg trip, all connecting legs). The operator shall transmit a copy 
of the form to the passenger, and whenever the equivalent service is not 
provided, in one of the following ways:
    (i) By first-class United States mail. The operator shall transmit 
the form no later than the end of the next business day following the 
request for equivalent service;
    (ii) By telephone or email. If the passenger can receive the 
confirmation by this method, then the operator shall provide a unique 
confirmation number to the passenger when the request for equivalent 
service is made and provide a paper copy of the form when the passenger 
arrives for the requested trip; or
    (iii) By facsimile transmission. If the passenger can receive the 
confirmation by this method, then the operator shall transmit the form 
within twenty-four hours of the request for equivalent service.
    (3) Beginning on October 28, 2002 and on the last Monday in October 
in each year therafter, each operator shall submit a summary of its 
forms to the Department of Transportation. The summary shall state the 
number of situations in which equivalent service was needed and the 
number of times such service was provided. It shall also include the 
name, address, telephone number, and contact person name for the 
operator.
    (c) This paragraph (c) applies to fixed-route operators.
    (1) On March 26, 2001, each fixed-route large operator shall submit 
to the Department a report on how many passengers with disabilities used 
the lift to board accessible buses for the period of October 1999 to 
October 2000. For fixed-route operators, the report shall reflect 
separately the data pertaining to 48-hour advance reservation service 
and other service.
    (2) Beginning on October 29, 2001 and on the last Monday in October 
in each year thereafter, each fixed-route operator shall submit to the 
Department, a report on how many passengers with disabilities used the 
lift to board accessible buses. For fixed-route operators, the report 
shall reflect separately the data pertaining to 48-hour advance 
reservation service and other service.
    (d) This paragraph (d) applies to each over the road bus operator.
    (1) On March 26, 2001, each operator shall submit to the Department, 
a summary report listing the number of new buses and used buses it has 
purchased or leased for the period of October 1998 through October 2000, 
and how many buses in each category are accessible. It shall also 
include the total number of buses in the operator's fleet and the name, 
address, telephone number, and contact person name for the operator.
    (2) Beginning on October 29, 2001 and on the last Monday in October 
in each year thereafter, each operator shall submit to the Department, a 
summary report listing the number of new buses and used buses it has 
purchased or leased during the preceding year, and how many buses in 
each category are accessible. It shall also include the total number of 
buses in the operator's fleet and the name, address, telephone number, 
and contact person name for the operator.
    (e) The information required to be submitted to the Department shall 
be sent to the following address: Federal Motor Carrier Safety 
Administration, Office of Data Analysis & Information System 1200 New 
Jersey Avenue, SE., Washington, D.C. 20590.

[66 FR 9053, Feb. 6, 2001, as amended at 69 FR 40796, July 7, 2004; 73 
FR 33329, June 12, 2008]



Sec. 37.215  Review of requirements.

    (a) Beginning October 28, 2005, the Department will review the 
requirements of Sec. 37.189 and their implementation. The Department 
will complete this review by October 30, 2006.
    (1) As part of this review, the Department will consider factors 
including, but not necessarily limited to, the following:

[[Page 435]]

    (i) The percentage of accessible buses in the demand-responsive 
fleets of large and small demand-responsive operators.
    (ii) The success of small and large demand-responsive operators' 
service at meeting the requests of passengers with disabilities for 
accessible buses in a timely manner.
    (iii) The ridership of small and large operators' demand-responsive 
service by passengers with disabilities.
    (iv) The volume of complaints by passengers with disabilities.
    (v) Cost and service impacts of implementation of the requirements 
of Sec. 37.189.
    (2) The Department will make one of the following decisions on the 
basis of the review:
    (i) Retain Sec. 37.189 without change; or
    (ii) Modify the requirements of Sec. 37.189 for large and/or small 
demand-responsive operators.
    (b) Beginning October 30, 2006, the Department will review the 
requirements of Sec. Sec. 37.183, 37.185, 37.187, 37.191 and 37.193(a) 
and their implementation. The Department will complete this review by 
October 29, 2007.
    (1) As part of this review, the Department will consider factors 
including, but not necessarily limited to, the following:
    (i) The percentage of accessible buses in the fixed-route fleets of 
large and small fixed-route operators.
    (ii) The success of small and large fixed-route operators' interim 
or equivalent service at meeting the requests of passengers with 
disabilities for accessible buses in a timely manner.
    (iii) The ridership of small and large operators' fixed-route 
service by passengers with disabilities.
    (iv) The volume of complaints by passengers with disabilities.
    (v) Cost and service impacts of implementation of the requirements 
of these sections.
    (2) The Department will make one of the following decisions on the 
basis of the review:
    (i) Retain Sec. Sec. 37.183, 37.185, 37.187, 37.191, 37.193(a) 
without change; or
    (ii) Modify the requirements of Sec. Sec. 37.183, 37.185, 37.187, 
37.191, 37.193(a) for large and/or small fixed-route operators.



      Sec. Appendix A to Subpart H of Part 37--Service Request Form

  Form for Advance Notice Requests and Provision of Equivalent Service

1. Operator's name______________________________________________________
2. Address______________________________________________________________
________________________________________________________________________
3. Phone number:________________________________________________________
4. Passenger's name:____________________________________________________
5. Address:_____________________________________________________________
________________________________________________________________________
6. Phone number:________________________________________________________
7. Scheduled date(s) and time(s) of trip(s):____________________________
________________________________________________________________________
8. Date and time of request:____________________________________________
9. Location(s) of need for accessible bus or equivalent service, as 
applicable:_____________________________________________________________
10. Was accessible bus or equivalent service, as applicable, provided 
for trip(s)? Yes -------- no --------
11. Was there a basis recognized by U.S. Department of transportation 
regulations for not providing an accessible bus or equivalent service, 
as applicable, for the trip(s)? Yes -------- no --------
If yes, explain_________________________________________________________
________________________________________________________________________

[66 FR 9054, Feb. 6, 2001]



 Sec. Appendix A to Part 37--Modifications to Standards for Accessible 
                        Transportation Facilities

    The Department of Transportation, in Sec. 37.9 of this part, adopts 
as its regulatory standards for accessible transportation facilities the 
revised Americans with Disabilities Act Guidelines (ADAGG) issued by the 
Access Board on July 23, 2004. The ADAGG is codified in the Code of 
Federal Regulations in Appendices B and D of 36 CFR part 1191. Note the 
ADAAG may also be found via a hyperlink on the Internet at the following 
address: http://www.access-board.gov/ada-aba/final.htm. Like all 
regulations, the ADAAG also can be found by using the electronic Code of 
Federal Regulations at http://www.gpoaccess.gov/ecfr. Because the ADAAG 
has been established as a Federal consensus standard by the Access 
Board, the Department is not republishing the regulations in their 
entirety, but is adopting them by cross-reference as permitted under 1 
CFR 21.21(c)(4). In a few instances, the Department has modified the 
language of the ADAAG as it applies to entities subject to 49 CFR part 
37. These entities must comply with the modified language in this 
Appendix rather than the language of Appendices B and D to 36 CFR part 
1191.

[[Page 436]]

 206.3 Location--Modification to 206.3 of Appendix B to 36 CFR Part 1191

    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.

      406.8--Modification to 406 of Appendix D to 36 CFR Part 1191

    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.

810.2.2 Dimensions--Modification to 810.2.2 of Appendix D to 36 CFR Part 
                                  1191

    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.

810.5.3 Platform and Vehicle Floor Coordination--Modification to 810.5.3 
                    of Appendix D to 36 CFR Part 1191

    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).

[71 FR 63266, Oct. 30, 2006]



            Sec. Appendix B to Part 37--FTA Regional Offices

Region I, Federal Transit Administration, 206 Federal Plaza, Suite 2940, 
New York, NY 10278
Region II, Federal Transit Administration, Transportation Systems 
Center, Kendall Square, 55 Broadway, Suite 921, Cambridge, MA 02142
Region III, Federal Transit Administration, 841 Chestnut Street, Suite 
714, Philadelphia, PA 19107
Region IV, Federal Transit Administration, 1720 Peachtree Road NW., 
Suite 400, Atlanta, GA 30309
Region V, Federal Transit Administration, 55 East Monroe Street, Room 
1415, Chicago, IL 60603
Region VI, Federal Transit Administration, 819 Taylor Street, Suite 
9A32, Ft. Worth, TX 76102
Region VII, Federal Transit Administration, 6301 Rockville Road, Suite 
303, Kansas City, MS 64131
Region VIII, Federal Transit Administration, Federal Office Building, 
1961 Stout Street, 5th Floor, Denver, CO 80294
Region IX, Federal Transit Administration, 211 Main Street, Room 1160, 
San Francisco, CA 94105
Region X, Federal Transit Administration, 3142 Federal Building, 915 
Second Avenue, Seattle, WA 98174



               Sec. Appendix C to Part 37--Certifications

                   Certification of Equivalent Service

    The (name of agency) certifies that its demand responsive service 
offered to individuals with disabilities, including individuals who use 
wheelchairs, is equivalent to the level and quality of service offered 
to individuals without disabilities. Such service, when viewed in its 
entirety, is provided in the most integrated setting feasible and is 
equivalent with respect to:
    (1) Response time;
    (2) Fares;
    (3) Geographic service area;
    (4) Hours and days of service;
    (5) Restrictions on trip purpose;
    (6) Availability of information and reservation capability; and
    (7) Constraints on capacity or service availability.
    In accordance with 49 CFR 37.77, public entities operating demand 
responsive systems for the general public which receive financial 
assistance under section 18 of the Federal Transit Act must file this 
certification with the appropriate state program office before procuring 
any inaccessible vehicle. Such public entities not receiving FTA funds 
shall

[[Page 437]]

also file the certification with the appropriate state program office. 
Such public entities receiving FTA funds under any other section of the 
FT Act must file the certification with the appropriate FTA regional 
office. This certification is valid for no longer than one year from its 
date of filing.

________________________________________________________________________
(name of authorized official)

________________________________________________________________________
(title)

________________________________________________________________________
(signature)

                  MPO Certification of Paratransit Plan

    The (name of Metropolitan Planning Organization) hereby certifies 
that it has reviewed the ADA paratransit plan prepared by (name of 
submitting entity (ies)) as required under 49 CFR part 37. 139(h) and 
finds it to be in conformance with the transportation plan developed 
under 49 CFR part 613 and 23 CFR part 450 (the FTA/FHWA joint planning 
regulation). This certification is valid for one year.

________________________________________________________________________
signature

________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

                   Existing Paratransit Service Survey

    This is to certify that (name of public entity (ies)) has conducted 
a survey of existing paratransit services as required by 49 CFR 37.137 
(a).

________________________________________________________________________
signature

________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

                     Included Service Certification

    This is to certify that service provided by other entities but 
included in the ADA paratransit plan submitted by (name of submitting 
entity (ies)) meets the requirements of 49 CFR part 37, subpart F 
providing that ADA eligible individuals have access to the service; the 
service is provided in the manner represented; and, that efforts will be 
made to coordinate the provision of paratransit service offered by other 
providers.

________________________________________________________________________
signature

________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

                       Joint Plan Certification I

    This is to certify that (name of entity covered by joint plan) is 
committed to providing ADA paratransit service as part of this 
coordinated plan and in conformance with the requirements of 49 CFR part 
37, subpart F.

________________________________________________________________________
signature

________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

                       Joint Plan Certification II

    This is to certify that (name of entity covered by joint plan) will, 
in accordance with 49 CFR 37.141, maintain current levels of paratransit 
service until the coordinated plan goes into effect.

________________________________________________________________________
signature

________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

            State Certification that Plans have been Received

    This is to certify that all ADA paratransit plans required under 49 
CFR 37.139 have been received by (state DOT)

________________________________________________________________________
signature


________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date



     Sec. Appendix D to Part 37--Construction and Interpretation of 
                      Provisions of 49 CFR Part 37

    This appendix explains the Department's construction and 
interpretation of provisions of 49 CFR part 37. It is intended to be 
used as definitive guidance concerning the meaning and implementation of 
these provisions. The appendix is organized on a section-by-section 
basis. Some sections of the rule are not discussed in the appendix, 
because they are self-

[[Page 438]]

explanatory or we do not currently have interpretive material to provide 
concerning them.
    The Department also provides guidance by other means, such as 
manuals and letters. The Department intends to update this Appendix 
periodically to include guidance, provided in response to inquiries 
about specific situations, that is of general relevance or interest.

                      Amendments to 49 CFR Part 27

    Section 27.67(d) has been revised to reference the Access Board 
facility guidelines (found in appendix A to part 37) as well as the 
Uniform Federal Accessibility Standard (UFAS). This change was made to 
ensure consistency between requirements under section 504 and the ADA. 
Several caveats relating to the application of UFAS (e.g., that spaces 
not used by the public or likely to result in the employment of 
individuals with disabilities would not have to meet the standards) have 
been deleted. It is the Department's understanding that provisions of 
the Access Board standards and part 37 make them unnecessary.
    The Department is aware that there is a transition period between 
the publication of this rule and the effective date of many of its 
provisions (e.g., concerning facilities and paratransit services) during 
which section 504 remains the basic authority for accessibility 
modifications. In this interval, the Department expects recipients' 
compliance with section 504 to look forward to compliance with the ADA 
provisions. That is, if a recipient is making a decision about the shape 
of its paratransit service between the publication of this rule and 
January 26, 1992, the decision should be in the direction of service 
that will help to comply with post-January 1992 requirements. A 
recipient that severely curtailed its present paratransit service in 
October, and then asked for a three- or five-year phase-in of service 
under its paratransit plan, would not be acting consistent with this 
policy.
    Likewise, the Department would view with disfavor any attempt by a 
recipient to accelerate the beginning of the construction, installation 
or alteration of a facility to before January 26, 1992, to ``beat the 
clock'' and avoid the application of this rule's facility standards. The 
Department would be very reluctant to approve grants, contracts, 
exemption requests etc., that appear to have this effect. The purpose of 
the Department's administration of section 504 is to ensure compliance 
with the national policy stated in the ADA, not to permit avoidance of 
it.

                           Subpart A--General

                        Section 37.3 Definitions

    The definition of ``commuter authority'' includes a list of commuter 
rail operators drawn from a statutory reference in the ADA. It should be 
noted that this list is not exhaustive. Other commuter rail operators 
(e.g., in Chicago or San Francisco) would also be encompassed by this 
definition.
    The definition of ``commuter bus service'' is important because the 
ADA does not require complementary paratransit to be provided with 
respect to commuter bus service operated by public entities. The 
rationale that may be inferred for the statutory exemption for this kind 
of service concerns its typical characteristics (e.g., no attempt to 
comprehensively cover a service area, limited route structure, limited 
origins and destinations, interface with another mode of transportation, 
limited purposes of travel). These characteristics can be found in some 
transportation systems other than bus systems oriented toward work 
trips. For example, bus service that is used as a dedicated connecter to 
commuter or intercity rail service, certain airport shuttles, and 
university bus systems share many or all of these characteristics. As 
explained further in the discussion of subpart B, the Department has 
determined that it is appropriate to cover these services with the 
requirements applicable to commuter bus systems.
    The definitions of ``designated public transportation'' and 
``specified public transportation'' exclude transportation by aircraft. 
Persons interested in matters concerning access to air travel for 
individuals with disabilities should refer to 14 CFR part 382, the 
Department's regulation implementing the Air Carrier Access Act. Since 
the facility requirements of this part refer to facilities involved in 
the provision of designated or specified public transportation, airport 
facilities are not covered by this part. DOJ makes clear that public and 
private airport facilities are covered under its title II and title III 
regulations, respectively.
    The examples given in the definition of ``facility'' all relate to 
ground transportation. We would point out that, since transportation by 
passenger vessels is covered by this rule and by DOJ rules, such vessel-
related facilities as docks, wharfs, vessel terminals, etc. fall under 
this definition. It is intended that specific requirements for vessels 
and related facilities will be set forth in future rulemaking.
    The definitions of ``fixed route system'' and ``demand responsive 
system'' derive directly from the ADA's definitions of these terms. Some 
systems, like a typical city bus system or a dial-a-ride van system, fit 
clearly into one category or the other. Other systems may not so clearly 
fall into one of the categories. Nevertheless, because how a system is 
categorized has consequences for the requirements it must meet, entities 
must determine, on a case-by-case basis, into which category their 
systems fall.

[[Page 439]]

    In making this determination, one of the key factors to be 
considered is whether the individual, in order to use the service, must 
request the service, typically by making a call.
    With fixed route service, no action by the individual is needed to 
initiate public transportation. If an individual is at a bus stop at the 
time the bus is scheduled to appear, then that individual will be able 
to access the transportation system. With demand-reponsive service, an 
additional step must be taken by the individual before he or she can 
ride the bus, i.e., the individual must make a telephone call.


(S. Rept. 101-116 at 54).

    Other factors, such as the presence or absence of published 
schedules, or the variation of vehicle intervals in anticipation of 
differences in usage, are less important in making the distinction 
between the two types of service. If a service is provided along a given 
route, and a vehicle will arrive at certain times regardless of whether 
a passenger actively requests the vehicle, the service in most cases 
should be regarded as fixed route rather than demand responsive.
    At the same time, the fact that there is an interaction between a 
passenger and transportation service does not necessarily make the 
service demand responsive. For many types of service (e.g., intercity 
bus, intercity rail) which are clearly fixed route, a passenger has to 
interact with an agent to buy a ticket. Some services (e.g., certain 
commuter bus or commuter rail operations) may use flag stops, in which a 
vehicle along the route does not stop unless a passenger flags the 
vehicle down. A traveler staying at a hotel usually makes a room 
reservation before hopping on the hotel shuttle. This kind of 
interaction does not make an otherwise fixed route service demand 
responsive.
    On the other hand, we would regard a system that permits user-
initiated deviations from routes or schedules as demand-responsive. For 
example, if a rural public transit system (e.g., a section 18 recipient) 
has a few fixed routes, the fixed route portion of its system would be 
subject to the requirements of subpart F for complementary paratransit 
service. If the entity changed its system so that it operated as a 
route-deviation system, we would regard it as a demand responsive 
system. Such a system would not be subject to complementary paratransit 
requirements.
    The definition of ``individual with a disability'' excludes someone 
who is currently engaging in the illegal use of drugs, when a covered 
entity is acting on the basis of such use. This concept is more 
important in employment and public accommodations contexts than it is in 
transportation, and is discussed at greater length in the DOJ and EEOC 
rules. Essentially, the definition says that, although drug addiction 
(i.e., the status or a diagnosis of being a drug abuser) is a 
disability, no one is regarded as being an individual with a disability 
on the basis of current illegal drug use.
    Moreover, even if an individual has a disability, a covered entity 
can take action against the individual if that individual is currently 
engaging in illegal drug use. For example, if a person with a mobility 
or vision impairment is ADA paratransit eligible, but is caught 
possessing or using cocaine or marijuana on a paratransit vehicle, the 
transit provider can deny the individual further eligibility. If the 
individual has successfully undergone rehabilitation or is no longer 
using drugs, as explained in the preamble to the DOJ rules, the transit 
provider could not continue to deny eligibility on the basis that the 
individual was a former drug user or still was diagnosed as a person 
with a substance abuse problem.
    We defined ``paratransit'' in order to note its specialized usage in 
the rule. Part 37 uses this term to refer to the complementary 
paratransit service comparable to public fixed route systems which must 
be provided. Typically, paratransit is provided in a demand responsive 
mode. Obviously, the rule refers to a wide variety of demand responsive 
services that are not ``paratransit,'' in this specialized sense.
    The ADA's definition of ``over-the-road bus'' may also be somewhat 
narrower than the common understanding of the term. The ADA definition 
focuses on a bus with an elevated passenger deck over a baggage 
compartment (i.e., a ``Greyhound-type'' bus). Other types of buses 
commonly referred to as ``over-the-road buses,'' which are sometimes 
used for commuter bus or other service, do not come within this 
definition. Only buses that do come within the definition are subject to 
the over-the-road bus exception to accessibility requirements in Title 
III of the ADA.
    For terminological clarity, we want to point out that two different 
words are used in ADA regulations to refer to devices on which 
individuals with hearing impairments communicate over telephone lines. 
DOJ uses the more traditional term ``telecommunications device for the 
deaf'' (TDD). The Access Board uses a newer term, ``text telephone.'' 
The DOT rule uses the terms interchangably.
    The definition of ``transit facility'' applies only with reference 
to the TDD requirement of appendix A to this Part. The point of the 
definition is to exempt from TDD requirements open structures, like bus 
shelters, or facilities which are not used primarily as transportation 
stops or terminals. For example, a drug store in a small town may sell 
intercity bus tickets, and people waiting for the bus may even wait for 
the bus inside the store. But the drug store's raison d'etre is

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not to be a bus station. Its transportation function is only incidental. 
Consequently, its obligations with respect to TDDs would be those 
required of a place of public accommodation by DOJ rules.
    A ``used vehicle'' means a vehicle which has prior use; prior, that 
is, to its acquisition by its present owner or lessee. The definition is 
not relevant to existing vehicles in one's own fleet, which were 
obtained before the ADA vehicle accessibility requirements took effect.
    A ``vanpool'' is a voluntary commuter ridesharing arrangement using 
a van with a seating capacity of more than seven persons, including the 
driver. Carpools are not included in the definition. There are some 
systems using larger vehicles (e.g., buses) that operate, in effect, as 
vanpools. This definition encompasses such systems. Vanpools are used 
for daily work trips, between commuters' homes (or collection points 
near them) and work sites (or drop points near them). Drivers are 
themselves commuters who are either volunteers who receive no 
compensation for their efforts or persons who are reimbursed by other 
riders for the vehicle, operating, and driving costs.
    The definition of ``wheelchair'' includes a wide variety of mobility 
devices. This inclusiveness is consistent with the legislative history 
of the ADA (See S. Rept. 101-116 at 48). While some mobility devices may 
not look like many persons' traditional idea of a wheel chair, three and 
four wheeled devices, of many varied designs, are used by individuals 
with disabilities and must be transported. The definition of ``common 
wheelchair,'' developed by the Access Board, is intended to help transit 
providers determine which wheelchairs they have to carry. The definition 
involves an ``envelope'' relating to the Access Board requirements for 
vehicle lifts.
    A lift conforming to Access Board requirements is 
30x48 and capable of lifting a wheelchair/occupant 
combination of up to 600 pounds. Consequently, a common wheelchair is 
one that fits these size and weight dimensions. Devices used by 
individuals with disabilities that do not fit this envelope (e.g., may 
``gurneys'') do not have to be carried.

                     Section 37.5 Nondiscrimination

    This section states the general nondiscrimination obligation for 
entities providing transportation service. It should be noted that 
virtually all public and private entities covered by this regulation are 
also covered by DOJ regulations, which have more detailed statements of 
general nondiscrimination obligations.
    Under the ADA, an entity may not consign an individual with 
disabilities to a separate, ``segregated,'' service for such persons, if 
the individual can in fact use the service for the general public. This 
is true even if the individual takes longer, or has more difficulty, 
than other persons in using the service for the general public.
    One instance in which this principal applies concerns the use of 
designated priority seats (e.g., the so-called ``elderly and 
handicapped'' seats near the entrances to buses). A person with a 
disability (e.g., a visual impairment) may choose to take advantage of 
this accommodation or not. If not, it is contrary to rule for the entity 
to insist that the individual must sit in the priority seats.
    The prohibition on special charges applies to charges for service to 
individuals with disabilities that are higher than charges for the same 
or comparable services to other persons. For example, if a shuttle 
service charges $20.00 for a ride from a given location to the airport 
for most people, it could not charge $40.00 because the passenger had a 
disability or needed to use the shuttle service's lift-equipped van. 
Higher mileage charges for using an accessible vehicle would likewise be 
inconsistent with the rule. So would charging extra to carry a service 
animal accompanying an individual with a disability.
    If a taxi company charges $1.00 to stow luggage in the trunk, it 
cannot charge $2.00 to stow a folding wheelchair there. This provision 
does not mean, however, that a transportation provider cannot charge 
nondiscriminatory fees to passengers with disabilities. The taxi company 
in the above example can charge a passenger $1.00 to stow a wheelchair 
in the trunk; it is not required to waive the charge. This section does 
not prohibit the fares for paratransit service which transit providers 
are allowed to charge under Sec. 37.131(d).
    A requirement for an attendant is inconsistent with the general 
nondiscrimination principle that prohibits policies that unnecessarily 
impose requirements on individuals with disabilities that are not 
imposed on others. Consequently, such requirements are prohibited. An 
entity is not required to provide attendant services (e.g., assistance 
in toileting, feeding, dressing), etc.
    This provision must also be considered in light of the fact that an 
entity may refuse service to someone who engages in violent, seriously 
disruptive, or illegal conduct. If an entity may legitimately refuse 
service to someone, it may condition service to him on actions that 
would mitigate the problem. The entity could require an attendant as a 
condition of providing service it otherwise had the right to refuse.
    The rule also points out that involuntary conduct related to a 
disability that may offend or annoy other persons, but which does not 
pose a direct treat, is not a basis for refusal of transportation. For 
example, some persons with Tourette's syndrome may make involuntary 
profane exclamations. These may be very annoying or offensive to others,

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but would not be a ground for denial of service. Nor would it be 
consistent with the nondiscrimination requirements of this part to deny 
service based on fear or misinformation about the disability. For 
example, a transit provider could not deny service to a person with HIV 
disease because its personnel or other passengers are afraid of being 
near people with that condition.
    This section also prohibits denials of service or the placing on 
services of conditions inconsistent with this part on individuals with 
disabilities because of insurance company policies or requirements. If 
an insurance company told a transit provider that it would withdraw 
coverage, or raise rates, unless a transit provider refused to carry 
persons with disabilities, or unless the provider refused to carry 
three-wheeled scooters, this would not excuse the provider from 
providing the service as mandate by this part. This is not a regulatory 
requirement on insurance companies, but simply says that covered 
entities must comply with this part, even in the face of difficulties 
with their insurance companies.

             Section 37.7 Standards for Accessible Vehicles

    This section makes clear that, in order to meet accessibility 
requirements of this rule, vehicles must comply with Access Board 
standards, incorporated in DOT rules as 49 CFR part 38. Paragraph (b) of 
Sec. 37.7 spells out a procedure by which an entity (public or private) 
can deviate from provisions of part 38 with respect to vehicles. The 
entity can make a case to the Administrator that it is unable to comply 
with a particular portion of part 38, as written, for specified reasons, 
and that it is providing comparable compliance by some alternative 
method. The entity would have to describe how its alternative mode of 
compliance would meet or exceed the level of access to or usability of 
the vehicle that compliance with part 38 would otherwise provide.
    It should be noted that equivalent facilitation does not provide a 
means to get a waiver of accessibility requirements. Rather, it is a way 
in which comparable (not a lesser degree of) accessibility can be 
provided by other means. The entity must consult with the public through 
some means of public participation in devising its alternative form of 
compliance, and the public input must be reflected in the submission to 
the Administrator (or the Federal Railroad Administrator in appropriate 
cases, such as a request concerning Amtrak). The Administrator will make 
a case-by-case decision about whether compliance with part 38 was 
achievable and, if not, whether the proffered alternative complies with 
the equivalent facilitation standard. DOT intends to consult with the 
Access Board in making these determinations.
    This equivalent facilitation provision can apply to buses or other 
motor vehicles as well as to rail cars and vehicles. An example of what 
could be an equivalent facilitation would concern rail cars which would 
leave too wide a horizontal gap between the door and the platform. If 
the operator used a combination of bridgeplates and personnel to bridge 
the gap, it might be regarded as an equivalent facilitation in 
appropriate circumstances.
    Section 37.7(c) clarifies which specifications must be complied with 
for over-the-road buses purchased by public entities (under subpart D of 
part 37) or private entities standing in the shoes of the public entity 
(as described in Sec. 37.23 of part 37). This section is necessary to 
make clear that over-the-road coaches must be accessible, when they are 
purchased by or in furtherance of a contract with a public entity. While 
the October 4, 1990 rule specified that over-the-road coaches must be 
accessible under these circumstances, we had not previously specified 
what constitutes accessibility.
    Accordingly, this paragraph specifies that an over-the-road bus must 
have a lift which meets the performance requirements of a regular bus 
lift (see Sec. 38.23) and must meet the interim accessibility features 
specified for all over-the-road buses in part 3, subpart G.

          Section 37.9 Standards for Transportation Facilities

    This section makes clear that, in order to meet accessibility 
requirements of this rule, vehicles must comply with appendix A to part 
37, which incorporates the Access Board facility guidelines.
    Paragraph (b) of Sec. 37.9 provides that, under certain 
circumstances, existing accessibility modifications to key station 
facilities do not need to be modified further in order to conform to 
appendix A. This is true even if the standards under which the facility 
was modified differ from the Access Board guidelines or provide a lesser 
standard of accessibility.
    To qualify for this ``grandfathering,'' alterations must have been 
before January 26, 1992. As in other facility sections of the rule, an 
alteration is deemed to begin with the issuance of a notice to proceed 
or work order. The existing modifications must conform to ANSI A-117.1, 
Specifications for Making Buildings and Facilities Accessible to and 
Usable by the Physically Handicapped 1980, or the Uniform Federal 
Accessibility Standard. (UFAS).
    For example, if an entity used a Federal grant or loan or money to 
make changes to a building, it would already have had to comply with the 
Uniform Federal Accessibility Standards. Likewise, if a private entity, 
acting without any Federal money in the project, may have complied with 
the ANSI A117.1 standard. So long as the work was

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done in conformity with the standard that was in effect when the work 
was done, the alteration will be considered accessible.
    However, because one modification was made to a facility under one 
of these standards, the entity still has a responsibility to make other 
modifications needed to comply with applicable accessibility 
requirements. For example, if an entity has made some modifications to a 
key station according to one of these older standards, but the 
modifications do not make the key station entirely accessible as this 
rule requires, then additional modifications would have to be made 
according to the standards of appendix A. Suppose this entity has put an 
elevator into the station to make it accessible to individuals who use 
wheelchairs. If the elevator does not fully meet appendix A standards, 
but met the applicable ANSI standard when it was installed, it would not 
need further modifications now. But if it had not already done so, the 
entity would have to install a tactile strip along the platform edge in 
order to make the key station fully accessible as provided in this rule. 
The tactile strip would have to meet appendix A requirements.
    The rule specifically provides that ``grandfathering'' applies only 
to alterations of individual elements and spaces and only to the extent 
that provisions covering those elements or spaces are found in UFAS or 
AHSI A117.1. For example, alterations to the telephones in a key station 
may have been carried out in order to lower them to meet the 
requirements of UFAS, but telecommunications devices for the deaf (TDDs) 
were not installed. (Neither UFAS nor the ANSI standard include 
requirements concerning TDDs). However, because appendix A does contain 
TDD requirements, the key station must now be altered in accordance with 
the standards for TDDs. Similarly, earlier alteration of an entire 
station in accordance with UFAS or the ANSI standard would not relieve 
an entity from compliance with any applicable provision concerning the 
gap between the platform between the platform and the vehicle in a key 
station, because neither of these two standards addresses the interface 
between vehicle and platform.
    New paragraph (c) of this section clarifies a provision of the 
Access Board's standards concerning the construction of bus stop pads at 
bus stops. The final Access Board standard (found at section 10.2.1(1) 
of appendix A to part 37) has been rewritten slightly to clear up 
confusion about the perceived necessary construction of a bus stop pad. 
Section 10.2.1(1) does not require that anyone build a bus stop pad; it 
does specify what a bus stop pad must look like, if it is constructed. 
The further clarifying language in Sec. 37.9(c) explains that public 
entities must exert control over the construction of bus stop pads if 
they have the ability to do so. The Access Board, as well as DOT, 
recognize that most physical improvements related to bus stops are out 
of the control of the transit provider. Paragraph (c) of Sec. 37.9 
merely notes that where a transit provider does have control over the 
construction, it must exercise that control to ensure that the pad meets 
these specifications.
    One further clarification concerning the implication of this 
provision deals with a bus loading island at which buses pull up on both 
sides of the island. It would be possible to read the bus pad 
specification to require the island to be a minimum of 84 inches wide 
(two widths of a bus stop pad), so that a lift could be deployed from 
buses on both sides of the island at the same time. A double-wide bus 
pad, however, is likely to exceed available space in most instances.
    Where there is space, of course, building a double-wide pad is one 
acceptable option under this rule. However, the combination of a pad of 
normal width and standard operational practices may also suffice. (Such 
practices could be offered as an equivalent facilitation.) For example, 
buses on either side of the island could stop at staggered locations 
(i.e., the bus on the left side could stop several feet ahead of the bus 
on the right side), so that even when buses were on both sides of the 
island at once, their lifts could be deployed without conflict. Where it 
is possible, building the pad a little longer than normal size could 
facilitate such an approach. In a situation where staggered stop areas 
are not feasible, an operational practice of having one bus wait until 
the other's lift cycle had been completed could do the job. Finally, the 
specification does not require that a pad be built at all. If there is 
nothing that can be done to permit lift deployment on both sides of an 
island, the buses can stop on the street, or some other location, so 
long as the lift is deployable.
    Like Sec. 37.7, this section contains a provision allowing an 
entity to request approval for providing accessibility through an 
equivalent facilitation.

                Section 37.11 Administrative Enforcement

    This section spells out administrative means of enforcing the 
requirements of the ADA. Recipients of Federal financial assistance from 
DOT (whether public or private entities) are subject to DOT's section 
504 enforcement procedures. The existing procedures, including 
administrative complaints to the DOT Office of Civil Rights, 
investigation, attempts at conciliation, and final resort to proceedings 
to cut off funds to a noncomplying recipient, will continue to be used.
    In considering enforcement matters, the Department is guided by a 
policy that emphasizes compliance. The aim of enforcement action, as we 
see it, is to make sure that entities meet their obligations, not to 
impose

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sanctions for their own sake. The Department's enforcement priority is 
on failures to comply with basic requirements and ``pattern or 
practice'' kinds of problems, rather than on isolated operational 
errors.
    Under the DOJ rules implementing title II of the ADA (28 CFR part 
35), DOT is a ``designated agency'' for enforcement of complaints 
relating to transportation programs of public entities, even if they do 
not receive Federal financial assistance. When it receives such a 
complaint, the Department will investigate the complaint, attempt 
conciliation and, if conciliation is not possible, take action under 
section 504 and/or refer the matter to the DOJ for possible further 
action.
    Title III of the ADA does not give DOT any administrative 
enforcement authority with respect to private entities whose 
transportation services are subject to part 37. In its title III rule 
(28 CFR part 36), DOJ assumes enforcement responsibility for all title 
III matters. If the Department of Transportation receives complaints of 
violations of part 37 by private entities, it will refer the matters to 
the DOJ.
    It should be pointed out that the ADA includes other enforcement 
options. Individuals have a private right of action against entities who 
violate the ADA and its implementing regulations. The DOJ can take 
violators to court. These approaches are not mutually exclusive with the 
administrative enforcement mechanisms described in this section. An 
aggrieved individual can complain to DOT about an alleged transportation 
violation and go to court at the same time. Use of administrative 
enforcement procedures is not, under titles II and III, an 
administrative remedy that individuals must exhaust before taking legal 
action.
    We also would point out that the ADA does not assert any blanket 
preemptive authority over state or local nondiscrimination laws and 
enforcement mechanisms. While requirements of the ADA and this 
regulation would preempt conflicting state or local provisions (e.g., a 
building code or zoning ordinance that prevents compliance with appendix 
A or other facility accessibility requirements, a provision of local law 
that said bus drivers could not leave their seats to help secure 
wheelchair users), the ADA and this rule do not prohibit states and 
localities from legislating in areas relating to disability. For 
example, if a state law requires a higher degree of service than the 
ADA, that requirement could still be enforced. Also, states and 
localities may continue to enforce their own parallel requirements. For 
example, it would be a violation of this rule for a taxi driver to 
refuse to pick up a person based on that person's disability. Such a 
refusal may also be a violation of a county's taxi rules, subjecting the 
violator to a fine or suspension of operating privileges. Both ADA and 
local remedies could proceed in such a case.
    Labor-management agreements cannot stand in conflict with the 
requirements of the ADA and this rule. For example, if a labor-
management agreement provides that vehicle drivers are not required to 
provide assistance to persons with disabilities in a situation in which 
this rule requires such assistance, then the assistance must be provided 
notwithstanding the agreement. Labor and management do not have the 
authority to agree to violate requirements of Federal law.

  Section 37.13 Effective Date for Certain Vehicle Lift Specifications.

    This section contains an explicit statement of the effective date 
for vehicle lift platform specifications. The Department has decided to 
apply the new part 38 lift platform specifications to solicitations 
after January 25, 1992. As in the October 4, 1990, rule implementing the 
acquisition requirements; the date of a solicitation is deemed to be the 
closing date for the submission of bids or offers in a procurement.

                        Subpart B--Applicability

                  Section 37.21 Applicability--General

    This section emphasizes the broad applicability of part 37. Unlike 
section 504, the ADA and its implementing rules apply to entities 
whether or not they receive Federal financial assistance. They apply to 
private and public entities alike. For entities which do receive Federal 
funds, compliance with the ADA and part 37 is a condition of compliance 
with section 504 and 49 CFR part 27, DOT's section 504 rule.
    Virtually all entities covered by this rule also are covered by DOJ 
rules, either under 28 CFR part 36 as state and local program providers 
or under 28 CFR part 35 as operators of places of public accommodation. 
Both sets of rules apply; one does not override the other. The DOT rules 
apply only to the entity's transportation facilities, vehicles, or 
services; the DOJ rules may cover the entity's activities more broadly. 
For example, if a public entity operates a transit system and a zoo, 
DOT's coverage would stop at the transit system's edge, while DOJ's rule 
would cover the zoo as well.
    DOT and DOJ have coordinated their rules, and the rules have been 
drafted to be consistent with one another. Should, in the context of 
some future situation, there be an apparent inconsistency between the 
two rules, the DOT rule would control within the sphere of 
transportation services, facilities and vehicles.

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                  Section 37.23 Service Under Contract

    This section requires private entities to ``stand in the shoes'' of 
public entities with whom they contract to provide transportation 
services. It ensures that, while a public entity may contract out its 
service, it may not contract away its ADA responsibilities. The 
requirement applies primarily to vehicle acquisition requirements and to 
service provision requirements.
    If a public entity wishes to acquire vehicles for use on a commuter 
route, for example, it must acquire accessible vehicles. It may acquire 
accessible over-the-road buses, it may acquire accessible full-size 
transit buses, it may acquire accessible smaller buses, or it may 
acquire accessible vans. It does not matter what kind of vehicles it 
acquires, so long as they are accessible. On the other hand, if the 
public entity wants to use inaccessible buses in its existing fleet for 
the commuter service, it may do so. All replacement vehicles acquired in 
the future must, of course, be accessible.
    Under this provision, a private entity which contracts to provide 
this commuter service stands in the shoes of the public entity and is 
subject to precisely the same requirements (it is not required to do 
more than the public entity). If the private entity acquires vehicles 
used to provide the service, the vehicles must be accessible. If it 
cannot, or chooses not to, acquire an accessible vehicle of one type, it 
can acquire an accessible vehicle of another type. Like the public 
entity, it can provide the service with inaccessible vehicles in its 
existing fleet.
    The import of the provision is that it requires a private entity 
contracting to provide transportation service to a public entity to 
follow the rules applicable to the public entity. For the time being, a 
private entity operating in its own right can purchase a new over-the-
road bus inaccessible to individuals who use wheelchairs. When that 
private entity operates service under contract to the public entity, 
however, it is just as obligated as the public entity itself to purchase 
an accessible bus for use in that service, whether or not it is an over-
the-road bus.
    The ``stand in the shoes'' requirement applies not only to vehicles 
acquired by private entities explicitly under terms of an executed 
contract to provide service to a public entity, but also to vehicles 
acquired ``in contemplation of use'' for service under such a contract. 
This language is included to ensure good faith compliance with 
accessibility requirements for vehicles acquired before the execution of 
a contract. Whether a particular acquisition is in contemplation of use 
on a contract will be determined on a case-by-case basis. However, 
acquiring a vehicle a short time before a contract is executed and then 
using it for the contracted service is an indication that the vehicle 
was acquired in contemplation of use on the contract, as is acquiring a 
vehicle obstensibly for other service provided by the entity and then 
regularly rotating it into service under the contract.
    The ``stand in the shoes'' requirement is applicable only to the 
vehicles and service (public entity service requirements, like Sec. 
37.163, apply to a private entity in these situations) provided under 
contract to a public entity. Public entity requirements clearly do not 
apply to all phases of a private entity's operations, just because it 
has a contract with a public entity. For example, a private bus company, 
if purchasing buses for service under contract to a public entity, must 
purchase accessible buses. The same company, to the extent permitted by 
the private entity provisions of this part, may purchase inaccessible 
vehicles for its tour bus operations.
    The Department also notes that the ``stands in the shoes'' 
requirement may differ depending on the kind of service involved. The 
public entity's ``shoes'' are shaped differently, for example, depending 
on whether the public entity is providing fixed route or demand 
responsive service to the general public. In the case of demand 
responsive service, a public entity is not required to buy an accessible 
vehicle if its demand responsive system, when viewed in its entirety, 
provides service to individuals with disabilities equivalent to its 
service to other persons. A private contractor providing a portion of 
this paratransit service would not necessarily have to acquire an 
accessible vehicle if this equivalency test is being met by the system 
as a whole. Similarly, a public entity can, after going through a ``good 
faith efforts'' search, acquire inaccessible buses. A private entity 
under contract to the public can do the same. ``Stand in the shoes'' may 
also mean that, under some circumstances, a private contractor need not 
acquire accessible vehicles. If a private company contracts with a 
public school district to provide school bus service, it is covered, for 
that purpose, by the exemption for public school transportation.
    In addition, the requirement that a private entity play by the rules 
applicable to a public entity can apply in situations involving an 
``arrangement or other relationship'' with a public entity other than 
the traditional contract for service. For example, a private utility 
company that operates what is, in essence, a regular fixed route public 
transportation system for a city, and which receives section 3 or 9 
funds from FTA via an agreement with a state or local government agency, 
would fall under the provisions of this section. The provider would have 
to comply with the vehicle acquisition, paratransit, and service 
requirements that would apply to the public entity through which it 
receives the FTA funds, if that public entity operated the system 
itself. The Department

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would not, however, construe this section to apply to situations in 
which the degree of FTA funding and state and local agency involvement 
is considerably less, or in which the system of transportation involved 
is not a de facto surrogate for a traditional public entity fixed route 
transit system serving a city (e.g., a private non-profit social service 
agency which receives FTA section 16(b)(2) funds to purchase a vehicle).
    This section also requires that a public entity not diminish the 
percentage of accessible vehicles in its fleet through contracting. For 
example, suppose a public entity has 100 buses in its fleet, of which 20 
are accessible, meaning that 20 percent of its fleet is accessible. The 
entity decides to add a fixed route, for which a contractor is engaged. 
The contractor is supplying ten of its existing inaccessible buses for 
the fixed route. To maintain the 20 percent accessibility ratio, there 
would have to be 22 accessible buses out of the 110 buses now in 
operation in carrying out the public entity's service. The public entity 
could maintain its 20 percent level of accessibility through any one or 
more of a number of means, such as having the contractor to provide two 
accessible buses, retrofitting two if its own existing buses, or 
accelerating replacement of two of its own inaccessible buses with 
accessible buses.
    This rule applies the ``stand in the shoes'' principle to 
transactions wholly among private entities as well. For example, suppose 
a taxi company (a private entity primarily engaged in the business of 
transporting people) contracts with a hotel to provide airport shuttle 
van service. With respect to that service, the taxi company would be 
subject to the requirements for private entities not primarily in the 
business of transporting people, since it would be ``standing in the 
shoes'' of the hotel for that purpose.

             Section 37.25 University Transportation Systems

    Private university-operated transportation systems are subject to 
the requirements of this rule for private entities not primarily engaged 
in the business of transporting people. With one important exception, 
public university-operated transportation systems are subject to the 
requirements of the rule for public entities. The nature of the systems 
involved--demand-responsive or fixed route--determines the precise 
requirements involved.
    For public university fixed route systems, public entity 
requirements apply. In the case of fixed route systems, the requirements 
for commuter bus service would govern. This has the effect of requiring 
the acquisition of accessible vehicles and compliance with most other 
provisions of the rule, but does not require the provision of 
complementary paratransit or submitting a paratransit plan. As a result, 
private and public universities will have very similar obligations under 
the rule.

  Section 37.27 Transportation for Elementary and Secondary Education 
                                 Systems

    This section restates the statutory exemption from public entity 
requirements given to public school transportation. This extension also 
applies to transportation of pre-school children to Head Start or 
special education programs which receive Federal assistance. It also 
applies to arrangements permitting pre-school children of school bus 
drivers to ride a school bus or allowing teenage mothers to be 
transported to day care facilities at a school or along a school bus 
route so that their mothers may continue to attend school (See H. Rept. 
101-485, pt. 1 at 27). The situation for private schools is more 
complex. According to the provision, a private elementary or secondary 
school's transportation system is exempt from coverage under this rule 
if all three of the following conditions are met: (1) The school 
receives Federal financial assistance; (2) the school is subject to 
section 504; and (3) the school's transportation system provides 
transportation services to individuals with disabilities, including 
wheelchair users, equivalent to those provided to individuals without 
disabilities. The test of equivalency is the same as that for other 
private entities, and is described under Sec. 37.105. If the school 
does not meet all these criteria, then it is subject to the requirements 
of Part 37 for private entities not primarily engaged in the business of 
transporting people.
    The Department notes that, given the constitutional law on church-
state separation, it is likely that church-affiliated private schools do 
not receive Federal financial assistance. To the extent that these 
schools' transportation systems are operated by religious entities or 
entities controlled by religious organizations, they are not subject to 
the ADA at all, so this section does not apply to them.

             Section 37.29 Private Providers of Taxi Service

    This section first recites that providers of taxi service are 
private entities primarily engaged in the business of transporting 
people which provide demand responsive service. For purposes of this 
section, other transportation services that involve calling for a car 
and a driver to take one places (e.g., limousine services, of the kind 
that provide luxury cars and chauffeurs for senior proms and analogous 
adult events) are regarded as taxi services.
    Under the ADA, no private entity is required to purchase an 
accessible automobile. If a taxi company purchases a larger vehicle, 
like a van, it is subject to the same rules as any other private entity 
primarily engaged

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in the business of transporting people which operates a demand 
responsive service. That is, unless it is already providing equivalent 
service, any van it acquires must be accessible. Equivalent service is 
measured according to the criteria of Sec. 37.105. Taxi companies are 
not required to acquire vehicles other than automobiles to add 
accessible vehicles to their fleets.
    Taxi companies are subject to nondiscrimination obligations. These 
obligations mean, first, that a taxi service may not deny a ride to an 
individual with a disability who is capable of using the taxi vehicles. 
It would be discrimination to pass up a passenger because he or she was 
blind or used a wheelchair, if the wheelchair was one that could be 
stowed in the cab and the passenger could transfer to a vehicle seat. 
Nor could a taxi company insist that a wheelchair user wait for a lift-
equipped van if the person could use an automobile.
    It would be discrimination for a driver to refuse to assist with 
stowing a wheelchair in the trunk (since taxi drivers routinely assist 
passengers with stowing luggage). It would be discrimination to charge a 
higher fee or fare for carrying a person with a disability than for 
carrying a non-disabled passenger, or a higher fee for stowing a 
wheelchair than for stowing a suitcase. (Charging the same fee for 
stowing a wheelchair as for stowing a suitcase would be proper, 
however.) The fact that it may take somewhat more time and effort to 
serve a person with a disability than another passenger does not justify 
discriminatory conduct with respect to passengers with disabilities.
    State or local governments may run user-side subsidy arrangements 
for the general public (e.g., taxi voucher systems for senior citizens 
or low-income persons). Under the DOJ title II rule, these programs 
would have to meet ``program accessibility'' requirements, which 
probably would require that accessible transportation be made available 
to senior citizens or low-income persons with disabilities. This would 
not directly require private taxi providers who accept the vouchers to 
purchase accessible vehicles beyond the requirements of this rule, 
however.

                         Section 37.31 Vanpools

    This provision applies to public vanpool systems the requirements 
for public entities operating demand responsive systems for the general 
public. A public vanpool system is one operated by a public entity, or 
in which a public entity owns or purchases or leases the vehicles. 
Lesser degrees of public involvement with an otherwise private 
ridesharing arrangement (e.g., provision of parking spaces, HOV lanes, 
coordination or clearinghouse services) do not convert a private into a 
public system.
    The requirement for a public vanpool system is that it purchase or 
lease an accessible vehicle unless it can demonstrate that it provides 
equivalent service to individuals with disabilities, including 
individuals who use wheelchairs, as it provides to individuals without 
disabilities. For a public vanpool system, the equivalency requirement 
would be met if an accessible vehicle is made available to and used by a 
vanpool when an individual with a disability needs such a vehicle to 
participate. Public vanpool systems may meet this requirement through 
obtaining a percentage of accessible vehicles that is reasonable in 
light of demand for them by participants, but this is not required, so 
long as the entity can respond promptly to requests for participation in 
a vanpool with the provision of an accessible van when needed.
    There is no requirement for private vanpools, defined as a voluntary 
arrangement in which the driver is compensated only for expenses.

              Section 37.33 Airport Transportation Systems

    Fixed route transportation systems operated by public airports are 
regarded by this section as fixed route commuter bus systems. As such, 
shuttles among terminals and parking lots, connector systems among the 
airport and a limited number of other local destinations must acquire 
accessible buses, but are not subject to complementary paratransit 
requirements. (If a public airport operates a demand responsive system 
for the general public, it would be subject to the rules for demand 
responsive systems for the general public.)
    It should be noted that this section applies only to transportation 
services that are operated by public airports themselves (or by private 
contractors who stand in their shoes). When a regular urban mass transit 
system serves the airport, the airport is simply one portion of its 
service area, treated for purposes of this rule like the rest of its 
service area.
    Virtually all airports are served by taxi companies, who are subject 
to Sec. 37.29 at airports as elsewhere. In addition, many airports are 
served by jitney or shuttle systems. Typically, these systems operate in 
a route-deviation or similar variable mode in which there are passenger-
initiated decisions concerning destinations. We view such systems as 
demand responsive transportation operated by private entities primarily 
engaged in the business of transporting people.
    Since many of these operators are small businesses, it may be 
difficult for them to meet equivalency requirements on their own without 
eventually having all or nearly all accessible vehicles, which could 
pose economic problems. One suggested solution to this problem is for 
the operators serving a given airport to form a pool or consortium 
arrangement, in which a number of shared accessible vehicles would meet 
the transportations of individuals with disabilities. As in

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other forms of transportation, such an arrangement would have to provide 
service in a nondiscriminatory way (e.g., in an integrated setting, no 
higher fares for accessible service).

    Section 37.35 Supplemental Service for Other Transportation Modes

    This section applies to a number of situations in which an operator 
of another transportation mode uses bus or other service to connect its 
service with limited other points.
    One instance is when an intercity railroad route is set up such that 
the train stops outside the major urban center which is the actual 
destination for many passengers. Examples mentioned to us include bus 
service run by Amtrak from a stop in Columbus, Wisconsin, to downtown 
Madison, or from San Jose to San Francisco. Such service is fixed route, 
from the train station to a few points in the metropolitan area, with a 
schedule keyed to the train schedule. It would be regarded as commuter 
bus service, meaning that accessible vehicles would have to be acquired 
but complementary paratransit was not required.
    Another instance is one in which a commuter rail operator uses fixed 
route bus service as a dedicated connection to, or extension of, its 
rail service. The service may go to park and ride lots or other 
destinations beyond the vicinity of the rail line. Again, this service 
shares the characteristics of commuter bus service that might be used 
even if the rail line were not present, and does not attempt to be a 
comprehensive mass transit bus service for the area.
    Of course, there may be instances in which a rail operator uses 
demand responsive instead of fixed route service for a purpose of this 
kind. In that case, the demand responsive system requirements of the 
rule would apply.
    Private entities (i.e., those operating places of public 
accommodation) may operate similar systems, as when a cruise ship 
operator provides a shuttle or connector between an airport and the 
dock. This service is covered by the rules governing private entities 
not primarily engaged in the business of transporting people. Fixed 
route or demand responsive rules apply, depending on the characteristics 
of the system involved.
    One situation not explicitly covered in this section concerns ad hoc 
transportation arranged, for instance, by a rail operator when the train 
does not wind up at its intended destination. For example, an Amtrak 
train bound for Philadelphia may be halted at Wilmington by a track 
blockage between the two cities. Usually, the carrier responds by 
providing bus service to the scheduled destination or to the next point 
where rail service can resume.
    The service that the carrier provides in this situation is 
essentially a continuation by other means of its primary service. We 
view the obligation of the rail operator as being to ensure that all 
passengers, including individuals with disabilities, are provided 
service to the destination in a nondiscriminatory manner. This includes, 
for instance, providing service in the most integrated setting 
appropriate to the needs of the individual and service that gets a 
passenger with a disability to the destination as soon as other 
passengers.

                    Section 37.37 Other Applications

    The ADA specifically defines ``public entity.'' Anything else is a 
``private entity.'' The statute does not include in this definition a 
private entity that receives a subsidy or franchise from a state or 
local government or is regulated by a public entity. Only through the 
definition of ``operates'' (see discussion of Sec. 37.23) do private 
entities' relationships to public entities subject private entities to 
the requirements for public entities. Consequently, in deciding which 
provisions of the rule to apply to an entity in other than situations 
covered by Sec. 37.23, the nature of the entity--public or private--is 
determinative.
    Transportation service provided by public accommodations is viewed 
as being provided by private entities not primarily engaged in the 
business of transporting people. Either the provisions of this part 
applicable to demand responsive or fixed route systems apply, depending 
on the nature of a specific system at a specific location. The 
distinction between fixed route and demand responsive systems is 
discussed in connection with the definitions section above. It is the 
responsibility of each private entity, in the first instance, to assess 
the nature of each transportation system on a case-by-case basis and 
determine the applicable rules.
    On the other hand, conveyances used for recreational purposes, such 
as amusement park rides, ski lifts, or historic rail cars or trolleys 
operated in museum settings, are not viewed as transportation under this 
rule at all. Other conveyances may fit into this category as well.
    The criterion for determining what requirements apply is whether the 
conveyances are primarily an aspect of the recreational experience 
itself or a means of getting from Point A to Point B. At a theme park, 
for instance, a large roller coaster (though a ``train'' of cars on a 
track) is a public accommodation not subject to this rule; the tram that 
transports the paying customers around the park, with a stop at the 
roller coaster, is a transportation system subject to the ``private, not 
primarily'' provisions of this part.
    Employer-provided transportation for employees is not covered by 
this part, but by EEOC rules under title I of the ADA. (Public entities 
are also subject to DOJ's title II

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rules with respect to employment.) This exclusion from part 37 applies 
to transportation services provided by an employer (whether access to 
motor pool vehicles, parking shuttles, employer-sponsored van pools) 
that is made available solely to its own employees. If an employer 
provides service to its own employees and other persons, such as workers 
of other employers or customers, it would be subject to the requirements 
of this part from private entities not primarily engaged in the business 
of transporting people or public entities, as applicable.
    The rule looks to the private entity actually providing the 
transportation service in question in determining whether the ``private, 
primarily'' or ``private, not primarily'' rules apply. For example, 
Conglomerate, Inc., owns a variety of agribusiness, petrochemical, 
weapons system production, and fast food corporations. One of its many 
subsidiaries, Green Tours, Inc., provides charter bus service for people 
who want to view national parks, old-growth forests, and other 
environmentally significant places. It is probably impossible to say in 
what business Conglomerate, Inc. is primarily engaged, but it clearly is 
not transporting people. Green Tours, Inc., on the other hand, is 
clearly primarily engaged in the business of transporting people, and 
the rule treats it as such.
    On the other hand, when operating a transportation service off to 
the side of to the main business of a public accommodation (e.g., a 
hotel shuttle), the entity as a whole would be considered. Even if some 
dedicated employees are used to provide the service, shuttles and other 
systems provided as a means of getting to, from, or around a public 
accommodation remain solidly in the ``private, not primarily'' category.

                  Subpart C--Transportation Facilities

   Section 37.41 Construction of Transportation Facilities by Public 
                                Entities

    Section 37.41 contains the general requirement that all new 
facilities constructed after January 25, 1992, be accessible to and 
usable by individuals with disabilities. This provision tracks the 
statute closely, and is analogous to a provision in the DOJ regulations 
for private entities. Section 226 of the ADA provides little discretion 
in this requirement.
    The requirement is keyed to construction which ``begins'' after 
January 25, 1992. The regulation defines ``begin'' to mean when a notice 
to proceed order has been issued. This term has a standard meaning in 
the construction industry, as an instruction to the contractor to 
proceed with the work.
    Questions have been raised concerning which standards apply before 
January 26, 1992. There are Federal requirements that apply to all 
recipients of federal money, depending on the circumstances.
    First, if an entity is a Federal recipient and uses Federal dollars 
to construct the facility, regulations implementing section 504 of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), require the recipient to 
comply with the Uniform Federal Accessibility Standards.
    Second, since the Civil Rights Restoration Act of 1987 (Pub. L. 100-
259), an operation of a recipient of federal funds would also have to 
comply with section 504, even though the activity was not paid for with 
Federal funds. Thus, the Uniform Federal Accessibility Standards would 
apply to this construction as well.
    As mentioned above, the Department intends, in the period before 
January 26, 1991, to view compliance with section 504 in light of 
compliance with ADA requirements (this point applies to alterations as 
well as new construction). Consequently, in reviewing requests for 
grants, contract approvals, exemptions, etc., (whether with respect to 
ongoing projects or new, experimental, or one-time efforts), the 
Department will, as a policy matter, seek to ensure compliance with ADA 
standards.

Section 37.43 Alteration of Transportation Facilities by Public Entities

    This section sets out the accessibility requirements that apply when 
a public entity undertakes an alteration of an existing facility. In 
general, the section requires that any alteration, to the maximum extent 
feasible, results in the altered area being accessible to and usable by 
individuals with disabilities, including persons who use wheelchairs. 
The provisions follow closely those adopted by the DOJ, in its 
regulations implementing title III of the ADA.
    The section requires specific activities whenever an alteration of 
an existing facility is undertaken.
    First, if the alteration is made to a primary function area, (or 
access to an area containing a primary function), the entity shall make 
the alteration in such a way as to ensure that the path of travel to the 
altered area and the restrooms, telephones and drinking fountains 
servicing the altered area are readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    Second, alterations to drinking fountains, telephones, and restrooms 
do not have to be completed if the cost and scope of making them 
accessible is disproportionate.
    Third, the requirement goes into effect for alterations begun after 
January 25, 1992.
    Fourth, the term ``maximum extent feasible'' means that all changes 
that are possible must be made. The requirement to make changes to the 
maximum extent feasible derives from clear legislative history. The 
Senate Report states--

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    The phrase ``to the maximum extent feasible'' has been included to 
allow for the occasional case in which the nature of an existing 
facility is such as to make it virtually impossible to renovate the 
building in a manner that results in its being entirely accessible to 
and usable by individuals with disabilities. In all such cases, however, 
the alteration should provide the maximum amount of physical 
accessibility feasible.
    Thus, for example the term ``to the maximum extent feasible'' should 
be construed as not requiring entities to make building alterations that 
have little likelihood of being accomplished without removing or 
altering a load-bearing structural member unless the load-bearing 
structural member is otherwise being removed or altered as part of the 
alteration. (S. Rept. 101-116, at 68).
    Fifth, primary function means a major activity for which the 
facility is intended. Primary function areas include waiting areas, 
ticket purchase and collection areas, train or bus platforms, baggage 
checking and return areas, and employment areas (with some exceptions 
stated in the rule, for areas used by service personnel that are very 
difficult to access).
    Sixth, ``path of travel'' means a continuous, unobstructed way of 
pedestrian passage by means of which the altered area may be approached, 
entered, and exited, and which connects the altered area with an 
exterior approach and includes restrooms, telephones, and drinking 
fountains serving the altered area. If changes to the path of travel are 
disproportionate, then only those changes which are not disproportionate 
are to be completed.
    Seven, the final rule specifies that costs exceeding 20 percent 
would be disproportionate. This is consistent with the DOJ. In 
determining costs, the Department intends costs to be based on changes 
to the passenger service area that is scheduled for alteration.
    Finally, the Department has defined the term ``begin'', in the 
context of begin an alteration that is subject to the alteration 
provision to mean when a notice to proceed or work order is issued. Two 
terms are used (instead of only notice to proceed in the context of new 
construction) because many alterations may be carried out by the entity 
itself, in which case the only triggering event would be a work order or 
similar authorization to begin.
    In looking at facility concepts like ``disproportionality'' and ``to 
the maximum extent feasible,'' the Department will consider any expenses 
related to accessibility for passengers. It is not relevant to consider 
non-passenger related improvements (e.g., installing a new track bed) or 
to permit ``gold-plating'' (attributing to accessibility costs the 
expense of non-related improvements, such as charging to accessibility 
costs the price of a whole new door, when only adding a new handle to 
the old door was needed for accessibility).

       Section 37.47 Key Stations in Light and Rapid Rail Systems

  Section 37.49 Designation of Responsible Person(s) for Intercity and 
                         Commuter Rail Stations

    This section sets forth a mechanism for determining who bears the 
legal and financial responsibility for accessibility modifications to a 
commuter and/or intercity rail station. The final provision of the 
section is the most important. It authorizes all concerned parties to 
come to their own agreement concerning the allocation of responsibility. 
Such an agreement can allocate responsibility in any way acceptable to 
the parties. The Department strongly encourages parties to come to such 
an agreement.
    In the absence of such an agreement, a statutory/regulatory scheme 
allocates responsibility. In the first, and simplest, situation posed by 
the statute, a single public entity owns more than 50 percent of the 
station. In this case, the public entity is the responsible person and 
nobody else is required to bear any of the responsibility.
    In the second situation, a private entity owns more than 50 percent 
of the station. The private entity need not bear any of the 
responsibility for making the station accessible. A public entity owner 
of the station, who does not operate passenger railroad service through 
the station, is not required to bear any of the responsibility for 
making the station accessible. The total responsibility is divided 
between passenger railroads operating service through the station, on 
the basis of respective passenger boardings. If there is only one 
railroad operating service through the station, it bears the total 
responsibility.
    The Department believes that reference to passenger boardings is the 
most equitable way of dividing responsibility among railroads, since the 
number of people drawn to the station by each is likely to reflect 
``cost causation'' quite closely. The Department notes, however, that, 
as passenger boarding percentages change over time, the portion of 
responsibility assigned to each party also may change. Station 
modifications may involve long-term capital investment and planning, 
while passenger boarding percentages are more volatile. Some railroads 
may stop serving a station, while others may begin service, during the 
period of time before modifications to the station are complete. To help 
accommodate such situations, the rule refers to passenger boardings 
``over the entire period during which the station is made accessible.''
    This language is intended to emphasize that as circumstances change, 
the parties involved have the responsibility to adjust their

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arrangements for cost sharing. For example, suppose Railroad A has 30 
percent of the passenger boardings in year 1, but by year 10 has 60 
percent of the boardings. It would not be fair for Railroad A to pay 
only 30 percent of the costs of station modifications occurring in later 
years. Ultimately, the total cost burden for modifying the station over 
(for example) 20 years would be allocated on the share of the total 
number or boardings attributable to each railroad over the whole 20 year 
period, in order to avoid such unfairness.
    The third, and most complicated, situation is one in which no party 
owns 50 percent of the station. For example, consider the following 
hypothetical situation:

------------------------------------------------------------------------
                                                 Ownership    Boardings
                     Party                       percentage   percentage
------------------------------------------------------------------------
Private freight RR............................           40            0
City..........................................           30            0
Amtrak........................................            0           25
Commuter A....................................           30           50
Commuter B....................................            0           25
------------------------------------------------------------------------

The private freight railroad drops out of the calculation of who is 
responsible. All of the responsibility would be allocated among four 
public entities: the city (a public entity who does not operate railroad 
service), Amtrak, and the two commuter railroads. Half the 
responsibility would go to public entity owners of the station (whether 
or not they are railroads who run passenger service through the 
station). The other half of the responsibility would go to railroads who 
run passenger service through the station (whether or not they are 
station owners).
    On the ownership side of the equation, the city and Commuter A each 
own half of that portion of the station that is not owned by the private 
freight railroad. Therefore, the two parties divide up the ownership 
half of the responsibility equally. Based on their ownership interest, 
each of these two parties bears 25 percent of the responsibility for the 
entire station. Note that, should ownership percentages or owners change 
over the period during which the station is to be made accessible, these 
percentages may change. It is ownership percentage over this entire 
period that ultimately determines the percentage of responsibility.
    On the passenger rail operations side of the equation, 50 percent of 
passenger boardings are attributable to Commuter A and 25 percent each 
to Commuter B and Amtrak. Therefore, half of this portion of the 
responsibility belongs to Commuter A, while a quarter share each goes to 
the other railroads. This means that, based on passenger boardings, 25 
percent of the responsibility goes to Commuter A, 12.5 percent to 
Commuter B, and 12.5 percent to Amtrak. Again, it is the proportion of 
passenger boardings over the entire length of the period during which 
the station is made accessible that ultimately determines the percentage 
of responsibility.
    In this hypothetical, Commuter A is responsible for a total of 50 
percent of the responsibility for the station. Commuter A is responsible 
for 25 percent of the responsibility because of its role as a station 
owner and another 25 percent because of its operation of passenger rail 
service through the station.
    The Department recognizes that there will be situations in which 
application of this scheme will be difficult (e.g., involving problems 
with multiple owners of a station whose ownership percentages may be 
difficult to ascertain). The Department again emphasizes that agreement 
among the parties is the best way of resolving these problems, but we 
are willing to work with the parties to ensure a solution consistent 
with this rule.

           Section 37.51 Key Stations in Commuter Rail Systems

    These sections require that key stations in light, rapid, and 
commuter rail systems be made accessible as soon as practicable, but no 
later than July 26, 1993. Being made accessible, for this purpose, means 
complying with the applicable provisions of appendix A to this part. 
``As soon as practicable'' means that, if modification can be made 
before July 26, 1993, they must be. A rail operator that failed to make 
a station accessible by July 1993 would be in noncompliance with the ADA 
and this rule, except in a case where an extension of time had been 
granted.
    What is a key station? A key station is one designated as such by 
the commuter authority or light/rapid rail operator, through the 
planning process and public participation process set forth in this 
section. The five criteria listed in the regulation are intended to 
guide the selection process but, while the entity must take these 
criteria into account (and this consideration must be reflected in the 
planning process and documents), they are not mandatory selection 
standards. That is, it is not required that every station that meets one 
of the criteria be designated as a key station. Since the criteria are 
not mandatory selection standards, the understanding of their terms is 
also a matter appropriately left to the planning process. A tight, 
legalistic definition is not necessary in the context of factors 
intended for consideration. For instance, what constitutes a major 
activity center or how close a station needs to be to another station to 
not be designated as key depend largely on local factors that it would 
not be reasonable to specify in this rule.
    Given the wide discretion permitted to rail operators in identifying 
key stations, there would be no objection to identifying as a key 
station a new (presumably accessible) station now under construction. 
Doing so would

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involve consideration of the key station criteria and would be subject 
to the planning/public participation process.
    If an extension to a rail system (e.g., a commuter system) is made, 
such that the system comes to include existing inaccessible stations 
that have not previously been part of the system, the Department 
construes the ADA to require application of key station accessibility in 
such a situation. The same would be true for a new start commuter rail 
system that began operations using existing stations. Key station 
planning, designation of key stations, and with being consistent with 
the ADA would be required. The Department would work with the commuter 
authority involved on a case-by-case basis to determine applicable time 
limits for accessibility, consistent with the time frames of the ADA.
    The entity must develop a compliance plan, subject to the public 
participation and planning process set forth in paragraph (d) of each of 
these sections. Note that this plan must be completed by July 26, 1992, 
not January 26, 1992, as in the case of paratransit plans. The key 
station plans must be submitted to FTA at that time. (The statute does 
not require FTA approval of the plans, however.).
    A rail operator may request an extension of the July 1993 completion 
deadline for accessibility modifications to one or more key stations. 
The extension for light and rapid rail stations can be up to July 2020, 
though two thirds of the key stations (per the legislative history of 
the statute, selected in a way to maximize accessibility to the whole 
system) must be accessible by July 2010.
    Commuter rail stations can be extended up to July 2010.
    Requests for extension of time must be submitted by July 26, 1992. 
FTA will review the requests on a station-by-station basis according to 
the statutory criterion, which is whether making the station accessible 
requires extraordinarily expensive alterations. An extraordinarily 
expensive alteration is raising the entire platform, installing an 
elevator, or making another alteration of similar cost and magnitude. If 
another means of making a station accessible (e.g., installation of a 
mini-high platform in a station where it is not necessary to install an 
elevator or to provide access to the platform for wheelchair users), 
then an extension can be granted only if the rail operator shows that 
the cost and magnitude of the alteration is similar to that of an 
elevator installation or platform raising.
    The rule does not include a specific deadline for FTA consideration 
of an extension request. However, since we are aware that, in the 
absence of an extension request, accessibility must be completed by July 
1993, we will endeavor to complete review of plans as soon as possible, 
to give as much lead time as possible to local planning and 
implementation efforts.
    Once an extension is granted, the extension applies to all 
accessibility modifications in the station. However, the rail operator 
should not delay non-extraordinarily expensive modifications to the 
station. The key station plan and any extension request should include a 
schedule for phasing in non-extraordinarily expensive modifications to 
the station. For example, even if a key station is not going to be 
accessible to wheelchair users for 15 years, pending the installation of 
an elevator, the rail operator can improve its accessibility to persons 
with visual impairments by installing tactile strips.
    An extension cannot be granted except for a particular station which 
needs an extraordinarily expensive modification. An extension cannot be 
granted non-extraordinarily expensive changes to Station B because the 
extraordinarily expensive changes to Station A will absorb many 
resources. Non-extraordinarily expensive changes, however costly 
considered collectively for a system, are not, under the statute, 
grounds for granting an extension to one or more stations or the whole 
system. Only particular stations where an extraordinarily expensive 
modification must be made qualify for extensions.
    The FTA Administrator can approve, modify, or disapprove any request 
for an extension. For example, it is not a forgone conclusion that a 
situation for which an extension is granted will have the maximum 
possible extension granted. If it appears that the rail operator can 
make some stations accessible sooner, FTA can grant an extension for a 
shorter period (e.g., 2005 for a particular station rather than 2010).

          Section 37.53 Exception for New York and Philadelphia

    Consistent with the legislative history of the ADA, this section 
formally recognizes the selection of key stations in two identified 
litigation settlement agreements in New York and Philadelphia as in 
compliance with the ADA. Consequently, the entities involved can limit 
their key station planning process to issues concerning the timing of 
key station accessibility. The section references also Sec. 37.9, which 
provides that key station accessibility alterations which have already 
been made, or which are begun before January 26, 1992, and which conform 
to specified prior standards, do not have to be re-modified. On the 
other hand, alterations begun after January 25, 1992 (including 
forthcoming key station modifications under the New York and 
Philadelphia agreements), must meet the requirements of appendix A to 
this part.
    This is an exception only for the two specified agreements. There 
are no situations in which other cities can take advantage of this 
provision. Nor are the provisions of the two

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agreements normative for other cities. Other cities must do their own 
planning, with involvement from local citizens, and cannot rely on 
agreements unique to New York and Philadelphia to determine the 
appropriate number of percentage of key stations or other matters.

                   Section 37.57 Required Cooperation

    This section implements Sec. 242(e)(2)(C) of the ADA, which treats 
as discrimination a failure, by an owner or person in control of an 
intercity rail station, to provide reasonable cooperation to the 
responsible persons' efforts to comply with accessibility requirements. 
For example, the imposition by the owner of an unreasonable insurance 
bond from the responsible person as a condition of making accessibility 
modifications would violate this requirement. See H. Rept. 101-485 at 
53.
    The statute also provides that failure of the owner or person in 
control to cooperate does not create a defense to a discrimination suit 
against the responsible person, but the responsible person would have a 
third party action against the uncooperative owner or person in control. 
The rule does not restate this portion of the statute in the regulation, 
since it would be implemented by the courts if such an action is 
brought. Since cooperation is also a regulatory requirement, however, 
the Department could entertain a section 504 complaint against a 
recipient of Federal funds who failed to cooperate.
    The House Energy and Commerce Committee provided as an example of an 
action under this provision a situation in which a failure to cooperate 
leads to a construction delay, which in turn leads to a lawsuit by an 
individual with disabilities against the responsible person for missing 
an accessibility deadline. The responsible person could not use the lack 
of cooperation as a defense in the lawsuit, but the uncooperative party 
could be made to indemnify the responsible person for damages awarded 
the plaintiff. Also, a responsible person could obtain an injunction to 
force the recalcitrant owner or controller of the station to permit 
accessibility work to proceed. (Id.)
    This provision does not appear to be intended to permit a 
responsible person to seek contribution for a portion of the cost of 
accessibility work from a party involved with the station whom the 
statute and Sec. 37.49 do not identify as a responsible person. It 
simply provides a remedy for a situation in which someone impedes the 
responsible person's efforts to comply with accessibility obligations.

 Section 37.59 Differences in Accessibility Completion Date Requirements

    Portions of the same station may have different accessibility 
completion date requirements, both as the result of different statutory 
time frames for different kinds of stations and individual decisions 
made on requests for extension. The principle at work in responding to 
such situations is that if part of a station may be made accessible 
after another part, the ``late'' part of the work should not get in the 
way of people's use of modifications resulting from the ``early'' part.
    For example, the commuter part of a station may have to be made 
accessible by July 1993 (e.g., there is no need to install an elevator, 
and platform accessibility can be achieved by use of a relatively 
inexpensive mini-high platform). The Amtrak portion of the same station, 
by statute, is required to be accessible as soon as practicable, but no 
later than July 2010. If there is a common entrance to the station, that 
commuter rail passengers and Amtrak passengers both use, or a common 
ticket counter, it would have to be accessible by July 1993. If there 
were a waiting room used by Amtrak passengers but not commuter 
passengers (who typically stand and wait on the platform at this 
station), it would not have to be accessible by July 1993, but if the 
path from the common entrance to the commuter platform went through the 
waiting room, the path would have to be an accessible path by July 1993.

Section 37.61 Public Transportation Programs and Activities in Existing 
                               Facilities

    This section implements section 228(a) of the ADA and establishes 
the general requirement for entities to operate their transportation 
facilities in a manner that, when viewed in its entirety, is accessible 
to and usable by individuals with disabilities. The section clearly 
excludes from this requirement access by persons in wheelchairs, unless 
these changes would be necessitated by the alterations or key station 
provisions.
    This provision is intended to cover activities and programs of an 
entity that do not rise to the level of alteration. Even if an entity is 
not making alterations to a facility, it has a responsibility to conduct 
its program in an accessible manner. Examples of possible activities 
include user friendly farecards, schedules, of edge detection on rail 
platforms, adequate lighting, telecommunication display devices (TDDs) 
or text telephones, and other accommodations for use by persons with 
speech and hearing impairments, signage for people with visual 
impairments, continuous pathways for persons with visual and ambulatory 
impairments, and public address systems and clocks.
    The Department did not prescribe one list of things that would be 
appropriate for all stations. For example, we believe that tactile 
strips are a valuable addition to platforms which have drop-offs. We 
also believe that most larger systems, to the extent they

[[Page 453]]

publish schedules, should make those schedules readily available in 
alternative formats. We encourage entities to find this another area 
which benefits from its commitment to far-reaching public participation 
efforts.

    Subpart D--Acquisition of Accessible Vehicles by Public Entities

   Section 37.71 Purchase or Lease of New Non-Rail Vehicles by Public 
                 Entities Operating Fixed Route Systems

    This section sets out the basic acquisition requirements for a 
public entity purchasing a new vehicle. Generally, the section requires 
any public entity who purchases or leases a new vehicle to acquire an 
accessible vehicle. There is a waiver provision if lifts are unavailable 
and these provisions track the conditions in the ADA. One statutory 
condition, that the public entity has made a good faith effort to locate 
a qualified manufacturer to supply the lifts, presumes a direct 
relationship between the transit provider and the lift manufacturer. In 
fact, it is the bus manufacturer, rather than the transit provider 
directly, who would have the task of looking for a supplier of lifts to 
meet the transit provider's specifications. The task must still be 
performed, but the regulation does not require the transit provider to 
obtain actual information about available lifts. Rather the bus 
manufacturer obtains the information and provides this assurance to the 
entity applying for the waiver, and the entity may rely on this 
representation. More specifically, the regulation requires that each 
waiver request must include a copy of the written solicitation (showing 
that it requested lift-equipped vehicles) and written responses from 
lift manufacturers to the vehicle manufacturer documenting their 
inability to provide the lifts. The information from the lift 
manufacturer must also include when the lifts will be available.
    In addition, the waiver request must include copies of 
advertisements in trade publications and inquiries to trade associations 
seeking lifts for the buses. The public entity also must include a full 
justification for the assertion that a delay in the bus procurement 
sufficient to obtain a lift-equipped bus would significantly impair 
transportation services in the community. There is no length of time 
that would be a per se delay constituting a ``significant impairment''. 
It will be more difficult to obtain a waiver if a relatively short 
rather than relatively lengthy delay is involved. A showing of 
timetables, absent a showing of significant impairment of actual transit 
services, would not form a basis for granting a waiver.
    Any waiver granted by the Department under this provision will be a 
conditional waiver. The conditions are intended to ensure that the 
waiver provision does not create a loophole in the accessible vehicle 
acquisition requirement that Congress intended to impose. The ADA 
requires a waiver to be limited in duration and the rule requires a 
termination date to be included. The date will be established on the 
basis of the information the Department receives concerning the 
availability of lifts in the waiver request and elsewhere. In addition, 
so that a waiver does not become open-ended, it will apply only to a 
particular procurement. If a transit agency wants a waiver for a 
subsequent delivery of buses in the procurement, or another procurement 
entirely, it will have to make a separate waiver request.
    For example, if a particular order of buses is delivered over a 
period of time, each delivery would be the potential subject of a waiver 
request. First, the entity would request a waiver for the first shipment 
of buses. If all of the conditions are met, the waiver would be granted, 
with a date specified to coincide with the due date of the lifts. When 
the lifts become available those buses would have to be retrofitted with 
the lifts. A subsequent delivery of buses--on the same order--would have 
to receive its own waiver, subject to the same conditions and 
specifications of the first waiver.
    The purpose of the waiver, as the Department construes it, is to 
address a situation in which (because of a sudden increase in the number 
of lift-equipped buses requested) lift manufacturers are unable to 
produce enough lifts to meet the demand in a timely fashion.

  Section 37.73 Purchase or Lease of Used Non-Rail Vehicles by Public 
                 Entities Operating a Fixed Route System

    The basic rule is that an acquisition of a used vehicle would have 
to be for an accessible vehicle.
    There is an exception, however, for situations in which the transit 
provider makes a good faith effort to obtain accessible used vehicles 
but does not succeed in finding them. The ADA requires transit agencies 
to purchase accessible used vehicles, providing a ``demonstrated good 
faith efforts'' exception to the requirement. The reports of the Senate 
Committee on Labor and Human Resources and the House Committee on 
Education and Labor offered the following guidance on what ``good faith 
efforts'' involve:
    The phrase ``demonstrated good faith efforts'' is intended to 
require a nationwide search and not a search limited to a particular 
region. For instance, it would not be enough for a transit operator to 
contact only the manufacturer where the transit authority usually does 
business to see if there are accessible used buses. It involves the 
transit authority advertising in a trade magazine, i.e., Passenger 
Transport, or contacting the transit trade association, American Public 
Transit Association (APTA), to determine whether accessible used 
vehicles are available. It is the Committee's expectation that

[[Page 454]]

as the number of buses with lifts increases, the burden on the transit 
authority to demonstrate its inability to purchase accessible vehicles 
despite good faith efforts will become more and more difficult to 
satisfy. S. Rept. 101-116 at 49; H. Rept. 101-485 at 90.
    Consistent with this guidance, this section requires that good faith 
efforts include specifying accessible vehicles in bid solicitations. The 
section also requires that the entity retain for two years documentation 
of that effort, and that the information be available to FTA and the 
public.
    It does not meet the good faith efforts requirement to purchase 
inaccessible, rather than accessible, used buses, just because the 
former are less expensive, particularly if the difference is a 
difference attributable to the presence of a lift. There may be 
situations in which good faith efforts involve buying fewer accessible 
buses in preference to more inaccessible buses.
    The public participation requirements involved in the development of 
the paratransit plans for all fixed route operators requires an ongoing 
relationship, including extensive outreach, to the community likely to 
be using its accessible service. We believe that it will be difficult to 
comply with the public participation requirements and not involve the 
affected community in the decisions concerning the purchase or lease of 
used accessible vehicles.
    There is an exception to these requirements for donated vehicles. 
Not all ``zero dollar'' transfers are donations, however. The 
legislative history to this provision provides insight.
    It is not the Committee's intent to make the vehicle accessibility 
provisions of this title applicable to vehicles donated to a public 
entity. The Committee understands that it is not usual to donate 
vehicles to a public entity. However, there could be instances where 
someone could conceivably donate a bus to a public transit operator in a 
will. In such a case, the transit operators should not be prevented from 
accepting a gift.
    The Committee does not intend that this limited exemption for 
donated vehicles be used to circumvent the intent of the ADA. For 
example, a local transit authority could not arrange to be the recipient 
of donated inaccessible buses. This would be a violation of the ADA. S. 
Rpt. 101-116, at 46; H. Rpt. 101-486, at 87.
    Entities interested in accepting donated vehicles must submit a 
request to FTA to verify that the transaction is a donation.
    There is one situation, in which a vehicle has prior use is not 
treated as a used vehicle. If a vehicle has been remanufactured, and it 
is within the period of the extension of its useful life, it is not 
viewed as a used vehicle (see H. Rept. 101-485, Pt 1 at 27). During this 
period, such a vehicle may be acquired by another entity without going 
through the good faith efforts process. This is because, at the time of 
its remanufacture, the bus would have been made as accessible if 
feasible. When the vehicle has completed its extended useful life (e.g., 
the beginning of year six when its useful life has extended five years), 
it becomes subject to used bus requirements.

 Section 37.75 Remanufacture of Non-Rail Vehicles and Purchase or Lease 
 of Remanufactured Non-rail Vehicles by Public Entities Operating Fixed 
                              Route Systems

    This section tracks the statute closely, and contains the following 
provisions. First, it requires any public entity operating a fixed route 
system to purchase an accessible vehicle if the acquisition occurs after 
August 25, 1990, if the vehicle is remanufactured after August 25, 1990, 
or the entity contracts or undertakes the remanufacture of a vehicle 
after August 25, 1990. The ADA legislative history makes it clear that 
remanufacture is to include changes to the structure of the vehicle 
which extend the useful life of the vehicle for five years. It clearly 
is not intended to capture things such as engine overhauls and the like.
    The term remanufacture, as used in the ADA context, is different 
from the use of the term in previously issued FTA guidance. The term has 
a specific meaning under the ADA: there must be structural work done to 
the vehicle and the work must extend the vehicle's useful life by five 
years.
    The ADA imposes no requirements on what FTA traditionally considers 
bus rehabilitation. Such work involves rebuilding a bus to original 
specifications and focuses on mechanical systems and interiors. Often 
this work includes replacing components. It is less extensive than 
remanufacture.
    The statute, and the rule, includes an exception for the 
remanufacture of historical vehicles. This exception applies to the 
remanufacture of or purchase of a remanufactured vehicle that (1) is of 
historic character; (2) operates solely on a segment of a fixed route 
system which is on the National Register of Historic Places; and (3) 
making the vehicle accessible would significantly alter the historic 
character of the vehicle. The exception only extends to the 
remanufacture that would alter the historic character of the vehicle. 
All modifications that can be made without altering the historic 
character (such as slip resistant flooring) must be done.

   Section 37.77 Purchase or Lease of New Non-Rail Vehicles by Public 
  Entities Operating a Demand Responsive System for the General Public

    Section 224 of the ADA requires that a public entity operating a 
demand responsive system purchase or lease accessible new vehicles, for 
which a solicitation is made after August 25, 1990, unless the system, 
when

[[Page 455]]

viewed in its entirety, provides a level of service to individuals with 
disabilities, including individuals who use wheelchairs, equivalent to 
the level of service provided to individuals without disabilities. This 
section is the same as the October 4, 1990 final rule which promulgated 
the immediately effective acquisition requirements of the ADA.
    The Department has been asked to clarify what ``accessible when 
viewed in its entirety'' means in the context of a demand responsive 
system being allowed to purchase an inaccessible vehicle. First, it is 
important to note that this exception applies only to demand responsive 
systems (and not fixed route systems). The term ``equivalent service'' 
was discussed during the passage of the ADA. Material from the 
legislative history indicates that ``when viewed in its entirety/
equivalent service'' means that ``when all aspects of a transportation 
system are analyzed, equal opportunities for each individual with a 
disability to use the transportation system must exist. (H. Rept. 101-
184, Pt. 2, at 95; S. Rept. 101-116 at 54). For example, both reports 
said that ``the time delay between a phone call to access the demand 
responsive system and pick up the individual is not greater because the 
individual needs a lift or ramp or other accommodation to access the 
vehicle.'' (Id.)
    Consistent with this, the Department has specified certain service 
criteria that are to be used when determining if the service is 
equivalent. As in previous rulemakings on this provision, the standards 
(which include service area, response time, fares, hours and days of 
service, trip purpose restrictions, information and reservations 
capability, and other capacity constraints) are not absolute standards. 
They do not say, for example, that a person with a disability must be 
picked up in a specified number of hours. The requirement is that there 
must be equivalent service for all passengers, whether or not they have 
a disability. If the system provides service to persons without 
disabilities within four hours of a call for service, then passengers 
with disabilities must be afforded the same service.
    The Department has been asked specifically where an entity should 
send its ``equivalent level of service'' certifications. We provide the 
following: Equivalent level of service certifications should be 
submitted to the state program office if you are a public entity 
receiving FTA funds through the state. All other entities should submit 
their equivalent level of service certifications to the FTA regional 
office (listed in appendix B of this part). Certifications must be 
submitted before the acquisition of the vehicles.
    Paragraph (e) of this section authorizes a waiver for the 
unavailability of lifts. Since demand responsive systems need not 
purchase accessible vehicles if they can certify equivalent service, the 
Department has been asked what this provision is doing in this section.
    Paragraph (e) applies in the case in which an entity operates a 
demand responsive system, which is not equivalent, and the entity cannot 
find accessible vehicles to acquire. In this case, the waiver provisions 
applicable to a fixed route entity purchasing or leasing inaccessible 
new vehicles applies to the demand responsive operator as well.

Section 37.79 Purchase or Lease of New Rail Vehicles by Public Entities 
                  Operating Rapid or Light Rail Systems

    This section echoes the requirement of Sec. 37.71--all new rail 
cars must be accessible.

Section 37.81 Purchase or Lease of Used Rail Vehicles by Public Entities 
                  Operating Rapid or Light Rail Systems

    This section lays out the requirements for a public entity acquiring 
a used rail vehicle. The requirements and standards are the same as 
those specified for non-rail vehicles in Sec. 37.73. While we recognize 
it may create difficulties for entities in some situations, the statute 
does not include any extension or short-term leases. The Department will 
consider, in a case-by-case basis, how the good faith efforts 
requirement would apply in the case of an agreement between rail 
carriers to permit quick-response, short-term leases of cars over a 
period of time.

 Section 37.83 Remanufacture of Rail Vehicles and Purchase or Lease of 
Remanufactured Rail Vehicles by Public Entities Operating Rapid or Light 
                               Rail System

    This section parallels the remanufacturing section for buses, 
including the exception for historical vehicles. With respect to an 
entity having a class of historic vehicles that may meet the standards 
for the historic vehicle exception (e.g., San Francisco cable cars), the 
Department would not object to a request for application of the 
exception on a system-wide, as approved to car-by-car, basis.

 Section 37.85 Purchase or Lease of New Intercity and Commuter Rail Cars

    This section incorporates the statutory requirement that new 
intercity and commuter rail cars be accessible. The specific 
accessibility provisions of the statute (for example, there are slightly 
different requirements for intercity rail cars versus commuter rail 
cars) are specified in part 38 of this regulation. These standards are 
adopted from the voluntary guidelines issues by the Access Board. The 
section basically parallels the acquisition requirements for buses and 
other vehicles. It should be noted that the definition of commuter rail 
operator clearly allows for additional operators to qualify as commuter, 
since the definition describes the

[[Page 456]]

functional characteristics of an operator, as well as listing existing 
commuter rail operators.
    We would point out that the ADA applies this requirement to all new 
vehicles. This includes not only vehicles and systems that currently are 
being operated in the U.S., but new, experimental, or imported vehicles 
and systems. The ADA does not stand in the way of new technology, but it 
does require that new technology, and the benefits it brings, be 
accessible to all persons, including those with disabilities. This point 
applies to all vehicle acquisition provisions of this regulation, 
whether for rail or non-rail, private or public, fixed route or demand 
responsive vehicles and systems.

Section 37.87 Purchase or Lease of Used Intercity and Commuter Rail Cars

    The section also parallels closely the requirements in the ADA for 
the purchase or lease of accessible used rail vehicles. We acknowledge 
that, in some situations, the statutory requirement for to make good 
faith efforts to acquire accessible used vehicles may create 
difficulties for rail operators attempting to lease rail cars quickly 
for a short time (e.g., as fill-ins for cars which need repairs). In 
some cases, it may be possible to mitigate these difficulties through 
means such as making good faith efforts with respect to an overall 
agreement between two rail operators to make cars available to one 
another when needed, rather than each time a car is provided under such 
an agreement.

     Section 37.89 Remanufacture of Intercity and Commuter Rail Cars

    This section requires generally that remanufactured cars be made 
accessible, to the maximum extent feasible. Feasible is defined in 
paragraph (c) of the section to be ``unless an engineering analysis 
demonstrates that remanufacturing the car to be accessible would have a 
significant adverse effect on the structural integrity of the car.'' 
Increased cost is not a reason for viewing other sections of this 
subpart concerning remanufactured vehicles.
    In addition, this section differs from the counterpart sections for 
non-rail vehicles and light and rapid rail vehicles in two ways. First, 
the extension of useful life needed to trigger the section is ten rather 
than five years. Second, there is no historic vehicle exception. Both of 
these differences are statutory.
    Remanufacture of vehicles implies work that extends their expected 
useful life of the vehicle. A mid-life overhaul, not extending the total 
useful life of the vehicle, would not be viewed as a remanufacture of 
the vehicle.

                  Section 37.93 One Car Per Train Rule

    This section implements the statutory directive that all rail 
operators (light, rapid, commuter and intercity) have at least one car 
per train accessible to persons with disabilities, including individuals 
who use wheelchairs by July 26, 1995. (See ADA sections 242(a)(1), 
242(b)(1), 228(b)(1).) Section 37.93 contains this general requirement. 
In some cases, entities will meet the one-car-per train rule through the 
purchase of new cars. In this case, since all new rail vehicles have to 
be accessible, compliance with this provision is straightforward.
    However, certain entities may not be purchasing any new vehicles by 
July 26, 1995, or may not be purchasing enough vehicles to ensure that 
one car per train is accessible. In these cases, these entities will 
have to retrofit existing cars to meet this requirement. What a 
retrofitted car must look like to meet the requirement has been decided 
by the Access Board. These standards are contained in part 38 of this 
rule.
    We would point that, consistent with the Access Board standards, a 
rail system using mini-high platforms or wayside lifts is not required, 
in most circumstances, to ``double-stop'' in order to give passengers a 
chance to board the second or subsequent car in a train at the mini-high 
platform or way-side lift. The only exception to this would be a 
situation in which all the wheelchair positions spaces in the first car 
were occupied. In this case, the train would have to double-stop to 
allow a wheelchair user to board, rather than passing the person by when 
there was space available in other than the first car.

            Section 37.95 Ferries and Other Passenger Vessels

    Although at this time there are no specific requirements for 
vessels, ferries and other passenger vessels operated by public entities 
are subject to the requirements of Sec. 37.5 of this part and 
applicable requirements of 28 CFR part 35, the DOJ rule under title II 
of the ADA.

    Subpart E--Acquisition of Accessible Vehicles by Private Entities

    Section 37.101 Purchase or Lease of Non-Rail Vehicles by Private 
  Entities Not Primarily Engaged in the Business of Transporting People

  Section 37.103 Purchase or Lease of New Non-Rail Vehicles by Private 
    Entities Primarily Engaged in the Business of Transporting People

               Section 37.105 Equivalent Service Standard

    The first two sections spell out the distinctions among the 
different types of service elaborated in the ADA and requirements

[[Page 457]]

that apply to them. For clarity, we provide the following chart.

               Private Entities ``Not Primarily Engaged''
------------------------------------------------------------------------
           System type             Vehicle capacity       Requirement
------------------------------------------------------------------------
Fixed Route.....................  Over 16...........  Acquire accessible
                                                       vehicle.
Fixed Route.....................  16 or less........  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Demand Responsive...............  Over 16...........  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Demand Responsive...............  16 or less........  Equivalency--see
                                                       Sec. 37.171.
------------------------------------------------------------------------


                 Private Entities ``Primarily Engaged''
------------------------------------------------------------------------
                                     Vehicle type/
           System type                 capacity           Requirement
------------------------------------------------------------------------
Fixed route.....................  All new vehicles    Acquire accessible
                                   except auto, van    vehicle.
                                   with less than 8
                                   capacity, or over
                                   the road bus.
Demand responsive...............  Same as above.....  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Either fixed route or demand      New vans with a     Same as above.
 responsive.                       capacity of less
                                   than 8.
------------------------------------------------------------------------

    Equivalency, for purposes of these requirements, is spelled out in 
Sec. 37.105. It is important to note that some portions of this section 
(referring to response time, reservations capacity, and restrictions on 
trip purpose) apply only to demand responsive systems. Another provision 
(schedules/headways) applies only to fixed route systems. This is 
because these points of comparison apply only to one or the other type 
system. The remaining provisions apply to both kinds of systems.
    In applying the provisions this section, it is important to note 
that they are only points of comparison, not substantive criteria. For 
example, unlike the response time criterion of Sec. 37.131, this 
section does not require that a system provide any particular response 
time. All it says is that, in order for there to be equivalency, if the 
demand responsive system gets a van to a non-disabled person in 2 hours, 
or 8 hours, or a week and a half after a call for service, the system 
must get an accessible van to a person with a disability in 2 hours, or 
8 hours, or a week and a half.
    The vehicle acquisition and equivalency provisions work together in 
the following way. A private entity is about to acquire a vehicle for a 
transportation service in one of the categories to which equivalency is 
relevant. The entity looks at its present service (considered without 
regard to the vehicle it plans to acquire). Does the present service 
meet the equivalency standard? (In answering this question, the point of 
reference is the next potential customer who needs an accessible 
vehicle. The fact that such persons have not called in the past is 
irrelevant). If not, the entity is required to acquire an accessible 
vehicle. If so, the entity may acquire an accessible or an inaccessible 
vehicle. This process must be followed every time the entity purchases 
or leases a vehicle. Given changes in the mixes of both customers and 
vehicles, the answer to the question about equivalency will probably not 
be the same for an entity every time it is asked.
    One difference between the requirements for ``private, not 
primarily'' and ``private, primarily'' entities is that the requirements 
apply to all vehicles purchased or leased for the former, but only to 
new vehicles for the latter. This means that entities in the latter 
category are not required to acquire accessible vehicles when they 
purchase or lease used vehicles. Another oddity in the statute which 
entities should note is that the requirement for ``private, primarily'' 
entities to acquire accessible vans with less than eight passenger 
capacity (or provide equivalent service) does not become effective until 
after February 25, 1992 (This also date also applies no private entities 
``primarily engaged'' which purchase passenger rail cars). All other 
vehicle acquisition requirements became effective after August 25, 1990.
    The Department views the line between ``private, primarily'' and 
``private, not primarily'' entities as being drawn with respect to the 
bus, van, or other service which the entity is providing. For example, 
there is an obvious sense in which an airline or car rental company is 
primarily engaged in the business of transporting people. If the airline 
or car rental agency runs a shuttle bus from the airport terminal to a 
downtown location or a rental car lot, however, the Department views 
that shuttle service as covered by the ``private, not primarily'' 
requirements of the rule (see discussion of the Applicability sections 
above). This is because the airline or car rental agency is not 
primarily engaged in the business of providing transportation by bus or 
van. The relationship of the bus or van service to an airline's main 
business is analogous to that of a shuttle to a hotel. For this purpose, 
it is of only incidental interest that the main business of the airline 
is flying people around the country instead of putting them up for the 
night.

           Section 37.109 Ferries and Other Passenger Vessels

    Although at this time there are no specific requirements for 
vessels, ferries and other passenger vessels operated by private 
entities are subject to the requirements of Sec. 37.5 of this part and 
applicable requirements of 28 CFR part 36, the DOJ rule under title III 
of the ADA.

[[Page 458]]

      Subpart F--Paratransit as a Complement to Fixed Route Service

  Section 37.121 Requirement for Comparable Complementary Paratransit 
                                 Service

    This section sets forth the basic requirement that all public 
entities who operate a fixed route system have to provide paratransit 
service that is both comparable and complementary to the fixed route 
service. By ``complementary,'' we mean service that acts as a ``safety 
net'' for individuals with disabilities who cannot use the fixed route 
system. By ``comparable,'' we mean service that meets the service 
criteria of this subpart.
    This requirement applies to light and rapid rail systems as well as 
to bus systems, even when rail and bus systems share all or part of the 
same service area. Commuter bus, commuter rail and intercity rail 
systems do not have to provide paratransit, however. The remaining 
provisions of subpart F set forth the details of the eligibility 
requirements for paratransit, the service criteria that paratransit 
systems must meet, the planning process involved, and the procedures for 
applying for waivers based on undue financial burden.
    Paratransit may be provided by a variety of modes. Publicly operated 
dial-a-ride vans, service contracted out to a private paratransit 
provider, user-side subsidy programs, or any combination of these and 
other approaches is acceptable. Entities who feel it necessary to apply 
for an undue financial burden waiver should be aware that one of the 
factors FTA will examine in evaluating waiver requests is efficiencies 
the provider could realize in its paratransit service. Therefore, it is 
important for entities in this situation to use the most economical and 
efficient methods of providing paratransit they can devise.
    It is also important for them to establish and consistently 
implement strong controls against fraud, waste and abuse in the 
paratransit system. Fraud, waste and abuse can drain significant 
resources from a system and control of these problems is an important 
``efficiency for any paratransit system. It will be difficult for the 
Department to grant an undue financial burden waiver to entities which 
do not have a good means of determining if fraud, waste and abuse are 
problems and adequate methods of combating these problems, where they 
are found to exist.

          Section 37.123 ADA Paratransit Eligibility--Standards

                           General Provisions

    This section sets forth the minimum requirements for eligibility for 
complementary paratransit service. All fixed route operators providing 
complementary paratransit must make service available at least to 
individuals meeting these standards. The ADA does not prohibit providing 
paratransit service to anyone. Entities may provide service to 
additional persons as well. Since only service to ADA eligible persons 
is required by the rule, however, only the costs of this service can be 
counted in the context of a request for an undue financial burden 
waiver.
    When the rule says that ADA paratransit eligibility shall be 
strictly limited to persons in the eligible categories, then, it is not 
saying that entities are in any way precluded from serving other people. 
It is saying that the persons who must be provided service, and counting 
the costs of providing them service, in context of an undue burden 
waiver, are limited to the regulatory categories.

                         Temporary Disabilities

    Eligibility may be based on a temporary as well as a permanent 
disability. The individual must meet one of the three eligibility 
criteria in any case, but can do so for a limited period of time. For 
example, if an individual breaks both legs and is in two casts for 
several weeks, becomes a wheelchair user for the duration, and the bus 
route that would normally take him to work is not accessible, the 
individual could be eligible under the second eligibility category. In 
granting eligibility to such a person, the entity should establish an 
expiration date for eligibility consistent with the expected end of the 
period disability.

                        Trip-by-Trip Eligibility

    A person may be ADA paratransit eligible for some trips but not 
others. Eligibility does not inhere in the individual or his or her 
disability, as such, but in meeting the functional criteria of inability 
to use the fixed route system established by the ADA. This inability is 
likely to change with differing circumstances.
    For example, someone whose impairment-related condition is a severe 
sensitivity to temperatures below 20 degrees is not prevented from using 
fixed route transit when the temperature is 75 degrees. Someone whose 
impairment-related condition is an inability to maneuver a wheelchair 
through snow is not prevented from using fixed route transit when there 
is no snow on the ground. Someone with a cognitive disability may have 
learned to take the same bus route to a supported employment job every 
day. This individual is able to navigate the system for work purposes 
and therefore would not be eligible for paratransit for work trips. But 
the individual may be unable to get to other destinations on the bus 
system without getting lost, and would be eligible for paratransit for 
non-work trips. Someone who normally drives his own car to a rail system 
park and ride lot may have a specific impairment related condition 
preventing him from getting

[[Page 459]]

to the station when his car is in the shop. A person who can use 
accessible fixed route service can go to one destination on an 
accessible route; another destination would require the use of an 
inaccessible route. The individual would be eligible for the latter but 
not the former.
    In many cases, though the person is eligible for some trips but not 
others, eligibility determinations would not have to be made literally 
on a trip-by-trip basis. It may often be possible to establish the 
conditions on eligibility as part of the initial eligibility 
determination process. Someone with a temperature sensitivity might be 
granted seasonal eligibility. Somebody who is able to navigate the 
system for work but not non-work trips could have this fact noted in his 
or her eligibility documentation. Likewise, someone with a variable 
condition (e.g., multiple sclerosis, HIV disease, need for kidney 
dialysis) could have their eligibility based on the underlying 
condition, with paratransit need for a particular trip dependent on 
self-assessment or a set of medical standards (e.g., trip within a 
certain amount of time after a dialysis session). On the other hand, 
persons in the second eligibility category (people who can use 
accessible fixed route service where it exists) would be given service 
on the basis of the particular route they would use for a given trip.
    Because entities are not precluded from providing service beyond 
that required by the rule, an entity that believes it is too difficult 
to administer a program of trip-by-trip eligibility is not required to 
do so. Nothing prevents an entity from providing all requested trips to 
a person whom the ADA requires to receive service for only some trips. 
In this case, if the entity intends to request an undue financial burden 
waiver, the entity, as provided in the undue burden provisions of this 
rule, must estimate, by a statistically valid technique, the percentage 
of its paratransit trips that are mandated by the ADA. Only that 
percentage of its total costs will be counted in considering the undue 
burden waiver request.

                         Category 1 Eligibility

    The first eligibility category includes, among others, persons with 
mental or visual impairments who, as a result, cannot ``navigate the 
system.'' This eligibility category includes people who cannot board, 
ride, or disembark from an accessible vehicle ``without the assistance 
of another individual.'' This means that, if an individual needs an 
attendant to board, ride, or disembark from an accessible fixed route 
vehicles (including ``navigating the system''), the individual is 
eligible for paratransit. One implication of this language is that an 
individual does not lose paratransit eligibility based on ``inability to 
navigate the system'' because the individual chooses to travel with a 
friend on the paratransit system (even if the friend could help the 
person navigate the fixed route system). Eligibility in this category is 
based on ability to board, ride, and disembark independently.
    Mobility training (e.g., of persons with mental or visual 
impairments) may help to improve the ability of persons to navigate the 
system or to get to a bus stop. Someone who is successfully mobility 
trained to use the fixed route system for all or some trips need not be 
provided paratransit service for those trips. The Department encourages 
entities to sponsor such training as a means of assisting individuals to 
use fixed route rather than paratransit.

                         Category 2 Eligibility

    The second eligibility criterion is the broadest, with respect to 
persons with mobility impairments, but its impact should be reduced over 
time as transit systems become more accessible. This category applies to 
persons who could use accessible fixed route transportation, but 
accessible transportation is not being used at the time, and on the 
route, the persons would travel. This concept is route based, not system 
based.
    Speaking first of bus systems, if a person is traveling from Point A 
to Point B on route 1, and route 1 is accessible, the person is not 
eligible for paratransit for the trip. This is true even though other 
portions of the system are still inaccessible. If the person is 
traveling from Point A to Point C on route 2, which is not accessible, 
the person is eligible for that trip. If the person is traveling from 
Point A to Point B on accessible route 1, with a transfer at B to go on 
inaccessible route 3 to Point D, then the person is eligible for the 
second leg of the trip. (The entity could choose to provide a 
paratransit trip from A to D or a paratransit or on-call bus trip from B 
to D.)
    For purposes of this standard, we view a route as accessible when 
all buses scheduled on the route are accessible. Otherwise, it is 
unlikely that an accessible vehicle could be provided ``within a 
reasonable period of [a] time'' when the individual wants to travel, as 
the provision requires. We recognize that some systems' operations may 
not be organized in a way that permits determining whether a given route 
is accessible, even though a route-by-route determination appears to be 
contemplated by the statute. In such cases, it may be that category 2 
eligibility would persist until the entire system was eligible.
    With respect to a rail system, an individual is eligible under this 
standard if, on the route or line he or she wants to use, there is not 
yet one car per train accessible or if key stations are not yet 
accessible. This eligibility remains even if bus systems covering the 
area served by the rail system have

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become 100 percent accessible. This is necessary because people use rail 
systems for different kinds of trips than bus systems. It would often 
take much more in the way of time, trouble, and transfers for a person 
to go on the buses of one or more transit authorities than to have a 
direct trip provided by the rail operator. Since bus route systems are 
often designed to feed rail systems rather than duplicate them, it may 
often be true that ``you can't get there from here'' relying entirely on 
bus routes or the paratransit service area that parallels them.
    If the lift on a vehicle cannot be deployed at a particular stop, an 
individual is eligible for paratransit under this category with respect 
to the service to the inaccessible stop. If on otherwise accessible 
route 1, an individual wants to travel from Point A to Point E, and the 
lift cannot be deployed at E, the individual is eligible for paratransit 
for the trip. (On-call bus would not work as a mode of providing this 
trip, since a bus lift will not deploy at the stop.) This is true even 
though service from Point A to all other points on the line is fully 
accessible. In this circumstance, the entity should probably think 
seriously about working with the local government involved to have the 
stop moved or made accessible.
    When we say that a lift cannot be deployed, we mean literally that 
the mechanism will not work at the location to permit a wheelchair user 
or other person with a disability to disembark or that the lift will be 
damaged if it is used there. It is not consistent with the rule for a 
transit provider to declare a stop off-limits to someone who uses the 
lift while allowing other passengers to use the stop. However, if 
temporary conditions not under the operator's control (e.g., 
construction, an accident, a landslide) make it so hazardous for anyone 
to disembark that the stop is temporarily out of service for all 
passengers may the operator refuse to allow a passenger to disembark 
using the lift.

                         Category 3 Eligibility

    The third eligibility criterion concerns individuals who have a 
specific impairment-related condition which prevents them from getting 
to or from a stop or station. As noted in the legislative history of the 
ADA, this is intended to be a ``very narrow exception'' to the general 
rule that difficulty in traveling to or from boarding or disembarking 
locations is not a basis for eligibility.
    What is a specific impairment-related condition? The legislative 
history mentions four examples: Chronic fatigue, blindness, a lack of 
cognitive ability to remember and follow directions, or a special 
sensitivity to temperature. Impaired mobility, severe communications 
disabilities (e.g., a combination of serious vision and hearing 
impairments), cardiopulmonary conditions, or various other serious 
health problems may have similar effects. The Department does not 
believe that it is appropriate, or even possible, to create an 
exhaustive list.
    What the rule uses as an eligibility criterion is not just the 
existence of a specific impairment-related condition. To be a basis for 
eligibility, the condition must prevent the individual from traveling to 
a boarding location or from a disembarking location. The word 
``prevent'' is very important. For anyone, going to a bus stop and 
waiting for a bus is more difficult and less comfortable than waiting 
for a vehicle at one's home. This is likely to be all the more true for 
an individual with a disability. But for many persons with disabilities, 
in many circumstances, getting to a bus stop is possible. If an 
impairment related condition only makes the job of accessing transit 
more difficult than it might otherwise be, but does not prevent the 
travel, then the person is not eligible.
    For example, in many areas, there are not yet curb cuts. A 
wheelchair user can often get around this problem by taking a less 
direct route to a destination than an ambulatory person would take. That 
involves more time, trouble, and effort than for someone without a 
mobility impairment. But the person can still get to the bus stop. On 
the basis of these architectural barriers, the person would not be 
eligible.
    Entities are cautioned that, particularly in cases involving lack of 
curb cuts and other architectural barrier problems, assertions of 
eligibility should be given tight scrutiny. Only if it is apparent from 
the facts of a particular case that an individual cannot find a 
reasonable alternative path to a location should eligibility be granted.
    If we add a foot of snow to the scenario, then the same person 
taking the same route may be unable to get to the bus stop. It is not 
the snow alone that stops him; it is the interaction of the snow and the 
fact that the individual has a specific-impairment related condition 
that requires him to push a wheelchair through the snow that prevents 
the travel.
    Inevitably, some judgment is required to distinguish between 
situations in which travel is prevented and situations in which it is 
merely made more difficult. In the Department's view, a case of 
``prevented travel'' can be made not only where travel is literally 
impossible (e.g., someone cannot find the bus stop, someone cannot push 
a wheelchair through the foot of snow or up a steep hill) but also where 
the difficulties are so substantial that a reasonable person with the 
impairment-related condition in question would be deterred from making 
the trip.
    The regulation makes the interaction between an impairment-related 
condition and the environmental barrier (whether distance, weather, 
terrain, or architectural barriers) the key to eligibility 
determinations. This is

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an individual determination. Depending on the specifics of their 
impairment-related condition, one individual may be able to get from his 
home to a bus stop under a given set of conditions, while his next-door 
neighbor may not.

                               Companions

    The ADA requires entities to provide paratransit to one person 
accompanying the eligible individual, with others served on a space-
available basis. The one individual who is guaranteed space on the 
vehicle can be anyone--family member, business associate, friend, date, 
etc. The provider cannot limit the eligible individual's choice of type 
of companion. The transit authority may require that the eligible 
individual reserve a space for the companion when the individual 
reserves his or her own ride. This one individual rides even if this 
means that there is less room for other eligible individuals. Additional 
individuals beyond the first companion are carried only on a space 
available basis; that is, they do not displace other ADA paratransit 
eligible individuals.
    A personal care attendant (i.e., someone designated or employed 
specifically to help the eligible individual meet his or her personal 
needs) always may ride with the eligible individual. If there is a 
personal care attendant on the trip, the eligible individual may still 
bring a companion, plus additional companions on a space available 
basis. The entity may require that, in reserving the trip, the eligible 
individual reserve the space for the attendant.
    To prevent potential abuse of this provision, the rule provides that 
a companion (e.g., friend or family member) does not count as a personal 
care attendant unless the eligible individual regularly makes use of a 
personal care attendant and the companion is actually acting in that 
capacity. As noted under Sec. 37.125, a provider may require that, as 
part of the initial eligibility certification process, an individual 
indicate whether he or she travels with a personal care attendant. If 
someone does not indicate the use of an attendant, then any individual 
accompanying him or her would be regarded simply as a companion.
    To be viewed as ``accompanying'' the eligible individual, a 
companion must have the same origin and destination points as the 
eligible individual. In appropriate circumstances, entities may also 
wish to provide service to a companion who has either an origin or 
destination, but not both, with the eligible individual (e.g., the 
individual's date is dropped off at her own residence on the return trip 
from a concert).

           Section 37.125 ADA Paratransit Eligibility--Process

    This section requires an eligibilty process to be established by 
each operator of complementary paratransit. The details of the process 
are to be devised through the planning and public participation process 
of this subpart. The process may not impose unreasonable administrative 
burdens on applicants, and, since it is part of the entity's 
nondiscrimination obligations, may not involve ``user fees'' or 
application fees to the applicant.
    The process may include functional criteria related to the 
substantive eligibility criteria of Sec. 37.123 and, where appropriate, 
functional evaluation or testing of applicants. The substantive 
eligibility process is not aimed at making a medical or diagnostic 
determination. While evaluation by a physician (or professionals in 
rehabilitation or other relevant fields) may be used as part of the 
process, a diagnosis of a disability is not dispositive. What is needed 
is a determination of whether, as a practical matter, the individual can 
use fixed route transit in his or her own circumstances. That is a 
transportation decision primarily, not a medical decision.
    The goal of the process is to ensure that only people who meet the 
regulatory criteria, strictly applied, are regarded as ADA paratransit 
eligible. The Department recognizes that transit entities may wish to 
provide service to other persons, which is not prohibited by this rule. 
However, the eligibility process should clearly distinguish those 
persons who are ADA eligible from those who are provided service on 
other grounds. For example, eligibility documentation must clearly state 
whether someone is ADA paratransit eligible or eligible on some other 
basis.
    Often, people tend to think of paratransit exclusively in terms of 
people with mobility impairments. Under the ADA, this is not accurate. 
Persons with visual impairments may be eligible under either the first 
or third eligibility categories. To accommodate them, all documents 
concerning eligibility must be made available in one or more accessible 
formats, on request. Accessible formats include computer disks, braille 
documents, audio cassettes, and large print documents. A document does 
not necessarily need to be made available in the format a requester 
prefers, but it does have to be made available in a format the person 
can use. There is no use giving a computer disk to someone who does not 
have a computer, for instance, or a braille document to a person who 
does not read braille.
    When a person applies for eligibility, the entity will provide all 
the needed forms and instructions. These forms and instructions

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may include a declaration of whether the individual travels with a 
personal care attendant. The entity may make further inquiries 
concerning such a declaration (e.g., with respect to the individual's 
actual need for a personal care attendant).
    When the application process is complete--all necessary actions by 
the applicant taken--the entity should process the application in 21 
days. If it is unable to do so, it must begin to provide service to the 
applicant on the 22nd day, as if the application had been granted. 
Service may be terminated only if and when the entity denies the 
application. All determinations shall be in writing; in the case of a 
denial, reasons must be specified. The reasons must specifically relate 
the evidence in the matter to the eligibility criteria of this rule and 
of the entity's process. A mere recital that the applicant can use fixed 
route transit is not sufficient.
    For people granted eligibility, the documentation of eligibility 
shall include at least the following information:

--The individual's name
--The name of the transit provider
--The telephone number of the entity's paratransit coordinator
--An expiration date for eligibility
--Any conditions or limitations on the individual's eligibility, 
including the use of a personal care attendant.

    The last point refers to the situation in which a person is eligible 
for some trips but not others. Or if the traveler is authorized to have 
a personal care attendant ride free of charge. For example, the 
documentation may say that the individual is eligible only when the 
temperature falls below a certain point, or when the individual is going 
to a destination not on an accessible bus route, or for non-work trips, 
etc.
    As the mention of an expiration date implies, certification is not 
forever. The entity may recertify eligibility at reasonable intervals to 
make sure that changed circumstances have not invalidated or changed the 
individual's eligibility. In the Department's view, a reasonable 
interval for recertification is probably between one and three years. 
Less than one year would probably be too burdensome for consumers; over 
three years would begin to lose the point of doing recertifications. The 
recertification interval should be stated in the entity's plan. Of 
course, a user of the service can apply to modify conditions on his or 
her eligibility at any time.
    The administrative appeal process is intended to give applicants who 
have been denied eligibility the opportunity to have their cases heard 
by some official other than the one who turned them down in the first 
place. In order to have appropriate separation of functions--a key 
element of administrative due process--not only must the same person not 
decide the case on appeal, but that person, to the extent practicable, 
should not have been involved in the first decision (e.g., as a member 
of the same office, or a supervisor or subordinate of the original 
decisionmaker). When, as in the case of a small transit operator, this 
degree of separation is not feasible, the second decisionmaker should at 
least be ``bubbled'' with respect to the original decision (i.e., not 
have participated in the original decision or discussed it with the 
original decisionmaker). In addition, there must be an opportunity to be 
heard in person as well as the chance to present written evidence and 
arguments. All appeals decisions must be in writing, stating the reasons 
for the decision.
    To prevent the filing of stale claims, the entity may establish a 60 
day ``statute of limitations'' on filing of appeals, the time starting 
to run on the date the individual is notified on the negative initial 
decision. After the appeals process has been completed (i.e., the 
hearing and/or written submission completed), the entity should make a 
decision within 30 days. If it does not, the individual must be provided 
service beginning the 31st day, until and unless an adverse decision is 
rendered on his or her appeal.
    Under the eligibility criteria of the rule, an individual has a 
right to paratransit if he or she meets the eligibility criteria. As 
noted in the discussion of the nondiscrimination section, an entity may 
refuse service to anindividual with a disability who engages in violent, 
seriously disruptive, or illegal conduct, using the same standards for 
exclusion that would apply to any other person who acted in such an 
inappropriate way.
    The rule also allows an entity to establish a process to suspend, 
for a reasonable period of time, the provision of paratransit service to 
an ADA eligible person who establishes a pattern or practice of missing 
scheduled trips. The purpose of this process would be to deter or deal 
with chronic ``no-shows.'' The sanction system--articulated criteria for 
the imposition of sanctions, length of suspension periods, details of 
the administrative process, etc.--would be developed through the public 
planning and participation process for the entity's paratransit plan, 
and the result reflected in the plan submission to FTA.
    It is very important to note that sanctions could be imposed only 
for a ``pattern or practice'' of missed trips. A pattern or practice 
involves intentional, repeated or regular actions, not isolated, 
accidental, or singular incidents. Moreover, only actions within the 
control of the individual count as part of a pattern or practice. Missed 
trips due to operator error are not attributable to the individual 
passenger for this purpose. If the vehicle arrives substantially after 
the scheduled pickup time, and the passenger has given up on the vehicle 
and taken a taxi or gone down

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the street to talk to a neighbor, that is not a missed trip attributable 
to the passenger. If the vehicle does not arrive at all, or is sent to 
the wrong address, or to the wrong entrance to a building, that is not a 
missed trip attributable to the passenger. There may be other 
circumstances beyond the individual's control (e.g., a sudden turn for 
the worse in someone with a variable condition, a sudden family 
emergency) that make it impracticable for the individual to travel at 
the scheduled time and also for the individual to notify the entity in 
time to cancel the trip before the vehicle comes. Such circumstances 
also would not form part of a sanctionable pattern or practice.
    Once an entity has certified someone as eligible, the individual's 
eligibility takes on the coloration of a property right. (This is not 
merely a theoretical statement. If one depends on transportation one has 
been found eligible for to get to a job, and the eligibility is removed, 
one may lose the job. The same can be said for access to medical care or 
other important services.) Consequently, before eligibility may be 
removed ``for cause'' under this provision, the entity must provide 
administrative due process to the individual.
    If the entity proposes to impose sanctions on someone, it must first 
notify the individual in writing (using accessible formats where 
necessary). The notice must specify the basis of the proposed action 
(e.g., Mr. Smith scheduled trips for 8 a.m. on May 15, 2 p.m. on June 3, 
9 a.m. on June 21, and 9:20 p.m. on July 10, and on each occasion the 
vehicle appeared at the scheduled time and Mr. Smith was nowhere to be 
found) and set forth the proposed sanction (e.g., Mr. Smith would not 
receive service for 15 days).
    The entity would provide the individual an opportunity to be heard 
(i.e., an in-person informal hearing before a decisionmaker) as well as 
to present written and oral information and arguments. All relevant 
entity records and personnel would be made available to the individual, 
and other persons could testify. It is likely that, in many cases, an 
important factual issue would be whether a missed trip was the 
responsibility of the provider or the passenger, and the testimony of 
other persons and the provider's records or personnel are likely to be 
relevant in deciding this issue. While the hearing is intended to be 
informal, the individual could bring a representative (e.g., someone 
from an advocacy organization, an attorney).
    The individual may waive the hearing and proceed on the basis of 
written presentations. If the individual does not respond to the notice 
within a reasonable time, the entity may make, in effect, a default 
finding and impose sanctions. If there is a hearing, and the individual 
needs paratransit service to attend the hearing, the entity must provide 
it. We would emphasize that, prior to a finding against the individual 
after this due process procedure, the individual must continue to 
receive service. The entity cannot suspend service while the matter is 
pending.
    The entity must notify the individual in writing about the decision, 
the reasons for it, and the sanctions imposed, if any. Again, this 
information would be made available in accessible formats. In the case 
of a decision adverse to the individual, the administrative appeals 
process of this section would apply. The sanction would be stayed 
pending an appeal.
    There are means other than sanctions, however, by which a transit 
provider can deal with a ``no-show'' problem in its system. Providers 
who use ``real time scheduling'' report that this technique is very 
effective in reducing no-shows and cancellations, and increasing the mix 
of real time scheduling in a system can probably be of benefit in this 
area. Calling the customer to reconfirm a reasonable time before pickup 
can head off some problems, as can educating consumers to call with 
cancellations ahead of time. Training of dispatch and operator personnel 
can help to avoid miscommunications that lead to missed trips.

          Section 37.127 Complementary Paratransit for Visitors

    This section requires each entity having a complementary paratransit 
system to provide service to visitors from out of town on the same basis 
as it is provided to local residents. By ``on the same basis,'' we mean 
under all the same conditions, service criteria, etc., without 
distinction. For the period of a visit, the visitor is treated exactly 
like an eligible local user, without any higher priority being given to 
either.
    A visitor is defined as someone who does not reside in the 
jurisdiction or jurisdictions served by the public entity or other 
public entities with which it coordinates paratransit service. For 
example, suppose a five-county metropolitan area provides coordinated 
paratransit service under a joint plan. A resident of any of the five 
counties would not be regarded as a visitor in any of them. Note that 
the rule talks in terms of ``jurisdiction'' rather than ``service 
area.'' If an individual lives in XYZ County, but outside the fixed 
route service area of that county's transit provider, the individual is 
still not a visitor for purposes of paratransit in PQR County, if PQR is 
one of the counties with which XYZ provides coordinated paratransit 
service.
    A visitor can become eligible in one of two ways. The first is to 
present documentation from his or her ``home'' jurisdiction's 
paratransit system. The local provider will give ``full faith and 
credit'' to the ID card or other documentation from the other entity. If 
the individual has no such documentation, the local provider may require 
the provision

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of proof of visitor status (i.e., proof of residence somewhere else) 
and, if the individual's disability is not apparent, proof of the 
disability (e.g., a letter from a doctor or rehabilitation 
professional). Once this documentation is presented and is satisfactory, 
the local provider will make service available on the basis of the 
individual's statement that he or she is unable to use the fixed route 
transit system.
    The local provider need serve someone based on visitor eligibility 
for no more than 21 days. After that, the individual is treated the same 
as a local person for eligibility purposes. This is true whether the 21 
days are consecutive or parceled out over several shorter visits. The 
local provider may require the erstwhile visitor to apply for 
eligibility in the usual local manner. A visitor who expects to be 
around longer than 21 days should apply for regular eligibility as soon 
as he arrives. The same approach may be used for a service of requested 
visits totaling 21 days or more in a relating compact period of time. 
Preferably, this application process should be arranged before the 
visitor arrives, by letter, telephone or fax, so that a complete 
application can be processed expeditiously.

                     Section 37.129 Types of Service

    The basic mode of service for complementary paratransit is demand 
responsive, origin-to-destination service. This service may be provided 
for persons in any one of the three eligibility categories, and must 
always be provided to persons in the first category (e.g., people who 
cannot navigate the system). The local planning process should decide 
whether, or in what circumstances, this service is to be provided as 
door-to-door or curb-to-curb service.
    For persons in the second eligibility category (e.g., persons who 
can use accessible buses, but do not have an accessible bus route 
available to take them to their destination), origin-to-destination 
service can be used. Alternatively, the entity can provide either of two 
other forms of service. One is on-call bus, in which the individual 
calls the provider and arranges for one or more accessible buses to 
arrive on the routes he needs to use at the appropriate time. On-call 
bus service must meet all the service criteria of Sec. 37.131, except 
that on-call buses run only on fixed routes and the fare charged can be 
only the fixed route fare that anyone pays on the bus (including 
discounts).
    The second option is ``feeder paratransit'' to an accessible fixed 
route that will take the individual to his or her destination. Feeder 
paratransit, again, would have to meet all the criteria of Sec. 37.131. 
With respect to fares, the paratransit fare could be charged, but the 
individual would not be double charged for the trip. That is, having 
paid the paratransit fare, the transfer to the fixed route would be 
free.
    For persons in the third eligibility category (e.g., persons who can 
use fixed route transit but who, because of a specific impairment-
related condition, cannot get to or from a stop), the ``feeder 
paratransit'' option, under the conditions outlined above, is available. 
For some trips, it might be necessary to arrange for feeder service at 
both ends of the fixed route trip. Given the more complicated logistics 
of such arrangements, and the potential for a mistake that would 
seriously inconvenience the passenger, the transit provider should 
consider carefully whether such a ``double feeder'' system, while 
permissible, is truly workable in its system (as opposed to a simpler 
system that used feeder service only at one end of a trip when the bus 
let the person off at a place from which he or she could independently 
get to the destination). There may be some situations in which origin to 
destination service is easier and less expensive.

 Section 37.131 Service Criteria for Complementary Paratransit Service 
                                  Area

    The basic bus system service area is a corridor with a width of \3/
4\ of a mile on each side of each fixed route. At the end of a route, 
there is a semicircular ``cap'' on the corridor, consisting of a three-
quarter mile radius from the end point of the route to the parallel 
sides of the corridor.

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[GRAPHIC] [TIFF OMITTED] TC02FE91.191

    Complementary paratransit must provide service to any origin or 
destination point within a corridor fitting this description around any 
route in the bus system. Note that this does not say that an eligible 
user must live within a corridor in order to be eligible. If an 
individual lives outside the corridor, and can find a way of getting to 
a pickup point within the corridor, the service must pick him up there. 
The same holds true at the destination end of the trip.
    Another concept involved in this service criterion is the core 
service area. Imagine a bus route map of a typical city. Color the bus 
routes and their corridors blue, against the white outline map. In the 
densely populated areas of the city, the routes (which, with their 
corridors attached, cut 1\1/2\ mile swaths) merge together into a solid 
blue mass. There are few, if any, white spots left uncovered, and they 
are likely to be very small. Paratransit would serve all origins and 
destinations in the solid blue mass.
    But what of the little white spots surrounded by various bus 
corridors? Because it would make sense to avoid providing service to 
such small isolated areas, the rule requires paratransit service there 
as well. So color them in too.
    Outside the core area, though, as bus routes follow radial arteries 
into the suburbs and exurbs (we know real bus route maps are more 
complicated than this, but we simplify for purposes of illustration), 
there are increasingly wide white areas between the blue corridors, 
which may have corridors on either side of them but are not small areas 
completely surrounded by corridors. These white spaces are not part of 
the paratransit service area and the entity does not have to serve 
origins and destinations there. However, if, through the planning 
process, the entity wants to enlarge the width of one or more of the 
blue corridors from the \3/4\ of a mile width, it can do so, to a 
maximum of 1\1/2\ miles on each side of a route. The cost of service 
provided within such an expanded corridor can be counted in connection 
with an undue financial burden waiver request.
    There may be a part of the service area where part of one of the 
corridors overlaps a political boundary, resulting in a requirement to 
serve origins and destinations in a neighboring jurisdiction which the 
entity lacks legal authority to service. The entity is not required to 
serve such origins and destinations, even though the area on the other 
side of the political boundary is within a corridor. This exception to 
the service area criterion does not automatically apply whenever there 
is a political boundary, only when there is a legal bar to the entity 
providing service on the other side of the boundary.
    The rule requires, in this situation, that the entity take all 
practicable steps to get around the problem so that it can provide 
service throughout its service area. The entity should work with the 
state or local governments involved, via coordination plans, reciprocity 
agreements, memoranda of understanding or other means to prevent 
political boundaries from becoming barriers to the travel of individuals 
with disabilities.
    The definition of the service area for rail systems is somewhat 
different, though many of the same concepts apply.

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[GRAPHIC] [TIFF OMITTED] TC02FE91.192

    Around each station on the line (whether or not a key station), the 
entity would draw a circle with a radius of \3/4\ mile. Some circles may 
touch or overlap. The series of circles is the rail system's service 
area. (We recognize that, in systems where stations are close together, 
this could result in a service area that approached being a corridor 
like that of a bus line.) The rail system would provide paratransit 
service from any point in one circle to any point in any other circle. 
The entity would not have to provide service to two points within the 
same circle, since a trip between two points in the vicinity of the same 
station is not a trip that typically would be taken by train. Nor would 
the entity have to provide service to spaces between the circles. For 
example, a train trip would not get close to point x; one would have to 
take a bus or other mode of transportation to get from station E or F to 
point x. A paratransit system comparable to the rail service area would 
not be required to take someone there either.
    Rail systems typically provide trips that are not made, or cannot be 
made conveniently, on bus systems. For example, many rail systems cross 
jurisdictional boundaries that bus systems often do not. One can travel 
from Station A to a relatively distant Station E on a rail system in a 
single trip, while a bus trip between the same points, if possible at 
all, may involve a number of indirect routings and transfers, on two bus 
systems that may not interface especially well.
    Rail operators have an obligation to provide paratransit equivalents 
of trips between circles to persons who cannot use fixed route rail 
systems because they cannot navigate the system, because key stations or 
trains are not yet accessible, or because they cannot access stations 
from points within the circles because of a specific impairment-related 
condition. For individuals who are eligible in category 2 because they 
need an accessible key station to use the system, the paratransit 
obligation extends only to transportation among ``circles'' centered on 
designated key stations (since, even when the key station plan is fully 
implemented, these individuals will be unable to use non-key stations).
    It is not sufficient for a rail operator to refer persons with 
disabilities to an accessible bus system in the area. The obligation to 
provide paratransit for a rail system is independent of the operations 
of any bus system serving the same area, whether operated by the same 
entity that operates the rail system or a different entity. Obviously, 
it will be advantageous for bus and rail systems to coordinate their 
paratransit efforts, but a coordinated system would have to ensure 
coverage of trips comparable to rail trips that could not conveniently 
be taken on the fixed route bus system.

                              Response Time

    Under this provision, an entity must make its reservation service 
available during the hours its administrative offices are open. If those 
offices are open 9 to 5, those are the hours during which the 
reservations service must be open, even if the entity's transit service 
operated 6 a.m. to midnight. On days prior to a service day on which the 
administrative offices are not open at all (e.g., a Sunday prior to a 
Monday service day), the reservation service would also be open 9 to 5. 
Note that the reservation service on any day

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does not have to be provided directly by a ``real person.'' An answering 
machine or other technology can suffice.
    Any caller reaching the reservation service during the 9 to 5 
period, in this example, could reserve service for any time during the 
next 6 a.m. to 12 midnight service day. This is the difference between 
``next day scheduling'' and a system involving a 24-hour prior 
reservation requirement, in which a caller would have to reserve a trip 
at 7 a.m. today if he or she wanted to travel at 7 a.m. tomorrow. The 
latter approach is not adequate under this rule.
    The entity may use real time scheduling for all or part of its 
service. Like the Moliere character who spoke prose all his life without 
knowing it, many entities may already be using some real time scheduling 
(e.g., for return trips which are scheduled on a when-needed basis, as 
opposed to in advance). A number of transit providers who have used real 
time scheduling believe that it is more efficient on a per-trip basis 
and reduces cancellations and no-shows significantly. We encourage 
entities to consider this form of service.
    Sometimes users want to schedule service well in advance, to be sure 
of traveling when they want to. The rule tells providers to permit 
reservations to be made as much as 14 days in advance. In addition, 
though an entity may negotiate with a user to adjust pickup and return 
trip times to make scheduling more efficient, the entity cannot insist 
on scheduling a trip more than one hour earlier or later than the 
individual desires to travel. Any greater deviation from desired trip 
would exceed the bounds of comparability.

                                  Fares

    To calculate the proper paratransit fare, the entity would determine 
the route(s) that an individual would take to get from his or her origin 
to his or her destination on the fixed route system. At the time of day 
the person was traveling, what is the fare for that trip on those 
routes? Applicable charges like transfer fees or premium service charges 
may be added to the amount, but discounts (e.g., the half-fare discount 
for off-peak fixed route travel by elderly and handicapped persons) 
would not be subtracted. The transit provider could charge up to twice 
the resulting amount for the paratransit trip.
    The mode through which paratransit is provided does not change the 
method of calculation. For example, if paratransit is provided via user 
side subsidy taxi service rather than publicly operated dial-a-ride van 
service, the cost to the user could still be only twice the applicable 
fixed route fare. The system operates the same regardless of whether the 
paratransit trip is being provided in place of a bus or a rail trip the 
user cannot make on the fixed route system. Where bus and rail systems 
are run by the same provider (or where the same bus provider runs 
parallel local and express buses along the same route), the comparison 
would be made to the mode on which a typical fixed route user would make 
the particular trip, based on schedule, length, convenience, avoidance 
of transfers, etc.
    Companions are charged the same fare as the eligible individual they 
are accompanying. Personal care attendants ride free.
    One exception to the fare requirement is made for social service 
agency (or other organization-sponsored) trips. This exception, which 
allows the transit provider to negotiate a price with the agency that is 
more than twice the relevant fixed route fare, applies to ``agency 
trips,'' by which we mean trips which are guaranteed to the agency for 
its use. That is, if an agency wants 12 slots for a trip to the mall on 
Saturday for clients with disabilities, the agency makes the reservation 
for the trips in its name, the agency will be paying for the 
transportation, and the trips are reserved to the agency, for whichever 
12 people the agency designates, the provider may then negotiate any 
price it can with the agency for the trips. We distinguish this 
situation from one in which an agency employee, as a service, calls and 
makes an individual reservation in the name of a client, where the 
client will be paying for the transportation.

            Restrictions and Priorities Based on Trip Purpose

    This is a simple and straightforward requirement. There can be no 
restrictions or priorities based on trip purpose in a comparable 
complementary paratransit system. When a user reserves a trip, the 
entity will need to know the origin, destination, time of travel, and 
how many people are traveling. The entity does not need to know why the 
person is traveling, and should not even ask.

                        Hours and Days of Service

    This criterion says simply that if a person can travel to a given 
destination using a given fixed route at a given time of day, an ADA 
paratransit eligible person must be able to travel to that same 
destination on paratransit at that time of day. This criterion 
recognizes that the shape of the service area can change. Late at night, 
for example, it is common for certain routes not to be run. Those 
routes, and their paratransit corridors, do not need to be served with 
paratransit when the fixed route system is not running on them. One 
couldn't get to destinations in that corridor by fixed route at those 
times, so paratransit service is not necessary either.
    It should be pointed out that service during low-demand times need 
not be by the same paratransit mode as during higher usage periods. For 
example, if a provider

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uses its own paratransit vans during high demand periods, it could use a 
private contractor or user-side subsidy provider during low demand 
periods. This would presumably be a more efficient way of providing late 
night service. A call-forwarding device for communication with the 
auxiliary carrier during these low demand times would be perfectly 
acceptable, and could reduce administrative costs.

                          Capacity Constraints

    This provision specifically prohibits two common mechanisms that 
limit use of a paratransit system so as to constrain demand on its 
capacity. The first is a waiting list. Tyically, a waiting list involves 
a determination by a provider that it can provide service only to a 
given number of eligible persons. Other eligible persons are not able to 
receive service until one of the people being served moves away or 
otherwise no longer uses the service. Then the persons on the waiting 
list can move up. The process is analogous to the wait that persons in 
some cities have to endure to be able to buy season tickets to a sold-
out slate of professional football games.
    The second mechanism specifically mentioned is a number limit on the 
trips a passenger can take in a given period of time. It is a kind of 
rationing in which, for example, if one has taken his quota of 30 trips 
this month, he cannot take further trips for the rest of the month.
    In addition, this paragraph prohibits any operational pattern or 
practice that significantly limits the availability of service of ADA 
paratransit eligible persons. As discussed under Sec. 37.125 in the 
context of missed trips by passengers, a ``pattern or practice'' 
involves, regular, or repeated actions, not isolated, accidental, or 
singular incidents. A missed trip, late arrival, or trip denial now and 
then does not trigger this provision.
    Operational problems outside the control of the entity do not count 
as part of a pattern or practice under this provision. For example, if 
the vehicle has an accident on the way to pick up a passenger, the late 
arrival would not count as part of a pattern or practice. If something 
that could not have been anticipated at the time the trip was scheduled 
(e.g., a snowstorm, an accident or hazardous materials incident that 
traps the paratransit vehicle, like all traffic on a certain highway, 
for hours), the resulting missed trip would not count as part of a 
pattern or practice. On the other hand, if the entity regularly does not 
maintain its vehicles well, such that frequent mechanical breakdowns 
result in missed trips or late arrivals, a pattern or practice may 
exist. This is also true in a situation in which scheduling practices 
fail to take into account regularly occurring traffic conditions (e.g., 
rush hour traffic jams), resulting in frequent late arrivals.
    The rule mentions three specific examples of operational patterns or 
practices that would violate this provision. The first is a pattern or 
practice of substantial numbers of significantly untimely pickups 
(either for initial or return trips). To violate this provision, there 
must be both a substantial number of late arrivals and the late arrivals 
in question must be significant in length. For example, a DOT Inspector 
General's (IG) report on one city's paratransit system disclosed that 
around 30 percent of trips were between one and five hours late. Such a 
situation would trigger this provision. On the other hand, only a few 
instances of trips one to five hours late, or many instances of trips a 
few minutes late, would not trigger this provision.
    The second example is substantial numbers of trip denials or missed 
trips. For example, if on a regular basis the reservation phone lines 
open at 5 a.m. and callers after 7 a.m. are all told that they cannot 
travel, or the phone lines shut down after 7 a.m. and a recorded message 
says to call back the next day, or the phone lines are always so busy 
that no one can get through, this provision would be triggered. 
(Practices of this kind would probably violate the response time 
criterion as well.) Also, if, on a regular basis, the entity misses a 
substantial number of trips (e.g., a trip is scheduled, the passenger is 
waiting, but the vehicle never comes, goes to the wrong address, is 
extremely late, etc.), it would violate this provision.
    The third example is substantial numbers of trips with excessive 
trip lengths. Since paratransit is a shared ride service, paratransit 
rides between Point A and Point B will usually take longer, and involve 
more intermediate stops, than a taxi ride between the same two points. 
However, when the number of intermediate stops and the total trip time 
for a given passenger grows so large as to make use of the system 
prohibitively inconvenient, then this provision would be triggered. For 
example, the IG report referred to above mentioned a situation in which 
9 percent of riders had one way trips averaging between two and four 
hours, with an average of 16 intermediate stops. Such a situation would 
probably trigger this provision.
    Though these three examples probably cover the most frequently cited 
problems in paratransit operations that directly or indirectly limit the 
provision of service that is theoretically available to eligible 
persons, the list is not exhaustive. Other patterns or practices could 
trigger this provision. For example, the Department has heard about a 
situation in which an entity's paratransit contractor was paid on a per-
trip basis, regardless of the length of the trip. The contractor 
therefore had an economic incentive

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to provide as many trips as possible. As a result, the contractor 
accepted short trips and routinely denied longer trips. This would be a 
pattern or practice contrary to this provision (and contrary to the 
service area provision as well).

                           Additional Service

    This provision emphasizes that entities may go beyond the 
requirements of this section in providing service to ADA paratransit 
individuals. For example, no one is precluded from offering service in a 
larger service area, during greater hours than the fixed route system, 
or without charge. However, costs of such additional service do not 
count with respect to undue financial burden waiver requests. Where a 
service criterion itself incorporates a range of actions the entity may 
take (e.g., providing wide corridors outside the urban core, using real 
time scheduling), however, costs of providing that optional service may 
be counted for undue financial burden waiver request purposes.

                   Section 37.133 Subscription Service

    As part of its paratransit service, an entity may include a 
subscription service component. However, at any given time of day, this 
component may not absorb more than 50 percent of available capacity on 
the total system. For example, if, at 8 a.m., the system can provide 400 
trips, no more than 200 of these can be subscription trips.
    The one exception to this rule would occur in a situation in which 
there is excess non-subscription capacity available. For example, if 
over a long enough period of time to establish a pattern, there were 
only 150 non-subscription trips requested at 8 a.m., the provider could 
begin to provide 250 subscription trips at that time. Subsequently, if 
non-subscription demand increased over a period of time, such that the 
50 trips were needed to satisfy a regular non-subscription demand at 
that time, and overall system capacity had not increased, the 50 trips 
would have to be returned to the non-subscription category. During times 
of high subscription demand, entities could use the trip time 
negotiation discretion of Sec. 37.131(c)(2) to shift some trips to 
other times.
    Because subscription service is a limited subcomponent of 
paratransit service, the rule permits restrictions to be imposed on its 
use that could not be imposed elsewhere. There may be a waiting list for 
provision of subscription service or the use of other capacity 
constraints. Also, there may be restrictions or priorities based on trip 
purpose. For example, subscription service under peak work trip times 
could be limited to work trips. We emphasize that these limitations 
apply only to subscription service. It is acceptable for a provider to 
put a person on a waiting list for access to subscription service at 8 
a.m. for work trips; the same person could not be wait-listed for access 
to paratransit service in general.

             Section 37.135 Submission of Paratransit Plans

    This section contains the general requirements concerning the 
submission of paratransit plans. Each public entity operating fixed 
route service is required to develop and submit a plan for paratransit 
service. Where you send your plans depends on the type of entity you 
are. There are two categories of entities which should submit their 
plans to states--(1) FTA recipients and (2) entities who are 
administered by the state on behalf of FTA.
    These FTA grantees submit their plans to the states because the 
agency would like the benefit of the states' expertise before final 
review. The states' role is as a commenter, not as a reviewer.
    This section also specifies annual progress reports concerning the 
meeting of previously approved milestones, any slippage (with the 
reasons for it and plans to catch up), and any significant changes in 
the operator's environment, such as the withdrawal from the marketplace 
of a private paratransit provider or whose service the entity has relied 
upon to provide part of its paratransit service.
    Paragraph (d) of this section specifies a maximum time period for 
the phase-in of the implementation of paratransit plans. The Department 
recognizes that it is not reasonable to expect paratransit systems to 
spring into existence fully formed, like Athena from the head of Zeus. 
Under this paragraph, all entities must be in full compliance with all 
paratransit provisions by January 26, 1997, unless the entity has 
received a waiver from FTA based on undue financial burden (which 
applies only to the service criteria of Sec. 37.131, not to eligibility 
requirements or other paratransit provisions).
    While the rule assumes that most entities will take a year to fully 
implement these provisions, longer than a year requires the paratransit 
plans to submit milestones that are susceptible to objective 
verification. Not all plans will be approved with a five-year lead-in 
period. Consistent with the proposed rule, the Department intends to 
look at each plan individually to see what is required for 
implementation in each case. DOT may approve only a shorter phase-in 
period in a given case.

               Section 37.137 Paratransit Plan Development

    Section 35.137 establishes three principal requirements in the 
development of paratransit plans.
    First is the requirement to survey existing paratransit services 
within the service area. This is required by section 223(c)(8) of the 
ADA. While the ADA falls short of explicitly

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requiring coordination, clearly this is one of the goals. The purpose of 
the survey is to determine what is being provided already, so that a 
transit provider can accurately assess what additional service is needed 
to meet the service criteria for comparable paratransit service. The 
plan does not have to discuss private paratransit providers whose 
services will not be used to help meet paratransit requirements under 
this rule. However, the public entity will need to know specifically 
what services are being provided by whom if the entity is to count the 
transportation toward the overall need.
    Since the public entity is required to provide paratransit to all 
ADA paratransit eligible individuals, there is some concern that 
currently provided service may be cut back or eliminated. It is possible 
that this may happen and such action would have a negative effect on 
transportation provided to persons with disabilities in general. The 
Department urges each entity required to submit a plan to work with 
current providers of transportation, not only to determine what 
transportation services they provide, but also to continue to provide 
service into the foreseeable future.
    Second, Sec. 37.137 specifies requirements for public 
participation. First, the entity must perform outreach, to ensure that a 
wide range of persons anticipated to use the paratransit service know 
about and have the opportunity to participate in the development of the 
plan. Not only must the entity identify who these individuals or groups 
are, the entity also must contact the people at an early stage in the 
development process.
    The other public participation requirements are straightforward. 
There must be a public hearing and an opportunity to comment. The 
hearing must be accessible to those with disabilities, and notice of the 
hearing must be accessible as well. There is a special efforts test 
identified in this paragraph for comments concerning a multi-year phase-
in of a paratransit plan.
    The final general requirement of the section specifies that efforts 
at public participation must be made permanent through some mechanism 
that provides for participation in all phases of paratransit plan 
development and submission. The Department is not requiring that there 
be an advisory committee established, although this is one method of 
institutionalizing participation. The Department is not as interested in 
the specific structure used to ensure public participation as we are 
interested in the effectiveness of the effort.
    The Department believes that public participation is a key element 
in the effective implementation of the ADA. The ADA is an opportunity to 
develop programs that will ensure the integration of all persons into 
not just the transportation system of America, but all of the 
opportunities transportation makes possible. This opportunity is not 
without tremendous challenges to the transit providers. It is only 
through dialogue, over the long term, that usable, possible plans can be 
developed and implemented.

                      Section 37.139 Plan Contents

    This section contains substantive categories of information to be 
contained in the paratransit plan: Information on current and changing 
fixed route service; inventory of existing paratransit service; 
discussion of the discrepancies between existing paratransit and what is 
required under this regulation; a discussion of the public participation 
requirements and how they have been met; the plan for paratransit 
service; the budget for paratransit services; efforts to coordinate with 
other transportation providers; a description of the process in place or 
to be used to register ADA paratransit eligible individuals; a 
description of the documentation provided to each individual verifying 
eligibility; and a request for a waiver based on undue financial burden, 
if applicable. The final rule contains a reorganized and slightly 
expanded section on plan contents, reflecting requests to be more 
explicit, rather than less explicit.
    The list of required elements is the same for all entities required 
to submit paratransit plans. There is no document length requirement, 
however. Each entity (or group plan) is unique and we expect the plans 
to reflect this. While we would like the plan elements presented in the 
order listed in this section, the contents most likely will vary 
greatly, depending on the size, geographic area, budget, complexity of 
issues, etc. of the particular submitting agency.
    This section and Sec. 37.139 provide for a maximum phase-in period 
of five years, with an assumed one-year phase-in for all paratransit 
programs. (The required budget has been changed to five years as well.) 
The Department has established a maximum five-year phase-in in the 
belief that not all systems will require that long, but that some, 
particularly those which had chosen to meet compliance with section 504 
requirements with accessible fixed route service, may indeed need five 
years.
    We are confident that, through the public participation process, 
entities can develop a realistic plan for full compliance with the ADA. 
To help ensure this, the paratransit plan contents section now requires 
that any plan which projects full compliance after January 26, 1993 must 
include milestones which can be measured and which result in steady 
progress toward full compliance. For example, it is possible that the 
first part of year one is used to ensure comprehensive registration of 
all eligible persons with disabilities, training of transit provider 
staffs and the development and dissemination of information to users and 
potential users in

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accessible formats and some modest increase in paratransit service is 
provided. A plan would not be permitted to indicate that no activity was 
possible in the first year, but proportionately more progress could be 
planned for later years than for the first year. Implementation must 
begin in January 1992.
    Each plan, including its proposed phase-in period, will be the 
subject of examination by FTA. Not all providers who request a five-year 
phase-in will receive approval for a five-year phase-in. The plan must 
be careful, therefore, to explain what current services are, what the 
projections are, and what methods are in place to determine and provide 
accountability for progress toward full compliance.
    We have been asked for assistance in assessing what the demand for 
paratransit service will be. FTA's ADA Paratransit Manual provides 
detailed assistance in this and many other areas of the plan development 
process.
    The ADA itself contained a figure of 43 million persons with 
disabilities. It should be pointed out that many of these may not 
necessarily be eligible for ADA paratransit service. The Department's 
regulatory impact analysis discussing the probable costs involved in 
implementing this rule places the possible percentage of population who 
would be eligible for paratransit service at between 1.4 and 1.9 
percent. This figure can vary depending on the type and variety of 
services you have available, or on such things as climate, proximity to 
medical care, family, etc. that a person with a disability may need. 
Clearly estimating demand is one of the most critical elements in the 
plan, since it will be used to make decisions about all of the various 
service criteria.
    Section 37.139 contains a new paragraph (j), spelling out in more 
detail requirements related to the annual submission of plans. Since 
there is now the possibility for five-year phase-ins, the annual plan 
demonstrates the progress made to date, and explains any delays.

        Section 37.141 Requirements If a Joint Plan is Submitted

    The Department believes that, particularly in large, multi-provider 
regions, a coordinated regional paratransit plan and system are 
extremely important. Such coordination can do much to ensure that the 
most comprehensive transportation can be provided with the most 
efficient use of available resources. We recognize that the effort of 
putting together such a coordinated system can be a lengthy one. This 
section is intended to facilitate the process of forming such a 
coordinated system.
    If a number of entities wish to submit a joint plan for a 
coordinated system, they must, like other entities, submit a document by 
January 26, 1992. At a minimum, this document must include the 
following:
    (1) A general statement that the participating entities intend to 
file a joint coordinated plan;
    (2) A certification from each participating entity that it is 
committed to providing paratransit as a part of a coordinated plan;
    (3) A certification from each participating entity that it will 
maintain at least current levels of paratransit service until the 
coordinated paratransit service called for by the joint plan is 
implemented;
    (4) As many elements of the plan as possible.
    These provisions ensure that significant planning will precede, and 
plan implementation will begin by, January 26, 1992, without precluding 
entities from cooperating because it was not possible to complete 
coordinating different public entities by that date. The entities 
involved in a joint plan are required to submit all elements of their 
plan by July 26, 1992.
    The final provision in the section notes that an entity may later 
join a coordinated plan, even if it has filed its own plan on January 
26, 1992. An entity must submit its own plan by January 26, 1992, if it 
has not provided a certification of participation in a joint plan.). In 
this case, the entity must provide the assurances and certifications 
required of all of the other participating entities.
    The Department fully expects that many jurisdictions filing joint 
plans will be able to do so by January 26, 1992. For those who cannot, 
the regulatory provision ensures that there will be no decrease in 
paratransit service. Further, since we anticipate coordinated service 
areas to provide more effective service, complete implementation of a 
joint plan could be more rapid than if each entity was providing service 
on its own.
    Entities submitting a joint plan do not have any longer than any 
other entities to fully implement complementary paratransit service. In 
any case, all plans (joint or single) must be fully implemented by 
January 26, 1997, absent a waiver for undue financial burden (which 
would, in the case of a joint plan, be considered on a joint basis).

             Section 37.143 Paratransit Plan Implementation

    As already discussed under Sec. 37.135, the states will receive FTA 
recipient plans for section 18 recipients administered by the State or 
any small urbanized area recipient of section 9 funds administered by a 
state. Public entities who do not receive FTA funds will submit their 
plans directly to the applicable Regional Office (listed in appendix B 
to the rule).
    The role of the state is to accept the plans on behalf of FTA, to 
ensure that all plans are submitted to it and forward the plans, with

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any comments on the plans, to FTA. This comment is very important for 
FTA to receive, since states administer these programs on behalf of FTA. 
Each state's specific knowledge of FTA grantees it administers will 
provide helpful information to FTA in making its decisions.
    The rule lists five questions the states must answer when they 
forward the plans. These questions are gauged to capitalize on the 
working knowledge the states possess on the grantees. FTA will send a 
more specific letter of instruction to each state explaining its role.

                   Section 37.147 FTA Review of Plans

    This provision spells out factors FTA will consider in reviewing 
each plan, including whether the submission is complete, whether the 
plan complies with the substance of the ADA regulation, whether the 
entity complied with the public participation requirements in developing 
the plan, efforts by the entity to coordinate with other entities in a 
plan submission, and any comments submitted by the states.
    These elements are not the only items that will be reviewed by FTA. 
Every portion of the plan will be reviewed and assessed for compliance 
with the regulation. This section merely highlights those provisions 
thought most important by the Department.

            Section 37.151 Waiver for Undue Financial Burden

    The Department has adopted a five-year phase-in for paratransit 
service. Under this scheme, each entity required to provide paratransit 
service will be able to design a phase-in of its service specifically 
geared to local circumstances. While all jurisdictions will not receive 
approval for plans with a five year phase-in, each entity will be able 
to request what it needs based on local circumstances. Generally, the 
section allows an entity to request a wavier at any time it determines 
that it will not be able to meet a five-year phase-in or make measured 
progress toward its full compliance date specified in its original plan.
    A waiver for undue financial burden should be requested if one of 
the following circumstances applies. First, when the entity submits its 
first plan on January 26, 1992, if the entity knows it will not be able 
to reach full compliance within five years, or if the entity cannot make 
measured progress the first year it may submit a waiver request. The 
entity also should apply for a waiver, if, during plan implementation, 
there are changed circumstances which make it unlikely that compliance 
will be possible.
    The concept of measured progress should be given its plain meaning. 
It is not acceptable to submit a plan which shows significant progress 
in implementing a plan in years four and five, but no progress in years 
one and two. Similarly, the progress must be susceptible to objective 
verification. An entity cannot merely ``work toward'' developing a 
particular aspect of a plan.
    The Department intends that undue burden waiver requests will be 
given close scrutiny, and waiver will not be granted highly. In 
reviewing requests, however, as the legislative history indicates, FTA 
will look at the individual financial constraints within which each 
public entity operates its fixed route system. ``Any determination of 
undue financial burden cannot have assumed the collection of additional 
revenues, such as those received through increases in local taxes or 
legislative appropriations, which would not have otherwise been made 
available to the fixed route operator.'' (H. Rept. 101-485, Pt. 1, at 
31)

                 Section 37.153 FTA Waiver Determination

    If the FTA Administrator grants a waiver for undue financial burden, 
the waiver will be for a specified period of time and the Administrator 
will determine what the entity must do to meet its responsibilities 
under the ADA. Each determination will involve a judgment of what is 
appropriate on a case-by-case basis. Since each waiver will be granted 
based on individual circumstances, the Department does not deem it 
appropriate to specify a generally applicable duration for a waiver.
    When a waiver is granted, the rule calls for entities to look first 
at limiting the number of trips provided to each individual as a means 
of providing service that does not create an undue burden. This capacity 
constraint, unlike manipulations of other service criteria, will not 
result in a degradation of the quality of service. An entity intending 
to submit an undue burden waiver request should take this approach into 
account in its planning process.
    It should be noted that requiring an entity to provide paratransit 
service at least during core hours along key routes is one option that 
the Administrator has available in making a decision about the service 
to be provided. This requirement stems from the statutory provision that 
the Administrator can require the entity to provide a minimum level of 
service, even if to do so would be an undue financial burden. Certainly 
part of a request for a waiver could be a locally endorsed alternative 
to this description of basic service. The rule states explicitly the 
Administrator's discretion to return the application for more 
information if necessary.

 Section 37.155 Factors in Decision To Grant an Undue Financial Burden 
                                 Waiver

    Factors the Administrator will consider in making a decision whether 
to grant an

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undue financial burden waiver request include effects on current fixed 
route service, reductions in other services, increases in fares, 
resources available to implement complementary paratransit over the 
period of the plan, current level of accessible service (fixed route and 
paratransit), cooperation among transit providers, evidence of increased 
efficiencies that have been or could be used, any unique circumstances 
that may affect the entity's ability to provide paratransit service, the 
level of per capita service being provided, both to the population as a 
whole and what is being or anticipated to be provided to persons who are 
eligible and registered to receive ADA paratransit service.
    This final element allows some measure of comparability, regardless 
of the specific service criteria and should assist in a general 
assessment of level of effort.
    It is only the costs associated with providing paratransit service 
to ADA-paratransit eligible persons that can be counted in assessing 
whether or not there is an undue financial burden. Two cost factors are 
included in the considerations which enhance the Administrator's ability 
to assess real commitment to these paratransit provisions.
    First, the Department will allow a statistically valid methodology 
for estimating number of trips mandated by the ADA. While the regulation 
calls for a trip-by-trip determination of eligibility, this provision 
recognizes that this is not possible for some systems, particularly the 
large systems. Since only those trips provided to a person when he or 
she is ADA eligible may be counted in determining an undue financial 
burden, this provision is necessary.
    Second, in determining costs to be counted toward providing 
paratransit service, paragraph (b)(3) allows an entity to include in its 
paratransit budget dollars to which it is legally entitled, but which, 
as a matter of state or local funding arrangements, are provided to 
another entity that is actually providing the paratransit service.
    For example, a state government may provide a certain formula 
allocation of the revenue from a certain tax to each jurisdiction for 
use in providing transportation service at the local level. The funds, 
depending on local arrangements, may flow either to a transit 
authority--a regulated entity under this rule--or to a city or county 
government. If the funds go to the transit authority, they clearly may 
be counted in an undue burden calculation. In addition, however, this 
provision also allows funds that flow through the city or county 
government to be counted in the undue burden calculation, since they are 
basically the same funds and should not be treated differently based on 
the accident of previously-determined local arrangements. On the other 
hand, this provision does not allow funds of a private non-profit or 
other organization who uses Department of Health and Human Services 
grant or private contributions to be counted toward the entity's 
financial commitment to paratransit.

                     Subpart G--Provision of Service

       Section 37.161 Maintenance of Accessible Features--General

    This section applies to all entities providing transportation 
services, public and private. It requires those entities to maintain in 
operative condition those features or facilities and equipment that make 
facilities and vehicles accessible to and usable by individuals with 
disabilities.
    The ADA requires that, to the maximum extent feasible, facilities be 
accessible to and usable by individuals with disabilities. This section 
recognizes that it is not sufficient to provide features such as lift-
equipped vehicles, elevators, communications systems to provide 
information to people with vision or hearing impairments, etc. if these 
features are not maintained in a manner that enables individuals with 
disabilities to use them. Inoperative lifts or elevators, locked 
accessible doors, accessible paths of travel that are blocked by 
equipment or boxes of materials are not accessible to or usable by 
individuals with disabilities.
    The rule points out that temporary obstructions or isolated 
instances of mechanical failure would not be considered violations of 
the ADA or this rule. Repairs must be made ``promptly.'' The rule does 
not, and probably could not, state a time limit for making particular 
repairs, given the variety of circumstances involved. However, repairing 
accessible features must be made a high priority. Allowing obstructions 
or out of order accessibility equipment to persist beyond a reasonable 
period of time would violate this Part, as would mechanical failures due 
to improper or inadequate maintenance. Failure of the entity to ensure 
that accessible routes are free of obstruction and properly maintained, 
or failure to arrange prompt repair of inoperative elevators, lifts, or 
other accessibility-related equipment, would also violate this part.
    The rule also requires that accommodations be made to individuals 
with disabilities who would otherwise use an inoperative accessibility 
feature. For example, when a rail system discovers that an elevator is 
out of order, blocking access to one of its stations, it could 
accommodate users of the station by announcing the problem at other 
stations to alert passengers and offer accessible shuttle bus service 
around the temporarily inaccessible station. If a public address system 
were out of order, the entity could designate personnel to provide 
information to customers with visual impairments.

[[Page 474]]

  Section 37.163 Keeping Vehicle Lifts in Operative Condition--Public 
                                Entities

    This section applies only to public entities. Of course, like 
vehicle acquisition requirements and other provisions applying to public 
entities, these requirements also apply when private entities ``stand in 
the shoes'' of public entities in contracting situations, as provided in 
Sec. 37.23.
    This section's first requirement is that the entity establish a 
system of regular and frequent maintenance checks of lifts sufficient to 
determine if they are operative.
    Vehicle and equipment maintenance is an important component of 
successful accessible service. In particular, an aggressive preventive 
maintenance program for lifts is essential. Lifts remain rather delicate 
pieces of machinery, with many moving parts, which often must operate in 
a harsh environment of potholes, dust and gravel, variations in 
temperature, snow, slush, and deicing compounds. It is not surprising 
that they sometimes break down.
    The point of a preventive maintenance program is to prevent 
breakdowns, of course. But it is also important to catch broken lifts as 
soon as possible, so that they can be repaired promptly. Especially in a 
bus system with relatively low lift usage, it is possible that a vehicle 
could go for a number of days without carrying a passenger who uses the 
lift. It is highly undesirable for the next passenger who needs a lift 
to be the person who discovers that the lift is broken, when a 
maintenance check by the operator could have discovered the problem days 
earlier, resulting in its repair.
    Therefore, the entity must have a system for regular and frequent 
checks, sufficient to determine if lifts are actually operative. This is 
not a requirement for the lift daily. (Indeed, it is not, as such, a 
requirement for lift cycling at all. If there is another means available 
of checking the lift, it may be used.) If alternate day checks, for 
example, are sufficient to determine that lifts are actually working, 
then they are permitted. If a lift is used in service on a given day, 
that may be sufficient to determine that the lift is operative with 
respect to the next day. It would be a violation of this part, however, 
for the entity to neglect to check lifts regularly and frequently, or to 
exhibit a pattern of lift breakdowns in service resulting in stranded 
passengers when the lifts had not been checked before the vehicle failed 
to provide required accessibility to passengers that day.
    When a lift breaks down in service, the driver must let the entity 
know about the problem by the most immediate means available. If the 
vehicle is equipped with a radio or telephone, the driver must call in 
the problem on the spot. If not, then the driver would have to make a 
phone call at the first opportunity (e.g., from a phone booth during the 
turnaround time at the end of the run). It is not sufficient to wait 
until the end of the day and report the problem when the vehicle returns 
to the barn.
    When a lift is discovered to be inoperative, either because of an 
in-service failure or as the result of a maintenance check, the entity 
must take the vehicle out of service before the beginning of its next 
service day (with the exception discussed below) and repair the lift 
before the vehicle is put back into service. In the case of an in-
service failure, this means that the vehicle can continue its runs on 
that day, but cannot start a new service day before the lift is 
repaired. If a maintenance check in the evening after completion of a 
day's run or in the morning before a day's runs discloses the problem, 
then the bus would not go into service until the repair had taken place.
    The Department realizes that, in the years before bus fleets are 
completely accessible, taking buses with lifts out of service for 
repairs in this way would probably result in an inaccessible spare bus 
being used on the route, but at least attention would have to be paid 
quickly to the lift repair, resulting in a quicker return to service of 
a working accessible bus.
    The rule provides an exception for those situations in which there 
is no spare vehicle (either accessible or inaccessible) available to 
take the place of the vehicle with an operative lift, such that putting 
the latter vehicle into the shop would result in a reduction of service 
to the public (e.g., a scheduled run on a route could not be made). The 
Department would emphasize that the exception does not apply when there 
is any spare vehicle available.
    Where the exception does apply, the provider may keep the vehicle 
with the inoperative lift in service for a maximum of three days (for 
providers operating in an area of over 50,000 population) or five days 
(for providers operating in an area of 50,000 population or less). After 
these times have elapsed, the vehicle must go into the shop, not to 
return until the lift is repaired. Even during the three- or five-day 
period, if an accessible spare bus becomes available at any time, it 
must be used in place of the bus with the inoperative lift or an 
inaccessible spare that is being used in its place.
    In a fixed route system, if a bus is operating without a working 
lift (either on the day when the lift fails in service or as the result 
of the exception discussed above) and headways between accessible buses 
on the route on which the vehicle is operating exceed 30 minutes, the 
entity must accommodate passengers who would otherwise be inconvenienced 
by the lack of an accessible bus. This accommodation would be by a 
paratransit or other special vehicle that would pick up passengers with 
disabilities

[[Page 475]]

who cannot use the regular bus because its lift is inoperative. 
Passengers who need lifts in this situation would, in effect, be ADA 
paratransit eligible under the second eligibility category. However, 
since they would have no way of knowing that the bus they sought to 
catch would not be accessible that day, the transit authority must 
actively provide alternative service to them. This could be done, for 
example, by having a ``shadow'' accessible service available along the 
route or having the bus driver call in the minute he saw an accessible 
passenger he could not pick up (including the original passenger 
stranded by an in-service lift failure), with a short (i.e., less than 
30-minute) response from an accessible vehicle dispatched to pick up the 
stranded passenger. To minimize problems in providing such service, when 
a transit authority is using the ``no spare vehicles'' exception, the 
entity could place the vehicle with the inoperative lift on a route with 
headways between accessible buses shorter than 30 minutes.

                 Section 37.165 Lift and Securement Use

    This provision applies to both public and private entities.
    All people using common wheelchairs (an inclusive term for mobility 
devices that fit on lifts meeting Access Board guideline dimensions--
30 by 48 and a maximum of 600 pounds for device 
and user combined--which includes three-wheeled scooters and other so-
called non-traditional mobility devices) are to be allowed to ride the 
entity's vehicles.
    Entities may require wheelchair users to ride in designated 
securement locations. That is, the entity is not required to carry 
wheelchair users whose wheelchairs would have to park in an aisle or 
other location where they could obstruct other persons' passage or where 
they could not be secured or restrained. An entity's vehicle is not 
required to pick up a wheelchair user when the securement locations are 
full, just as the vehicle may pass by other passengers waiting at the 
stop if the bus is full.
    The entity may require that wheelchair users make use of securement 
systems for their mobility devices. The entity, in other words, can 
require wheelchair users to ``buckle up'' their mobility devices. The 
entity is required, on a vehicle meeting part 38 standards, to use the 
securement system to secure wheelchairs as provided in that part. On 
other vehicles (e.g., existing vehicles with securement systems which do 
not comply with Part 38 standards), the entity must provide and use a 
securement system to ensure that the mobility device remains within the 
securement area. This latter requirement is a mandate to use best 
efforts to restrain or confine the wheelchair to the securement area. 
The entity does the best it can, given its securement technology and the 
nature of the wheelchair. The Department encourages entities with 
relatively less adequate securement systems on their vehicles, where 
feasible, to retrofit the vehicles with better securement systems, that 
can successfully restrain a wide variety of wheelchairs. It is our 
understanding that the cost of doing so is not enormous.
    An entity may not, in any case, deny transportation to a common 
wheelchair and its user because the wheelchair cannot be secured or 
restrained by a vehicle's securement system, to the entity's 
satisfaction.
    Entities have often recommended or required that a wheelchair user 
transfer out of his or her own device into a vehicle seat. Under this 
rule, it is no longer permissible to require such a transfer. The entity 
may provide information on risks and make a recommendation with respect 
to transfer, but the final decision on whether to transfer is up to the 
passenger.
    The entity's personnel have an obligation to ensure that a passenger 
with a disability is able to take advantage of the accessibility and 
safety features on vehicles. Consequently, the driver or other personnel 
must provide assistance with the use of lifts, ramps, and securement 
devices. For example, the driver must deploy the lift properly and 
safely. If the passenger cannot do so independently, the driver must 
assist the passenger with using the securement device. On a vehicle 
which uses a ramp for entry, the driver may have to assist in pushing a 
manual wheelchair up the ramp (particularly where the ramp slope is 
relatively steep). All these actions my involve a driver leaving his 
seat. Even in entities whose drivers traditionally do not leave their 
seats (e.g., because of labor-management agreements or company rules), 
this assistance must be provided. This rule overrides any requirements 
to the contrary.
    Wheelchair users--especially those using electric wheelchairs often 
have a preference for entering a lift platform and vehicle in a 
particular direction (e.g., backing on or going on frontwards). Except 
where the only way of successfully maneuvering a device onto a vehicle 
or into its securement area, or an overriding safety concern (i.e., a 
direct threat) requires one way of doing this or another, the transit 
provider should respect the passenger's preference. We note that most 
electric wheelchairs are usually not equipped with rearview mirrors, and 
that many persons who use them are not able to rotate their heads 
sufficiently to see behind. When an electric wheelchair must back up a 
considerable distance, this can have unfortunate results for other 
people's toes.
    People using canes or walkers and other standees with disabilities 
who do not use wheelchairs but have difficulty using steps (e.g., an 
elderly person who can walk on a plane without use of a mobility aid but 
cannot raise his or her legs sufficiently to climb

[[Page 476]]

bus steps) must also be permitted to use the lift, on request.

                Section 37.167 Other Service Requirements

    The requirements in this section apply to both public and private 
entities.
    On fixed route systems, the entity must announce stops. These stops 
include transfer points with other fixed routes. This means that any 
time a vehicle is to stop where a passenger can get off and transfer to 
another bus or rail line (or to another form of transportation, such as 
commuter rail or ferry), the stop would be announced. The announcement 
can be made personally by the vehicle operator or can be made by a 
recording system. If the vehicle is small enough so that the operator 
can make himself or herself heard without a P.A. system, it is not 
necessary to use the system.
    Announcements also must be made at major intersections or 
destination points. The rule does not define what major intersections or 
destination points are. This is a judgmental matter best left to the 
local planning process. In addition, the entity must make announcements 
at sufficient intervals along a route to orient a visually impaired 
passenger to his or her location. The other required announcements may 
serve this function in many instances, but if there is a long distance 
between other announcements, fill-in orientation announcements would be 
called for. The entity must announce any stop requested by a passenger 
with a disability, even if it does not meet any of the other criteria 
for announcement.
    When vehicles from more than one route serve a given stop or 
station, the entity must provide a means to assist an individual with a 
visual impairment or other disability in determining which is the proper 
vehicle to enter. Some entities have used external speakers. FTA is 
undertaking a study to determine what is the best available technology 
in this area. Some transit properties have used colored mitts, or 
numbered cards, to allow passengers to inform drivers of what route they 
wanted to use. The idea is to prevent, at a stop where vehicles from a 
number of routes arrive, a person with a visual impairment from having 
to ask every driver whether the bus is the right one. The rule does not 
prescribe what means is to be used, only that some effective means be 
provided.
    Service animals shall always be permitted to accompany their users 
in any private or public transportation vehicle or facility. One of the 
most common misunderstandings about service animals is that they are 
limited to being guide dogs for persons with visual impairments. Dogs 
are trained to assist people with a wide variety of disabilities, 
including individuals with hearing and mobility impairments. Other 
animals (e.g., monkeys) are sometimes used as service animals as well. 
In any of these situations, the entity must permit the service animal to 
accompany its user.
    Part 38 requires a variety of accessibility equipment. This section 
requires that the entity use the equipment it has. For example, it would 
be contrary to this provision for a transit authority to bolt its bus 
lifts shut because transit authority had difficulty maintaining the 
lifts. It does little good to have a public address system on a vehicle 
if the operator does not use it to make announcements (except, as noted 
above, in the situation where the driver can make himself or herself 
heard without recourse to amplification.)
    Entities must make communications and information available, using 
accessible formats and technology (e.g., Braille, large print, TDDs) to 
obtain information about transportation services. Someone cannot 
adequately use the bus system if schedule and route information is not 
available in a form he or she can use. If there is only one phone line 
on which ADA paratransit eligible individuals can reserve trips, and the 
line is chronically busy, individuals cannot schedule service. Such 
obstacles to the use of transportation service are contrary to this 
section. (The latter could, in some circumstances, be viewed as a 
capacity constraint.)
    It is inconsistent with this section for a transit provider to 
refuse to let a passenger use a lift at any designated stop, unless the 
lift is physically unable to deploy or the lift would be damaged if it 
did deploy (see discussion under Sec. 37.123). In addition, if a 
temporary situation at the stop (e.g., construction, an accident, a 
landslide) made the stop unsafe for anyone to use, the provider could 
decline to operate the lift there (just as it refused to open the door 
for other passengers at the same point). The provider could not, 
however, declare a stop ``off limits'' to persons with disabilities that 
is used for other persons. If the transit authority has concerns about 
barriers or safety hazards that peculiarly affect individuals with 
disabilities that would use the stop, it should consider making efforts 
to move the stop.
    Under DOT hazardous materials rules, a passenger may bring a 
portable medical oxygen supply on board a vehicle. Since the hazardous 
materials rules permit this, transit providers cannot prohibit it. For 
further information on hazardous materials rules, as they may affect 
transportation of assistive devices, entities may contact the 
Department's Research and Special Programs Administration, Office of 
Hazardous Materials Transportation (202-366-0656).
    One concern that has been expressed is that transportation systems 
(particularly some rail systems) may make it difficult for persons with 
disabilities to board or disembark from vehicles by very rapidly closing 
doors on the vehicles before individuals with

[[Page 477]]

disabilities (who may move more slowly through crowds in the vehicle or 
platform than other persons) have a chance to get on or off the vehicle. 
Doing so is contrary to the rule; operators must make appropriate 
provision to give individuals with disabilities adequate time to board 
or disembark.

   Section 37.169 Interim Requirements for Over-the-Road Bus Service 
                      Operated by Private Entities

    Private over-the-road bus (OTRB) service is, first of all, subject 
to all the other private entity requirements of the rule. The 
requirements of this section are in addition to the other applicable 
provisions.
    Boarding assistance is required. The Department cannot require any 
particular boarding assistance devices at this time. Each operator may 
decide what mode of boarding assistance is appropriate for its 
operation. We agree with the discussion in the DOJ Title II rule's 
preamble that carrying is a disfavored method of providing assistance to 
an individual with a disability. However, since accessible private OTRBs 
cannot be required by this rule, there may be times when carrying is the 
only available means of providing access to an OTRB, if the entity does 
not exercise its discretion to provide an alternative means. It is 
required by the rule that any employee who provides boarding 
assistance--above all, who may carry or otherwise directly physically 
assist a passenger--must be trained to provide this assistance 
appropriately and safely.
    The baggage priority provision for wheelchairs and other assistive 
devices involves a similar procedure to that established in the 
Department's Air Carrier Access Act rule (14 CFR part 382). In brief, it 
provides that, at any given stop, a person with a wheelchair or other 
assistive device would have the device loaded before other items at this 
stop. An individual traveling with a wheelchair is not similarly 
situated to a person traveling with luggage. For the wheelchair user, 
the wheelchair is an essential mobility device, without which travel is 
impossible. The rationale of this provision is that, while no one wants 
his or her items left behind, carrying the wheelchair is more important 
to its user than ordinary luggage to a traveler. If it comes to an 
either/or choice (the wheelchair user's luggage would not have any 
priority over other luggage, however). There would be no requirement, 
under this provision, for ``bumping'' baggage already on the bus from 
previous stops in order to make room for the wheelchair.
    The entity could require advance notice from a passenger in only one 
circumstance. If a passenger needed boarding assistance, the entity 
could require up to 48 hours' advance notice for the purpose of 
providing needed assistance. While advance notice requirements are 
generally undesirable, this appears to be a case in which a needed 
accommodation may be able to be provided successfully only if the 
transportation provider knows in advance that some extra staffing is 
needed to accomplish it. While the primary need for advance notice 
appears to be in the situation of an unstaffed station, there could be 
other situations in which advance notice was needed in order to ensure 
that the accommodation could be made. Entities should not ask for 
advance notice in all cases, but just in those cases in which it is 
really needed for this purpose. Even if advance notice is not provided, 
the entity has the obligation to provide boarding assistance if it can 
be provided with available staff.

  Section 37.171 Equivalency Requirement for Demand Responsive Service 
     Operated by Private Entities Not Primarily in the Business of 
                           Transporting People

    This provision is a service requirement closely related to the 
private entity requirements for Sec. Sec. 37.101-37.105 of this part. 
Entities in this category are always required to provide equivalent 
service, regardless of what they are doing with respect to the 
acquisition of vehicles. The effect of this provision may be to require 
some entities to arrange, either through acquiring their own accessible 
vehicles or coordinating with other providers, to have accessible 
vehicles available to meet the equivalency standards of Sec. 37.105 or 
otherwise to comply with those standards.

                         Section 37.173 Training

    A well-trained workforce is essential in ensuring that the 
accessibility-related equipment and accommodations required by the ADA 
actually result in the delivery of good transportation service to 
individuals with disabilities. The utility of training was recognized by 
Congress as well. (See S. Rept. 100-116 at 48.) At the same time, we 
believe that training should be conducted in an efficient and effective 
manner, with appropriate flexibility allowed to the organizations that 
must carry it out. Each transportation provider is to design a training 
program which suits the needs of its particular operation. While we are 
confident of this approach, we are mindful that the apparent lack of 
training has been a source of complaint to FTA and transit providers. 
Good training is difficult and it is essential.
    Several points of this section deserve emphasis. First, the 
requirements for training apply to private as well as to public 
providers, of demand responsive as well as of fixed route service. 
Training is just as necessary for the driver of a taxicab, a hotel 
shuttle, or a tour bus as it is for a driver in an FTA-funded city bus 
system.
    Second, training must be to proficiency. The Department is not 
requiring a specific course of training or the submission of a

[[Page 478]]

training plan for DOT approval. However, every employee of a 
transportation provider who is involved with service to persons with 
disabilities must have been trained so that he or she knows what needs 
to be done to provide the service in the right way. When it comes to 
providing service to individuals with disabilities, ignorance is no 
excuse for failure.
    While there is no specific requirement for recurrent or refresher 
training, there is an obligation to ensure that, at any given time, 
employees are trained to proficiency. An employee who has forgotten what 
he was told in past training sessions, so that he or she does not know 
what needs to be done to serve individuals with disabilities, does not 
meet the standard of being trained to proficiency.
    Third, training must be appropriate to the duties of each employee. 
A paratransit dispatcher probably must know how to use a TDD and enough 
about various disabilities to know what sort of vehicle to dispatch. A 
bus driver must know how to operate lifts and securement devices 
properly. A mechanic who works on lifts must know how to maintain them. 
Cross-training, while useful in some instances, is not required, so long 
as each employee is trained to proficiency in what he or she does with 
respect to service to individuals with disabilities.
    Fourth, the training requirement goes both to technical tasks and 
human relations. Employees obviously need to know how to run equipment 
the right way. If an employee will be assisting wheelchair users in 
transferring from a wheelchair to a vehicle seat, the employee needs 
training in how to do this safely. But every public contact employee 
also has to understand the necessity of treating individuals with 
disabilities courteously and respectfully, and the details of what that 
involves.
    One of the best sources of information on how best to train 
personnel to interact appropriately with individuals with disabilities 
is the disability community itself. Consequently, the Department urges 
entities to consult with disability organizations concerning how to 
train their personnel. Involving these groups in the process of 
establishing training programs, in addition to providing useful 
information, should help to establish or improve working relationships 
among transit providers and disability groups that, necessarily, will be 
of long duration. We note that several transit providers use persons 
with disabilities to provide the actual training. Others have reported 
that role playing is an effective method to instill an appreciation of 
the particular perspective of one traveling with a disability.
    Finally, one of the important points in training concerns 
differences among individuals with disabilities. All individuals with 
disabilities, of course, are not alike. The appropriate ways one deals 
with persons with various kinds of disabilities (e.g., mobility, vision, 
hearing, or mental impairments) are likely to differ and, while no one 
expects bus drivers to be trained as disability specialists, recognizing 
relevant differences and responding to them appropriately is extremely 
significant. Public entities who contract with private entities to have 
service provided--above all, complementary paratransit--are responsible 
for ensuring that contractor personnel receive the appropriate training.

     Appendix A to Part 37--Standards for Accessible Transportation 
                               Facilities

    Sections 504(a) and (b) of the Americans with Disabilities Act (ADA) 
require the Access Board to adopt accessibility guidelines; sections 
204(c) and 306(c) of the ADA require the Department of Transportation to 
adopt regulatory standards ``consistent with the minimum guidelines and 
requirements'' issued by the Access Board. In the original 1991 
publication of part 37, the Department complied with this requirement by 
reproducing the Access Board's Americans with Disabilities Act 
Accessibility Guidelines (ADAAG) in their entirety as Appendix A.
    The Access Board revised ADAAG in July 2004. ADAAG, including 
technical amendments issued in July 2005, is codified in Appendices B 
and D to 36 CFR part 1191. In order to avoid duplication of material 
that the Access Board has already included in the CFR, and which is now 
readily available on the Internet, the Department has adopted ADAAG by 
cross-reference in part 37, rather than reproducing the lengthy Access 
Board publication. However, there are certain provisions of ADAAG that 
the Department is modifying for clarity or to preserve requirements that 
have been in effect under the existing standards. Under the ADA, the 
Department, in adopting standards, has the discretion to depart from the 
language of ADAAG as long as the Department's standards remain 
consistent with the Access Board's minimum guidelines. In addition, this 
appendix provides additional guidance concerning some sections of the 
DOT standards as they apply to transportation facilities.

                              Section 201.1

    The basic scoping requirement requires all areas of newly designed 
and newly constructed buildings and facilities to be accessible. Former 
Sec. 4.1.1(5) provided a ``structural impracticability'' exception to 
the requirements for new buildings and facilities. The Access Board 
deleted this exception to avoid duplication with an existing requirement 
to the same effect in Department of Justice regulations (see 28 CFR 
Sec. 36.401(c)). For consistency with the approach taken by the Access 
Board and Department of Justice, and to ensure consistency between 
facilities subject to Titles II and III of the ADA under

[[Page 479]]

part 37, the Department has added the language of the Department of 
Justice regulation to Sec. 37.41 of this part.

                              Section 206.3

    This section concerns the location of accessible paths. The 
Department is retaining language from former Sec. 10.3.1(1), which 
provides that ``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.'' This concept, in our view, is implicit in the 
language of Sec. 206.3. However, we believe it is useful to make 
explicit the concept that, in transportation facilities such as rail 
stations, important facility elements are placed so as to minimize the 
distance persons with disabilities must travel to use them. This 
requirement is intended to affect decisions about where to locate 
entrances, boarding locations (e.g., where a mini-high platform is used 
for boarding), and other key elements of a facility.

                              Section 406.8

    To maintain the status quo with respect to detectable warnings in 
pedestrian facilities, the Department is adding a provision (not found 
in the current version of the new ADAAG) requiring curb ramps to have 
detectable warnings.

                             Section 810.2.2

    The Department recognizes that there will be some situations in 
which the full dimensions of a bus boarding and alighting area complying 
with the Sec. 810.2.2 may not be able to be achieved (e.g., there is 
less than 96 inches of perpendicular space available from the curb or 
roadway edge, because of buildings or terrain features). The Department 
is adding language from former Sec. 37.9 (c) of this part, which 
provides that ``Public entities shall ensure the construction of bus 
boarding and alighting areas comply with 810.2.2, to the extent the 
construction specifications are within their control.'' Where it is not 
feasible to fully comply with Sec. 810.2.2, the Department expects 
compliance to the greatest extent feasible.
    We note that there may be some instances in which it will be 
necessary to make operational adjustments where sufficient clearance is 
not available to permit the deployment of lifts or ramps on vehicles. 
For example, a bus driver could position the bus at a nearby point--even 
if not the precise location of the designated stop--so that a passenger 
needing a lift or ramp to get on or off the bus can do so. To avoid the 
need for such operational adjustments, it is important to place bus 
shelters, signs, etc. so that they do not intrude into the required 
clearances.

                             Section 810.5.3

    This section concerns coordination between rail platforms and rail 
vehicles. The Department is adding language from the former Sec. 10.3.1 
(9) (Exception 2), which provides that ``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, 
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 be permitted.''
    In September 2005, the Department issued guidance concerning the 
relationship of its ADA and 504 rules in the context of rail platform 
accessibility This guidance emphasized that access to all cars of a 
train is significant because, if passengers with disabilities are unable 
to enter all cars from the platform, the passengers will have access 
only to segregated service. This would be inconsistent with the 
nondiscrimination mandate of the ADA. It would also, in the case of 
Federal Transit Administration (FTA) and Federal Railroad Administration 
(FRA)-assisted projects (including Amtrak), be inconsistent with the 
requirement of the Department's section 504 regulation (49 CFR Sec. 
27.7), which requires service in the most integrated setting reasonably 
achievable. This guidance states the Department's views of the meaning 
of its existing rules, and the Department will continue to use this 
guidance in applying the provisions of this rule.
    The Department notes that a related section of 49 CFR part 38 has 
been the source of some misunderstanding. Section 38.71(b)(2) provides 
that ``Vehicles designed for, and operated on, pedestrian malls, city 
streets, or other areas where level-entry boarding is not practicable 
shall provide wayside or car-borne lifts, mini-high platforms, or other 
means of access in compliance with Sec. 38.83 (b) or (c) of this 
part.'' The Department has received some suggestions that this provision 
should be interpreted to mean that, if there is any portion of a system 
in which level-entry boarding is not practicable, then the entire system 
can use some method other than level-entry boarding. Such an 
interpretation is incorrect. The authority to use alternatives to level-
entry boarding pertains only to those portions of a system in which rail 
vehicles are ``operated on'' an area where level-entry boarding is not 
practicable.
    For example, suppose a light rail system's first three stops are on 
a pedestrian/transit mall where it is infeasible to provide level-entry 
boarding. The transit system could use car-borne lifts, mini-high 
platforms, etc. to

[[Page 480]]

provide access at those three stops. The system's next ten stops are 
part of a right-of-way in which level-entry boarding is practicable. In 
such a case, level-entry boarding would have to be provided at those ten 
stops. There is nothing inappropriate about the same system having 
different means of boarding in different locations, in such a case.
    We also caution against a potential misunderstanding of the sentence 
in Sec. 810.5.3 that provides that ``Low-level platforms shall be 8 
inches minimum (205 mm) above top of rail.'' This does not mean that 
high-level platforms are prohibited or that low-level platforms are the 
only design consistent with the rules. It simply means that where low-
level platforms are otherwise permitted, such platforms must be at least 
8 inches above the top of rail, except where vehicles are boarded from 
the street or a sidewalk.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996; 71 
FR 63266, Oct. 30, 2006]



PART 38_AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY SPECIFICATIONS
FOR TRANSPORTATION VEHICLES--Table of Contents




                            Subpart A_General

Sec.
38.1 Purpose.
38.2 Equivalent facilitation.
38.3 Definitions.
38.4 Miscellaneous instructions.

                    Subpart B_Buses, Vans and Systems

38.21 General.
38.23 Mobility aid accessibility.
38.25 Doors, steps and thresholds.
38.27 Priority seating signs.
38.29 Interior circulation, handrails and stanchions.
38.31 Lighting.
38.33 Fare box.
38.35 Public information system.
38.37 Stop request.
38.39 Destination and route signs.

                Subpart C_Rapid Rail Vehicles and Systems

38.51 General.
38.53 Doorways.
38.55 Priority seating signs.
38.57 Interior circulation, handrails and stanchions.
38.59 Floor surfaces.
38.61 Public information system.
38.63 Between-car barriers.

                Subpart D_Light Rail Vehicles and Systems

38.71 General.
38.73 Doorways.
38.75 Priority seating signs.
38.77 Interior circulation, handrails and stanchions.
38.79 Floors, steps and thresholds.
38.81 Lighting.
38.83 Mobility aid accessibility.
38.85 Between-car barriers.
38.87 Public information system.

                Subpart E_Commuter Rail Cars and Systems

38.91 General.
38.93 Doorways.
38.95 Mobility aid accessibility.
38.97 Interior circulation, handrails and stanchions.
38.99 Floors, steps and thresholds.
38.101 Lighting.
38.103 Public information system.
38.105 Priority seating signs.
38.107 Restrooms.
38.109 Between-car barriers.

                Subpart F_Intercity Rail Cars and Systems

38.111 General.
38.113 Doorways.
38.115 Interior circulation, handrails and stanchions.
38.117 Floors, steps and thresholds.
38.119 Lighting.
38.121 Public information system.
38.123 Restrooms.
38.125 Mobility aid accessibility.
38.127 Sleeping compartments.

                Subpart G_Over-the-Road Buses and Systems

38.151 General.
38.153 Doors, steps and thresholds.
38.155 Interior circulation, handrails and stanchions.
38.157 Lighting.
38.159 Mobility aid accessibility.
38.161 Moveable aisle armrests.

                  Subpart H_Other Vehicles and Systems

38.171 General.
38.173 Automated guideway transit vehicles and systems.
38.175 High-speed rail cars, monorails and systems.
38.177 Ferries, excursion boats and other vessels. [Reserved]
38.179 Trams, and similar vehicles, and systems.

Figures to Part 38
Appendix to Part 38--Guidance Material

    Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.

[[Page 481]]


    Source: 56 FR 45756, Sept. 6, 1991, unless otherwise noted.



                            Subpart A_General



Sec. 38.1  Purpose.

    This part provides minimum guidelines and requirements for 
accessibility standards in part 37 of this title for transportation 
vehicles required to be accessible by the Americans With Disabilities 
Act (ADA) of 1990 (42 U.S.C. 1201 et seq.).



Sec. 38.2  Equivalent facilitation.

    Departures from particular technical and scoping requirements of 
these guidelines by use of other designs and technologies are permitted 
where the alternative designs and technologies used will provide 
substantially equivalent or greater access to and usability of the 
vehicle. Departures are to be considered on a case-by-case basis under 
procedures set forth in Sec. 37.7 of this title.



Sec. 38.3  Definitions.

    See Sec. 37.3 of this title.



Sec. 38.4  Miscellaneous instructions.

    (a) Dimensional conventions. Dimensions that are not noted as 
minimum or maximum are absolute.
    (b) Dimensional tolerances. All dimensions are subject to 
conventional engineering tolerances for material properties and field 
conditions, including normal anticipated wear not exceeding accepted 
industry-wide standards and practices.
    (c) Notes. The text of these guidelines does not contain notes or 
footnotes. Additional information, explanations, and advisory materials 
are located in the Appendix.
    (d) General terminology. (1) Comply with means meet one or more 
specification of these guidelines.
    (2) If or if * * * then denotes a specification that applies only 
when the conditions described are present.
    (3) May denotes an option or alternative.
    (4) Shall denotes a mandatory specification or requirement.
    (5) Should denotes an advisory specification or recommendation.



                    Subpart B_Buses, Vans and Systems



Sec. 38.21  General.

    (a) New, used or remanufactured buses and vans (except over-the-road 
buses covered by subpart G of this part), to be considered accessible by 
regulations in part 37 of this title shall comply with the applicable 
provisions of this subpart.
    (b) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible buses be retrofitted with 
lifts, ramps or other boarding devices.



Sec. 38.23  Mobility aid accessibility.

    (a) General. All vehicles covered by this subpart shall provide a 
level-change mechanism or boarding device (e.g., lift or ramp) complying 
with paragraph (b) or (c) of this section and sufficient clearances to 
permit a wheelchair or other mobility aid user to reach a securement 
location. At least two securement locations and devices, complying with 
paragraph (d) of this section, shall be provided on vehicles in excess 
of 22 feet in length; at least one securement location and device, 
complying with paragraph (d) of this section, shall be provided on 
vehicles 22 feet in length or less.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds. Working parts, such as cables, pulleys, and 
shafts, which can be expected to wear, and upon which the lift depends 
for support of the load, shall have a safety factor of at least six, 
based on the ultimate strength of the material. Nonworking parts, such 
as platform, frame, and attachment hardware which would not be expected 
to wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, transmission, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the vehicle cannot be 
moved when the lift is not stowed and so the lift cannot

[[Page 482]]

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, 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.

[[Page 483]]

    (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, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The platform may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall be placed to 
provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface. Handrails shall not interfere with wheelchair or 
mobility aid maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp--(1) Design load. Ramps 30 inches or longer shall 
support a load of 600 pounds, placed at the centroid of the ramp 
distributed over an area of 26 inches by 26 inches, with a safety factor 
of at least 3 based on the ultimate strength of the material. Ramps 
shorter than 30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp surface shall be continuous and slip 
resistant; shall not have protrusions from the surface greater than \1/
4\ inch high; shall have a clear width of 30 inches; and shall 
accommodate both four-wheel and three-wheel mobility aids.
    (3) Ramp threshold. The transition from roadway or sidewalk and the 
transition from vehicle floor to the ramp may be vertical without edge 
treatment up to \1/4\ inch. Changes in level between \1/4\ inch and \1/
2\ inch shall be beveled with a slope no greater than 1:2.
    (4) Ramp barriers. Each side of the ramp shall have barriers at 
least 2 inches high to prevent mobility aid wheels from slipping off.
    (5) Slope. Ramps shall have the least slope practicable and shall 
not exceed 1:4 when deployed to ground level. If the height of the 
vehicle floor from which the ramp is deployed is 3 inches or less above 
a 6-inch curb, a maximum slope of 1:4 is permitted; if the height of the 
vehicle floor from which the ramp is deployed is 6 inches or less, but 
greater than 3 inches, above a 6-inch curb, a maximum slope of 1:6 is 
permitted; if the height of the vehicle floor from which the ramp is 
deployed is 9 inches or less, but greater than 6 inches, above a 6-inch 
curb, a maximum slope of 1:8 is permitted; if the height of the vehicle 
floor from which the ramp is deployed is greater than 9 inches above a 
6-inch curb, a slope of 1:12 shall be achieved. Folding or telescoping 
ramps are permitted provided

[[Page 484]]

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 not 
interfere with wheelchair or mobility aid maneuverability when entering 
or leaving the vehicle.
    (d) Securement devices--(1) Design load. Securement systems on 
vehicles with GVWRs of 30,000 pounds or above, and their attachments to 
such vehicles, shall restrain a force in the forward longitudinal 
direction of up to 2,000 pounds per securement leg or clamping mechanism 
and a minimum of 4,000 pounds for each mobility aid. Securement systems 
on vehicles with GVWRs of up to 30,000 pounds, and their attachments to 
such vehicles, shall restrain a force in the forward longitudinal 
direction of up to 2,500 pounds per securement leg or clamping mechanism 
and a minimum of 5,000 pounds for each mobility aid.
    (2) Location and size. The securement system shall be placed as near 
to the accessible entrance as practicable and shall have a clear floor 
area of 30 inches by 48 inches. Such space shall adjoin, and may 
overlap, an access path. Not more than 6 inches of the required clear 
floor space may be accommodated for footrests under another seat 
provided there is a minimum of 9 inches from the floor to the lowest 
part of the seat overhanging the space. Securement areas may have fold-
down seats to accommodate other passengers when a wheelchair or mobility 
aid is not occupying the area, provided the seats, when folded up, do 
not obstruct the clear floor space required. (See Fig. 2)
    (3) Mobility aids accommodated. The securement system shall secure 
common wheelchairs and mobility aids and shall either be automatic or 
easily attached by a person familiar with the system and mobility aid 
and having average dexterity.
    (4) Orientation. In vehicles in excess of 22 feet in length, at 
least one securement device or system required by paragraph (a) of this 
section shall secure the wheelchair or mobility aid facing toward the 
front of the vehicle. Additional securement devices or systems shall 
secure the wheelchair or mobility aid facing forward, or rearward with a 
padded barrier, extending from a height of 38 inches from the vehicle 
floor to a height of 56 inches from the vehicle floor with a width of 18 
inches, laterally centered immediately in back of the seated individual. 
In vehicles 22 feet in length or less, the required securement device 
may secure the wheelchair or mobility aid either facing toward the front 
of the vehicle or facing rearward, with a padded barrier as described. 
Additional securement locations shall be either forward or rearward 
facing with a padded barrier. Such barriers need not be solid provided 
equivalent protection is afforded.
    (5) Movement. When the wheelchair or mobility aid is secured in 
accordance with manufacturer's instructions, the securement system shall 
limit the movement of an occupied wheelchair or mobility aid to no more 
than 2 inches in any direction under normal vehicle operating 
conditions.
    (6) Stowage. When not being used for securement, or when the 
securement

[[Page 485]]

area can be used by standees, the securement system shall not interfere 
with passenger movement, shall not present any hazardous condition, 
shall be reasonably protected from vandalism, and shall be readily 
accessed when needed for use.
    (7) Seat belt and shoulder harness. For each wheelchair or mobility 
aid securement device provided, a passenger seat belt and shoulder 
harness, complying with all applicable provisions of part 571 of this 
title, shall also be provided for use by wheelchair or mobility aid 
users. Such seat belts and shoulder harnesses shall not be used in lieu 
of a device which secures the wheelchair or mobility aid itself.



Sec. 38.25  Doors, steps and thresholds.

    (a) Slip resistance. All aisles, steps, floor areas where people 
walk and floors in securement locations shall have slip-resistant 
surfaces.
    (b) Contrast. All step edges, thresholds and the boarding edge of 
ramps or lift platforms shall have a band of color(s) running the full 
width of the step or edge which contrasts from the step tread and riser, 
or lift or ramp surface, either light-on-dark or dark-on-light.
    (c) Door height. For vehicles in excess of 22 feet in length, the 
overhead clearance between the top of the door opening and the raised 
lift platform, or highest point of a ramp, shall be a minimum of 68 
inches. For vehicles of 22 feet in length or less, the overhead 
clearance between the top of the door opening and the raised lift 
platform, or highest point of a ramp, shall be a minimum of 56 inches.



Sec. 38.27  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that seats in 
the front of the vehicle are priority seats for persons with 
disabilities, and that other passengers should make such seats available 
to those who wish to use them. At least one set of forward-facing seats 
shall be so designated.
    (b) Each securement location shall have a sign designating it as 
such.
    (c) Characters on signs required by paragraphs (a) and (b) of this 
section shall have a width-to-height ratio between 3:5 and 1:1 and a 
stroke width-to-height ratio between 1:5 and 1:10, with a minimum 
character height (using an upper case ``X'') of \5/8\ inch, with 
``wide'' spacing (generally, the space between letters shall be \1/16\ 
the height of upper case letters), and shall contrast with the 
background either light-on-dark or dark-on-light.



Sec. 38.29  Interior circulation, handrails and stanchions.

    (a) Interior handrails and stanchions shall permit sufficient 
turning and maneuvering space for wheelchairs and other mobility aids to 
reach a securement location from the lift or ramp.
    (b) Handrails and stanchions shall be provided in the entrance to 
the vehicle in a configuration which allows persons with disabilities to 
grasp such assists from outside the vehicle while starting to board, and 
to continue using such assists throughout the boarding and fare 
collection process. Handrails shall have a cross-sectional diameter 
between 1\1/4\ inches and 1\1/2\ inches or shall provide an equivalent 
grasping surface, and have eased edges with corner radii of not less 
than \1/8\ inch. Handrails shall be placed to provide a minimum 1\1/2\ 
inches knuckle clearance from the nearest adjacent surface. Where on-
board fare collection devices are used on vehicles in excess of 22 feet 
in length, a horizontal passenger assist shall be located across the 
front of the vehicle and shall prevent passengers from sustaining 
injuries on the fare collection device or windshield in the event of a 
sudden deceleration. Without restricting the vestibule space, the assist 
shall provide support for a boarding passenger from the front door 
through the boarding procedure. Passengers shall be able to lean against 
the assist for security while paying fares.
    (c) For vehicles in excess of 22 feet in length, overhead 
handrail(s) shall be provided which shall be continuous except for a gap 
at the rear doorway.
    (d) Handrails and stanchions shall be sufficient to permit safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (e) For vehicles in excess of 22 feet in length with front-door 
lifts or ramps,

[[Page 486]]

vertical stanchions immediately behind the driver shall either terminate 
at the lower edge of the aisle-facing seats, if applicable, or be ``dog-
legged'' so that the floor attachment does not impede or interfere with 
wheelchair footrests. If the driver seat platform must be passed by a 
wheelchair or mobility aid user entering the vehicle, the platform, to 
the maximum extent practicable, shall not extend into the aisle or 
vestibule beyond the wheel housing.
    (f) For vehicles in excess of 22 feet in length, the minimum 
interior height along the path from the lift to the securement location 
shall be 68 inches. For vehicles of 22 feet in length or less, the 
minimum interior height from lift to securement location shall be 56 
inches.



Sec. 38.31  Lighting.

    (a) Any stepwell or doorway immediately adjacent to the driver shall 
have, when the door is open, at least 2 foot-candles of illumination 
measured on the step tread or lift platform.
    (b) Other stepwells and doorways, including doorways in which lifts 
or ramps are installed, shall have, at all times, at least 2 foot-
candles of illumination measured on the step tread, or lift or ramp, 
when deployed at the vehicle floor level.
    (c) The vehicle doorways, including doorways in which lifts or ramps 
are installed, shall have outside light(s) which, when the door is open, 
provide at least 1 foot-candle of illumination on the street surface for 
a distance 3 feet (915 mm) perpendicular to the bottom step tread or 
lift outer edge. Such light(s) shall be shielded to protect the eyes of 
entering and exiting passengers.

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51697, 51702, Sept. 28, 
1998]



Sec. 38.33  Fare box.

    Where provided, the farebox shall be located as far forward as 
practicable and shall not obstruct traffic in the vestibule, especially 
wheelchairs or mobility aids.



Sec. 38.35  Public information system.

    (a) Vehicles in excess of 22 feet in length, used in multiple-stop, 
fixed-route service, shall be equipped with a public address system 
permitting the driver, or recorded or digitized human speech messages, 
to announce stops and provide other passenger information within the 
vehicle.
    (b) [Reserved]



Sec. 38.37  Stop request.

    (a) Where passengers may board or alight at multiple stops at their 
option, vehicles in excess of 22 feet in length shall provide controls 
adjacent to the securement location for requesting stops and which 
alerts the driver that a mobility aid user wishes to disembark. Such a 
system shall provide auditory and visual indications that the request 
has been made.
    (b) Controls required by paragraph (a) of this section shall be 
mounted no higher than 48 inches and no lower than 15 inches above the 
floor, shall be operable with one hand and shall not require tight 
grasping, pinching, or twisting of the wrist. The force required to 
activate controls shall be no greater than 5 lbf (22.2 N).



Sec. 38.39  Destination and route signs.

    (a) Where destination or route information is displayed on the 
exterior of a vehicle, each vehicle shall have illuminated signs on the 
front and boarding side of the vehicle.
    (b) Characters on signs required by paragraph (a) of this section 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of 1 inch for signs on the boarding 
side and a minimum character height of 2 inches for front ``headsigns'', 
with ``wide'' spacing (generally, the space between letters shall be 1/
16 the height of upper case letters), and shall contrast with the 
background, either dark-on-light or light-on-dark.



                Subpart C_Rapid Rail Vehicles and Systems



Sec. 38.51  General.

    (a) New, used and remanufactured rapid rail vehicles, to be 
considered accessible by regulations in part 37 of this title, shall 
comply with this subpart.

[[Page 487]]

    (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 Sec. 37.93 of this title shall comply 
with Sec. Sec. 38.55, 38.57(b), 38.59 of this part and shall have, in 
new and key stations, at least one door complying with Sec. Sec. 38.53 
(a)(1), (b) and (d) of this part. Removal of seats is not required. 
Vehicles previously designed and manufactured in accordance with the 
accessibility requirements of part 609 of this title or the Secretary of 
Transportation regulations implementing section 504 of the 
Rehabilitation Act of 1973 that were in effect before October 7, 1991, 
and which can be entered and used from stations in which they are to be 
operated, may be used to satisfy the requirements of Sec. 37.93 of this 
title.



Sec. 38.53  Doorways.

    (a) Clear width. (1) Passenger doorways on vehicle sides shall have 
clear openings at least 32 inches wide when open.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have a 
minimum clear opening of 30 inches to permit wheelchair and mobility aid 
users to be evacuated to an adjoining vehicle in an emergency.
    (b) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of accessible vehicles operating on an 
accessible rapid rail system unless all vehicles are accessible and are 
not marked by the access symbol. (See Fig. 6.)
    (c) Signals. Auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platform--(1) Requirements. Where new 
vehicles will operate in new stations, the design of vehicles shall be 
coordinated with the boarding platform design such that the horizontal 
gap between each vehicle door at rest and the platform shall be no 
greater than 3 inches and the height of the vehicle floor shall be 
within plus or minus \5/8\ inch of the platform height under all normal 
passenger load conditions. Vertical alignment may be accomplished by 
vehicle air suspension or other suitable means of meeting the 
requirement.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one door of 
each such vehicle and the platform shall be no greater than 3 inches.
    (3) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.



Sec. 38.55  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that certain 
seats are priority seats for persons with disabilities, and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Characters on signs required by paragraph (a) of this section 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of \5/8\ inch, with ``wide'' spacing 
(generally, the space between letters shall be \1/16\ the height of 
upper case letters), and shall contrast with the background, either 
light-on-dark or dark-on-light.



Sec. 38.57  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be provided to assist safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (b) Handrails, stanchions, and seats shall allow a route at least 32 
inches wide so that at least two wheelchair or

[[Page 488]]

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. 38.59  Floor surfaces.

    Floor surfaces on aisles, places for standees, and areas where 
wheelchair and mobility aid users are to be accommodated shall be slip-
resistant.



Sec. 38.61  Public information system.

    (a)(1) Requirements. Each vehicle shall be equipped with a public 
address system permitting transportation system personnel, or recorded 
or digitized human speech messages, to announce stations and provide 
other passenger information. Alternative systems or devices which 
provide equivalent access are also permitted. Each vehicle operating in 
stations having more than one line or route shall have an external 
public address system to permit transportation system personnel, or 
recorded or digitized human speech messages, to announce train, route, 
or line identification information.
    (2) Exception. Where station announcement systems provide 
information on arriving trains, an external train speaker is not 
required.
    (b) [Reserved]



Sec. 38.63  Between-car barriers.

    (a) Requirement. Suitable devices or systems shall be provided to 
prevent, deter or warn individuals from inadvertently stepping off the 
platform between cars. Acceptable solutions include, but are not limited 
to, pantograph gates, chains, motion detectors or similar devices.
    (b) Exception. Between-car barriers are not required where platform 
screens are provided which close off the platform edge and open only 
when trains are correctly aligned with the doors.



                Subpart D_Light Rail Vehicles and Systems



Sec. 38.71  General.

    (a) New, used and remanufactured light rail vehicles, to be 
considered accessible by regulations in part 37 of this title shall 
comply with this subpart.
    (b)(1) Vehicles intended to be operated solely in light rail systems 
confined entirely to a dedicated right-of-way, and for which all 
stations or stops are designed and constructed for revenue service after 
the effective date of standards for design and construction in 
Sec. Sec. 37.21 and 37.23 of this title shall provide level boarding 
and shall comply with Sec. Sec. 38.73(d)(1) and 38.85 of this part.
    (2) Vehicles designed for, and operated on, pedestrian malls, city 
streets, or other areas where level boarding is not practicable shall 
provide wayside or car-borne lifts, mini-high platforms, or other means 
of access in compliance with Sec. 38.83 (b) or (c) of this part.
    (c) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible vehicles be retrofitted 
with lifts, ramps or other boarding devices.
    (d) Existing vehicles retrofitted to comply with the ``one-car-per-
train rule'' at Sec. 37.93 of this title shall comply with Sec. 38.75, 
Sec. 38.77(c), Sec. 38.79(a) and Sec. 38.83(a) of this part and shall 
have, in new and key stations, at least one door

[[Page 489]]

which complies with Sec. Sec. 38.73 (a)(1), (b) and (d) of this part. 
Vehicles previously designed and manufactured in accordance with the 
accessibility requirements of part 609 of this title or the Secretary of 
Transportation regulations implementing section 504 of the 
Rehabilitation Act of 1973 that were in effect before October 7, 1991, 
and which can be entered and used from stations in which they are to be 
operated, may be used to satisfy the requirements of Sec. 37.93 of this 
title.



Sec. 38.73  Doorways.

    (a) Clear width--(1) All passenger doorways on vehicle sides shall 
have minimum clear openings of 32 inches when open.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have a 
minimum clear opening of 30 inches to permit wheelchair and mobility aid 
users to be evacuated to an adjoining vehicle in an emergency.
    (b) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of each vehicle operating on an accessible 
light rail system unless all vehicles are accessible and are not marked 
by the access symbol (see fig. 6).
    (c) Signals. Auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platform--(1) Requirements. The 
design of level-entry vehicles shall be coordinated with the boarding 
platform or mini-high platform design so that the horizontal gap between 
a vehicle at rest and the platform shall be no greater than 3 inches and 
the height of the vehicle floor shall be within plus or minus \5/8\ inch 
of the platform height. Vertical alignment may be accomplished by 
vehicle air suspension, automatic ramps or lifts, or any combination.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one door of 
each such vehicle and the platform shall be no greater than 3 inches.
    (3) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (4) Exception. Where it is not operationally or structurally 
practicable to meet the horizontal or vertical requirements of 
paragraphs (d) (1), (2) or (3) of this section, platform or vehicle 
devices complying with Sec. 38.83(b) or platform or vehicle mounted 
ramps or bridge plates complying with Sec. 38.83(c) shall be provided.



Sec. 38.75  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that certain 
seats are priority seats for persons with disabilities, and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Where designated wheelchair or mobility aid seating locations 
are provided, signs shall indicate the location and advise other 
passengers of the need to permit wheelchair and mobility aid users to 
occupy them.
    (c) Characters on signs required by paragraphs (a) or (b) of this 
section shall have a width-to-height ratio between 3:5 and 1:1 and a 
stroke width-to-height ratio between 1:5 and 1:10, with a minimum 
character height (using an upper case ``X'') of \5/8\ inch, with 
``wide'' spacing (generally, the space between letters shall be \1/16\ 
the height of upper case letters), and shall contrast with the 
background, either light-on-dark or dark-on-light.



Sec. 38.77  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be sufficient to permit safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (b) At entrances equipped with steps, handrails and stanchions shall 
be provided in the entrance to the vehicle in

[[Page 490]]

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 two wheelchair or mobility aid 
users can enter the vehicle and position the wheelchairs or mobility 
aids in areas, each having a minimum clear space of 48 inches by 30 
inches, which do not unduly restrict movement of other passengers. Space 
to accommodate wheelchairs and mobility aids may be provided within the 
normal area used by standees and designation of specific spaces is not 
required. Particular attention shall be given to ensuring maximum 
maneuverability immediately inside doors. Ample vertical stanchions from 
ceiling to seat-back rails shall be provided. Vertical stanchions from 
ceiling to floor shall not interfere with wheelchair or mobility aid 
circulation and shall be kept to a minimum in the vicinity of accessible 
doors.



Sec. 38.79  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads, places for standees, and 
areas where wheelchair and mobility aid users are to be accommodated 
shall be slip-resistant.
    (b) All thresholds and step edges shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec. 38.81  Lighting.

    (a) Any stepwell or doorway with a lift, ramp or bridge plate 
immediately adjacent to the driver shall have, when the door is open, at 
least 2 foot-candles of illumination measured on the step tread or lift 
platform.
    (b) Other stepwells, and doorways with lifts, ramps or bridge 
plates, shall have, at all times, at least 2 foot-candles of 
illumination measured on the step tread or lift or ramp, when deployed 
at the vehicle floor level.
    (c) The doorways of vehicles not operating at lighted station 
platforms shall have outside lights which provide at least 1 foot-candle 
of illumination on the station platform or street surface for a distance 
of 3 feet perpendicular to all points on the bottom step tread. Such 
lights shall be located below window level and shielded to protect the 
eyes of entering and exiting passengers.



Sec. 38.83  Mobility aid accessibility.

    (a)(1) General. All new light rail vehicles, other than level entry 
vehicles, covered by this subpart shall provide a level-change mechanism 
or boarding device (e.g., lift, ramp or bridge plate) complying with 
either paragraph (b) or (c) of this section and sufficient clearances to 
permit at least two wheelchair or mobility aid users to reach areas, 
each with a minimum clear floor space of 48 inches by 30 inches, which 
do not unduly restrict passenger flow. Space to accommodate wheelchairs 
and mobility aids may be provided within the normal area used by 
standees and designation of specific spaces is not required.
    (2) Exception. If lifts, ramps or bridge plates meeting the 
requirements of this

[[Page 491]]

section are provided on station platforms or other stops required to be 
accessible, or mini-high platforms complying with Sec. 38.73(d) of this 
part are provided, the vehicle is not required to be equipped with a 
car-borne device. Where each new vehicle is compatible with a single 
platform-mounted access system or device, additional systems or devices 
are not required for each vehicle provided that the single device could 
be used to provide access to each new vehicle if passengers using 
wheelchairs or mobility aids could not be accommodated on a single 
vehicle.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds. Working parts, such as cables, pulleys, and 
shafts, which can be expected to wear, and upon which the lift depends 
for support of the load, shall have a safety factor of at least six, 
based on the ultimate strength of the material. Nonworking parts, such 
as platform, frame, and attachment hardware which would not be expected 
to wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, propulsion system, or door, or shall provide 
other appropriate mechanisms or systems, to ensure that the vehicle 
cannot be moved when the lift is not stowed and so the lift cannot be 
deployed unless the interlocks or systems are engaged. The lift shall 
deploy to all levels (i.e., ground, curb, and intermediate positions) 
normally encountered in the operating environment. Where provided, each 
control for deploying, lowering, raising, and stowing the lift and 
lowering the roll-off barrier shall be of a momentary contact type 
requiring continuous manual pressure by the operator and shall not allow 
improper lift sequencing when the lift platform is occupied. The 
controls shall allow reversal of the lift operation sequence, such as 
raising or lowering a platform that is part way down, without allowing 
an occupied platform to fold or retract into the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the vehicle axis, the transportation entity may specify 
a lift which is designed to deploy with its long dimension parallel to 
the vehicle axis and which pivots into or out of the vehicle while 
occupied (i.e., ``rotary lift''). The requirements of paragraph 
(b)(2)(i) of this section prohibiting the lift from being stowed while 
occupied shall not apply to a lift design of this type if the stowed 
position is within the passenger compartment and the lift is intended to 
be stowed while occupied.
    (iii) Exception. The brake or propulsion system interlocks 
requirement does not apply to a station platform mounted lift provided 
that a mechanical, electrical or other system operates to ensure that 
vehicles do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method, manual or otherwise, shall be capable of being 
operated in a manner that could be hazardous to the lift occupant or to 
the operator when operated according to manufacturer's instructions, and 
shall not permit the platform to be stowed or folded when occupied, 
unless the lift is a rotary lift intended to be stowed while occupied.
    (4) Power or equipment failure. Lift platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the lift is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches high. Such barriers shall not interfere with maneuvering 
into or out of the aisle. The

[[Page 492]]

loading-edge barrier (outer barrier) which functions as a loading ramp 
when the lift is at ground level, shall be sufficient when raised or 
closed, or a supplementary system shall be provided, to prevent a power 
wheelchair or mobility aid from riding over or defeating it. The outer 
barrier on the outboard of the lift shall automatically rise or close, 
or a supplementary system shall automatically engage, and remain raised, 
closed, or engaged at all times that the lift is more than 3 inches 
above the station platform or roadway and the lift is occupied. 
Alternatively, a barrier or system may be raised, lowered, opened, 
closed, engaged or disengaged by the lift operator provided an interlock 
or inherent design feature prevents the lift from rising unless the 
barrier is raised or closed or the supplementary system is engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at vehicle floor height with the inner barrier (if applicable) down 
or retracted, gaps between the forward lift platform edge and vehicle 
floor shall not exceed \1/2\ inch horizontally and \5/8\ inch 
vertically. Platforms on semi-automatic lifts may have a hand hold not 
exceeding 1\1/2\ inches by 4\1/2\ inches located between the edge 
barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8 measured on 
level ground, for a maximum rise of 3 inches, and the transition from 
the station platform or roadway to ramp may be vertical without edge 
treatment up to \1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch 
high shall be beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll) in any direction between its unloaded position and its 
position when loaded with 600 pounds applied through a 26 inch by 26 
inch test pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The lift may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails, 
on two sides, which move in tandem with the lift which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. Handrails shall have a cross-
sectional diameter between 1\1/4\ inches and 1\1/2\ inches or shall 
provide an equivalent grasping surface, and have eased edges with corner 
radii of not less than \1/8\ inch. Handrails shall be placed to provide 
a minimum 1\1/2\ inches knuckle clearance from the nearest adjacent 
surface. Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.

[[Page 493]]

    (c) Vehicle ramp or bridge plate--(1) Design load. Ramps or bridge 
plates 30 inches or longer shall support a load of 600 pounds, placed at 
the centroid of the ramp or bridge plate distributed over an area of 26 
inches, with a safety factor of at least 3 based on the ultimate 
strength of the material. Ramps or bridge plates shorter than 30 inches 
shall support a load of 300 pounds.
    (2) Ramp surface. The ramp or bridge plate surface shall be 
continuous and slip resistant, shall not have protrusions from the 
surface greater then \1/4\ inch, shall have a clear width of 30 inches, 
and shall accommodate both four-wheel and three-wheel mobility aids.
    (3) Ramp threshold. The transition from roadway or station platform 
and the transition from vehicle floor to the ramp or bridge plate may be 
vertical without edge treatment up to \1/4\ inch. Changes in level 
between \1/4\ inch and \1/2\ inch shall be beveled with a slope no 
greater than 1:2.
    (4) Ramp barriers. Each side of the ramp or bridge plate shall have 
barriers at least 2 inches high to prevent mobility aid wheels from 
slipping off.
    (5) Slope. Ramps or bridge plates shall have the least slope 
practicable. If the height of the vehicle floor, under 50% passenger 
load, from which the ramp is deployed is 3 inches or less above the 
station platform a maximum slope of 1:4 is permitted; if the height of 
the vehicle floor, under 50% passenger load, from which the ramp is 
deployed is 6 inches or less, but more than 3 inches, above the station 
platform a maximum slope of 1:6 is permitted; if the height of the 
vehicle floor, under 50% passenger load, from which the ramp is deployed 
is 9 inches or less, but more than 6 inches, above the station platform 
a maximum slope of 1:8 is permitted; if the height of the vehicle floor, 
under 50% passenger load, from which the ramp is deployed is greater 
than 9 inches above the station platform a slope of 1:12 shall be 
achieved. Folding or telescoping ramps are permitted provided they meet 
all structural requirements of this section.
    (6) Attachment--(i) Requirement. When in use for boarding or 
alighting, the ramp or bridge plate shall be attached to the vehicle, or 
otherwise prevented from moving such that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that any gaps between vehicle and ramp or bridge plate, and station 
platform and ramp or bridge plate, shall not exceed \5/8\ inch.
    (ii) Exception. Ramps or bridge plates which are attached to, and 
deployed from, station platforms are permitted in lieu of vehicle 
devices provided they meet the displacement requirements of paragraph 
(c)(6)(i) of this section.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps or bridge plates, 
including portable ramps or bridges plates stowed in the passenger area, 
do not impinge on a passenger's wheelchair or mobility aid or pose any 
hazard to passengers in the event of a sudden stop.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches and 38 inches above the ramp 
surface. The handrails shall be capable of withstanding a force of 100 
pounds concentrated at any point on the handrail without permanent 
deformation of the rail or its supporting structure. The handrail shall 
have a cross- sectional diameter between 1\1/4\ inches and 1\1/2\ inches 
or shall provide an equivalent grasping surface, and have ``eased'' 
edges with corner radii of not less than \1/8\ inch. Handrails shall not 
interfere with wheelchair or mobility aid maneuverability when entering 
or leaving the vehicle.



Sec. 38.85  Between-car barriers.

    Where vehicles operate in a high-platform, level-boarding mode, 
devices or systems shall be provided to prevent, deter or warn 
individuals from inadvertently stepping off the platform between cars. 
Appropriate devices include, but are not limited to, pantograph gates, 
chains, motion detectors or other suitable devices.



Sec. 38.87  Public information system.

    (a) Each vehicle shall be equipped with an interior public address 
system

[[Page 494]]

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. 38.91  General.

    (a) New, used and remanufactured commuter rail cars, to be 
considered accessible by regulations in part 37 of this title, shall 
comply with this subpart.
    (b) If portions of the car are modified in such a way that it 
affects or could affect accessibility, each such portion shall comply, 
to the extent practicable, with the applicable provisions of this 
subpart. This provision does not require that inaccessible cars be 
retrofitted with lifts, ramps or other boarding devices.
    (c)(1) Commuter rail cars shall comply with Sec. Sec. 38.93(d) and 
38.109 of this part for level boarding wherever structurally and 
operationally practicable.
    (2) Where level boarding is not structurally or operationally 
practicable, commuter rail cars shall comply Sec. 38.95 of this part.
    (d) Existing vehicles retrofitted to comply with the ``one-car-per-
train rule'' at Sec. 37.93 of this title shall comply with Sec. Sec. 
38.93(e), 38.95(a) and 38.107 of this part and shall have, in new and 
key stations at least one door on each side from which passengers board 
which complies with Sec. 38.93(d) of this part. Vehicles previously 
designed and manufactured in accordance with the program accessibility 
requirements of section 504 of the Rehabilitation Act of 1973, or 
implementing regulations of the Secretary of Transportation that were in 
effect before October 7, 1991; and which can be entered and used from 
stations in which they are to be operated, may be used to satisfy the 
requirements of Sec. 37.93 of this title.



Sec. 38.93  Doorways.

    (a) Clear width. (1) At least one door on each side of the car from 
which passengers board opening onto station platforms and at least one 
adjacent doorway into the passenger coach compartment, if provided, 
shall have a minimum clear opening of 32 inches.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have, to 
the maximum extent practicable in accordance with the regulations issued 
under the Federal Railroad Safety Act of 1970 (49 CFR parts 229 and 
231), a clear opening of 30 inches.
    (b) Passageways. A route at least 32 inches wide shall be provided 
from doors required to be accessible by paragraph (a)(1) of this section 
to seating locations complying with Sec. 38.95(d) of this part. In cars 
where such doorways require passage through a vestibule, such vestibule 
shall have a minimum width of 42 inches. (See Fig. 3.)
    (c) Signals. If doors to the platform close automatically or from a 
remote location, auditory and visual warning signals shall be provided 
to alert passengers or closing doors.
    (d) Coordination with boarding platform--(1) Requirements. Cars 
operating in stations with high platforms, or mini-high platforms, shall 
be coordinated with the boarding platform design such that the 
horizontal gap between a car at rest and the platform shall be no 
greater than 3 inches and the height of the car floor shall be within 
plus or minus \5/8\ inch of the platform height. Vertical alignment may 
be accomplished by car air suspension, platform lifts or other devices, 
or any combination.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one 
accessible door of each such vehicle and the platform shall be no 
greater than 3 inches.
    (3) Exception. Where platform set-backs do not allow the horizontal 
gap or vertical alignment specified in paragraph (d)(1) or (d)(2) of 
this section, car, platform or portable lifts complying with Sec. 
38.95(b) of this part, or car

[[Page 495]]

or platform ramps or bridge plates, complying with Sec. 38.95(c) of 
this part, shall be provided.
    (4) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (e) Signage. The International Symbol of Accessibility shall be 
displaced on the exterior of all doors complying with this section 
unless all cars are accessible and are not marked by the access symbol 
(see Fig. 6). Appropriate signage shall also indicate which accessible 
doors are adjacent to an accessible restroom, if applicable.



Sec. 38.95  Mobility aid accessibility.

    (a)(1) General. All new commuter rail cars, other than level entry 
cars, covered by this subpart shall provide a level-change mechanism or 
boarding device (e.g., lift, ramp or bridge plate) complying with either 
paragraph (b) or (c) of this section; sufficient clearances to permit a 
wheelchair or mobility aid user to reach a seating location; and at 
least two wheelchair or mobility aid seating locations complying with 
paragraph (d) of this section.
    (2) Exception. If portable or platform lifts, ramps or bridge plates 
meeting the applicable requirements of this section are provided on 
station platforms or other stops required to be accessible, or mini-high 
platforms complying with Sec. 38.93(d) are provided, the car is not 
required to be equipped with a car-borne device. Where each new car is 
compatible with a single platform-mounted access system or device, 
additional systems or devices are not required for each car provided 
that the single device could be used to provide access to each new car 
if passengers using wheelchairs or mobility aids could not be 
accommodated on a single car.
    (b) Car Lift--(1) Design load. The design load of the lift shall be 
at least 600 pounds. Working parts, such as cables, pulleys, and shafts, 
which can be expected to wear, and upon which the lift depends for 
support of the load, shall have a safety factor of at least six, based 
on the ultimate strength of the material. Nonworking parts, such as 
platform, frame, and attachment hardware which would not be expected to 
wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the car brakes, propulsion system, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the car cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all platform levels normally encountered in the operating environment. 
Where provided, each control for deploying, lowering, raising, and 
stowing the lift and lowering the roll-off barrier shall be of a 
monetary contact type requiring continuous manual pressure by the 
operator and shall not allow improper lift sequencing when the lift 
platform is occupied. The controls shall allow reversal of the lift 
operation sequence, such as raising or lowering a platform that is part 
way down, without allowing an occupied platform to fold or retract into 
the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the car axis, the transportation entity may specify a 
lift which is designed to deploy with its long dimension parallel to the 
car axis and which pivots into or out of the car while occupied (i.e., 
``rotary lift''). The requirements of paragraph (b)(2)(i) of this 
section prohibiting the lift from being stowed while occupied shall not 
apply to a lift design of this type if the stowed position is within the 
passenger compartment and the lift is intended to be stowed while 
occupied.
    (iii) Exception. The brake or propulsion system interlock 
requirement does not apply to a platform mounted or portable lift 
provided that a mechanical, electrical or other system operates to 
ensure that cars do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground or platform level with a lift 
occupant, and

[[Page 496]]

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 lift is at ground or station platform level, 
shall be sufficient when raised or closed, or a supplementary system 
shall be provided, to prevent a power wheelchair or mobility aid from 
riding over or defeating it. The outer barrier of the lift shall 
automatically rise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the lift platform is more than 3 inches above the station platform 
and the lift is occupied. Alternatively, a barrier or system may be 
raised, lowered, opened, closed, engaged or disengaged by the lift 
operator provided an interlock or inherent design feature prevents the 
lift from rising unless the barrier is raised or closed or the 
supplementary system is engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at car floor height with the inner barrier down (if applicable) or 
retracted, gaps between the forward lift platform edge and car floor 
shall not exceed \1/2\ inch horizontally and \5/8\ inch vertically.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, when measured 
on level ground, for a maximum rise of 3 inches, and the transition from 
station platform to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll) in any direction between its unloaded position and its 
position when loaded with 600 pounds applied through a 26 inch by 26 
inch test pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The

[[Page 497]]

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 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

[[Page 498]]

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.)



Sec. 38.97  Interior circulation, handrails and stanchions.

    (a) Where provided, handrails or stanchions within the passenger 
compartment shall be placed to permit sufficient turning and maneuvering 
space for wheelchairs and other mobility aids to reach a seating 
location, complying with Sec. 38.95(d) of this part, from an accessible 
entrance. The diameter or width of the gripping surface of interior 
handrails and stanchions shall be 1\1/4\ inches to 1\1/2\ inches or 
shall provide an equivalent gripping surface. Handrails shall be placed 
to provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface.
    (b) Where provided, handrails or stanchions shall be sufficient to 
permit safe boarding, on-board circulation, seating and standing 
assistance, and alighting by persons with disabilities.
    (c) At entrances equipped with steps, handrails or stanchions shall 
be provided in the entrance to the car in a configuration which allows 
passengers to grasp such assists from outside the car while starting to 
board, and to continue using such assists throughout the boarding 
process, to the extent permitted by part 231 of this title.



Sec. 38.99  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads, places for standees, and 
areas where wheelchair and mobility aid users are to be accommodated 
shall be slip-resistant.
    (b) All thresholds and step edges shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec. 38.101  Lighting.

    (a) Any stepwell or doorway with a lift, ramp or bridge plate shall 
have, when the door is open, at least 2 footcandles of illumination 
measured on the step tread, ramp, bridge plate, or lift platform.
    (b) The doorways of cars not operating at lighted station platforms 
shall have outside lights which, when the door is open, provide at least 
1 footcandle of illumination on the station platform surface for a 
distance of 3 feet perpendicular to all points on the bottom step tread 
edge. Such lights shall be shielded to protect the eyes of entering and 
exiting passengers.



Sec. 38.103  Public information system.

    (a) Each car shall be equipped with an interior public address 
system permitting transportation system personnel, or recorded or 
digitized human speech messages, to announce stations and provide other 
passenger information. Alternative systems or devices which provide 
equivalent access are also permitted.
    (b) [Reserved]



Sec. 38.105  Priority seating signs.

    (a) Each car shall contain sign(s) which indicate that certain seats 
are priority seats for persons with disabilities and that other 
passengers should make such seats available to those who wish to use 
them.

[[Page 499]]

    (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. 38.107  Restrooms.

    (a) If a restroom is provided for the general public, it shall be 
designed so as to allow a person using a wheelchair or mobility aid to 
enter and use such restroom as specified in paragraphs (a) (1) through 
(5) of this section.
    (1) The minimum clear floor area shall be 35 inches by 60 inches. 
Permanently installed fixtures may overlap this area a maximum of 6 
inches, if the lowest portion of the fixture is a minimum of 9 inches 
above the floor, and may overlap a maximum of 19 inches, if the lowest 
portion of the fixture is a minimum of 29 inches above the floor, 
provided such fixtures do not interfere with access to the water closet. 
Fold-down or retractable seats or shelves may overlap the clear floor 
space at a lower height provided they can be easily folded up or moved 
out of the way.
    (2) The height of the water closet shall be 17 inches to 19 inches 
measured to the top of the toilet seat. Seats shall not be sprung to 
return to a lifted position.
    (3) A grab bar at least 24 inches long shall be mounted behind the 
water closet, and a horizontal grab bar at least 40 inches long shall be 
mounted on at least one side wall, with one end not more than 12 inches 
from the back wall, at a height between 33 inches and 36 inches above 
the floor.
    (4) Faucets and flush controls shall be operable with one hand and 
shall not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls shall be no greater than 5 lbf 
(22.2 N). Controls for flush valves shall be mounted no more than 44 
inches above the floor.
    (5) Doorways on the end of the enclosure, opposite the water closet, 
shall have a minimum clear opening width of 32 inches. Doorways on the 
side wall shall have a minimum clear opening width of 39 inches. Door 
latches and hardware shall be operable with one hand and shall not 
require tight grasping, pinching, or twisting of the wrist.
    (b) Restrooms required to be accessible shall be in close proximity 
to at least one seating location for persons using mobility aids and 
shall be connected to such a space by an unobstructed path having a 
minimum width of 32 inches.



Sec. 38.109  Between-car barriers.

    Where vehicles operate in a high-platform, level-boarding mode, and 
where between-car bellows are not provided, devices or systems shall be 
provided to prevent, deter or warn individuals from inadvertently 
stepping off the platform between cars. Appropriate devices include, but 
are not limited to, pantograph gates, chains, motion detectors or other 
suitable devices.



                Subpart F_Intercity Rail Cars and Systems



Sec. 38.111  General.

    (a) New, used and remanufactured intercity rail cars, to be 
considered accessible by regulations in part 37 of this title shall 
comply with this subpart to the extent required for each type of car as 
specified below.
    (1) Single-level rail passenger coaches and food service cars (other 
than single-level dining cars) shall comply with Sec. Sec. 38.113 
through 38.123 of this part. Compliance with Sec. 38.125 of this part 
shall be required only to the extent necessary to meet the requirements 
of paragraph (d) of this section.
    (2) Single-level dining and lounge cars shall have at least one 
connecting doorway complying with Sec. 38.113(a)(2) of this part 
connected to a car accessible to persons using wheelchairs or mobility 
aids, and at least one space complying with Sec. Sec. 38.125(d) (2) and 
(3) of this part, to provide table service to a person who wishes to 
remain in his or her wheelchair, and space to fold and store a 
wheelchair for a person who wishes to transfer to an existing seat.
    (3) Bi-level dining cars shall comply with Sec. Sec. 38.113(a)(2), 
38.115(b), 38.117(a), and 38.121 of this part.

[[Page 500]]

    (4) Bi-level lounge cars shall have doors on the lower level, on 
each side of the car from which passengers board, complying with Sec. 
38.113, a restroom complying with Sec. 38.123, and at least one space 
complying with Sec. 38.125(d) (2) and (3) to provide table service to a 
person who wishes to remain in his or her wheelchair and space to fold 
and store a wheelchair for a person who wishes to transfer to an 
existing seat.
    (5) Restrooms, complying with Sec. 38.123 shall be provided in 
single-level rail passenger coaches and food services cars adjacent to 
the accessible seating locations required by paragraph (d) of this 
section. Accessible restrooms are required in dining and lounge cars 
only if restrooms are provided for other passengers.
    (6) Sleeper cars shall comply with Sec. Sec. 38.113 (b) through 
(d), 38.115 through 38.121, and 38.125, of this part, and have at least 
one compartment which can be entered and used by a person using a 
wheelchair or mobility aid and complying with Sec. 38.127 of this part.
    (b)(1) If physically and operationally practicable, intercity rail 
cars shall comply with Sec. 38.113(d) of this part for level boarding.
    (2) Where level boarding is not structurally or operationally 
practicable, intercity rail cars shall comply with Sec. 38.125.
    (c) If portions of the car are modified in a way that it affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible cars be retrofitted with 
lifts, ramps or other boarding devices.
    (d) Passenger coaches or food service cars shall have the number of 
spaces complying with Sec. 38.125(d)(2) of this part and the number of 
spaces complying with Sec. 38.125(d)(3) of this part, as required by 
Sec. 37.91 of this title.
    (e) Existing cars retrofitted to meet the seating requirements of 
Sec. 37.91 of this title shall comply with Sec. 38.113(e), Sec. 
38.123, Sec. 38.125(d) of this part and shall have at least one door on 
each side from which passengers board complying with Sec. 38.113(d) of 
this part. Existing cars designed and manufactured to be accessible in 
accordance with the Secretary of Transportation regulations implementing 
section 504 of the Rehabilitation Act of 1973 that were in effect before 
October 7, 1991, shall comply with Sec. 38.125(a) of this part.



Sec. 38.113  Doorways.

    (a) Clear width. (1) At least one doorway, on each side of the car 
from which passengers board, of each car required to be accessible by 
Sec. 38.111(a) and where the spaces required by Sec. 38.111(d) of this 
part are located, and at least one adjacent doorway into coach passenger 
compartments shall have a minimum clear opening width of 32 inches.
    (2) Doorways at ends of cars connecting two adjacent cars, to the 
maximum extent practicable in accordance with regulations issued under 
the Federal Railroad Safety Act of 1970 (49 CFR parts 229 and 231), 
shall have a clear opening width of 32 inches to permit wheelchair and 
mobility aid users to enter into a single-level dining car, if 
available.
    (b) Passageway. Doorways required to be accessible by paragraph (a) 
of this section shall permit access by persons using mobility aids and 
shall have an unobstructed passageway at least 32 inches wide leading to 
an accessible sleeping compartment complying with Sec. 38.127 of this 
part or seating locations complying with Sec. 38.125(d) of this part. 
In cars where such doorways require passage through a vestibule, such 
vestibule shall have a minimum width of 42 inches. (see Fig. 4)
    (c) Signals. If doors to the platform close automatically or from a 
remote location, auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platforms--(1) Requirements. Cars 
which provide level-boarding in stations with high platforms shall be 
coordinated with the boarding platform or mini-high platform design such 
that the horizontal gap between a car at rest and the platform shall be 
no greater than 3 inches and the height of the car floor shall be within 
plus or minus \5/8\ inch of the platform height. Vertical alignment may 
be accomplished by car air suspension, platform lifts or other devices, 
or any combination.

[[Page 501]]

    (2) Exception. New cars operating in existing stations may have a 
floor height within plus or minus 1\1/2\ inches of the platform height.
    (3) Exception. Where platform set-backs do not allow the horizontal 
gap or vertical alignment specified in paragraph (d) (1) or (2), 
platform or portable lifts complying with Sec. 38.125(b) of this part, 
or car or platform bridge plates, complying with Sec. 38.125(c) of this 
part, may be provided.
    (4) Exception. Retrofitted vehicles shall be coordinated with the 
platform in existing stations such that the horizontal gap shall be no 
greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (e) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of all doors complying with this section 
unless all cars and doors are accessible and are not marked by the 
access symbol (see fig. 6). Appropriate signage shall also indicate 
which accessible doors are adjacent to an accessible restroom, if 
applicable.

[56 FR 45756, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993]



Sec. 38.115  Interior circulation, handrails and stanchions.

    (a) Where provided, handrails or stanchions within the passenger 
compartment shall be placed to permit sufficient turning and maneuvering 
space for wheelchairs and other mobility aids to reach a seating 
location, complying with Sec. 38.125(d) of this part, from an 
accessible entrance. The diameter or width of the gripping surface of 
interior handrails and stanchions shall be 1\1/4\ inches to 1\1/2\ 
inches or shall provide an equivalent gripping surface. Handrails shall 
be placed to provide a minimum 1\1/2\ inches knuckle clearance from the 
nearest adjacent surface.
    (b) Where provided, handrails and stanchions shall be sufficient to 
permit safe boarding, on-board circulation, seating and standing 
assistance, and alighting by persons with disabilities.
    (c) At entrances equipped with steps, handrails or stanchions shall 
be provided in the entrance to the car in a configuration which allows 
passengers to grasp such assists from outside the car while starting to 
board, and to continue using such assists throughout the boarding 
process, to the extent permitted by part 231 of this title.



Sec. 38.117  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads and areas where wheelchair 
and mobility aid users are to be accommodated shall be slip-resistant.
    (b) All step edges and thresholds shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec. 38.119  Lighting.

    (a) Any stepwell, or doorway with a lift, ramp or bridge plate, 
shall have, when the door is open, at least 2 foot-candles of 
illumination measured on the step tread, ramp, bridge plate or lift 
platform.
    (b) The doorways of cars not operating at lighted station platforms 
shall have outside lights which, when the door is open, provide at least 
1 foot-candle of illumination on the station platform surface for a 
distance of 3 feet perpendicular to all points on the bottom step tread 
edge. Such lights shall be shielded to protect the eyes of entering and 
exiting passengers.



Sec. 38.121  Public information system.

    (a) Each car shall be equipped with a public address system 
permitting transportation system personnel, or recorded or digitized 
human speech messages, to announce stations and provide other passenger 
information. Alternative systems or devices which provide equivalent 
access are also permitted.
    (b) [Reserved]



Sec. 38.123  Restrooms.

    (a) If a restroom is provided for the general public, and an 
accessible restroom is required by Sec. 38.111 (a) and (e) of this 
part, it shall be designed so as to allow a person using a wheelchair or 
mobility aid to enter and use such restroom as specified in paragraphs 
(a) (1) through (5) of this section.

[[Page 502]]

    (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 width of 39 inches. Door 
latches and hardware shall be operable with one hand and shall not 
require tight grasping, pinching, or twisting of the wrist.
    (b) Restrooms required to be accessible shall be in close proximity 
to at least one seating location for persons using mobility aids 
complying with Sec. 38.125(d) of this part and shall be connected to 
such a space by an unobstructed path having a minimum width of 32 
inches.



Sec. 38.125  Mobility aid accessibility.

    (a)(1) General. All intercity rail cars, other than level entry 
cars, required to be accessible by Sec. Sec. 38.111 (a) and (e) of this 
subpart shall provide a level-change mechanism or boarding device (e.g., 
lift, ramp or bridge plate) complying with either paragraph (b) or (c) 
of this section and sufficient clearances to permit a wheelchair or 
other mobility aid user to reach a seating location complying with 
paragraph (d) of this section.
    (2) Exception. If portable or platform lifts, ramps or bridge plates 
meeting the applicable requirements of this section are provided on 
station platforms or other stops required to be accessible, or mini-high 
platforms complying with Sec. 38.113(d) are provided, the car is not 
required to be equipped with a car-borne device.
    (b) Car Lift--(1) Design load. The design load of the lift shall be 
at least 600 pounds. Working parts, such as cables, pulleys, and shafts, 
which can be expected to wear, and upon which the lift depends for 
support of the load, shall have a safety factor of at least six, based 
on the ultimate strength of the material. Nonworking parts, such as 
platform, frame, and attachment hardware which would not be expected to 
wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the car brakes, propulsion system, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the car cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all platform levels normally encountered in the operating environment. 
Where provided, each control for deploying, lowering, raising, and 
stowing the lift and lowering the roll-off barrier shall be of a 
monetary contact type requiring continuous manual pressure by the 
operator and shall not allow improper lift sequencing when the lift 
platform is occupied. The controls shall allow reversal of the lift 
operation sequence, such as raising or lowering a platform that is part 
way down, without allowing an occupied platform to fold or retract into 
the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long

[[Page 503]]

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 deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the car until the lift is in its fully 
raised position. Each side of the lift platform which, in its raised 
position, extends beyond the car shall have a barrier a minimum 1\1/2\ 
inches high. Such barriers shall not interfere with maneuvering into or 
out of the car. The loading-edge barrier (outer barrier) which functions 
as a loading ramp when the lift is at ground or station platform level, 
shall be sufficient when raised or closed, or a supplementary system 
shall be provided, to prevent a power wheelchair or mobility aid from 
riding over or defeating it. The outer barrier of the lift shall 
automatically rise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the lift platform is more than 3 inches above the station platform 
and the lift is occupied. Alternatively, a barrier or system may be 
raised, lowered, opened, closed, engaged or disengaged by the lift 
operator provided an interlock or inherent design feature prevents the 
lift from rising unless the barrier is raised or closed or the 
supplementary system is engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1.)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at car floor height with the inner barrier (if applicable) down or 
retracted, gaps between the forward lift platform edge and car floor 
shall not exceed \1/2\ inch horizontally and \5/8\ inch vertically.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, when measured 
on level ground, for a maximum rise of 3 inches, and the transition from 
station platform to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp)

[[Page 504]]

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 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

[[Page 505]]

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 
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. Sec. 38.111 (a) and (e) of this subpart shall 
provide at least one, but not more than two, mobility aid seating 
location(s) complying with paragraph (d)(2) of this section; and at 
least one, but not more than two, seating location(s) complying with 
paragraph (d)(3) of this section which adjoin or overlap an accessible 
route with a minimum clear width of 32 inches.
    (2) Wheelchair or mobility aid spaces. Spaces for persons who wish 
to remain in their wheelchairs or mobility aids shall have a minimum 
clear floor space 48 inches by 30 inches. Such spaces shall adjoin, and 
may overlap, an accessible path. Not more than 6 inches of the required 
clear floor space may be accommodated for footrests under another seat 
provided there is a minimum of 9 inches from the floor to the lowest 
part of the seat overhanging the space. Seating spaces may have fold-
down or removable seats to accommodate other passengers when a 
wheelchair or mobility aid user is not occupying the area, provided the 
seats, when folded up, do not obstruct the clear floor space provided 
(See Fig. 2).
    (3) Other spaces. Spaces for individuals who wish to transfer shall 
include a regular coach seat or dining car booth or table seat and space 
to fold and store the passenger's wheelchair.

[56 FR 45756, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993]



Sec. 38.127  Sleeping compartments.

    (a) Sleeping compartments required to be accessible shall be 
designed so as to allow a person using a wheelchair or mobility aid to 
enter, maneuver within and approach and use each element within such 
compartment. (See Fig. 5.)
    (b) Each accessible compartment shall contain a restroom complying 
with Sec. 38.123(a) which can be entered directly from such 
compartment.
    (c) Controls and operating mechanisms (e.g., heating and air 
conditioning controls, lighting controls, call buttons, electrical 
outlets, etc.) shall be mounted no more than 48 inches, and no less than 
15 inches, above the floor and shall have a clear floor area directly in 
front a minimum of 30 inches by 48 inches. Controls and operating 
mechanisms shall be operable with one hand and shall not require tight 
grasping, pinching, or twisting of the wrist.



                Subpart G_Over-the-Road Buses and Systems



Sec. 38.151  General.

    (a) New, used and remanufactured over-the-road buses, to be 
considered accessible by regulations in part 37 of this title, shall 
comply with this subpart.
    (b) Over-the-road buses covered by Sec. 37.7 (c) of this title 
shall comply with Sec. 38.23 and this subpart.

[[Page 506]]



Sec. 38.153  Doors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads and areas where wheelchair 
and mobility aid users are to be accommodated shall be slip-resistant.
    (b) All step edges shall have a band of color(s) running the full 
width of the step which contrasts from the step tread and riser, either 
dark-on-light or light-on-dark.
    (c)(1) Doors shall have a minimum clear width when open of 30 inches 
(760 mm), measured from the lowest step to a height of at least 48 
inches (1220 mm), from which point they may taper to a minimum width of 
18 inches (457 mm). The clear width may be reduced by a maximum of 4 
inches (100 mm) by protrusions of hinges or other operating mechanisms.
    (2) Exception. Where compliance with the door width requirement of 
paragraph (c)(1) of this section is not feasible, the minimum door width 
shall be 27 in (685 mm).
    (d) The overhead clearance between the top of the lift door opening 
and the sill shall be the maximum practicable but not less than 65 
inches (1651 mm).

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51698, 51702, Sept. 28, 
1998]



Sec. 38.155  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be provided in the entrance to 
the vehicle in a configuration which allows passengers to grasp such 
assists from outside the vehicle while starting to board, and to 
continue using such handrails or stanchions throughout the boarding 
process. Handrails shall have a cross-sectional diameter between 1\1/4\ 
inches and 1\1/2\ inches or shall provide an equivalent grasping 
surface, and have eased edges with corner radii of not less than \1/8\ 
inch. Handrails shall be placed to provide a minimum 1\1/2\ inches 
knuckle clearance from the nearest adjacent surface. Where on-board fare 
collection devices are used, a horizontal passenger assist shall be 
located between boarding passengers and the fare collection device and 
shall prevent passengers from sustaining injuries on the fare collection 
device or windshield in the event of a sudden deceleration. Without 
restricting the vestibule space, the assist shall provide support for a 
boarding passenger from the door through the boarding procedure. 
Passengers shall be able to lean against the assist for security while 
paying fares.
    (b) Where provided within passenger compartments, handrails or 
stanchions shall be sufficient to permit safe on-board circulation, 
seating and standing assistance, and alighting by persons with 
disabilities.



Sec. 38.157  Lighting.

    (a) Any stepwell or doorway immediately adjacent to the driver shall 
have, when the door is open, at least 2 foot-candles of illumination 
measured on the step tread.
    (b) The vehicle doorway shall have outside light(s) which, when the 
door is open, provide at least 1 foot-candle of illumination on the 
pathway to the door for a distance of 3 feet (915 mm) to the bottom step 
tread or lift outer edge. Such light(s) shall be shielded to protect the 
eyes of entering and exiting passengers.

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51698, 51702, Sept. 28, 
1998]



Sec. 38.159  Mobility aid accessibility.

    (a)(1) General. All vehicles covered by this subpart shall provide a 
level-change mechanism or boarding device (e.g., lift or ramp) complying 
with paragraph (b) or (c) of this section and 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

[[Page 507]]

of at least six, based on the ultimate strength of the material. 
Nonworking parts, such as platform, frame and attachment hardware which 
would not be expected to wear, shall have a safety factor of at least 
three, based on the ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, transmission, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the vehicle cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all levels (i.e., ground, curb, and intermediate positions) normally 
encountered in the operating environment. Where provided, each control 
for deploying, lowering, raising, and stowing the lift and lowering the 
roll-off barrier shall be of a momentary contact type requiring 
continuous manual pressure by the operator and shall not allow improper 
lift sequencing when the lift platform is occupied. The controls shall 
allow reversal of the lift operation sequence, such as raising or 
lowering a platform that is part way down, without allowing an occupied 
platform to fold or retract into the stowed position.
    (ii) Exception. Where the lift is designed to deploy with its long 
dimension parallel to the vehicle axis and which pivots into or out of 
the vehicle while occupied (i.e., ``rotary lift''), the requirements of 
this paragraph (b)(2) prohibiting the lift from being stowed while 
occupied shall not apply if the stowed position is within the passenger 
compartment and the lift is intended to be stowed while occupied.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method, manual or otherwise, shall be capable of being 
operated in a manner that could be hazardous to the lift occupant or to 
the operator when operated according to manufacturer's instructions, and 
shall not permit the platform to be stowed or folded when occupied, 
unless the lift is a rotary lift and is intended to be stowed while 
occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second (305 mm/sec) or their dropping of an occupant in the event of a 
single failure of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the platform during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the platform is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches (13 mm) high. Such barriers shall not interfere with 
maneuvering into or out of the aisle. The loading-edge barrier (outer 
barrier) which functions as a loading ramp when the lift is at ground 
level, shall be sufficient when raised or closed, or a supplementary 
system shall be provided, to prevent a power wheelchair or mobility aid 
from riding over or defeating it. The outer barrier of the lift shall 
automatically raise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the platform is more than 3 inches (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

[[Page 508]]

the surface of the platform to 30 inches (760 mm) above the surface of 
the platform. (See Figure 1 to this part.)
    (7) Platform gaps. Any openings between the platform surface and the 
raised barriers shall not exceed \5/8\ inch (16 mm) in width. When the 
platform is at vehicle floor height with the inner barrier (if 
applicable) down or retracted, gaps between the forward lift platform 
edge and the vehicle floor shall not exceed \1/2\ inch (13 mm) 
horizontally and \5/8\ inch (16 mm) vertically. Platforms on semi-
automatic lifts may have a hand hold not exceeding 1\1/2\ inches (28 mm) 
by 4\1/2\ inches (113 mm) located between the edge barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, measured on 
level ground, for a maximum rise of 3 inches (75 mm), and the transition 
from roadway or sidewalk to ramp may be vertical without edge treatment 
up to \1/4\ inch (6.5 mm) . Thresholds between \1/4\ inch (6.5 mm) and 
\1/2\ inch (13 mm) high shall be beveled with a slope no greater than 
1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll or pitch) in any direction between its unloaded position 
and its position when loaded with 600 pounds (2665 N) applied through a 
26 inch (660 mm) by 26 inch test pallet at the centroid of the platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second (150 mm/sec) during lowering and lifting an 
occupant, and shall not exceed 12 inches/second (300 mm/sec) during 
deploying or stowing. This requirement does not apply to the deployment 
or stowage cycles of lifts that are manually deployed or stowed. The 
maximum platform horizontal and vertical acceleration when occupied 
shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchair and mobility aid users.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The platform may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
(200 mm) long with the lowest portion a minimum 30 inches (760 mm) above 
the platform and the highest portion a maximum 38 inches (965 mm) above 
the platform. The handrails shall be capable of withstanding a force of 
100 pounds (445 N) concentrated at any point on the handrail without 
permanent deformation of the rail or its supporting structure. The 
handrail shall have a cross-sectional diameter between 1\1/4\ inches (32 
mm) and 1\1/2\ inches (38 mm) or shall provide an equivalent grasping 
surface, and have eased edges with corner radii of not less than \5/8\ 
inch (3.5 mm). Handrails shall be placed to provide a minimum 1\1/2\ 
inches (38 mm) knuckle clearance from the nearest adjacent surface. 
Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp--(1) Design load. Ramps 30 inches (760 mm) or 
longer shall support a load of 600 pounds (2665 N), placed at the 
centroid of the ramp distributed over an area of 26 inches by 26 inches 
(660 mm by 660 mm), with a 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.

[[Page 509]]

    (4) Ramp barriers. Each side of the ramp shall have barriers at 
least 2 inches (50 mm) high to prevent mobility aid wheels from slipping 
off.
    (5) Slope. Ramps shall have the least slope practicable and shall 
not exceed 1:4 when deployed to ground level. If the height of the 
vehicle floor from which the ramp is deployed is 3 inches (75 mm) or 
less above a 6 inch (150 mm) curb, a maximum slope of 1:4 is permitted; 
if the height of the vehicle floor from which the ramp is deployed is 6 
inches (150 mm) or less, but greater than 3 inches (75 mm), above a 6 
inch (150 mm) curb, a maximum slope of 1:6 is permitted; if the height 
of the vehicle floor from which the ramp is deployed is 9 inches (225 
mm) or less, but greater than 6 inches (150 mm), above a 6 inch curb, a 
maximum slope of 1:8 is permitted; if the height of the vehicle floor 
from which the ramp is deployed is greater than 9 inches (225 mm) above 
a 6 inch (150 mm) curb, a slope of 1:12 shall be achieved. Folding or 
telescoping ramps are permitted provided they meet all structural 
requirements of this section.
    (6) Attachment. When in use for boarding or alighting, the ramp 
shall be firmly attached to the vehicle so that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that no gap between vehicle and ramp exceeds \5/8\ inch (16 mm).
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps, including portable 
ramps stowed in the passenger area, do not impinge on a passenger's 
wheelchair or mobility aid or pose any hazard to passengers in the event 
of a sudden stop or maneuver.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches (760 mm) above the ramp surface. 
The handrails shall be capable of withstanding a force of 100 pounds 
(445 N) concentrated at any point on the handrail without permanent 
deformation of the rail or its supporting structure. The handrail shall 
have a cross-sectional diameter between 1\1/4\ inches (32 mm) and 1\1/2\ 
inches (38 mm) or shall provide an equivalent grasping surface, and have 
eased edges with corner radii of not less than \1/8\ inch (3.5 mm). 
Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (d) Securement devices--(1) Design load. Securement systems, and 
their attachments to vehicles, shall restrain a force in the forward 
longitudinal direction of up to 2,000 pounds (8,880 N) per securement 
leg or clamping mechanism and a minimum of 4,000 pounds (17,760 N) for 
each mobility aid.
    (2) Location and size. The securement system shall be placed as near 
to the accessible entrance as practicable and shall have a clear floor 
area of 30 inches (760 mm) by 48 inches (1220 mm). Such space shall 
adjoin, and may overlap, an access path. Not more than 6 inches (150 mm) 
of the required clear floor space may be accommodated for footrests 
under another seat, modesty panel, or other fixed element provided there 
is a minimum of 9 inches (230 mm) from the floor to the lowest part of 
the seat overhanging the space. Securement areas may have fold-down 
seats to accommodate other passengers when a wheelchair or mobility aid 
is not occupying the area, provided the seats, when folded up, do not 
obstruct 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

[[Page 510]]

inches (1420 mm) from the vehicle floor with a width of 18 inches (455 
mm), laterally centered immediately in back of the seated individual. 
Such barriers need not be solid provided equivalent protection is 
afforded.
    (5) Movement. When the wheelchair or mobility aid is secured in 
accordance with manufacturer's instructions, the securement system shall 
limit the movement of an occupied wheelchair or mobility aid to no more 
than 2 inches (50 mm) in any direction under normal vehicle operating 
conditions.
    (6) Stowage. When not being used for securement, or when the 
securement area can be used by standees, the securement system shall not 
interfere with passenger movement, shall not present any hazardous 
condition, shall be reasonably protected from vandalism, and shall be 
readily accessed when needed for use.
    (7) Seat belt and shoulder harness. For each wheelchair or mobility 
aid securement device provided, a passenger seat belt and shoulder 
harness, complying with all applicable provisions of the Federal Motor 
Vehicle Safety Standards (49 CFR part 571), shall also be provided for 
use by wheelchair or mobility aid users. Such seat belts and shoulder 
harnesses shall not be used in lieu of a device which secures the 
wheelchair or mobility aid itself.

[63 FR 51698, 51703, Sept. 28, 1998]



Sec. 38.161  Moveable aisle armrests.

    A minimum of 50% of aisle seats, including all moveable or removable 
seats at wheelchair or mobility aide securement locations, shall have an 
armrest on the aisle side which can be raised, removed, or retracted to 
permit easy entry or exit.

[63 FR 51700, 51703, Sept. 28, 1998]



                  Subpart H_Other Vehicles and Systems



Sec. 38.171  General.

    (a) New, used and remanufactured vehicles and conveyances for 
systems not covered by other subparts of this part, to be considered 
accessible by regulations in part 37 of this title shall comply with 
this subpart.
    (b) If portions of the vehicle or conveyance are modified in a way 
that affects or could affect accessibility, each such portion shall 
comply, to the extent practicable, with the applicable provisions of 
this subpart. This provision does not require that inaccessible vehicles 
be retrofitted with lifts, ramps or other boarding devices.
    (c) Requirements for vehicles and systems not covered by this part 
shall be determined on a case-by-case basis by the Department of 
Transportation in consultation with the U.S. Architectural and 
Transportation Barriers Compliance Board (Access Board).



Sec. 38.173  Automated guideway transit vehicles and systems.

    (a) Automated Guideway Transit (AGT) vehicles and systems, sometimes 
called ``people movers'', operated in airports and other areas where AGT 
vehicles travel at slow speed (i.e., at a speed of no more than 20 miles 
per hour at any location on their route during normal operation), shall 
comply with the provisions of Sec. 38.53 (a) through (c), and 
Sec. Sec. 38.55 through 38.61 of this part for rapid rail vehicles and 
systems.
    (b) Where the vehicle covered by paragraph (a) will operate in an 
accessible station, the design of vehicles shall be coordinated with the 
boarding platform design such that the horizontal gap between a vehicle 
door at rest and the platform shall be no greater than 1 inch and the 
height of the vehicle floor shall be within plus or minus \1/2\ inch of 
the platform height under all normal passenger load conditions. Vertical 
alignment may be accomplished by vehicle air suspension or other 
suitable means of meeting the requirement.
    (c) In stations where open platforms are not protected by platform 
screens, a suitable device or system shall be provided to prevent, deter 
or warn individuals from stepping off the platform between cars. 
Acceptable devices include, but are not limited to, pantograph gates, 
chains, motion detectors or other appropriate devices.
    (d) Light rail and rapid rail AGT vehicles and systems shall comply 
with subparts D and C of this part, respectively. AGT systems whose 
vehicles travel at a speed of more than 20 miles

[[Page 511]]

per hour at any location on their route during normal operation are 
covered under this paragraph rather than under paragraph (a) of this 
section.

[56 FR 45756, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec. 38.175  High-speed rail cars, monorails and systems.

    (a) All cars for high-speed rail systems, including but not limited 
to those using ``maglev'' or high speed steel-wheel-on-steel rail 
technology, and monorail systems operating primarily on dedicated rail 
(i.e., not used by freight trains) or guideway, in which stations are 
constructed in accordance with part 37, subpart C of this title, shall 
be designed for high-platform, level boarding and shall comply with 
Sec. 38.111(a) of this part for each type of car which is similar to 
intercity rail, Sec. Sec. 38.111(d), 38.113 (a) through (c) and (e), 
38.115 (a) and (b), 38.117 (a) and (b), 38.121 through 38.123, 
38.125(d), and 38.127 (if applicable) of this part. The design of cars 
shall be coordinated with the boarding platform design such that the 
horizontal gap between a car door at rest and the platform shall be no 
greater than 3 inches and the height of the car floor shall be within 
plus or minus \5/8\ inch of the platform height under all normal 
passenger load conditions. Vertical alignment may be accomplished by car 
air suspension or other suitable means of meeting the requirement. All 
doorways shall have, when the door is open, at least 2 footcandles of 
illumination measured on the door threshold.
    (b) All other high-speed rail cars shall comply with the similar 
provisions of subpart F of this part.



Sec. 38.177  Ferries, excursion boats and other vessels. [Reserved]



Sec. 38.179  Trams, and similar vehicles, and systems

    (a) New and used trams consisting of a tractor unit, with or without 
passenger accommodations, and one or more passenger trailer units, 
including but not limited to vehicles providing shuttle service to 
remote parking areas, between hotels and other public accommodations, 
and between and within amusement parks and other recreation areas, shall 
comply with this section. For purposes of determining applicability of 
49 CFR 37.101, 37.103, or 37.105 the capacity of such a vehicle or 
``train'' shall consist of the total combined seating capacity of all 
units, plus the driver, prior to any modification for accessibility.
    (b) Each tractor unit which accommodates passengers and each trailer 
unit shall comply with Sec. 38.25 and Sec. 38.29 of this part. In 
addition, each such unit shall comply with Sec. 38.23 (b) or (c) and 
shall provide at least one space for wheelchair or mobility aid users 
complying with Sec. 38.23(d) of this part unless the complete operating 
unit consisting of tractor and one or more trailers can already 
accommodate at least two wheelchair or mobility aid users.

[[Page 512]]



                         Sec. Figures to Part 38
[GRAPHIC] [TIFF OMITTED] TR28SE98.000


[[Page 513]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.194


[[Page 514]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.195


[[Page 515]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.196


[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51700, 51703, Sept. 28, 
1998]



               Sec. Appendix to Part 38--Guidance Material

    This appendix contains materials of an advisory nature and provides 
additional information that should help the reader to understand the 
minimum requirements of the standards or to design vehicles for greater 
accessibility. Each entry is applicable to all subparts of this part 
except where noted. Nothing in this appendix shall in any way obviate 
any obligation to comply with the requirements of the standards 
themselves.

I. Slip Resistant Surface--Aisles, Steps, Floor Areas Where People Walk, 
       Floor Areas in Securement Locations, Lift Platforms, Ramps

    Slip resistance is based on the frictional force necessary to keep a 
shoe heel or crutch tip from slipping on a walking surface under 
conditions likely to be found on the surface. While the dynamic 
coefficient of friction during walking varies in a complex and non-
uniform way, the static coefficient of friction, which can be measured 
in several ways, provides a close approximation of the slip resistance 
of a surface. Contrary to popular belief, some slippage is necessary to 
walking,

[[Page 516]]

especially for persons with restricted gaits; a truly ``non-slip'' 
surface could not be negotiated.
    The Occupational Safety and Health Administration recommends that 
walking surfaces have a static coefficient of friction of 0.5. A 
research project sponsored by the Architectural and Transportation 
Barriers Compliance Board (Access Board) conducted tests with persons 
with disabilities and concluded that a higher coefficient of friction 
was needed by such persons. A static coefficient of friction of 0.6 is 
recommended for steps, floors, and lift platforms and 0.8 for ramps.
    It is recognized that the coefficient of friction varies 
considerably due to the presence of contaminants, water, floor finishes, 
and other factors not under the control of transit providers and may be 
difficult to measure. Nevertheless, many common materials suitable for 
flooring are now labeled with information on the static coefficient of 
friction. While it may not be possible to compare one product directly 
with another, or to guarantee a constant measure, transit operators or 
vehicle designers and manufacturers are encouraged to specify materials 
with appropriate values. As more products include information on slip 
resistance, improved uniformity in measurement and specification is 
likely. The Access Board's advisory guidelines on Slip Resistant 
Surfaces provides additional information on this subject.

           II. Color Contrast--Step Edges, Lift Platform Edges

    The material used to provide contrast should contrast by at least 
70%. Contrast in percent is determined by:

Contrast=[B-B)/B]x100

Where B=light reflectance value (LRV) of the lighter area
and B=light reflectance value (LRV) of the darker area.

Note that in any application both white and black are never absolute; 
thus, B never equals 100 and B is always greater than 0.

                      III. Handrails and Stanchions

    In addition to the requirements for handrails and stanchions for 
rapid, light, and commuter rail vehicles, consideration should be given 
to the proximity of handrails or stanchions to the area in which 
wheelchair or mobility aid users may position themselves. When 
identifying the clear floor space where a wheelchair or mobility aid 
user can be accommodated, it is suggested that at least one such area be 
adjacent or in close proximity to a handrail or stanchion. Of course, 
such a handrail or stanchion cannot encroach upon the required 32 inch 
width required for the doorway or the route leading to the clear floor 
space which must be at least 30 by 48 inches in size.

              IV. Priority Seating Signs and Other Signage

    A. Finish and Contrast. The characters and background of signs 
should be eggshell, matte, or other non-glare finish. An eggshell finish 
(11 to 19 degree gloss on 60 degree glossimeter) is recommended. 
Characters and symbols shall contrast with their background--either 
light characters on a dark background or dark characters on a light 
background. Research indicates that signs are more legible for persons 
with low vision when characters contrast with their background by at 
least 70 percent. Contrast in percent shall be determined by:

Contrast=[B-B)/B]x100

Where B=light reflectance value (LRV) of the lighter area
and B=light reflectance value (LRV) of the darker area.

Note that in any application both white and black are never absolute; 
thus, B never equals 100 and B is always greater than 0.
    The greatest readability is usually achieved through the use of 
light-colored characters or symbols on a dark background.
    B. Destination and Route Signs. (The following specifications, which 
are required for buses (Sec. 38.39), are recommended for other types of 
vehicles, particularly light rail vehicles, were appropriate.)
    1. Where destination or route information is displayed on the 
exterior of a vehicle, each vehicle shall have illuminated signs on the 
front and boarding side of the vehicle.
    2. Characters on signs required by paragraph IV.B.1 of this appendix 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of 1 inch for signs on the boarding 
side and a minimum character height of 2 inches for front ``headsigns,'' 
with ``wide'' spacing (generally, the space between letters shall be \1/
16\ the height of upper case letters), and shall contrast with the 
background, either dark-on-light or light-on-dark, or as recommended 
above.
    C. Designation of Accessible Vehicles. The International Symbol of 
Accessibility should be displayed as shown in Figure 6.

                      V. Public Information Systems

    This section has been reserved and there currently is no requirement 
that vehicles be equipped with an information system which is capable of 
providing the same or equivalent information to persons with hearing 
loss. While the Department assesses available and soon-to-be available 
technology during a study to be conducted during Fiscal Year 1992, 
entities are encouraged to employ whatever services, signage or 
alternative systems or devices that provide equivalent access and are 
available. Two possible types

[[Page 517]]

of devices are visual display systems and listening systems. However, it 
should be noted that while visual display systems accommodate persons 
who are deaf or are hearing impaired, assistive listening systems aid 
only those with a partial loss of hearing.
    A. Visual Display Systems. Announcements may be provided in a visual 
format by the use of electronic message boards or video monitors.
    Electronic message boards using a light emitting diode (LED) or 
``flip-dot'' display are currently provided in some transit stations and 
terminals and may be usable in vehicles. These devices may be used to 
provide real time or pre-programmed messages; however, real time message 
displays require the availability of an employee for keyboard entry of 
the information to be announced.
    Video monitor systems, such as visual paging systems provided in 
some airports (e.g., Baltimore-Washington International Airport), are 
another alternative. The Architectural and Transportation Barriers 
Compliance Board (Access Board) can provide technical assistance and 
information on these systems (``Airport TDD Access: Two Case Studies,'' 
(1990)).
    B. Assistive Listening Systems. Assistive listening systems (ALS) 
are intended to augment standard public address and audio systems by 
providing signals which can be received directly by persons with special 
receivers or their own hearing aids and which eliminate or filter 
background noise. Magnetic induction loops, infra-red and radio 
frequency systems are types of listening systems which are appropriate 
for various applications.
    An assistive listening system appropriate for transit vehicles, 
where a group of persons or where the specific individuals are not known 
in advance, may be different from the system appropriate for a 
particular individual provided as an auxiliary aid or as part of a 
reasonable accommodation. The appropriate device for an individual is 
the type that individual can use, whereas the appropriate system for a 
station or vehicle will necessarily be geared toward the ``average'' or 
aggregate needs of various individuals. Earphone jacks with variable 
volume controls can benefit only people who have slight hearing loss and 
do not help people who use hearing aids. At the present time, magnetic 
induction loops are the most feasible type of listening system for 
people who use hearing aids equipped with ``T-coils'', but people 
without hearing aids or those with hearing aids not equipped with 
inductive pick-ups cannot use them without special receivers. Radio 
frequency systems can be extremely effective and inexpensive. People 
without hearing aids can use them, but people with hearing aids need a 
special receiver to use them as they are presently designed. If hearing 
aids had a jack to allow a by-pass of microphones, then radio frequency 
systems would be suitable for people with and without hearing aids. Some 
listening systems may be subject to interference from other equipment 
and feedback from hearing aids of people who are using the systems. Such 
interference can be controlled by careful engineering design that 
anticipates feedback sources in the surrounding area.
    The Architectural and Transportation Barriers Compliance Board 
(Access Board) has published a pamphlet on Assistive Listening Systems 
which lists demonstration centers across the country where technical 
assistance can be obtained in selecting and installing appropriate 
systems. The State of New York has also adopted a detailed technical 
specification which may be useful.

                         VI. Over-the-Road Buses

    A. Door Width. Achieving a 30 inch wide front door on an over-the-
road bus is considered not feasible if doing so would necessitate 
reduction of the bus approach angle, relocating the front axle rearward, 
or increasing the bus overall length.
    B. Restrooms. The following is provided to assist manufacturers and 
designers to create restrooms which can be used by people with 
disabilities. These specifications are derived from requirements for 
rail vehicles and represent compromises between space needed for use and 
constraints imposed by vehicle dimensions. As a result, some persons 
with disabilities cannot use a restroom which meets these specifications 
and operators who do provide such restrooms should provide passengers 
with disabilities sufficient advance information about design so that 
those passengers can assess their ability to use them. Designers should 
provide additional space beyond these minimum specifications whenever 
possible.
    (1) If an accessible restroom is provided, it should be designed so 
as to allow a person using a wheelchair or mobility aid to enter and use 
such restroom as specified in paragraphs (1)(a) through (e) of section 
VI.B of this appendix.
    (a) The minimum clear floor area should be 35 inches (890 mm) by 60 
inches (1525 mm). Permanently installed fixtures may overlap this area a 
maximum of 6 inches (150 mm), if the lowest portion of the fixture is a 
minimum of 9 inches (230 mm) above the floor, and may overlap a maximum 
of 19 inches (485 mm), if the lowest portion of the fixture is a minimum 
of 29 inches (740 mm) above the floor, provided such fixtures do not 
interfere with access to the water closet. Fold-down or retractable 
seats or shelves may overlap the clear floor space at a lower height 
provided they can be easily folded up or moved out of the way.
    (b) The height of the water closet should be 17 inches (430 mm) to 
19 inches (485 mm) measured to the top of the toilet seat. Seats

[[Page 518]]

should not be sprung to return to a lifted position.
    (c) A grab bar at least 24 inches (610 mm) long should be mounted 
behind the water closet, and a horizontal grab bar at least 40 inches 
(1015 mm) long should be mounted on at least one side wall, with one end 
not more than 12 inches (305 mm) from the back wall, at a height between 
33 inches (840 mm) and 36 inches (915 mm) above the floor.
    (d) Faucets and flush controls should be operable with one hand and 
should not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls should be no greater than 5 lbs 
(22.2 N). Controls for flush valves should be mounted no more than 44 
inches (1120 mm) above the floor.
    (e) Doorways on the end of the enclosure, opposite the water closet, 
should have a minimum clear opening width of 32 inches (815 mm). Door 
latches and hardware should be operable with one hand and should not 
require tight grasping, pinching, or twisting of the wrist.
    (2) Accessible restrooms should be in close proximity to at least 
one seating location for persons using mobility aids and should be 
connected to such a space by an unobstructed path having a minimum width 
of 32 inches (815 mm).
    C. Visibility Through a Window. Care should be taken so that the 
lift does not obscure the vision of the person occupying the securement 
position.

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51702, 51703, Sept. 28, 
1998]



PART 40_PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL
TESTING PROGRAMS--Table of Contents




                   Subpart A_Administrative Provisions

Sec.
40.1 Who does this regulation cover?
40.3 What do the terms used in this regulation mean?
40.5 Who issues authoritative interpretations of this regulation?
40.7 How can you get an exemption from a requirement in this regulation?

                   Subpart B_Employer Responsibilities

40.11 What are the general responsibilities of employers under this 
          regulation?
40.13 How do DOT drug and alcohol tests relate to non-DOT tests?
40.15 May an employer use a service agent to meet DOT drug and alcohol 
          testing requirements?
40.17 Is an employer responsible for obtaining information from its 
          service agents?
40.19 [Reserved]
40.21 May an employer stand down an employee before the MRO has 
          completed the verification process?
40.23 What actions do employers take after receiving verified test 
          results?
40.25 Must an employer check on the drug and alcohol testing record of 
          employees it is intending to use to perform safety-sensitive 
          duties?
40.26 What form must an employer use to report Management Information 
          System (MIS) data to a DOT agency?
40.27 May an employer require an employee to sign a consent or release 
          in connection with the DOT drug and alcohol testing program?
40.29 Where is other information on employer responsibilities found in 
          this regulation?

                  Subpart C_Urine Collection Personnel

40.31 Who may collect urine specimens for DOT drug testing?
40.33 What training requirements must a collector meet?
40.35 What information about the DER must employers provide to 
          collectors?
40.37 Where is other information on the role of collectors found in this 
          regulation?

 Subpart D_Collection Sites, Forms, Equipment and Supplies Used in DOT 
                            Urine Collections

40.41 Where does a urine collection for a DOT drug test take place?
40.43 What steps must operators of collection sites take to protect the 
          security and integrity of urine collections?
40.45 What form is used to document a DOT urine collection?
40.47 May employers use the CCF for non-Federal collections or non-
          Federal forms for DOT collections?
40.49 What materials are used to collect urine specimens?
40.51 What materials are used to send urine specimens to the laboratory?

                  Subpart E_Urine Specimen Collections

40.61 What are the preliminary steps in the collection process?
40.63 What steps does the collector take in the collection process 
          before the employee provides a urine specimen?
40.65 What does the collector check for when the employee presents a 
          specimen?
40.67 When and how is a directly observed collection conducted?
40.69 How is a monitored collection conducted?
40.71 How does the collector prepare the specimens?

[[Page 519]]

40.73 How is the collection process completed?

                   Subpart F_Drug Testing Laboratories

40.81 What laboratories may be used for DOT drug testing?
40.83 How do laboratories process incoming specimens?
40.85 What drugs do laboratories test for?
40.87 What are the cutoff concentrations for initial and confirmation 
          tests?
40.89 What is validity testing, and are laboratories required to conduct 
          it?
40.91 What validity tests must laboratories conduct on primary 
          specimens?
40.93 What criteria do laboratories use to establish that a specimen is 
          dilute or substituted?
40.95 What are the adulterant cutoff concentrations for initial and 
          confirmation tests?
40.96 What criteria do laboratories use to establish that a specimen is 
          invalid?
40.97 What do laboratories report and how do they report it?
40.99 How long does the laboratory retain specimens after testing?
40.101 What relationship may a laboratory have with an MRO?
40.103 What are the requirements for submitting blind specimens to a 
          laboratory?
40.105 What happens if the laboratory reports a result different from 
          that expected for a blind specimen?
40.107 Who may inspect laboratories?
40.109 What documentation must the laboratory keep, and for how long?
40.111 When and how must a laboratory disclose statistical summaries and 
          other information it maintains?
40.113 Where is other information concerning laboratories found in this 
          regulation?

     Subpart G_Medical Review Officers and the Verification Process

40.121 Who is qualified to act as an MRO?
40.123 What are the MRO's responsibilities in the DOT drug testing 
          program?
40.125 What relationship may an MRO have with a laboratory?
40.127 What are the MRO's functions in reviewing negative test results?
40.129 What are the MRO's functions in reviewing laboratory confirmed 
          non-negative drug test results?
40.131 How does the MRO or DER notify an employee of the verification 
          process after receiving laboratory confirmed non-negative drug 
          test results?
40.133 Without interviewing the employee, under what circumstances may 
          the MRO verify a test result as positive, or as a refusal to 
          test because of adulteration or substitution, or as cancelled 
          because the test was invalid?
40.135 What does the MRO tell the employee at the beginning of the 
          verification interview?
40.137 On what basis does the MRO verify test results involving 
          marijuana, cocaine, amphetamines, or PCP?
40.139 On what basis does the MRO verify test results involving opiates?
40.141 How does the MRO obtain information for the verification 
          decision?
40.143 [Reserved]
40.145 On what basis does the MRO verify test results involving 
          adulteration or substitution?
40.147 [Reserved]
40.149 May the MRO change a verified drug test result?
40.151 What are MROs prohibited from doing as part of the verification 
          process?
40.153 How does the MRO notify employees of their right to a test of the 
          split specimen?
40.155 What does the MRO do when a negative or positive test result is 
          also dilute?
40.157 [Reserved]
40.159 What does the MRO do when a drug test result is invalid?
40.160 What does the MRO do when a valid test result cannot be produced 
          and a negative result is required?
40.161 What does the MRO do when a drug test specimen is rejected for 
          testing?
40.162 What must MROs do with multiple verified results for the same 
          testing event?
40.163 How does the MRO report drug test results?
40.165 To whom does the MRO transmit reports of drug test results?
40.167 How are MRO reports of drug results transmitted to the employer?
40.169 Where is other information concerning the role of MROs and the 
          verification process found in this regulation?

                     Subpart H_Split Specimen Tests

40.171 How does an employee request a test of a split specimen?
40.173 Who is responsible for paying for the test of a split specimen?
40.175 What steps does the first laboratory take with a split specimen?
40.177 What does the second laboratory do with the split specimen when 
          it is tested to reconfirm the presence of a drug or drug 
          metabolite?
40.179 What does the second laboratory do with the split specimen when 
          it is tested to reconfirm an adulterated test result?
40.181 What does the second laboratory do with the split specimen when 
          it is tested to reconfirm a substituted test result?

[[Page 520]]

40.183 What information do laboratories report to MROs regarding split 
          specimen results?
40.185 Through what methods and to whom must a laboratory report split 
          specimen results?
40.187 What does the MRO do with split specimen laboratory results?
40.189 Where is other information concerning split specimens found in 
          this regulation?

                    Subpart I_Problems in Drug Tests

40.191 What is a refusal to take a DOT drug test, and what are the 
          consequences?
40.193 What happens when an employee does not provide a sufficient 
          amount of urine for a drug test?
40.195 What happens when an individual is unable to provide a sufficient 
          amount of urine for a pre-employment follow-up or return-to-
          duty test because of a permanent or long-term medical 
          condition?
40.197 What happens when an employer receives a report of a dilute 
          specimen?
40.199 What problems always cause a drug test to be cancelled?
40.201 What problems always cause a drug test to be cancelled and may 
          result in a requirement for another collection?
40.203 What problems cause a drug test to be cancelled unless they are 
          corrected?
40.205 How are drug test problems corrected?
40.207 What is the effect of a cancelled drug test?
40.208 What problem requires corrective action but does not result in 
          the cancellation of a test?
40.209 What procedural problems do not result in the cancellation of a 
          test and do not require correction?

                   Subpart J_Alcohol Testing Personnel

40.211 Who conducts DOT alcohol tests?
40.213 What training requirements must STTs and BATs meet?
40.215 What information about the DER do employers have to provide to 
          BATs and STTs?
40.217 Where is other information on the role of STTs and BATs found in 
          this regulation?

 Subpart K_Testing Sites, Forms, Equipment and Supplies Used in Alcohol 
                                 Testing

40.221 Where does an alcohol test take place?
40.223 What steps must be taken to protect the security of alcohol 
          testing sites?
40.225 What form is used for an alcohol test?
40.227 May employers use the ATF for non-DOT tests, or non-DOT forms for 
          DOT tests?
40.229 What devices are used to conduct alcohol screening tests?
40.231 What devices are used to conduct alcohol confirmation tests?
40.233 What are the requirements for proper use and care of EBTs?
40.235 What are the requirements for proper use and care of ASDs?

                    Subpart L_Alcohol Screening Tests

40.241 What are the first steps in any alcohol screening test?
40.243 What is the procedure for an alcohol screening test using an EBT 
          or non-evidential breath ASD?
40.245 What is the procedure for an alcohol screening test using a 
          saliva ASD or a breath tube ASD?
40.247 What procedures does the BAT or STT follow after a screening test 
          result?

                  Subpart M_Alcohol Confirmation Tests

40.251 What are the first steps in an alcohol confirmation test?
40.253 What are the procedures for conducting an alcohol confirmation 
          test?
40.255 What happens next after the alcohol confirmation test result?

                  Subpart N_Problems in Alcohol Testing

40.261 What is a refusal to take an alcohol test, and what are the 
          consequences?
40.263 What happens when an employee is unable to provide a sufficient 
          amount of saliva for an alcohol screening test?
40.265 What happens when an employee is unable to provide a sufficient 
          amount of breath for an alcohol test?
40.267 What problems always cause an alcohol test to be cancelled?
40.269 What problems cause an alcohol test to be cancelled unless they 
          are corrected?
40.271 How are alcohol testing problems corrected?
40.273 What is the effect of a cancelled alcohol test?
40.275 What is the effect of procedural problems that are not sufficient 
          to cancel an alcohol test?
40.277 Are alcohol tests other than saliva or breath permitted under 
          these regulations?

 Subpart O_Substance Abuse Professionals and the Return-to-Duty Process

40.281 Who is qualified to act as a SAP?
40.283 How does a certification organization obtain recognition for its 
          members as SAPs?
40.285 When is a SAP evaluation required?

[[Page 521]]

40.287 What information is an employer required to provide concerning 
          SAP services to an employee who has a DOT drug and alcohol 
          regulation violation?
40.289 Are employers required to provide SAP and treatment services to 
          employees?
40.291 What is the role of the SAP in the evaluation, referral, and 
          treatment process of an employee who has violated DOT agency 
          drug and alcohol testing regulations?
40.293 What is the SAP's function in conducting the initial evaluation 
          of an employee?
40.295 May employees or employers seek a second SAP evaluation if they 
          disagree with the first SAP's recommendations?
40.297 Does anyone have the authority to change a SAP's initial 
          evaluation?
40.299 What is the SAP's role and what are the limits on a SAP's 
          discretion in referring employees for education and treatment?
40.301 What is the SAP's function in the follow-up evaluation of an 
          employee?
40.303 What happens if the SAP believes the employee needs additional 
          treatment, aftercare, or support group services even after the 
          employee returns to safety-sensitive duties?
40.305 How does the return-to-duty process conclude?
40.307 What is the SAP's function in prescribing the employee's follow-
          up tests?
40.309 What are the employer's responsibilities with respect to the 
          SAP's directions for follow-up tests?
40.311 What are requirements concerning SAP reports?
40.313 Where is other information on SAP functions and the return-to-
          duty process found in this regulation?

          Subpart P_Confidentiality and Release of Information

40.321 What is the general confidentiality rule for drug and alcohol 
          test information?
40.323 May program participants release drug or alcohol test information 
          in connection with legal proceedings?
40.325 [Reserved]
40.327 When must the MRO report medical information gathered in the 
          verification process?
40.329 What information must laboratories, MROs, and other service 
          agents release to employees?
40.331 To what additional parties must employers and service agents 
          release information?
40.333 What records must employers keep?

         Subpart Q_Roles And Responsibilities of Service Agents

40.341 Must service agents comply with DOT drug and alcohol testing 
          requirements?
40.343 What tasks may a service agent perform for an employer?
40.345 In what circumstances may a C/TPA act as an intermediary in the 
          transmission of drug and alcohol testing information to 
          employers?
40.347 What functions may C/TPAs perform with respect administering 
          testing?
40.349 What records may a service agent receive and maintain?
40.351 What confidentiality requirements apply to service agents?
40.353 What principles govern the interaction between MROs and other 
          service agents?
40.355 What limitations apply to the activities of service agents?

                  Subpart R_Public Interest Exclusions

40.361 What is the purpose of a public interest exclusion (PIE)?
40.363 On what basis may the Department issue a PIE?
40.365 What is the Department's policy concerning starting a PIE 
          proceeding?
40.367 Who initiates a PIE proceeding?
40.369 What is the discretion of an initiating official in starting a 
          PIE proceeding?
40.371 On what information does an initiating official rely in deciding 
          whether to start a PIE proceeding?
40.373 Before starting a PIE proceeding, does the initiating official 
          give the service agent an opportunity to correct problems?
40.375 How does the initiating official start a PIE proceeding?
40.377 Who decides whether to issue a PIE?
40.379 How do you contest the issuance of a PIE?
40.381 What information do you present to contest the proposed issuance 
          of a PIE?
40.383 What procedures apply if you contest the issuance of a PIE?
40.385 Who bears the burden of proof in a PIE proceeding?
40.387 What matters does the Director decide concerning a proposed PIE?
40.389 What factors may the Director consider?
40.391 What is the scope of a PIE?
40.393 How long does a PIE stay in effect?
40.395 Can you settle a PIE proceeding?
40.397 When does the Director make a PIE decision?
40.399 How does the Department notify service agents of its decision?
40.401 How does the Department notify employers and the public about a 
          PIE?
40.403 Must a service agent notify its clients when the Department 
          issues a PIE?

[[Page 522]]

40.405 May the Federal courts review PIE decisions?
40.407 May a service agent ask to have a PIE reduced or terminated?
40.409 What does the issuance of a PIE mean to transportation employers?
40.411 What is the role of the DOT Inspector General's office?
40.413 How are notices sent to service agents?

Appendix A to Part 40--DOT Standards for Urine Collection Kits
Appendix B to Part 40--DOT Drug Testing Semi-Annual Laboratory Report to 
          Employers
Appendix C to Part 40--Appendix C to Part 40--DOT Drug Testing Semi-
          Annual Laboratory Report to DOT
Appendix D to Part 40--Report Format: Split Specimen Failure To 
          Reconfirm
Appendix E to Part 40--SAP Equivalency Requirements for Certification 
          Organizations
Appendix F to Part 40--Drug and Alcohol Testing Information that C/TPAs 
          May Transmit to Employers
Appendix G to Part 40--Alcohol Testing Form (ATF)
Appendix H to Part 40--DOT Drug and Alcohol Testing Management 
          Information System (MIS) Data Collection Form

    Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 45101 et 
seq.; 49 U.S.C. 322.

    Source: 65 FR 79526, Dec. 19, 2000, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 40 appear at 73 FR 
33329, June 12, 2008.



                   Subpart A_Administrative Provisions



Sec. 40.1  Who does this regulation cover?

    (a) This part tells all parties who conduct drug and alcohol tests 
required by Department of Transportation (DOT) agency regulations how to 
conduct these tests and what procedures to use.
    (b) This part concerns the activities of transportation employers, 
safety-sensitive transportation employees (including self-employed 
individuals, contractors and volunteers as covered by DOT agency 
regulations), and service agents.
    (c) Nothing in this part is intended to supersede or conflict with 
the implementation of the Federal Railroad Administration's post-
accident testing program (see 49 CFR 219.200).



Sec. 40.3  What do the terms used in this regulation mean?

    In this part, the terms listed in this section have the following 
meanings:
    Adulterated specimen. A urine specimen containing a substance that 
is not a normal constituent or containing an endogenous substance at a 
concentration that is not a normal physiological concentration.
    Affiliate. Persons are affiliates of one another if, directly or 
indirectly, one controls or has the power to control the other, or a 
third party controls or has the power to control both. Indicators of 
control include, but are not limited to: interlocking management or 
ownership; shared interest among family members; shared facilities or 
equipment; or common use of employees. Following the issuance of a 
public interest exclusion, an organization having the same or similar 
management, ownership, or principal employees as the service agent 
concerning whom a public interest exclusion is in effect is regarded as 
an affiliate. This definition is used in connection with the public 
interest exclusion procedures of Subpart R of this part.
    Air blank. In evidential breath testing devices (EBTs) using gas 
chromatography technology, a reading of the device's internal standard. 
In all other EBTs, a reading of ambient air containing no alcohol.
    Alcohol. The intoxicating agent in beverage alcohol, ethyl alcohol 
or other low molecular weight alcohols, including methyl or isopropyl 
alcohol.
    Alcohol concentration. The alcohol in a volume of breath expressed 
in terms of grams of alcohol per 210 liters of breath as indicated by a 
breath test under this part.
    Alcohol confirmation test. A subsequent test using an EBT, following 
a screening test with a result of 0.02 or greater, that provides 
quantitative data about the alcohol concentration.
    Alcohol screening device (ASD). A breath or saliva device, other 
than an EBT, that is approved by the National Highway Traffic Safety 
Administration (NHTSA) and placed on a conforming products list (CPL) 
for such devices.

[[Page 523]]

    Alcohol screening test. An analytic procedure to determine whether 
an employee may have a prohibited concentration of alcohol in a breath 
or saliva specimen.
    Alcohol testing site. A place selected by the employer where 
employees present themselves for the purpose of providing breath or 
saliva for an alcohol test.
    Alcohol use. The drinking or swallowing of any beverage, liquid 
mixture or preparation (including any medication), containing alcohol.
    Aliquot. A fractional part of a specimen used for testing. It is 
taken as a sample representing the whole specimen.
    Blind specimen or blind performance test specimen. A specimen 
submitted to a laboratory for quality control testing purposes, with a 
fictitious identifier, so that the laboratory cannot distinguish it from 
an employee specimen.
    Breath Alcohol Technician (BAT). A person who instructs and assists 
employees in the alcohol testing process and operates an evidential 
breath testing device.
    Cancelled test. A drug or alcohol test that has a problem identified 
that cannot be or has not been corrected, or which this part otherwise 
requires to be cancelled. A cancelled test is neither a positive nor a 
negative test.
    Chain of custody. The procedure used to document the handling of the 
urine specimen from the time the employee gives the specimen to the 
collector until the specimen is destroyed. This procedure uses the 
Federal Drug Testing Custody and Control Form (CCF).
    Collection container. A container into which the employee urinates 
to provide the specimen for a drug test.
    Collection site. A place selected by the employer where employees 
present themselves for the purpose of providing a urine specimen for a 
drug test.
    Collector. A person who instructs and assists employees at a 
collection site, who receives and makes an initial inspection of the 
specimen provided by those employees, and who initiates and completes 
the CCF.
    Confirmatory drug test. A second analytical procedure to identify 
the presence of a specific drug or metabolite which is independent of 
the initial test and which uses a different technique and chemical 
principle from that of the initial test in order to ensure reliability 
and accuracy. (Gas chromatography/mass spectrometry (GC/MS) is the only 
authorized confirmation method for cocaine, marijuana, opiates, 
amphetamines, and phencyclidine).
    Confirmatory validity test. A second test performed on a different 
aliquot of the original urine specimen to further support a validity 
test result.
    Confirmed drug test. A confirmation test result received by an MRO 
from a laboratory.
    Consortium/Third-party administrator (C/TPA). A service agent that 
provides or coordinates the provision of a variety of drug and alcohol 
testing services to employers. C/TPAs typically perform administrative 
tasks concerning the operation of the employers' drug and alcohol 
testing programs. This term includes, but is not limited to, groups of 
employers who join together to administer, as a single entity, the DOT 
drug and alcohol testing programs of its members. C/TPAs are not 
``employers'' for purposes of this part.
    Continuing education. Training for medical review officers (MROs) 
and substance abuse professionals (SAPs) who have completed 
qualification training and are performing MRO or SAP functions, designed 
to keep MROs and SAPs current on changes and developments in the DOT 
drug and alcohol testing program.
    Designated employer representative (DER). An employee authorized by 
the employer to take immediate action(s) to remove employees from 
safety-sensitive duties, or cause employees to be removed from these 
covered duties, and to make required decisions in the testing and 
evaluation processes. The DER also receives test results and other 
communications for the employer, consistent with the requirements of 
this part. Service agents cannot act as DERs.
    Dilute specimen. A urine specimen with creatinine and specific 
gravity values that are lower than expected for human urine.
    DOT, The Department, DOT agency. These terms encompass all DOT 
agencies, including, but not limited to, the

[[Page 524]]

United States Coast Guard (USCG), the Federal Aviation Administration 
(FAA), the Federal Railroad Administration (FRA), the Federal Motor 
Carrier Safety Administration (FMCSA), the Federal Transit 
Administration (FTA), the National Highway Traffic Safety Administration 
(NHTSA), the Pipeline and Hazardous Materials Safety Administration 
(PHMSA), and the Office of the Secretary (OST). These terms include any 
designee of a DOT agency.
    Drugs. The drugs for which tests are required under this part and 
DOT agency regulations are marijuana, cocaine, amphetamines, 
phencyclidine (PCP), and opiates.
    Employee. Any person who is designated in a DOT agency regulation as 
subject to drug testing and/or alcohol testing. The term includes 
individuals currently performing safety-sensitive functions designated 
in DOT agency regulations and applicants for employment subject to pre-
employment testing. For purposes of drug testing under this part, the 
term employee has the same meaning as the term ``donor'' as found on CCF 
and related guidance materials produced by the Department of Health and 
Human Services.
    Employer. A person or entity employing one or more employees 
(including an individual who is self-employed) subject to DOT agency 
regulations requiring compliance with this part. The term includes an 
employer's officers, representatives, and management personnel. Service 
agents are not employers for the purposes of this part.
    Error Correction Training. Training provided to BATs, collectors, 
and screening test technicians (STTs) following an error that resulted 
in the cancellation of a drug or alcohol test. Error correction training 
must be provided in person or by a means that provides real-time 
observation and interaction between the instructor and trainee.
    Evidential Breath Testing Device (EBT). A device approved by NHTSA 
for the evidential testing of breath at the .02 and .04 alcohol 
concentrations, placed on NHTSA's Conforming Products List (CPL) for 
``Evidential Breath Measurement Devices'' and identified on the CPL as 
conforming with the model specifications available from NHTSA's Traffic 
Safety Program.
    HHS. The Department of Health and Human Services or any designee of 
the Secretary, Department of Health and Human Services.
    Initial drug test (also known as a Screening drug test). An 
immunoassay test to eliminate ``negative'' urine specimens from further 
consideration and to identify the presumptively positive specimens that 
require confirmation or further testing.
    Initial validity test. The first test used to determine if a urine 
specimen is adulterated, diluted, or substituted.
    Invalid drug test. The result of a drug test for a urine specimen 
that contains an unidentified adulterant or an unidentified interfering 
substance, has abnormal physical characteristics, or has an endogenous 
substance at an abnormal concentration that prevents the laboratory from 
completing or obtaining a valid drug test result.
    Invalid result. The result reported by a laboratory for a urine 
specimen that contains an unidentified adulterant, contains an 
unidentified interfering substance, has an abnormal physical 
characteristic, or has an endogenous substance at an abnormal 
concentration that prevents the laboratory from completing testing or 
obtaining a valid drug test result.
    Laboratory. Any U.S. laboratory certified by HHS under the National 
Laboratory Certification Program as meeting the minimum standards of 
Subpart C of the HHS Mandatory Guidelines for Federal Workplace Drug 
Testing Programs; or, in the case of foreign laboratories, a laboratory 
approved for participation by DOT under this part. (The HHS Mandatory 
Guidelines for Federal Workplace Drug Testing Programs are available on 
the internet at http://www.health.org/workpl.htm or from the Division of 
Workplace Programs, 1 Choke Cherry Road, Room 2-1035, Rockville MD 
20587.
    Limit of Detection (LOD). The lowest concentration at which an 
analyte can be reliably shown to be present under defined conditions.
    Medical Review Officer (MRO). A person who is a licensed physician 
and who is responsible for receiving and reviewing laboratory results 
generated

[[Page 525]]

by an employer's drug testing program and evaluating medical 
explanations for certain drug test results.
    Non-negative specimen. A urine specimen that is reported as 
adulterated, substituted, positive (for drug(s) or drug metabolite(s)), 
and/or invalid.
    Office of Drug and Alcohol Policy and Compliance (ODAPC). The office 
in the Office of the Secretary, DOT, that is responsible for 
coordinating drug and alcohol testing program matters within the 
Department and providing information concerning the implementation of 
this part.
    Oxidizing adulterant. A substance that acts alone or in combination 
with other substances to oxidize drugs or drug metabolites to prevent 
the detection of the drug or drug metabolites, or affects the reagents 
in either the initial or confirmatory drug test.
    Primary specimen. In drug testing, the urine specimen bottle that is 
opened and tested by a first laboratory to determine whether the 
employee has a drug or drug metabolite in his or her system; and for the 
purpose of validity testing. The primary specimen is distinguished from 
the split specimen, defined in this section.
    Qualification Training. The training required in order for a 
collector, BAT, MRO, SAP, or STT to be qualified to perform their 
functions in the DOT drug and alcohol testing program. Qualification 
training may be provided by any appropriate means (e.g., classroom 
instruction, internet application, CD-ROM, video).
    Refresher Training. The training required periodically for qualified 
collectors, BATs, and STTs to review basic requirements and provide 
instruction concerning changes in technology (e.g., new testing methods 
that may be authorized) and amendments, interpretations, guidance, and 
issues concerning this part and DOT agency drug and alcohol testing 
regulations. Refresher training can be provided by any appropriate means 
(e.g., classroom instruction, internet application, CD-ROM, video).
    Screening drug test. See Initial drug test definition above.
    Screening Test Technician (STT). A person who instructs and assists 
employees in the alcohol testing process and operates an ASD.
    Secretary. The Secretary of Transportation or the Secretary's 
designee.
    Service agent. Any person or entity, other than an employee of the 
employer, who provides services specified under this part to employers 
and/or employees in connection with DOT drug and alcohol testing 
requirements. This includes, but is not limited to, collectors, BATs and 
STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To 
act as service agents, persons and organizations must meet the 
qualifications set forth in applicable sections of this part. Service 
agents are not employers for purposes of this part.
    Shipping container. A container that is used for transporting and 
protecting urine specimen bottles and associated documents from the 
collection site to the laboratory.
    Specimen bottle. The bottle that, after being sealed and labeled 
according to the procedures in this part, is used to hold the urine 
specimen during transportation to the laboratory.
    Split specimen. In drug testing, a part of the urine specimen that 
is sent to a first laboratory and retained unopened, and which is 
transported to a second laboratory in the event that the employee 
requests that it be tested following a verified positive test of the 
primary specimen or a verified adulterated or substituted test result.
    Stand-down. The practice of temporarily removing an employee from 
the performance of safety-sensitive functions based only on a report 
from a laboratory to the MRO of a confirmed positive test for a drug or 
drug metabolite, an adulterated test, or a substituted test, before the 
MRO has completed verification of the test result.
    Substance Abuse Professional (SAP). A person who evaluates employees 
who have violated a DOT drug and alcohol regulation and makes 
recommendations concerning education, treatment, follow-up testing, and 
aftercare.
    Substituted specimen. A urine specimen with creatinine and specific 
gravity values that are so diminished or so divergent that they are not 
consistent with normal human urine.

[[Page 526]]

    Verified test. A drug test result or validity testing result from an 
HHS-certified laboratory that has undergone review and final 
determination by the MRO.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001; 71 
FR 49384, Aug. 23, 2006; 71 FR 55347, Sept. 22, 2006; 73 FR 35969, June 
25, 2008]



Sec. 40.5  Who issues authoritative interpretations of this regulation?

    ODAPC and the DOT Office of General Counsel (OGC) provide written 
interpretations of the provisions of this part. These written DOT 
interpretations are the only official and authoritative interpretations 
concerning the provisions of this part. DOT agencies may incorporate 
ODAPC/OGC interpretations in written guidance they issue concerning drug 
and alcohol testing matters. Only Part 40 interpretations issued after 
August 1, 2001, are considered valid.



Sec. 40.7  How can you get an exemption from a requirement in this regulation?

    (a) If you want an exemption from any provision of this part, you 
must request it in writing from the Office of the Secretary of 
Transportation, under the provisions and standards of 49 CFR part 5. You 
must send requests for an exemption to the following address: Department 
of Transportation, Deputy Assistant General Counsel for Regulation and 
Enforcement, 1200 New Jersey Avenue, SE., Washington, DC 20590.
    (b) Under the standards of 49 CFR part 5, we will grant the request 
only if the request documents special or exceptional circumstances, not 
likely to be generally applicable and not contemplated in connection 
with the rulemaking that established this part, that make your 
compliance with a specific provision of this part impracticable.
    (c) If we grant you an exemption, you must agree to take steps we 
specify to comply with the intent of the provision from which an 
exemption is granted.
    (d) We will issue written responses to all exemption requests.



                   Subpart B_Employer Responsibilities



Sec. 40.11  What are the general responsibilities of employers under
this regulation?

    (a) As an employer, you are responsible for meeting all applicable 
requirements and procedures of this part.
    (b) You are responsible for all actions of your officials, 
representatives, and agents (including service agents) in carrying out 
the requirements of the DOT agency regulations.
    (c) All agreements and arrangements, written or unwritten, between 
and among employers and service agents concerning the implementation of 
DOT drug and alcohol testing requirements are deemed, as a matter of 
law, to require compliance with all applicable provisions of this part 
and DOT agency drug and alcohol testing regulations. Compliance with 
these provisions is a material term of all such agreements and 
arrangements.



Sec. 40.13  How do DOT drug and alcohol tests relate to non-DOT tests?

    (a) DOT tests must be completely separate from non-DOT tests in all 
respects.
    (b) DOT tests must take priority and must be conducted and completed 
before a non-DOT test is begun. For example, you must discard any excess 
urine left over from a DOT test and collect a separate void for the 
subsequent non-DOT test.
    (c) Except as provided in paragraph (d) of this section, you must 
not perform any tests on DOT urine or breath specimens other than those 
specifically authorized by this part or DOT agency regulations. For 
example, you may not test a DOT urine specimen for additional drugs, and 
a laboratory is prohibited from making a DOT urine specimen available 
for a DNA test or other types of specimen identity testing.
    (d) The single exception to paragraph (c) of this section is when a 
DOT drug test collection is conducted as part of a physical examination 
required by DOT agency regulations. It is permissible to conduct 
required medical tests related to this physical examination (e.g., for 
glucose) on any urine remaining in the collection container after the 
drug test

[[Page 527]]

urine specimens have been sealed into the specimen bottles.
    (e) No one is permitted to change or disregard the results of DOT 
tests based on the results of non-DOT tests. For example, as an employer 
you must not disregard a verified positive DOT drug test result because 
the employee presents a negative test result from a blood or urine 
specimen collected by the employee's physician or a DNA test result 
purporting to question the identity of the DOT specimen.
    (f) As an employer, you must not use the CCF or the ATF in your non-
DOT drug and alcohol testing programs. This prohibition includes the use 
of the DOT forms with references to DOT programs and agencies crossed 
out. You also must always use the CCF and ATF for all your DOT-mandated 
drug and alcohol tests.



Sec. 40.15  May an employer use a service agent to meet DOT drug and alcohol
testing requirements?

    (a) As an employer, you may use a service agent to perform the tasks 
needed to comply with this part and DOT agency drug and alcohol testing 
regulations, consistent with the requirements of Subpart Q and other 
applicable provisions of this part.
    (b) As an employer, you are responsible for ensuring that the 
service agents you use meet the qualifications set forth in this part 
(e.g., Sec. 40.121 for MROs). You may require service agents to show 
you documentation that they meet the requirements of this part (e.g., 
documentation of MRO qualifications required by Sec. 40.121(e)).
    (c) You remain responsible for compliance with all applicable 
requirements of this part and other DOT drug and alcohol testing 
regulations, even when you use a service agent. If you violate this part 
or other DOT drug and alcohol testing regulations because a service 
agent has not provided services as our rules require, a DOT agency can 
subject you to sanctions. Your good faith use of a service agent is not 
a defense in an enforcement action initiated by a DOT agency in which 
your alleged noncompliance with this part or a DOT agency drug and 
alcohol regulation may have resulted from the service agent's conduct.
    (d) As an employer, you must not permit a service agent to act as 
your DER.



Sec. 40.17  Is an employer responsible for obtaining information 
from its service agents?

    Yes, as an employer, you are responsible for obtaining information 
required by this part from your service agents. This is true whether or 
not you choose to use a C/TPA as an intermediary in transmitting 
information to you. For example, suppose an applicant for a safety-
sensitive job takes a pre-employment drug test, but there is a 
significant delay in your receipt of the test result from an MRO or C/
TPA. You must not assume that ``no news is good news'' and permit the 
applicant to perform safety-sensitive duties before receiving the 
result. This is a violation of the Department's regulations.



Sec. 40.19  [Reserved]



Sec. 40.21  May an employer stand down an employee before the MRO
has completed the verification process?

    (a) As an employer, you are prohibited from standing employees down, 
except consistent with a waiver a DOT agency grants under this section.
    (b) You may make a request to the concerned DOT agency for a waiver 
from the prohibition of paragraph (a) of this section. Such a waiver, if 
granted, permits you to stand an employee down following the MRO's 
receipt of a laboratory report of a confirmed positive test for a drug 
or drug metabolite, an adulterated test, or a substituted test 
pertaining to the employee.
    (1) For this purpose, the concerned DOT agency is the one whose drug 
and alcohol testing rules apply to the majority of the covered employees 
in your organization. The concerned DOT agency uses its applicable 
procedures for considering requests for waivers.
    (2) Before taking action on a waiver request, the concerned DOT 
agency coordinates with other DOT agencies that regulate the employer's 
other covered employees.
    (3) The concerned DOT agency provides a written response to each 
employer that petitions for a waiver, setting forth the reasons for the 
agency's decision on the waiver request.

[[Page 528]]

    (c) Your request for a waiver must include, as a minimum, the 
following elements:
    (1) Information about your organization:
    (i) Your determination that standing employees down is necessary for 
safety in your organization and a statement of your basis for it, 
including any data on safety problems or incidents that could have been 
prevented if a stand-down procedure had been in place;
    (ii) Data showing the number of confirmed laboratory positive, 
adulterated, and substituted test results for your employees over the 
two calendar years preceding your waiver request, and the number and 
percentage of those test results that were verified positive, 
adulterated, or substituted by the MRO;
    (iii) Information about the work situation of the employees subject 
to stand-down, including a description of the size and organization of 
the unit(s) in which the employees work, the process through which 
employees will be informed of the stand-down, whether there is an in-
house MRO, and whether your organization has a medical disqualification 
or stand-down policy for employees in situations other than drug and 
alcohol testing; and
    (iv) A statement of which DOT agencies regulate your employees.
    (2) Your proposed written company policy concerning stand-down, 
which must include the following elements:
    (i) Your assurance that you will distribute copies of your written 
policy to all employees that it covers;
    (ii) Your means of ensuring that no information about the confirmed 
positive, adulterated, or substituted test result or the reason for the 
employee's temporary removal from performance of safety-sensitive 
functions becomes available, directly or indirectly, to anyone in your 
organization (or subsequently to another employer) other than the 
employee, the MRO and the DER;
    (iii) Your means of ensuring that all covered employees in a 
particular job category in your organization are treated the same way 
with respect to stand-down;
    (iv) Your means of ensuring that a covered employee will be subject 
to stand-down only with respect to the actual performance of safety-
sensitive duties;
    (v) Your means of ensuring that you will not take any action 
adversely affecting the employee's pay and benefits pending the 
completion of the MRO's verification process. This includes continuing 
to pay the employee during the period of the stand-down in the same way 
you would have paid him or her had he or she not been stood down;
    (vi) Your means of ensuring that the verification process will 
commence no later than the time an employee is temporarily removed from 
the performance of safety-sensitive functions and that the period of 
stand-down for any employee will not exceed five days, unless you are 
informed in writing by the MRO that a longer period is needed to 
complete the verification process; and
    (vii) Your means of ensuring that, in the event that the MRO 
verifies the test negative or cancels it--
    (A) You return the employee immediately to the performance of 
safety-sensitive duties;
    (B) The employee suffers no adverse personnel or financial 
consequences as a result; and
    (C) You maintain no individually identifiable record that the 
employee had a confirmed laboratory positive, adulterated, or 
substituted test result (i.e., you maintain a record of the test only as 
a negative or cancelled test).
    (d) The Administrator of the concerned DOT agency, or his or her 
designee, may grant a waiver request only if he or she determines that, 
in the context of your organization, there is a high probability that 
the procedures you propose will effectively enhance safety and protect 
the interests of employees in fairness and confidentiality.
    (1) The Administrator, or his or her designee, may impose any 
conditions he or she deems appropriate on the grant of a waiver.
    (2) The Administrator, or his or her designee, may immediately 
suspend or revoke the waiver if he or she determines that you have 
failed to protect effectively the interests of employees in fairness and 
confidentiality, that you have failed to comply with the requirements of 
this section, or that you

[[Page 529]]

have failed to comply with any other conditions the DOT agency has 
attached to the waiver.
    (e) You must not stand employees down in the absence of a waiver, or 
inconsistent with the terms of your waiver. If you do, you are in 
violation of this part and DOT agency drug testing regulations, and you 
are subject to enforcement action by the DOT agency just as you are for 
other violations of this part and DOT agency rules.



Sec. 40.23  What actions do employers take after receiving verified 
test results?

    (a) As an employer who receives a verified positive drug test 
result, you must immediately remove the employee involved from 
performing safety-sensitive functions. You must take this action upon 
receiving the initial report of the verified positive test result. Do 
not wait to receive the written report or the result of a split specimen 
test.
    (b) As an employer who receives a verified adulterated or 
substituted drug test result, you must consider this a refusal to test 
and immediately remove the employee involved from performing safety-
sensitive functions. You must take this action on receiving the initial 
report of the verified adulterated or substituted test result. Do not 
wait to receive the written report or the result of a split specimen 
test.
    (c) As an employer who receives an alcohol test result of 0.04 or 
higher, you must immediately remove the employee involved from 
performing safety-sensitive functions. If you receive an alcohol test 
result of 0.02-0.039, you must temporarily remove the employee involved 
from performing safety-sensitive functions, as provided in applicable 
DOT agency regulations. Do not wait to receive the written report of the 
result of the test.
    (d) As an employer, when an employee has a verified positive, 
adulterated, or substituted test result, or has otherwise violated a DOT 
agency drug and alcohol regulation, you must not return the employee to 
the performance of safety-sensitive functions until or unless the 
employee successfully completes the return-to-duty process of Subpart O 
of this part.
    (e) As an employer who receives a drug test result indicating that 
the employee's specimen was dilute, take action as provided in Sec. 
40.197.
    (f) As an employer who receives a drug test result indicating that 
the employee's urine specimen test was cancelled because it was invalid 
and that a second collection must take place under direct observation--
    (1) You must immediately direct the employee to provide a new 
specimen under direct observation.
    (2) You must not attach consequences to the finding that the test 
was invalid other than collecting a new specimen under direct 
observation.
    (3) You must not give any advance notice of this test requirement to 
the employee.
    (4) You must instruct the collector to note on the CCF the same 
reason (e.g. random test, post-accident test) as for the original 
collection.
    (5) You must ensure that the collector conducts the collection under 
direct observation.
    (g) As an employer who receives a cancelled test result when a 
negative result is required (e.g., pre-employment, return-to-duty, or 
follow-up test), you must direct the employee to provide another 
specimen immediately.
    (h) As an employer, you may also be required to take additional 
actions required by DOT agency regulations (e.g., FAA rules require some 
positive drug tests to be reported to the Federal Air Surgeon).
    (i) As an employer, you must not alter a drug or alcohol test result 
transmitted to you by an MRO, BAT, or C/TPA.

[65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 
73 FR 35970, June 25, 2008]



Sec. 40.25  Must an employer check on the drug and alcohol testing 
record of employees it is intending to use to perform 

safety-sensitive duties?

    (a) Yes, as an employer, you must, after obtaining an employee's 
written consent, request the information about the employee listed in 
paragraph (b) of this section. This requirement applies only to 
employees seeking to begin performing safety-sensitive duties for you 
for the first time (i.e., a new hire,

[[Page 530]]

an employee transfers into a safety-sensitive position). If the employee 
refuses to provide this written consent, you must not permit the 
employee to perform safety-sensitive functions.
    (b) You must request the information listed in this paragraph (b) 
from DOT-regulated employers who have employed the employee during any 
period during the two years before the date of the employee's 
application or transfer:
    (1) Alcohol tests with a result of 0.04 or higher alcohol 
concentration;
    (2) Verified positive drug tests;
    (3) Refusals to be tested (including verified adulterated or 
substituted drug test results);
    (4) Other violations of DOT agency drug and alcohol testing 
regulations; and
    (5) With respect to any employee who violated a DOT drug and alcohol 
regulation, documentation of the employee's successful completion of DOT 
return-to-duty requirements (including follow-up tests). If the previous 
employer does not have information about the return-do-duty process 
(e.g., an employer who did not hire an employee who tested positive on a 
pre-employment test), you must seek to obtain this information from the 
employee.
    (c) The information obtained from a previous employer includes any 
drug or alcohol test information obtained from previous employers under 
this section or other applicable DOT agency regulations.
    (d) If feasible, you must obtain and review this information before 
the employee first performs safety-sensitive functions. If this is not 
feasible, you must obtain and review the information as soon as 
possible. However, you must not permit the employee to perform safety-
sensitive functions after 30 days from the date on which the employee 
first performed safety-sensitive functions, unless you have obtained or 
made and documented a good faith effort to obtain this information.
    (e) If you obtain information that the employee has violated a DOT 
agency drug and alcohol regulation, you must not use the employee to 
perform safety-sensitive functions unless you also obtain information 
that the employee has subsequently complied with the return-to-duty 
requirements of Subpart O of this part and DOT agency drug and alcohol 
regulations.
    (f) You must provide to each of the employers from whom you request 
information under paragraph (b) of this section written consent for the 
release of the information cited in paragraph (a) of this section.
    (g) The release of information under this section must be in any 
written form (e.g., fax, e-mail, letter) that ensures confidentiality. 
As the previous employer, you must maintain a written record of the 
information released, including the date, the party to whom it was 
released, and a summary of the information provided.
    (h) If you are an employer from whom information is requested under 
paragraph (b) of this section, you must, after reviewing the employee's 
specific, written consent, immediately release the requested information 
to the employer making the inquiry.
    (i) As the employer requesting the information required under this 
section, you must maintain a written, confidential record of the 
information you obtain or of the good faith efforts you made to obtain 
the information. You must retain this information for three years from 
the date of the employee's first performance of safety-sensitive duties 
for you.
    (j) As the employer, you must also ask the employee whether he or 
she has tested positive, or refused to test, on any pre-employment drug 
or alcohol test administered by an employer to which the employee 
applied for, but did not obtain, safety-sensitive transportation work 
covered by DOT agency drug and alcohol testing rules during the past two 
years. If the employee admits that he or she had a positive test or a 
refusal to test, you must not use the employee to perform safety-
sensitive functions for you, until and unless the employee documents 
successful completion of the return-to-duty process (see paragraphs 
(b)(5) and (e) of this section).



Sec. 40.26  What form must an employer use to report Management 
Information System (MIS) data to a DOT agency?

    As an employer, when you are required to report MIS data to a DOT

[[Page 531]]

agency, you must use the form and instructions at appendix H to part 40. 
You must submit the MIS report in accordance with rule requirements 
(e.g., dates for submission; selection of companies required to submit, 
and method of reporting) established by the DOT agency regulating your 
operation.

[68 FR 43952, July 25, 2003]



Sec. 40.27  May an employer require an employee to sign a consent or 
release in connection with the DOT drug and alcohol testing program?

    No, as an employer, you must not require an employee to sign a 
consent, release, waiver of liability, or indemnification agreement with 
respect to any part of the drug or alcohol testing process covered by 
this part (including, but not limited to, collections, laboratory 
testing, MRO and SAP services).

[66 FR 41950, Aug. 9, 2001]



Sec. 40.29  Where is other information on employer responsibilities 
found in this regulation?

    You can find other information on the responsibilities of employers 
in the following sections of this part:

Sec. 40.3--Definition.
Sec. 40.35--Information about DERs that employers must provide 
          collectors.
Sec. 40.45--Modifying CCFs, Use of foreign-language CCFs.
Sec. 40.47--Use of non-Federal forms for DOT tests or Federal CCFs for 
          non-DOT tests.
Sec. 40.67--Requirements for direct observation.
Sec. Sec. 40.103-40.105--Blind specimen requirements.
Sec. 40. 173--Responsibility to ensure test of split specimen.
Sec. 40.193--Action in ``shy bladder'' situations.
Sec. 40.197--Actions following report of a dilute specimen.
Sec. 40.207--Actions following a report of a cancelled drug test.
Sec. 40.209--Actions following and consequences of non-fatal flaws in 
          drug tests.
Sec. 40.215--Information about DERs that employers must provide BATs 
          and STTs.
Sec. 40.225--Modifying ATFs; use of foreign-language ATFs.
Sec. 40.227--Use of non-DOT forms for DOT tests or DOT ATFs for non-DOT 
          tests.
Sec. 40.235 (c) and (d)--responsibility to follow instructions for 
          ASDs.
Sec. 40.255 (b)--receipt and storage of alcohol test information.
Sec. 40.265 (c)-(e)--actions in ``shy lung'' situations.
Sec. 40.267--Cancellation of alcohol tests.
Sec. 40.271--Actions in ``correctable flaw'' situations in alcohol 
          tests.
Sec. 40.273--Actions following cancelled tests in alcohol tests.
Sec. 40.275--Actions in ``non-fatal flaw'' situations in alcohol tests.
Sec. Sec. 40.287-40.289--Responsibilities concerning SAP services.
Sec. Sec. 40.295-40.297--Prohibition on seeking second SAP evaluation 
          or changing SAP recommendation.
Sec. 40.303--Responsibilities concerning aftercare recommendations.
Sec. 40.305--Responsibilities concerning return-to-duty decision.
Sec. 40.309--Responsibilities concerning follow-up tests.
Sec. 40.321--General confidentiality requirement.
Sec. 40.323--Release of confidential information in litigation.
Sec. 40.331--Other circumstances for the release of confidential 
          information.
Sec. 40.333--Record retention requirements.
Sec. 40.345--Choice of who reports drug testing information to 
          employers.

[65 FR 79526, Dec. 19, 2000. Redesignated at 66 FR 41950, Aug. 9, 2001]



                  Subpart C_Urine Collection Personnel



Sec. 40.31  Who may collect urine specimens for DOT drug testing?

    (a) Collectors meeting the requirements of this subpart are the only 
persons authorized to collect urine specimens for DOT drug testing.
    (b) A collector must meet training requirements of Sec. 40.33.
    (c) As the immediate supervisor of an employee being tested, you may 
not act as the collector when that employee is tested, unless no other 
collector is available and you are permitted to do so under DOT agency 
drug and alcohol regulations.
    (d) You must not act as the collector for the employee being tested 
if you work for a HHS-certified laboratory (e.g., as a technician or 
accessioner) and could link the employee with a urine specimen, drug 
testing result, or laboratory report.



Sec. 40.33  What training requirements must a collector meet?

    To be permitted to act as a collector in the DOT drug testing 
program, you must meet each of the requirements of this section:

[[Page 532]]

    (a) Basic information. You must be knowledgeable about this part, 
the current ``DOT Urine Specimen Collection Procedures Guidelines,'' and 
DOT agency regulations applicable to the employers for whom you perform 
collections, and you must keep current on any changes to these 
materials. The DOT Urine Specimen Collection Procedures Guidelines 
document is available from ODAPC (Department of Transportation, 1200 New 
Jersey Avenue, SE., Washington DC, 20590, 202-366-3784, or on the ODAPC 
web site (http://www.dot.gov/ost/dapc).
    (b) Qualification training. You must receive qualification training 
meeting the requirements of this paragraph. Qualification training must 
provide instruction on the following subjects:
    (1) All steps necessary to complete a collection correctly and the 
proper completion and transmission of the CCF;
    (2) ``Problem'' collections (e.g., situations like ``shy bladder'' 
and attempts to tamper with a specimen);
    (3) Fatal flaws, correctable flaws, and how to correct problems in 
collections; and
    (4) The collector's responsibility for maintaining the integrity of 
the collection process, ensuring the privacy of employees being tested, 
ensuring the security of the specimen, and avoiding conduct or 
statements that could be viewed as offensive or inappropriate;
    (c) Initial Proficiency Demonstration. Following your completion of 
qualification training under paragraph (b) of this section, you must 
demonstrate proficiency in collections under this part by completing 
five consecutive error-free mock collections.
    (1) The five mock collections must include two uneventful collection 
scenarios, one insufficient quantity of urine scenario, one temperature 
out of range scenario, and one scenario in which the employee refuses to 
sign the CCF and initial the specimen bottle tamper-evident seal.
    (2) Another person must monitor and evaluate your performance, in 
person or by a means that provides real-time observation and interaction 
between the instructor and trainee, and attest in writing that the mock 
collections are ``error-free.'' This person must be a qualified 
collector who has demonstrated necessary knowledge, skills, and 
abilities by--
    (i) Regularly conducting DOT drug test collections for a period of 
at least a year;
    (ii) Conducting collector training under this part for a year; or
    (iii) Successfully completing a ``train the trainer'' course.
    (d) Schedule for qualification training and initial proficiency 
demonstration. The following is the schedule for qualification training 
and the initial proficiency demonstration you must meet:
    (1) If you became a collector before August 1, 2001, and you have 
already met the requirements of paragraphs (b) and (c) of this section, 
you do not have to meet them again.
    (2) If you became a collector before August 1, 2001, and have yet to 
meet the requirements of paragraphs (b) and (c) of this section, you 
must do so no later than January 31, 2003.
    (3) If you become a collector on or after August 1, 2001, you must 
meet the requirements of paragraphs (b) and (c) of this section before 
you begin to perform collector functions.
    (e) Refresher training. No less frequently than every five years 
from the date on which you satisfactorily complete the requirements of 
paragraphs (b) and (c) of this section, you must complete refresher 
training that meets all the requirements of paragraphs (b) and (c) of 
this section.
    (f) Error Correction Training. If you make a mistake in the 
collection process that causes a test to be cancelled (i.e., a fatal or 
uncorrected flaw), you must undergo error correction training. This 
training must occur within 30 days of the date you are notified of the 
error that led to the need for retraining.
    (1) Error correction training must be provided and your proficiency 
documented in writing by a person who meets the requirements of 
paragraph (c)(2) of this section.
    (2) Error correction training is required to cover only the subject 
matter area(s) in which the error that caused the test to be cancelled 
occurred.
    (3) As part of the error correction training, you must demonstrate 
your

[[Page 533]]

proficiency in the collection procedures of this part by completing 
three consecutive error-free mock collections. The mock collections must 
include one uneventful scenario and two scenarios related to the area(s) 
in which your error(s) occurred. The person providing the training must 
monitor and evaluate your performance and attest in writing that the 
mock collections were ``error-free.''
    (g) Documentation. You must maintain documentation showing that you 
currently meet all requirements of this section. You must provide this 
documentation on request to DOT agency representatives and to employers 
and C/TPAs who are using or negotiating to use your services.

[65 FR 79526, Dec 19, 2000; 66 FR 3885, Jan. 17, 2001, as amended at 66 
FR 41950, Aug. 9, 2001]



Sec. 40.35  What information about the DER must employers provide
to collectors?

    As an employer, you must provide to collectors the name and 
telephone number of the appropriate DER (and C/TPA, where applicable) to 
contact about any problems or issues that may arise during the testing 
process.



Sec. 40.37  Where is other information on the role of collectors
found in this regulation?

    You can find other information on the role and functions of 
collectors in the following sections of this part:

Sec. 40.3--Definition.
Sec. 40.43--Steps to prepare and secure collection sites.
Sec. Sec. 40.45-40.47--Use of CCF.
Sec. Sec. 40.49-40.51--Use of collection kit and shipping materials.
Sec. Sec. 40.61-40.63--Preliminary steps in collections.
Sec. 40.65--Role in checking specimens.
Sec. 40.67--Role in directly observed collections.
Sec. 40.69--Role in monitored collections.
Sec. 40.71--Role in split specimen collections.
Sec. 40.73--Chain of custody completion and finishing the collection 
          process.
Sec. 40.103--Processing blind specimens.
Sec. 40.191--Action in case of refusals to take test.
Sec. 40.193--Action in ``shy bladder'' situations.
Sec. 40.199-40.205--Collector errors in tests, effects, and means of 
          correction.



 Subpart D_Collection Sites, Forms, Equipment and Supplies Used in DOT 
                            Urine Collections



Sec. 40.41  Where does a urine collection for a DOT drug test take place?

    (a) A urine collection for a DOT drug test must take place in a 
collection site meeting the requirements of this section.
    (b) If you are operating a collection site, you must ensure that it 
meets the security requirements of Sec. 40.43.
    (c) If you are operating a collection site, you must have all 
necessary personnel, materials, equipment, facilities and supervision to 
provide for the collection, temporary storage, and shipping of urine 
specimens to a laboratory, and a suitable clean surface for writing.
    (d) Your collection site must include a facility for urination 
described in either paragraph (e) or paragraph (f) of this section.
    (e) The first, and preferred, type of facility for urination that a 
collection site may include is a single-toilet room, having a full-
length privacy door, within which urination can occur.
    (1) No one but the employee may be present in the room during the 
collection, except for the observer in the event of a directly observed 
collection.
    (2) You must have a source of water for washing hands, that, if 
practicable, should be external to the closed room where urination 
occurs. If an external source is not available, you may meet this 
requirement by securing all sources of water and other substances that 
could be used for adulteration and substitution (e.g., water faucets, 
soap dispensers) and providing moist towelettes outside the closed room.
    (f) The second type of facility for urination that a collection site 
may include is a multistall restroom.
    (1) Such a site must provide substantial visual privacy (e.g., a 
toilet stall with a partial-length door) and meet all other applicable 
requirements of this section.
    (2) If you use a multi-stall restroom, you must either--
    (i) Secure all sources of water and other substances that could be 
used for

[[Page 534]]

adulteration and substitution (e.g., water faucets, soap dispensers) and 
place bluing agent in all toilets or secure the toilets to prevent 
access; or
    (ii) Conduct all collections in the facility as monitored 
collections (see Sec. 40.69 for procedures). This is the only 
circumstance in which you may conduct a monitored collection.
    (3) No one but the employee may be present in the multistall 
restroom during the collection, except for the monitor in the event of a 
monitored collection or the observer in the event of a directly observed 
collection.
    (g) A collection site may be in a medical facility, a mobile 
facility (e.g., a van), a dedicated collection facility, or any other 
location meeting the requirements of this section.



Sec. 40.43  What steps must operators of collection sites take to protect
the security and integrity of urine collections?

    (a) Collectors and operators of collection sites must take the steps 
listed in this section to prevent unauthorized access that could 
compromise the integrity of collections.
    (b) As a collector, you must do the following before each collection 
to deter tampering with specimens:
    (1) Secure any water sources or otherwise make them unavailable to 
employees (e.g., turn off water inlet, tape handles to prevent opening 
faucets);
    (2) Ensure that the water in the toilet is blue;
    (3) Ensure that no soap, disinfectants, cleaning agents, or other 
possible adulterants are present;
    (4) Inspect the site to ensure that no foreign or unauthorized 
substances are present;
    (5) Tape or otherwise secure shut any movable toilet tank top, or 
put bluing in the tank;
    (6) Ensure that undetected access (e.g., through a door not in your 
view) is not possible;
    (7) Secure areas and items (e.g., ledges, trash receptacles, paper 
towel holders, under-sink areas) that appear suitable for concealing 
contaminants; and
    (8) Recheck items in paragraphs (b)(1) through (7) of this section 
following each collection to ensure the site's continued integrity.
    (c) If the collection site uses a facility normally used for other 
purposes, like a public rest room or hospital examining room, you must, 
as a collector, also ensure before the collection that:
    (1) Access to collection materials and specimens is effectively 
restricted; and
    (2) The facility is secured against access during the procedure to 
ensure privacy to the employee and prevent distraction of the collector. 
Limited-access signs must be posted.
    (d) As a collector, you must take the following additional steps to 
ensure security during the collection process:
    (1) To avoid distraction that could compromise security, you are 
limited to conducting a collection for only one employee at a time. 
However, during the time one employee is in the period for drinking 
fluids in a ``shy bladder'' situation (see Sec. 40.193(b)), you may 
conduct a collection for another employee.
    (2) To the greatest extent you can, keep an employee's collection 
container within view of both you and the employee between the time the 
employee has urinated and the specimen is sealed.
    (3) Ensure you are the only person in addition to the employee who 
handles the specimen before it is poured into the bottles and sealed 
with tamper-evident seals.
    (4) In the time between when the employee gives you the specimen and 
when you seal the specimen, remain within the collection site.
    (5) Maintain personal control over each specimen and CCF throughout 
the collection process.
    (e) If you are operating a collection site, you must implement a 
policy and procedures to prevent unauthorized personnel from entering 
any part of the site in which urine specimens are collected or stored.
    (1) Only employees being tested, collectors and other collection 
site workers, DERs, employee and employer representatives authorized by 
the employer (e.g., employer policy, collective bargaining agreement), 
and DOT agency representatives are authorized persons for purposes of 
this paragraph (e).

[[Page 535]]

    (2) Except for the observer in a directly observed collection or the 
monitor in the case of a monitored collection, you must not permit 
anyone to enter the urination facility in which employees provide 
specimens.
    (3) You must ensure that all authorized persons are under the 
supervision of a collector at all times when permitted into the site.
    (4) You or the collector may remove any person who obstructs, 
interferes with, or causes a delay in the collection process.
    (f) If you are operating a collection site, you must minimize the 
number of persons handling specimens.



Sec. 40.45  What form is used to document a DOT urine collection?

    (a) The Federal Drug Testing Custody and Control Form (CCF) must be 
used to document every urine collection required by the DOT drug testing 
program. The CCF must be a five-part carbonless manifold form. You may 
view this form on the Department's web site (http://www.dot.gov/ost/
dapc) or the HHS web site (http://www.workplace.samhsa.gov).
    (b) You must not use a non-Federal form or an expired Federal form 
to conduct a DOT urine collection. As a laboratory, C/TPA or other party 
that provides CCFs to employers, collection sites, or other customers, 
you must not provide copies of an expired Federal form to these 
participants. You must also affirmatively notify these participants that 
they must not use an expired Federal form (e.g., that beginning August 
1, 2001, they may not use the old 7-part Federal CCF for DOT urine 
collections).
    (c) As a participant in the DOT drug testing program, you are not 
permitted to modify or revise the CCF except as follows:
    (1) You may include, in the area outside the border of the form, 
other information needed for billing or other purposes necessary to the 
collection process.
    (2) The CCF must include the names, addresses, telephone numbers and 
fax numbers of the employer and the MRO, which may be preprinted, typed, 
or handwritten. The MRO information must include the specific 
physician's name and address, as opposed to only a generic clinic, 
health care organization, or company name. This information is required, 
and it is prohibited for an employer, collector, service agent or any 
other party to omit it. In addition, a C/TPA's name, address, fax 
number, and telephone number may be included, but is not required. The 
employer may use a C/TPA's address in place of its own, but must 
continue to include its name, telephone number, and fax number.
    (3) As an employer, you may add the name of the DOT agency under 
whose authority the test occurred as part of the employer information.
    (4) As a collector, you may use a CCF with your name, address, 
telephone number, and fax number preprinted, but under no circumstances 
may you sign the form before the collection event.
    (d) Under no circumstances may the CCF transmit personal identifying 
information about an employee (other than a social security number (SSN) 
or other employee identification (ID) number) to a laboratory.
    (e) As an employer, you may use an equivalent foreign-language 
version of the CCF approved by ODAPC. You may use such a non-English 
language form only in a situation where both the employee and collector 
understand and can use the form in that language.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001]



Sec. 40.47  May employers use the CCF for non-Federal collections
or non-Federal forms for DOT collections?

    (a) No, as an employer, you are prohibited from using the CCF for 
non-Federal urine collections. You are also prohibited from using non-
Federal forms for DOT urine collections. Doing either subjects you to 
enforcement action under DOT agency regulations.
    (b) (1) In the rare case where the collector, either by mistake or 
as the only means to conduct a test under difficult circumstances (e.g., 
post-accident or reasonable suspicion test with insufficient time to 
obtain the CCF), uses a non-Federal form for a DOT collection, the use 
of a non-Federal form does not present a reason for the laboratory to

[[Page 536]]

reject the specimen for testing or for an MRO to cancel the result.
    (2) The use of the non-Federal form is a ``correctable flaw.'' As an 
MRO, to correct the problem you must follow the procedures of Sec. 
40.205(b)(2).

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001]



Sec. 40.49  What materials are used to collect urine specimens?

    For each DOT drug test, you must use a collection kit meeting the 
requirements of Appendix A of this part.



Sec. 40.51  What materials are used to send urine specimens to the laboratory?

    (a) Except as provided in paragraph (b) of this section, you must 
use a shipping container that adequately protects the specimen bottles 
from shipment damage in the transport of specimens from the collection 
site to the laboratory.
    (b) You are not required to use a shipping container if a laboratory 
courier hand-delivers the specimens from the collection site to the 
laboratory.



                  Subpart E_Urine Specimen Collections



Sec. 40.61  What are the preliminary steps in the collection process?

    As the collector, you must take the following steps before actually 
beginning a collection:
    (a) When a specific time for an employee's test has been scheduled, 
or the collection site is at the employee's work site, and the employee 
does not appear at the collection site at the scheduled time, contact 
the DER to determine the appropriate interval within which the DER has 
determined the employee is authorized to arrive. If the employee's 
arrival is delayed beyond that time, you must notify the DER that the 
employee has not reported for testing. In a situation where a C/TPA has 
notified an owner/operator or other individual employee to report for 
testing and the employee does not appear, the C/TPA must notify the 
employee that he or she has refused to test (see Sec. 40.191(a)(1)).
    (b) Ensure that, when the employee enters the collection site, you 
begin the testing process without undue delay. For example, you must not 
wait because the employee says he or she is not ready or is unable to 
urinate or because an authorized employer or employee representative is 
delayed in arriving.
    (1) If the employee is also going to take a DOT alcohol test, you 
must, to the greatest extent practicable, ensure that the alcohol test 
is completed before the urine collection process begins.

    Example to Paragraph (b)(1): An employee enters the test site for 
both a drug and an alcohol test. Normally, the collector would wait 
until the BAT had completed the alcohol test process before beginning 
the drug test process. However, there are some situations in which an 
exception to this normal practice would be reasonable. One such 
situation might be if several people were waiting for the BAT to conduct 
alcohol tests, but a drug testing collector in the same facility were 
free. Someone waiting might be able to complete a drug test without 
unduly delaying his or her alcohol test. Collectors and BATs should work 
together, however, to ensure that post-accident and reasonable suspicion 
alcohol tests happen as soon as possible (e.g., by moving the employee 
to the head of the line for alcohol tests).

    (2) If the employee needs medical attention (e.g., an injured 
employee in an emergency medical facility who is required to have a 
post-accident test), do not delay this treatment to collect a specimen.
    (3) You must not collect, by catheterization or other means, urine 
from an unconscious employee to conduct a drug test under this part. Nor 
may you catheterize a conscious employee. However, you must inform an 
employee who normally voids through self-catheterization that the 
employee is required to provide a specimen in that manner.
    (4) If, as an employee, you normally void through self-
catheterization, and decline to do so, this constitutes a refusal to 
test.
    (c) Require the employee to provide positive identification. You 
must see a photo ID issued by the employer (other than in the case of an 
owner-operator or other self-employed individual) or a Federal, state, 
or local government (e.g., a driver's license). You may not

[[Page 537]]

accept faxes or photocopies of identification. Positive identification 
by an employer representative (not a co-worker or another employee being 
tested) is also acceptable. If the employee cannot produce positive 
identification, you must contact a DER to verify the identity of the 
employee.
    (d) If the employee asks, provide your identification to the 
employee. Your identification must include your name and your employer's 
name, but does not have to include your picture, address, or telephone 
number.
    (e) Explain the basic collection procedure to the employee, 
including showing the employee the instructions on the back of the CCF.
    (f) Direct the employee to remove outer clothing (e.g., coveralls, 
jacket, coat, hat) that could be used to conceal items or substances 
that could be used to tamper with a specimen. You must also direct the 
employee to leave these garments and any briefcase, purse, or other 
personal belongings with you or in a mutually agreeable location. You 
must advise the employee that failure to comply with your directions 
constitutes a refusal to test.
    (1) If the employee asks for a receipt for any belongings left with 
you, you must provide one.
    (2) You must allow the employee to keep his or her wallet.
    (3) You must not ask the employee to remove other clothing (e.g., 
shirts, pants, dresses, underwear), to remove all clothing, or to change 
into a hospital or examination gown (unless the urine collection is 
being accomplished simultaneously with a DOT agency-authorized medical 
examination).
    (4) You must direct the employee to empty his or her pockets and 
display the items in them to ensure that no items are present which 
could be used to adulterate the specimen. If nothing is there that can 
be used to adulterate a specimen, the employee can place the items back 
into his or her pockets. As the employee, you must allow the collector 
to make this observation.
    (5) If, in your duties under paragraph (f)(4) of this section, you 
find any material that could be used to tamper with a specimen, you 
must:
    (i) Determine if the material appears to be brought to the 
collection site with the intent to alter the specimen, and, if it is, 
conduct a directly observed collection using direct observation 
procedures (see Sec. 40.67); or
    (ii) Determine if the material appears to be inadvertently brought 
to the collection site (e.g., eye drops), secure and maintain it until 
the collection process is completed and conduct a normal (i.e., 
unobserved) collection.
    (g) You must instruct the employee not to list medications that he 
or she is currently taking on the CCF. (The employee may make notes of 
medications on the back of the employee copy of the form for his or her 
own convenience, but these notes must not be transmitted to anyone 
else.)



Sec. 40.63  What steps does the collector take in the collection
process before the employee provides a urine specimen?

    As the collector, you must take the following steps before the 
employee provides the urine specimen:
    (a) Complete Step 1 of the CCF.
    (b) Instruct the employee to wash and dry his or her hands at this 
time. You must tell the employee not to wash his or her hands again 
until after delivering the specimen to you. You must not give the 
employee any further access to water or other materials that could be 
used to adulterate or dilute a specimen.
    (c) Select, or allow the employee to select, an individually wrapped 
or sealed collection container from collection kit materials. Either you 
or the employee, with both of you present, must unwrap or break the seal 
of the collection container. You must not unwrap or break the seal on 
any specimen bottle at this time. You must not allow the employee to 
take anything from the collection kit into the room used for urination 
except the collection container.
    (d) Direct the employee to go into the room used for urination, 
provide a specimen of at least 45 mL, not flush the toilet, and return 
to you with the specimen as soon as the employee has completed the void.
    (1) Except in the case of an observed or a monitored collection (see 
Sec. Sec. 40.67 and 40.69 ), neither you nor anyone else

[[Page 538]]

may go into the room with the employee.
    (2) As the collector, you may set a reasonable time limit for 
voiding.
    (e) You must pay careful attention to the employee during the entire 
collection process to note any conduct that clearly indicates an attempt 
to tamper with a specimen (e.g., substitute urine in plain view or an 
attempt to bring into the collection site an adulterant or urine 
substitute). If you detect such conduct, you must require that a 
collection take place immediately under direct observation (see Sec. 
40.67 ) and note the conduct and the fact that the collection was 
observed in the ``Remarks'' line of the CCF (Step 2). You must also, as 
soon as possible, inform the DER and collection site supervisor that a 
collection took place under direct observation and the reason for doing 
so.



Sec. 40.65  What does the collector check for when the employee 
presents a specimen?

    As a collector, you must check the following when the employee gives 
the collection container to you:
    (a) Sufficiency of specimen. You must check to ensure that the 
specimen contains at least 45 mL of urine.
    (1) If it does not, you must follow ``shy bladder'' procedures (see 
Sec. 40.193(b)).
    (2) When you follow ``shy bladder'' procedures, you must discard the 
original specimen, unless another problem (i.e., temperature out of 
range, signs of tampering) also exists.
    (3) You are never permitted to combine urine collected from separate 
voids to create a specimen.
    (4) You must discard any excess urine.
    (b) Temperature. You must check the temperature of the specimen no 
later than four minutes after the employee has given you the specimen.
    (1) The acceptable temperature range is 32-38 [deg]C/90-100 [deg]F.
    (2) You must determine the temperature of the specimen by reading 
the temperature strip attached to the collection container.
    (3) If the specimen temperature is within the acceptable range, you 
must mark the ``Yes'' box on the CCF (Step 2).
    (4) If the specimen temperature is outside the acceptable range, you 
must mark the ``No'' box and enter in the ``Remarks'' line (Step 2) your 
findings about the temperature.
    (5) If the specimen temperature is outside the acceptable range, you 
must immediately conduct a new collection using direct observation 
procedures (see Sec. 40.67).
    (6) In a case where a specimen is collected under direct observation 
because of the temperature being out of range, you must process both the 
original specimen and the specimen collected using direct observation 
and send the two sets of specimens to the laboratory. This is true even 
in a case in which the original specimen has insufficient volume but the 
temperature is out of range. You must also, as soon as possible, inform 
the DER and collection site supervisor that a collection took place 
under direct observation and the reason for doing so.
    (7) In a case where the employee refuses to provide another specimen 
(see Sec. 40.191(a)(3)) or refuses to provide another specimen under 
direct observation (see Sec. 40.191(a)(4)), you must notify the DER. As 
soon as you have notified the DER, you must discard any specimen the 
employee has provided previously during the collection procedure.
    (c) Signs of tampering. You must inspect the specimen for unusual 
color, presence of foreign objects or material, or other signs of 
tampering (e.g., if you notice any unusual odor).
    (1) If it is apparent from this inspection that the employee has 
tampered with the specimen (e.g., blue dye in the specimen, excessive 
foaming when shaken, smell of bleach), you must immediately conduct a 
new collection using direct observation procedures (see Sec. 40.67 ).
    (2) In a case where a specimen is collected under direct observation 
because of showing signs of tampering, you must process both the 
original specimen and the specimen collected using direct observation 
and send the two sets of specimens to the laboratory. This is true even 
in a case in which the original specimen has insufficient volume but it 
shows signs of tampering.

[[Page 539]]

You must also, as soon as possible, inform the DER and collection site 
supervisor that a collection took place under direct observation and the 
reason for doing so.
    (3) In a case where the employee refuses to provide a specimen under 
direct observation (see Sec. 40.191(a)(4)), you must discard any 
specimen the employee provided previously during the collection 
procedure. Then you must notify the DER as soon as practicable.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001]



Sec. 40.67  When and how is a directly observed collection conducted?

    (a) As an employer, you must direct an immediate collection under 
direct observation with no advance notice to the employee, if:
    (1) The laboratory reported to the MRO that a specimen is invalid, 
and the MRO reported to you that there was not an adequate medical 
explanation for the result;
    (2) The MRO reported to you that the original positive, adulterated, 
or substituted result had to be cancelled because the test of the split 
specimen could not be performed; or
    (3) The laboratory reported to the MRO that the specimen was 
negative-dilute with a creatinine concentration greater than or equal to 
2 mg/dL but less than or equal to 5 mg/dL, and the MRO reported the 
specimen to you as negative-dilute and that a second collection must 
take place under direct observation (see Sec. 40.197(b)(1)).
    (b) As an employer, you must direct a collection under direct 
observation of an employee if the drug test is a return-to-duty test or 
a follow-up test.
    (c) As a collector, you must immediately conduct a collection under 
direct observation if:
    (1) You are directed by the DER to do so (see paragraphs (a) and (b) 
of this section); or
    (2) You observed materials brought to the collection site or the 
employee's conduct clearly indicates an attempt to tamper with a 
specimen (see Sec. Sec. 40.61(f)(5)(i) and 40.63(e)); or
    (3) The temperature on the original specimen was out of range (see 
Sec. 40.65(b)(5)); or (4) The original specimen appeared to have been 
tampered with (see Sec. 40.65(c)(1)).
    (d)(1) As the employer, you must explain to the employee the reason 
for a directly observed collection under paragraph (a) or (b) of this 
section.
    (2) As the collector, you must explain to the employee the reason, 
if known, under this part for a directly observed collection under 
paragraphs (c)(1) through (3) of this section.
    (e) As the collector, you must complete a new CCF for the directly 
observed collection.
    (1) You must mark the ``reason for test'' block (Step 1) the same as 
for the first collection.
    (2) You must check the ``Observed, (Enter Remark)'' box and enter 
the reason (see Sec. 40.67(b)) in the ``Remarks'' line (Step 2).
    (f) In a case where two sets of specimens are being sent to the 
laboratory because of suspected tampering with the specimen at the 
collection site, enter on the ``Remarks'' line of the CCF (Step 2) for 
each specimen a notation to this effect (e.g., collection 1 of 2, or 2 
of 2) and the specimen ID number of the other specimen.
    (g) As the collector, you must ensure that the observer is the same 
gender as the employee. You must never permit an opposite gender person 
to act as the observer. The observer can be a different person from the 
collector and need not be a qualified collector.
    (h) As the collector, if someone else is to observe the collection 
(e.g., in order to ensure a same gender observer), you must verbally 
instruct that person to follow procedures at paragraphs (i) and (j) of 
this section. If you, the collector, are the observer, you too must 
follow these procedures.
    (i) As the observer, you must request the employee to raise his or 
her shirt, blouse, or dress/skirt, as appropriate, above the waist; and 
lower clothing and underpants to show you, by turning around, that they 
do not have a prosthetic device. After you have determined that the 
employee does not have such a device, you may permit the employee to 
return clothing to its proper position for observed urination.
    (j) As the observer, you must watch the employee urinate into the 
collection container. Specifically, you are to

[[Page 540]]

watch the urine go from the employee's body into the collection 
container.
    (k) As the observer but not the collector, you must not take the 
collection container from the employee, but you must observe the 
specimen as the employee takes it to the collector.
    (l) As the collector, when someone else has acted as the observer, 
you must include the observer's name in the ``Remarks'' line of the CCF 
(Step 2).
    (m) As the employee, if you decline to allow a directly observed 
collection required or permitted under this section to occur, this is a 
refusal to test.
    (n) As the collector, when you learn that a directly observed 
collection should have been collected but was not, you must inform the 
employer that it must direct the employee to have an immediate 
recollection under direct observation.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001; 68 
FR 31626, May 28, 2003; 69 FR 64867, Nov. 9, 2004; 73 FR 35970, June 25, 
2008; 73 FR 50223, Aug. 26, 2008; 73 FR 62910, Oct. 22, 2008; 73 FR 
70284, Nov. 20, 2008; 74 FR 37952, July 30, 2009]



Sec. 40.69  How is a monitored collection conducted?

    (a) As the collector, you must secure the room being used for the 
monitored collection so that no one except the employee and the monitor 
can enter it until after the collection has been completed.
    (b) As the collector, you must ensure that the monitor is the same 
gender as the employee, unless the monitor is a medical professional 
(e.g., nurse, doctor, physician's assistant, technologist, or technician 
licensed or certified to practice in the jurisdiction in which the 
collection takes place). The monitor can be a different person from the 
collector and need not be a qualified collector.
    (c) As the collector, if someone else is to monitor the collection 
(e.g., in order to ensure a same-gender monitor), you must verbally 
instruct that person to follow the procedures of paragraphs (d) and (e) 
of this section. If you, the collector, are the monitor, you must follow 
these procedures.
    (d) As the monitor, you must not watch the employee urinate into the 
collection container. If you hear sounds or make other observations 
indicating an attempt to tamper with a specimen, there must be an 
additional collection under direct observation (see Sec. Sec. 40.63(e), 
40.65(c), and 40.67(b)).
    (e) As the monitor, you must ensure that the employee takes the 
collection container directly to the collector as soon as the employee 
has exited the enclosure.
    (f) As the collector, when someone else has acted as the monitor, 
you must note that person's name in the ``Remarks'' line of the CCF 
(Step 2).
    (g) As the employee being tested, if you decline to permit a 
collection authorized under this section to be monitored, it is a 
refusal to test.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001]



Sec. 40.71  How does the collector prepare the specimens?

    (a) All collections under DOT agency drug testing regulations must 
be split specimen collections.
    (b) As the collector, you must take the following steps, in order, 
after the employee brings the urine specimen to you. You must take these 
steps in the presence of the employee.
    (1) Check the box on the CCF (Step 2) indicating that this was a 
split specimen collection.
    (2) You, not the employee, must first pour at least 30 mL of urine 
from the collection container into one specimen bottle, to be used for 
the primary specimen.
    (3) You, not the employee, must then pour at least 15 mL of urine 
from the collection container into the second specimen bottle to be used 
for the split specimen.
    (4) You, not the employee, must place and secure (i.e., tighten or 
snap) the lids/caps on the bottles.
    (5) You, not the employee, must seal the bottles by placing the 
tamper-evident bottle seals over the bottle caps/lids and down the sides 
of the bottles.
    (6) You, not the employee, must then write the date on the tamper-
evident bottle seals.
    (7) You must then ensure that the employee initials the tamper-
evident bottle seals for the purpose of certifying that the bottles 
contain the

[[Page 541]]

specimens he or she provided. If the employee fails or refuses to do so, 
you must note this in the ``Remarks'' line of the CCF (Step 2) and 
complete the collection process.
    (8) You must discard any urine left over in the collection container 
after both specimen bottles have been appropriately filled and sealed. 
There is one exception to this requirement: you may use excess urine to 
conduct clinical tests (e.g., protein, glucose) if the collection was 
conducted in conjunction with a physical examination required by a DOT 
agency regulation. Neither you nor anyone else may conduct further 
testing (such as adulteration testing) on this excess urine and the 
employee has no legal right to demand that the excess urine be turned 
over to the employee.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001]



Sec. 40.73  How is the collection process completed?

    (a) As the collector, you must do the following things to complete 
the collection process. You must complete the steps called for in 
paragraphs (a)(1) through (a)(7) of this section in the employee's 
presence.
    (1) Direct the employee to read and sign the certification statement 
on Copy 2 (Step 5) of the CCF and provide date of birth, printed name, 
and day and evening contact telephone numbers. If the employee refuses 
to sign the CCF or to provide date of birth, printed name, or telephone 
numbers, you must note this in the ``Remarks'' line (Step 2) of the CCF, 
and complete the collection. If the employee refuses to fill out any 
information, you must, as a minimum, print the employee's name in the 
appropriate place.
    (2) Complete the chain of custody on the CCF (Step 4) by printing 
your name (note: you may pre-print your name), recording the time and 
date of the collection, signing the statement, and entering the name of 
the delivery service transferring the specimen to the laboratory,
    (3) Ensure that all copies of the CCF are legible and complete.
    (4) Remove Copy 5 of the CCF and give it to the employee.
    (5) Place the specimen bottles and Copy 1 of the CCF in the 
appropriate pouches of the plastic bag.
    (6) Secure both pouches of the plastic bag.
    (7) Advise the employee that he or she may leave the collection 
site.
    (8) To prepare the sealed plastic bag containing the specimens and 
CCF for shipment you must:
    (i) Place the sealed plastic bag in a shipping container (e.g., 
standard courier box) designed to minimize the possibility of damage 
during shipment. (More than one sealed plastic bag can be placed into a 
single shipping container if you are doing multiple collections.)
    (ii) Seal the container as appropriate.
    (iii) If a laboratory courier hand-delivers the specimens from the 
collection site to the laboratory, prepare the sealed plastic bag for 
shipment as directed by the courier service.
    (9) Send Copy 2 of the CCF to the MRO and Copy 4 to the DER. You 
must fax or otherwise transmit these copies to the MRO and DER within 24 
hours or during the next business day. Keep Copy 3 for at least 30 days, 
unless otherwise specified by applicable DOT agency regulations.
    (b) As a collector or collection site, you must ensure that each 
specimen you collect is shipped to a laboratory as quickly as possible, 
but in any case within 24 hours or during the next business day.

[65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006]



                   Subpart F_Drug Testing Laboratories



Sec. 40.81  What laboratories may be used for DOT drug testing?

    (a) As a drug testing laboratory located in the U.S., you are 
permitted to participate in DOT drug testing only if you are certified 
by HHS under the National Laboratory Certification Program (NLCP) for 
all testing required under this part.
    (b) As a drug testing laboratory located in Canada or Mexico which 
is not certified by HHS under the NLCP, you are permitted to participate 
in DOT drug testing only if:

[[Page 542]]

    (1) The DOT, based on a written recommendation from HHS, has 
approved your laboratory as meeting HHS laboratory certification 
standards or deemed your laboratory fully equivalent to a laboratory 
meeting HHS laboratory certification standards for all testing required 
under this part; or
    (2) The DOT, based on a written recommendation from HHS, has 
recognized a Canadian or Mexican certifying organization as having 
equivalent laboratory certification standards and procedures to those of 
HHS, and the Canadian or Mexican certifying organization has certified 
your laboratory under those equivalent standards and procedures.
    (c) As a laboratory participating in the DOT drug testing program, 
you must comply with the requirements of this part. You must also comply 
with all applicable requirements of HHS in testing DOT specimens, 
whether or not the HHS requirements are explicitly stated in this part.
    (d) If DOT determines that you are in noncompliance with this part, 
you could be subject to PIE proceedings under Subpart R of this part. If 
the Department issues a PIE with respect to you, you are ineligible to 
participate in the DOT drug testing program even if you continue to meet 
the requirements of paragraph (a) or (b) of this section.



Sec. 40.83  How do laboratories process incoming specimens?

    As the laboratory, you must do the following when you receive a DOT 
specimen:
    (a) You are authorized to receive only the laboratory copy of the 
CCF. You are not authorized to receive other copies of the CCF nor any 
copies of the alcohol testing form.
    (b) You must comply with applicable provisions of the HHS Guidelines 
concerning accessioning and processing urine drug specimens.
    (c) You must inspect each specimen and CCF for the following ``fatal 
flaws:''
    (1) The specimen ID numbers on the specimen bottle and the CCF do 
not match;
    (2) The specimen bottle seal is broken or shows evidence of 
tampering, unless a split specimen can be redesignated (see paragraph 
(h) of this section);
    (3) The collector's printed name and signature are omitted from the 
CCF; and
    (4) There is an insufficient amount of urine in the primary bottle 
for analysis, unless the specimens can be redesignated (see paragraph 
(h) of this section).
    (d) When you find a specimen meeting the criteria of paragraph (c) 
of this section, you must document your findings and stop the testing 
process. Report the result in accordance with Sec. 40.97(a)(3) .
    (e) You must inspect each CCF for the presence of the collector's 
signature on the certification statement in Step 4 of the CCF. Upon 
finding that the signature is omitted, document the flaw and continue 
the testing process.
    (1) In such a case, you must retain the specimen for a minimum of 5 
business days from the date on which you initiated action to correct the 
flaw.
    (2) You must then attempt to correct the flaw by following the 
procedures of Sec. 40.205(b)(1).
    (3) If the flaw is not corrected, report the result as rejected for 
testing in accordance with Sec. 40.97(a)(3).
    (f) If you determine that the specimen temperature was not checked 
and the ``Remarks'' line did not contain an entry regarding the 
temperature being outside of range, you must then attempt to correct the 
problem by following the procedures of Sec. 40.208.
    (1) In such a case, you must continue your efforts to correct the 
problem for five business days, before you report the result.
    (2) When you have obtained the correction, or five business days 
have elapsed, report the result in accordance with Sec. 40.97(a).
    (g) If you determine that a CCF that fails to meet the requirements 
of Sec. 40.45(a) (e.g., a non-Federal form or an expired Federal form 
was used for the collection), you must attempt to correct the use of the 
improper form by following the procedures of Sec. 40.205(b)(2).
    (1) In such a case, you must retain the specimen for a minimum of 5 
business days from the date on which you initiated action to correct the 
problem.

[[Page 543]]

    (2) If the problem(s) is not corrected, you must reject the test and 
report the result in accordance with Sec. 40.97(a)(3).
    (h) If the CCF is marked indicating that a split specimen collection 
was collected and if the split specimen does not accompany the primary, 
has leaked, or is otherwise unavailable for testing, you must still test 
the primary specimen and follow appropriate procedures outlined in Sec. 
40.175(b) regarding the unavailability of the split specimen for 
testing.
    (1) The primary specimen and the split specimen can be redesignated 
(i.e., Bottle B is redesignated as Bottle A, and vice-versa) if:
    (i) The primary specimen appears to have leaked out of its sealed 
bottle and the laboratory believes a sufficient amount of urine exists 
in the split specimen to conduct all appropriate primary laboratory 
testing; or
    (ii) The primary specimen is labeled as Bottle B, and the split 
specimen as Bottle A; or
    (iii) The laboratory opens the split specimen instead of the primary 
specimen, the primary specimen remains sealed, and the laboratory 
believes a sufficient amount of urine exists in the split specimen to 
conduct all appropriate primary laboratory testing; or
    (iv) The primary specimen seal is broken but the split specimen 
remains sealed and the laboratory believes a sufficient amount of urine 
exists in the split specimen to conduct all appropriate primary 
laboratory testing.
    (2) In situations outlined in paragraph (g)(1) of this section, the 
laboratory shall mark through the ``A'' and write ``B,'' then initial 
and date the change. A corresponding change shall be made to the other 
bottle by marking through the ``B'' and writing ``A,'' and initialing 
and dating the change.
    (i) A notation shall be made on Copy 1 of the CCF (Step 5a) and on 
any laboratory internal chain of custody documents, as appropriate, for 
any fatal or correctable flaw.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001; 71 
FR 49384, Aug. 23, 2006; 73 FR 35970, June 25, 2008]



Sec. 40.85  What drugs do laboratories test for?

    As a laboratory, you must test for the following five drugs or 
classes of drugs in a DOT drug test. You must not test ``DOT specimens'' 
for any other drugs.
    (a) Marijuana metabolites.
    (b) Cocaine metabolites.
    (c) Amphetamines.
    (d) Opiate metabolites.
    (e) Phencyclidine (PCP).



Sec. 40.87  What are the cutoff concentrations for initial and confirmation tests?

    (a) As a laboratory, you must use the cutoff concentrations 
displayed in the following table for initial and confirmation drug 
tests. All cutoff concentrations are expressed in nanograms per 
milliliter (ng/mL). The table follows:

------------------------------------------------------------------------
                                       Initial
      Type of drug or metabolite         test       Confirmation test
------------------------------------------------------------------------
(1) Marijuana metabolites............       50  ........................
(i) Delta-9-tetrahydrocanna-binol-9-            15
 carboxylic acid (THC).
(2) Cocaine metabolites                    300  150
 (Benzoylecgonine).
(3) Phencyclidine (PCP)..............       25  25
(4) Amphetamines.....................     1000  ........................
(i) Amphetamine......................  .......  500
(ii) Methamphetamine.................  .......  500 (Specimen must also
                                                 contain amphetamine at
                                                 a concentration of
                                                 greater than or equal
                                                 to 200 ng/mL.)
(5) Opiate metabolites...............     2000  ........................
(i) Codeine..........................  .......  2000
(ii) Morphine........................  .......  2000
(iii) 6-acetylmorphine (6-AM)........  .......  10 (Test for 6-AM in the
                                                 specimen. Conduct this
                                                 test only when specimen
                                                 contains morphine at a
                                                 concentration greater
                                                 than or equal to 2000
                                                 ng/mL.)
------------------------------------------------------------------------

    (b) On an initial drug test, you must report a result below the 
cutoff concentration as negative. If the result is at or above the 
cutoff concentration, you must conduct a confirmation test.
    (c) On a confirmation drug test, you must report a result below the 
cutoff concentration as negative and a result at or above the cutoff 
concentration as confirmed positive.

[[Page 544]]

    (d) You must report quantitative values for morphine or codeine at 
15,000 ng/mL or above.



Sec. 40.89  What is validity testing, and are laboratories required to conduct it?

    (a) Specimen validity testing is the evaluation of the specimen to 
determine if it is consistent with normal human urine. The purpose of 
validity testing is to determine whether certain adulterants or foreign 
substances were added to the urine, if the urine was diluted, or if the 
specimen was substituted.
    (b) As a laboratory, you must conduct validity testing.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001; 73 
FR 35970, June 25, 2008]



Sec. 40.91  What validity tests must laboratories conduct on primary specimens?

    As a laboratory, when you conduct validity testing under Sec. 
40.89, you must conduct it in accordance with the requirements of this 
section.
    (a) You must determine the creatinine concentration on each primary 
specimen. You must also determine its specific gravity if you find the 
creatinine concentration to be less than 20 mg/dL.
    (b) You must determine the pH of each primary specimen.
    (c) You must perform one or more validity tests for oxidizing 
adulterants on each primary specimen.
    (d) You must perform additional validity tests on the primary 
specimen when the following conditions are observed:
    (1) Abnormal physical characteristics;
    (2) Reactions or responses characteristic of an adulterant obtained 
during initial or confirmatory drug tests (e.g., non-recovery of 
internal standards, unusual response); or
    (3) Possible unidentified interfering substance or adulterant.
    (e) If you determine that the specimen is invalid and HHS guidelines 
direct you to contact the MRO, you must contact the MRO and together 
decide if testing the primary specimen by another HHS certified 
laboratory would be useful in being able to report a positive or 
adulterated test result.

[65 FR 79526, Dec. 19, 2000, as amended at 69 FR 64867, Nov. 9, 2004]



Sec. 40.93  What criteria do laboratories use to establish that a
specimen is dilute or substituted?

    (a) As a laboratory, you must consider the primary specimen to be 
dilute when:
    (1) The creatinine concentration is greater than or equal to 2 mg/dL 
but less than 20 mg/dL, and
    (2) The specific gravity is greater than 1.0010 but less than 1.0030 
on a single aliquot.
    (b) As a laboratory, you must consider the primary specimen to be 
substituted when the creatinine concentration is less than 2 mg/dL and 
the specific gravity is less than or equal to 1.0010 or greater than or 
equal to 1.0200 on both the initial and confirmatory creatinine tests 
and on both the initial and confirmatory specific gravity tests on two 
separate aliquots.

[69 FR 64867, Nov. 9, 2004]



Sec. 40.95  What are the adulterant cutoff concentrations for initial
and confirmation tests?

    (a) As a laboratory, you must use the cutoff concentrations for the 
initial and confirmation adulterant testing as required by the HHS 
Mandatory Guidelines and you must use two separate aliquots--one for the 
initial test and another for the confirmation test.
    (b) As a laboratory, you must report results at or above the cutoffs 
(or for pH, at or above or below the values, as appropriate) as 
adulterated and provide the numerical value that supports the 
adulterated result.

[73 FR 35970, June 25, 2008]



Sec. 40.96  What criteria do laboratories use to establish that a 
specimen is invalid?

    (a) As a laboratory, you must use the invalid test result criteria 
for the initial and confirmation testing as required by the HHS 
Mandatory Guidelines, and you must use two separate aliquots--one for 
the initial test and another for the confirmation test.

[[Page 545]]

    (b) As a laboratory, for a specimen having an invalid result for one 
of the reasons outlined in the HHS Mandatory Guidelines, you must 
contact the MRO to discuss whether sending the specimen to another HHS 
certified laboratory for testing would be useful in being able to report 
a positive or adulterated result.
    (c) As a laboratory, you must report invalid results in accordance 
with the invalid test result criteria as required by the HHS Guidelines 
and provide the numerical value that supports the invalid result, where 
appropriate, such as pH.
    (d) As a laboratory, you must report the reason a test result is 
invalid.

[73 FR 35970, June 25, 2008]



Sec. 40.97  What do laboratories report and how do they report it?

    (a) As a laboratory, you must report the results for each primary 
specimen. The result of a primary specimen will fall into one of the 
following three categories. However, as a laboratory, you must report 
the actual results (and not the categories):
    (1) Category 1: Negative Results. As a laboratory, when you find a 
specimen to be negative, you must report the test result as being one of 
the following, as appropriate:
    (i) Negative, or
    (ii) Negative-dilute, with numerical values for creatinine and 
specific gravity.
    (2) Category 2: Non-negative Results. As a laboratory, when you find 
a specimen to be non-negative, you must report the test result as being 
one or more of the following, as appropriate:
    (i) Positive, with drug(s)/metabolite(s) noted;
    (ii) Positive-dilute, with drug(s)/ metabolite(s) noted, with 
numerical values for creatinine and specific gravity;
    (iii) Adulterated, with adulterant(s) noted, with confirmatory test 
values (when applicable), and with remark(s);
    (iv) Substituted, with confirmatory test values for creatinine and 
specific gravity; or
    (v) Invalid result, with remark(s). Laboratories will report actual 
values for pH results.
    (3) Category 3: Rejected for Testing. As a laboratory, when you 
reject a specimen for testing, you must report the result as being 
Rejected for Testing, with remark(s).
    (b) As a laboratory, you must report laboratory results directly, 
and only, to the MRO at his or her place of business. You must not 
report results to or through the DER or a service agent (e.g., C/TPA).
    (1) Negative results: You must fax, courier, mail, or electronically 
transmit a legible image or copy of the fully-completed Copy 1 of the 
CCF which has been signed by the certifying scientist, or you may 
provide the laboratory results report electronically (i.e., computer 
data file).
    (i) If you elect to provide the laboratory results report, you must 
include the following elements, as a minimum, in the report format:
    (A) Laboratory name and address;
    (B) Employer's name (you may include I.D. or account number);
    (C) Medical review officer's name;
    (D) Specimen I.D. number;
    (E) Donor's SSN or employee I.D. number, if provided;
    (F) Reason for test, if provided;
    (G) Collector's name and telephone number;
    (H) Date of the collection;
    (I) Date received at the laboratory;
    (J) Date certifying scientist released the results;
    (K) Certifying scientist's name;
    (L) Results (e.g., positive, adulterated) as listed in paragraph (a) 
of this section; and
    (M) Remarks section, with an explanation of any situation in which a 
correctable flaw has been corrected.
    (ii) You may release the laboratory results report only after review 
and approval by the certifying scientist. It must reflect the same test 
result information as contained on the CCF signed by the certifying 
scientist. The information contained in the laboratory results report 
may not contain information that does not appear on the CCF.
    (iii) The results report may be transmitted through any means that 
ensures accuracy and confidentiality. You, as the laboratory, together 
with the MRO, must ensure that the information is adequately protected 
from unauthorized access or release, both during transmission and in 
storage.

[[Page 546]]

    (2) Non-negative and Rejected for Testing results: You must fax, 
courier, mail, or electronically transmit a legible image or copy of the 
fully-completed Copy 1 of the CCF that has been signed by the certifying 
scientist. In addition, you may provide the electronic laboratory 
results report following the format and procedures set forth in 
paragraphs (b)(1)(i) and (ii) of this section.
    (c) In transmitting laboratory results to the MRO, you, as the 
laboratory, together with the MRO, must ensure that the information is 
adequately protected from unauthorized access or release, both during 
transmission and in storage. If the results are provided by fax, the fax 
connection must have a fixed telephone number accessible only to 
authorized individuals.
    (d) You must transmit test results to the MRO in a timely manner, 
preferably the same day that review by the certifying scientist is 
completed.
    (e)(1) You must provide quantitative values for confirmed positive 
drug test results to the MRO when the MRO requests you to do so in 
writing. The MRO's request may be either a general request covering all 
such results you send to the MRO or a specific case-by-case request.
    (2) You must provide the numerical values that support the 
adulterated (when applicable) or substituted result, without a request 
from the MRO.
    (3) You must also provide to the MRO numerical values for creatinine 
and specific gravity for the negative-dilute test result, without a 
request from the MRO.
    (f) You must provide quantitative values for confirmed opiate 
results for morphine or codeine at 15,000 ng/mL or above, even if the 
MRO has not requested quantitative values for the test result.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001; 68 
FR 31626, May 28, 2003; 69 FR 64867, Nov. 9, 2004; 73 FR 35970, June 25, 
2008]



Sec. 40.99  How long does the laboratory retain specimens after testing?

    (a) As a laboratory testing the primary specimen, you must retain a 
specimen that was reported with positive, adulterated, substituted, or 
invalid results for a minimum of one year.
    (b) You must keep such a specimen in secure, long-term, frozen 
storage in accordance with HHS requirements.
    (c) Within the one-year period, the MRO, the employee, the employer, 
or a DOT agency may request in writing that you retain a specimen for an 
additional period of time (e.g., for the purpose of preserving evidence 
for litigation or a safety investigation). If you receive such a 
request, you must comply with it. If you do not receive such a request, 
you may discard the specimen at the end of the year.
    (d) If you have not sent the split specimen to another laboratory 
for testing, you must retain the split specimen for an employee's test 
for the same period of time that you retain the primary specimen and 
under the same storage conditions.
    (e) As the laboratory testing the split specimen, you must meet the 
requirements of paragraphs (a) through (d) of this section with respect 
to the split specimen.



Sec. 40.101  What relationship may a laboratory have with an MRO?

    (a) As a laboratory, you may not enter into any relationship with an 
MRO that creates a conflict of interest or the appearance of a conflict 
of interest with the MRO's responsibilities for the employer. You may 
not derive any financial benefit by having an employer use a specific 
MRO.
    (b) The following are examples of relationships between laboratories 
and MROs that the Department regards as creating conflicts of interest, 
or the appearance of such conflicts. This following list of examples is 
not intended to be exclusive or exhaustive:
    (1) The laboratory employs an MRO who reviews test results produced 
by the laboratory;
    (2) The laboratory has a contract or retainer with the MRO for the 
review of test results produced by the laboratory;
    (3) The laboratory designates which MRO the employer is to use, 
gives the employer a slate of MROs from which to choose, or recommends 
certain MROs;

[[Page 547]]

    (4) The laboratory gives the employer a discount or other incentive 
to use a particular MRO;
    (5) The laboratory has its place of business co-located with that of 
an MRO or MRO staff who review test results produced by the laboratory; 
or
    (6) The laboratory permits an MRO, or an MRO's organization, to have 
a financial interest in the laboratory.



Sec. 40.103  What are the requirements for submitting blind specimens 
to a laboratory?

    (a) As an employer or C/TPA with an aggregate of 2000 or more DOT-
covered employees, you must send blind specimens to laboratories you 
use. If you have an aggregate of fewer than 2000 DOT-covered employees, 
you are not required to provide blind specimens.
    (b) To each laboratory to which you send at least 100 specimens in a 
year, you must transmit a number of blind specimens equivalent to one 
percent of the specimens you send to that laboratory, up to a maximum of 
50 blind specimens in each quarter (i.e., January-March, April-June, 
July-September, October-December). As a C/TPA, you must apply this 
percentage to the total number of DOT-covered employees' specimens you 
send to the laboratory. Your blind specimen submissions must be evenly 
spread throughout the year. The following examples illustrate how this 
requirement works:

    Example 1 to Paragraph (b). You send 2500 specimens to Lab X in Year 
1. In this case, you would send 25 blind specimens to Lab X in Year 1. 
To meet the even distribution requirement, you would send 6 in each of 
three quarters and 7 in the other.
    Example 2 to Paragraph (b). You send 2000 specimens to Lab X and 
1000 specimens to Lab Y in Year 1. In this case, you would send 20 blind 
specimens to Lab X and 10 to Lab Y in Year 1. The even distribution 
requirement would apply in a similar way to that described in Example 1.
    Example 3 to Paragraph (b). Same as Example 2, except that you also 
send 20 specimens to Lab Z. In this case, you would send blind specimens 
to Labs X and Y as in Example 2. You would not have to send any blind 
specimens to Lab Z, because you sent fewer than 100 specimens to Lab Z.
    Example 4 to Paragraph (b). You are a C/TPA sending 2000 specimens 
to Lab X in Year 1. These 2000 specimens represent 200 small employers 
who have an average of 10 covered employees each. In this case you--not 
the individual employers--send 20 blind specimens to Lab X in Year 1, 
again ensuring even distribution. The individual employers you represent 
are not required to provide any blind specimens on their own.
    Example 5 to Paragraph (b). You are a large C/TPA that sends 40,000 
specimens to Lab Y in Year 1. One percent of that figure is 400. 
However, the 50 blind specimen per quarter ``cap'' means that you need 
send only 50 blind specimens per quarter, rather than the 100 per 
quarter you would have to send to meet the one percent rate. Your annual 
total would be 200, rather than 400, blind specimens.

    (c) Approximately 75 percent of the specimens you submit must be 
negative (i.e., containing no drugs, nor adulterated or substituted). 
Approximately 15 percent must be positive for one or more of the five 
drugs involved in DOT tests, and approximately 10 percent must either be 
adulterated with a substance cited in HHS guidance or substituted (i.e., 
having specific gravity and creatinine meeting the criteria of Sec. 
40.93(b)).
    (1) All negative, positive, adulterated, and substituted blind 
specimens you submit must be certified by the supplier and must have 
supplier-provided expiration dates.
    (2) Negative specimens must be certified by immunoassay and GC/MS to 
contain no drugs.
    (3) Drug positive blind specimens must be certified by immunoassay 
and GC/MS to contain a drug(s)/ metabolite(s) between 1.5 and 2 times 
the initial drug test cutoff concentration.
    (4) Adulterated blind specimens must be certified to be adulterated 
with a specific adulterant using appropriate confirmatory validity 
test(s).
    (5) Substituted blind specimens must be certified for creatinine 
concentration and specific gravity to satisfy the criteria for a 
substituted specimen using confirmatory creatinine and specific gravity 
tests, respectively.
    (d) You must ensure that each blind specimen is indistinguishable to 
the laboratory from a normal specimen.
    (1) You must submit blind specimens to the laboratory using the same 
channels (e.g., via a regular collection site) through which employees' 
specimens are sent to the laboratory.

[[Page 548]]

    (2) You must ensure that the collector uses a CCF, places fictional 
initials on the specimen bottle label/seal, indicates for the MRO on 
Copy 2 that the specimen is a blind specimen, and discards Copies 4 and 
5 (employer and employee copies).
    (3) You must ensure that all blind specimens include split 
specimens.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35971, June 25, 2008]



Sec. 40.105  What happens if the laboratory reports a result different
from that expected for a blind specimen?

    (a) If you are an employer, MRO, or C/TPA who submits a blind 
specimen, and if the result reported to the MRO is different from the 
result expected, you must investigate the discrepancy.
    (b) If the unexpected result is a false negative, you must provide 
the laboratory with the expected results (obtained from the supplier of 
the blind specimen), and direct the laboratory to determine the reason 
for the discrepancy.
    (c) If the unexpected result is a false positive, adulterated, or 
substituted result, you must provide the laboratory with the expected 
results (obtained from the supplier of the blind specimen), and direct 
the laboratory to determine the reason for the discrepancy. You must 
also notify ODAPC of the discrepancy by telephone (202-366-3784) or e-
mail (addresses are listed on the ODAPC Web site, http://www.dot.gov/
ost/dapc). ODAPC will notify HHS who will take appropriate action.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35971, June 25, 2008]



Sec. 40.107  Who may inspect laboratories?

    As a laboratory, you must permit an inspection, with or without 
prior notice, by ODAPC, a DOT agency, or a DOT-regulated employer that 
contracts with the laboratory for drug testing under the DOT drug 
testing program, or the designee of such an employer.



Sec. 40.109  What documentation must the laboratory keep, and for
how long?

    (a) As a laboratory, you must retain all records pertaining to each 
employee urine specimen for a minimum of two years.
    (b) As a laboratory, you must also keep for two years employer-
specific data required in Sec. 40.111.
    (c) Within the two-year period, the MRO, the employee, the employer, 
or a DOT agency may request in writing that you retain the records for 
an additional period of time (e.g., for the purpose of preserving 
evidence for litigation or a safety investigation). If you receive such 
a request, you must comply with it. If you do not receive such a 
request, you may discard the records at the end of the two-year period.



Sec. 40.111  When and how must a laboratory disclose statistical 
summaries and other information it maintains?

    (a) As a laboratory, you must transmit an aggregate statistical 
summary, by employer, of the data listed in Appendix B to this part to 
the employer on a semi-annual basis.
    (1) The summary must not reveal the identity of any employee.
    (2) In order to avoid sending data from which it is likely that 
information about an employee's test result can be readily inferred, you 
must not send a summary if the employer has fewer than five aggregate 
tests results.
    (3) The summary must be sent by January 20 of each year for July 1 
through December 31 of the prior year.
    (4) The summary must also be sent by July 20 of each year for 
January 1 through June 30 of the current year.
    (b) When the employer requests a summary in response to an 
inspection, audit, or review by a DOT agency, you must provide it unless 
the employer had fewer than five aggregate test results. In that case, 
you must send the employer a report indicating that not enough testing 
was conducted to warrant a summary. You may transmit the summary or 
report by hard copy, fax, or other electronic means.
    (c) You must also release information to appropriate parties as 
provided in Sec. Sec. 40.329 and 40.331.
    (d) As a laboratory, you must transmit an aggregate statistical 
summary of the data listed in Appendix C to this part to DOT on a semi-
annual basis. The summary must be sent by January 31 of each year for 
July 1 through December 31 of the prior year; it must be

[[Page 549]]

sent by July 31 of each year for January 1 through June 30 of the 
current year.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35971, June 25, 2008]



Sec. 40.113  Where is other information concerning laboratories 
found in this regulation?

    You can find more information concerning laboratories in several 
sections of this part:

Sec. 40.3--Definition.
Sec. 40.13--Prohibition on making specimens available for other 
          purposes.
Sec. 40.31--Conflicts of interest concerning collectors.
Sec. 40.47--Laboratory rejections of test for improper form.
Sec. 40.125--Conflicts of interest concerning MROs.
Sec. 40.175--Role of first laboratory in split specimen tests.
Sec. 40.177--Role of second laboratory in split specimen tests (drugs).
Sec. 40.179--Role of second laboratory in split specimen tests 
          (adulterants).
Sec. 40.181--Role of second laboratory in split specimen tests 
          (substitution).
Sec. Sec. 40.183-40.185--Transmission of split specimen test results to 
          MRO.
Sec. Sec. 40.201-40.205--Role in correcting errors.
Sec. 40.329--Release of information to employees.
Sec. 40.331--Limits on release of information.
Sec. 40.355--Role with respect to other service agents.



     Subpart G_Medical Review Officers and the Verification Process



Sec. 40.121  Who is qualified to act as an MRO?

    To be qualified to act as an MRO in the DOT drug testing program, 
you must meet each of the requirements of this section:
    (a) Credentials. You must be a licensed physician (Doctor of 
Medicine or Osteopathy). If you are a licensed physician in any U.S., 
Canadian, or Mexican jurisdiction and meet the other requirements of 
this section, you are authorized to perform MRO services with respect to 
all covered employees, wherever they are located. For example, if you 
are licensed as an M.D. in one state or province in the U.S., Canada, or 
Mexico, you are not limited to performing MRO functions in that state or 
province, and you may perform MRO functions for employees in other 
states or provinces without becoming licensed to practice medicine in 
the other jurisdictions.
    (b) Basic knowledge. You must be knowledgeable in the following 
areas:
    (1) You must be knowledgeable about and have clinical experience in 
controlled substances abuse disorders, including detailed knowledge of 
alternative medical explanations for laboratory confirmed drug test 
results.
    (2) You must be knowledgeable about issues relating to adulterated 
and substituted specimens as well as the possible medical causes of 
specimens having an invalid result.
    (3) You must be knowledgeable about this part, the DOT MRO 
Guidelines, and the DOT agency regulations applicable to the employers 
for whom you evaluate drug test results, and you must keep current on 
any changes to these materials. The DOT MRO Guidelines document is 
available from ODAPC (Department of Transportation, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, 202-366-3784, or on the ODAPC web 
site (http://www.dot.gov/ost/dapc)).
    (c) Qualification training. You must receive qualification training 
meeting the requirements of this paragraph (c).
    (1) Qualification training must provide instruction on the following 
subjects:
    (i) Collection procedures for urine specimens;
    (ii) Chain of custody, reporting, and recordkeeping;
    (iii) Interpretation of drug and validity tests results;
    (iv) The role and responsibilities of the MRO in the DOT drug 
testing program;
    (v) The interaction with other participants in the program (e.g., 
DERs, SAPs); and
    (vi) Provisions of this part and DOT agency rules applying to 
employers for whom you review test results, including changes and 
updates to this part and DOT agency rules, guidance, interpretations, 
and policies affecting the performance of MRO functions, as well as 
issues that MROs confront in carrying out their duties under this part 
and DOT agency rules.

[[Page 550]]

    (2) Following your completion of qualification training under 
paragraph (c)(1) of this section, you must satisfactorily complete an 
examination administered by a nationally-recognized MRO certification 
board or subspecialty board for medical practitioners in the field of 
medical review of DOT-mandated drug tests. The examination must 
comprehensively cover all the elements of qualification training listed 
in paragraph (c)(1) of this section.
    (3) The following is the schedule for qualification training you 
must meet:
    (i) If you became an MRO before August 1, 2001, and have already met 
the qualification training requirement, you do not have to meet it 
again.
    (ii) If you became an MRO before August 1, 2001, but have not yet 
met the qualification training requirement, you must do so no later than 
January 31, 2003.
    (iii) If you become an MRO on or after August 1, 2001, you must meet 
the qualification training requirement before you begin to perform MRO 
functions.
    (d) Continuing Education. During each three-year period from the 
date on which you satisfactorily complete the examination under 
paragraph (c)(2) of this section, you must complete continuing education 
consisting of at least 12 professional development hours (e.g., 
Continuing Education Medical Units) relevant to performing MRO 
functions.
    (1) This continuing education must include material concerning new 
technologies, interpretations, recent guidance, rule changes, and other 
information about developments in MRO practice, pertaining to the DOT 
program, since the time you met the qualification training requirements 
of this section.
    (2) Your continuing education activities must include assessment 
tools to assist you in determining whether you have adequately learned 
the material.
    (3) If you are an MRO who completed the qualification training and 
examination requirements prior to August 1, 2001, you must complete your 
first increment of 12 CEU hours before August 1, 2004.
    (e) Documentation. You must maintain documentation showing that you 
currently meet all requirements of this section. You must provide this 
documentation on request to DOT agency representatives and to employers 
and C/TPAs who are using or negotiating to use your services.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001]



Sec. 40.123  What are the MRO's responsibilities in the DOT drug
testing program?

    As an MRO, you have the following basic responsibilities:
    (a) Acting as an independent and impartial ``gatekeeper'' and 
advocate for the accuracy and integrity of the drug testing process.
    (b) Providing a quality assurance review of the drug testing process 
for the specimens under your purview. This includes, but is not limited 
to:
    (1) Ensuring the review of the CCF on all specimen collections for 
the purposes of determining whether there is a problem that may cause a 
test to be cancelled (see Sec. Sec. 40.199-40.203 ). As an MRO, you are 
not required to review laboratory internal chain of custody 
documentation. No one is permitted to cancel a test because you have not 
reviewed this documentation;
    (2) Providing feedback to employers, collection sites and 
laboratories regarding performance issues where necessary; and
    (3) Reporting to and consulting with the ODAPC or a relevant DOT 
agency when you wish DOT assistance in resolving any program issue. As 
an employer or service agent, you are prohibited from limiting or 
attempting to limit the MRO's access to DOT for this purpose and from 
retaliating in any way against an MRO for discussing drug testing issues 
with DOT.
    (c) You must determine whether there is a legitimate medical 
explanation for confirmed positive, adulterated, substituted, and 
invalid drug tests results from the laboratory.
    (d) While you provide medical review of employees' test results, 
this part does not deem that you have established a doctor-patient 
relationship with the employees whose tests you review.
    (e) You must act to investigate and correct problems where possible 
and notify appropriate parties (e.g., HHS,

[[Page 551]]

DOT, employers, service agents) where assistance is needed, (e.g., 
cancelled or problematic tests, incorrect results, problems with blind 
specimens).
    (f) You must ensure the timely flow of test results and other 
information to employers.
    (g) You must protect the confidentiality of the drug testing 
information.
    (h) You must perform all your functions in compliance with this part 
and other DOT agency regulations.



Sec. 40.125  What relationship may an MRO have with a laboratory?

    As an MRO, you may not enter into any relationship with an 
employer's laboratory that creates a conflict of interest or the 
appearance of a conflict of interest with your responsibilities to that 
employer. You may not derive any financial benefit by having an employer 
use a specific laboratory. For examples of relationships between 
laboratories and MROs that the Department views as creating a conflict 
of interest or the appearance of such a conflict, see Sec. 40.101(b).



Sec. 40.127  What are the MRO's functions in reviewing negative test results?

    As the MRO, you must do the following with respect to negative drug 
test results you receive from a laboratory, prior to verifying the 
result and releasing it to the DER:
    (a) Review Copy 2 of the CCF to determine if there are any fatal or 
correctable errors that may require you to initiate corrective action or 
to cancel the test (see Sec. Sec. 40.199 and 40.203).
    (b) Review the negative laboratory test result and ensure that it is 
consistent with the information contained on the CCF.
    (c) Before you report a negative test result, you must have in your 
possession the following documents:
    (1) Copy 2 of the CCF, a legible copy of it, or any other CCF copy 
containing the employee's signature; and
    (2) A legible copy (fax, photocopy, image) of Copy 1 of the CCF or 
the electronic laboratory results report that conveys the negative 
laboratory test result.
    (d) If the copy of the documentation provided to you by the 
collector or laboratory appears unclear, you must request that the 
collector or laboratory send you a legible copy.
    (e) On Copy 2 of the CCF, place a check mark in the ``Negative'' box 
(Step 6), provide your name, and sign, initial, or stamp and date the 
verification statement.
    (f) Report the result in a confidential manner (see Sec. Sec. 
40.163-40.167).
    (g) Staff under your direct, personal supervision may perform the 
administrative functions of this section for you, but only you can 
cancel a test. If you cancel a laboratory-confirmed negative result, 
check the ``Test Cancelled'' box (Step 6) on Copy 2 of the CCF, make 
appropriate annotation in the ``Remarks'' line, provide your name, and 
sign, initial or stamp and date the verification statement.
    (1) On specimen results that are reviewed by your staff, you are 
responsible for assuring the quality of their work.
    (2) You are required to personally review at least 5 percent of all 
CCFs reviewed by your staff on a quarterly basis, including all results 
that required a corrective action. However, you need not review more 
than 500 negative results in any quarter.
    (3) Your review must, as a minimum, include the CCF, negative 
laboratory test result, any accompanying corrective documents, and the 
report sent to the employer. You must correct any errors that you 
discover. You must take action as necessary to ensure compliance by your 
staff with this part and document your corrective action. You must 
attest to the quality assurance review by initialing the CCFs that you 
review.
    (4) You must make these CCFs easily identifiable and retrievable by 
you for review by DOT agencies.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001]



Sec. 40.129  What are the MRO's functions in reviewing laboratory
confirmed non-negative drug test results?

    (a) As the MRO, you must do the following with respect to confirmed 
positive, adulterated, substituted, or invalid drug tests you receive 
from a laboratory, before you verify the result and release it to the 
DER:

[[Page 552]]

    (1) Review Copy 2 of the CCF to determine if there are any fatal or 
correctable errors that may require you to cancel the test (see 
Sec. Sec. 40.199 and 40.203). Staff under your direct, personal 
supervision may conduct this administrative review for you, but only you 
may verify or cancel a test.
    (2) Review Copy 1 of the CCF and ensure that it is consistent with 
the information contained on Copy 2, that the test result is legible, 
and that the certifying scientist signed the form. You are not required 
to review any other documentation generated by the laboratory during 
their analysis or handling of the specimen (e.g., the laboratory 
internal chain of custody).
    (3) If the copy of the documentation provided to you by the 
collector or laboratory appears unclear, you must request that the 
collector or laboratory send you a legible copy.
    (4) Except in the circumstances spelled out in Sec. 40.133 , 
conduct a verification interview. This interview must include direct 
contact in person or by telephone between you and the employee. You may 
initiate the verification process based on the laboratory results 
report.
    (5) Verify the test result, consistent with the requirements of 
Sec. Sec. 40.135 through 40.145, 40.159, and 40.160, as:
    (i) Negative; or
    (ii) Cancelled; or
    (iii) Positive, and/or refusal to test because of adulteration or 
substitution.
    (b) Before you report a verified negative, positive, test cancelled, 
refusal to test because of adulteration or substitution, you must have 
in your possession the following documents:
    (1) Copy 2 of the CCF, a legible copy of it, or any other CCF copy 
containing the employee's signature; and
    (2) A legible copy (fax, photocopy, image) of Copy 1 of the CCF, 
containing the certifying scientist's signature.
    (c) With respect to verified positive test results, place a check 
mark in the ``Positive'' box (Step 6) on Copy 2 of the CCF, indicate the 
drug(s)/ metabolite(s) detected on the ``Remarks'' line, sign and date 
the verification statement.
    (d) If you cancel a laboratory confirmed positive, adulterated, 
substituted, or invalid drug test report, check the ``test cancelled'' 
box (Step 6) on Copy 2 of the CCF, make appropriate annotation in the 
``Remarks'' line, sign, provide your name, and date the verification 
statement.
    (e) Report the result in a confidential manner (see Sec. Sec. 
40.163-40.167 ).
    (f) With respect to adulteration or substitution test results, check 
the ``refusal to test because:'' box (Step 6) on Copy 2 of the CCF, 
check the ``Adulterated'' or ``Substituted'' box, as appropriate, make 
appropriate annotation in the ``Remarks'' line, sign and date the 
verification statement.
    (g) As the MRO, your actions concerning reporting confirmed 
positive, adulterated, or substituted results to the employer before you 
have completed the verification process are also governed by the stand-
down provisions of Sec. 40.21 .
    (1) If an employer has a stand-down policy that meets the 
requirements of Sec. 40.21 , you may report to the DER that you have 
received an employee's laboratory confirmed positive, adulterated, or 
substituted test result, consistent with the terms of the waiver the 
employer received. You must not provide any further details about the 
test result (e.g., the name of the drug involved).
    (2) If the employer does not have a stand-down policy that meets the 
requirements of Sec. 40.21 , you must not inform the employer that you 
have received an employee's laboratory confirmed positive, adulterated, 
or substituted test result until you verify the test result. For 
example, as an MRO employed directly by a company, you must not tell 
anyone on the company's staff or management that you have received an 
employee's laboratory confirmed test result.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 73 
FR 35971, June 25, 2008]

[[Page 553]]



Sec. 40.131  How does the MRO or DER notify an employee of the 
verification process after receiving laboratory confirmed non-negative

drug test results?

    (a) When, as the MRO, you receive a confirmed positive, adulterated, 
substituted, or invalid test result from the laboratory, you must 
contact the employee directly (i.e., actually talk to the employee), on 
a confidential basis, to determine whether the employee wants to discuss 
the test result. In making this contact, you must explain to the 
employee that, if he or she declines to discuss the result, you will 
verify the test as positive or as a refusal to test because of 
adulteration or substitution, as applicable.
    (b) As the MRO, staff under your personal supervision may conduct 
this initial contact for you.
    (1) This staff contact must be limited to scheduling the discussion 
between you and the employee and explaining the consequences of the 
employee's declining to speak with you (i.e., that the MRO will verify 
the test without input from the employee). If the employee declines to 
speak with you, the staff person must document the employee's decision, 
including the date and time.
    (2) A staff person must not gather any medical information or 
information concerning possible explanations for the test result.
    (3) A staff person may advise an employee to have medical 
information (e.g., prescriptions, information forming the basis of a 
legitimate medical explanation for a confirmed positive test result) 
ready to present at the interview with the MRO.
    (4) Since you are required to speak personally with the employee, 
face-to-face or on the phone, your staff must not inquire if the 
employee wishes to speak with you.
    (c) As the MRO, you or your staff must make reasonable efforts to 
reach the employee at the day and evening telephone numbers listed on 
the CCF. Reasonable efforts include, as a minimum, three attempts, 
spaced reasonably over a 24-hour period, to reach the employee at the 
day and evening telephone numbers listed on the CCF. If you or your 
staff cannot reach the employee directly after making these efforts, you 
or your staff must take the following steps:
    (1) Document the efforts you made to contact the employee, including 
dates and times. If both phone numbers are incorrect (e.g., 
disconnected, wrong number), you may take the actions listed in 
paragraph (c)(2) of this section without waiting the full 24-hour 
period.
    (2) Contact the DER, instructing the DER to contact the employee.
    (i) You must simply direct the DER to inform the employee to contact 
you.
    (ii) You must not inform the DER that the employee has a confirmed 
positive, adulterated, substituted, or invalid test result.
    (iii) You must document the dates and times of your attempts to 
contact the DER, and you must document the name of the DER you contacted 
and the date and time of the contact.
    (d) As the DER, you must attempt to contact the employee 
immediately, using procedures that protect, as much as possible, the 
confidentiality of the MRO's request that the employee contact the MRO. 
If you successfully contact the employee (i.e., actually talk to the 
employee), you must document the date and time of the contact, and 
inform the MRO. You must inform the employee that he or she should 
contact the MRO immediately. You must also inform the employee of the 
consequences of failing to contact the MRO within the next 72 hours (see 
Sec. 40.133(a)(2)).
    (1) As the DER, you must not inform anyone else working for the 
employer that you are seeking to contact the employee on behalf of the 
MRO.
    (2) If, as the DER, you have made all reasonable efforts to contact 
the employee but failed to do so, you may place the employee on 
temporary medically unqualified status or medical leave. Reasonable 
efforts include, as a minimum, three attempts, spaced reasonably over a 
24-hour period, to reach the employee at the day and evening telephone 
numbers listed on the CCF.
    (i) As the DER, you must document the dates and times of these 
efforts.
    (ii) If, as the DER, you are unable to contact the employee within 
this 24-hour period, you must leave a message for the employee by any 
practicable means (e.g., voice mail, e-mail, letter)

[[Page 554]]

to contact the MRO and inform the MRO of the date and time of this 
attempted contact.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 68 
FR 31626, May 28, 2003; 69 FR 64867, Nov. 9, 2004]



Sec. 40.133  Without interviewing the employee, under what circumstances 
may the MRO verify a test result as positive, or as a refusal to 

test because of adulteration or substitution, or as cancelled 
because the test  was invalid?

    (a) As the MRO, you normally may verify a confirmed positive test 
(for any drug or drug metabolite, including opiates), or as a refusal to 
test because of adulteration or substitution, only after interviewing 
the employee as provided in Sec. Sec. 40.135-40.145 . However, there 
are three circumstances in which you may verify such a result without an 
interview:
    (1) You may verify a test result as a positive or refusal to test, 
as applicable, if the employee expressly declines the opportunity to 
discuss the test with you. You must maintain complete documentation of 
this occurrence, including notation of informing, or attempting to 
inform, the employee of the consequences of not exercising the option to 
speak with the you.
    (2) You may verify a test result as a positive or refusal to test, 
as applicable, if the DER has successfully made and documented a contact 
with the employee and instructed the employee to contact you and more 
than 72 hours have passed since the time the DER contacted the employee.
    (3) You may verify a test result as a positive or refusal to test, 
as applicable, if neither you nor the DER, after making and documenting 
all reasonable efforts, has been able to contact the employee within ten 
days of the date on which the MRO receives the confirmed test result 
from the laboratory.
    (b) As the MRO, you may verify an invalid test result as cancelled 
(with instructions to recollect immediately under direct observation) 
without interviewing the employee, as provided at Sec. 40.159:
    (1) If the employee expressly declines the opportunity to discuss 
the test with you;
    (2) If the DER has successfully made and documented a contact with 
the employee and instructed the employee to contact you and more than 72 
hours have passed since the time the DER contacted the employee; or
    (3) If neither you nor the DER, after making and documenting all 
reasonable efforts, has been able to contact the employee within ten 
days of the date on which you received the confirmed invalid test result 
from the laboratory.
    (c) As the MRO, after you verify a test result as a positive or as a 
refusal to test under this section, you must document the date and time 
and reason, following the instructions in Sec. 40.163. For a cancelled 
test due to an invalid result under this section, you must follow the 
instructions in Sec. 40.159(a)(5).
    (d) As the MRO, after you have verified a test result under this 
section and reported the result to the DER, you must allow the employee 
to present information to you within 60 days of the verification to 
document that serious illness, injury, or other circumstances 
unavoidably precluded contact with the MRO and/or DER in the times 
provided. On the basis of such information, you may reopen the 
verification, allowing the employee to present information concerning 
whether there is a legitimate medical explanation of the confirmed test 
result.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35971, June 25, 2008]



Sec. 40.135  What does the MRO tell the employee at the beginning of 
the verification interview?

    (a) As the MRO, you must tell the employee that the laboratory has 
determined that the employee's test result was positive, adulterated, 
substituted, or invalid, as applicable. You must also tell the employee 
of the drugs for which his or her specimen tested positive, or the basis 
for the finding of adulteration or substitution.
    (b) You must explain the verification interview process to the 
employee and inform the employee that your decision will be based on 
information the employee provides in the interview.
    (c) You must explain that, if further medical evaluation is needed 
for the

[[Page 555]]

verification process, the employee must comply with your request for 
this evaluation and that failure to do so is equivalent of expressly 
declining to discuss the test result.
    (d) As the MRO, you must warn an employee who has a confirmed 
positive, adulterated, substituted or invalid test that you are required 
to provide to third parties drug test result information and medical 
information affecting the performance of safety-sensitive duties that 
the employee gives you in the verification process without the 
employee's consent (see Sec. 40.327).
    (1) You must give this warning to the employee before obtaining any 
medical information as part of the verification process.
    (2) For purposes of this paragraph (d), medical information includes 
information on medications or other substances affecting the performance 
of safety-sensitive duties that the employee reports using or medical 
conditions the employee reports having.
    (3) For purposes of this paragraph (d), the persons to whom this 
information may be provided include the employer, a SAP evaluating the 
employee as part of the return to duty process (see Sec. 40.293(g)), 
DOT, another Federal safety agency (e.g., the NTSB), or any state safety 
agency as required by state law.
    (e) You must also advise the employee that, after informing any 
third party about any medication the employee is using pursuant to a 
legally valid prescription under the Controlled Substances Act, you will 
allow 5 days for the employee to have the prescribing physician contact 
you to determine if the medication can be changed to one that does not 
make the employee medically unqualified or does not pose a significant 
safety risk. If, as an MRO, you receive such information from the 
prescribing physician, you must transmit this information to any third 
party to whom you previously provided information about the safety risks 
of the employee's other medication.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001]



Sec. 40.137  On what basis does the MRO verify test results involving
marijuana, cocaine, amphetamines, or PCP?

    (a) As the MRO, you must verify a confirmed positive test result for 
marijuana, cocaine, amphetamines, and/or PCP unless the employee 
presents a legitimate medical explanation for the presence of the 
drug(s)/metabolite(s) in his or her system.
    (b) You must offer the employee an opportunity to present a 
legitimate medical explanation in all cases.
    (c) The employee has the burden of proof that a legitimate medical 
explanation exists. The employee must present information meeting this 
burden at the time of the verification interview. As the MRO, you have 
discretion to extend the time available to the employee for this purpose 
for up to five days before verifying the test result, if you determine 
that there is a reasonable basis to believe that the employee will be 
able to produce relevant evidence concerning a legitimate medical 
explanation within that time.
    (d) If you determine that there is a legitimate medical explanation, 
you must verify the test result as negative. Otherwise, you must verify 
the test result as positive.
    (e) In determining whether a legitimate medical explanation exists, 
you may consider the employee's use of a medication from a foreign 
country. You must exercise your professional judgment consistently with 
the following principles:
    (1) There can be a legitimate medical explanation only with respect 
to a substance that is obtained legally in a foreign country.
    (2) There can be a legitimate medical explanation only with respect 
to a substance that has a legitimate medical use. Use of a drug of abuse 
(e.g., heroin, PCP, marijuana) or any other substance (see Sec. 
40.151(f) and (g)) that cannot be viewed as having a legitimate medical 
use can never be the basis for a legitimate medical explanation, even if 
the substance is obtained legally in a foreign country.
    (3) Use of the substance can form the basis of a legitimate medical 
explanation only if it is used consistently

[[Page 556]]

with its proper and intended medical purpose.
    (4) Even if you find that there is a legitimate medical explanation 
under this paragraph (e) and verify a test negative, you may have a 
responsibility to raise fitness-for-duty considerations with the 
employer (see Sec. 40.327).



Sec. 40.139  On what basis does the MRO verify test results involving 
opiates?

    As the MRO, you must proceed as follows when you receive a 
laboratory confirmed positive opiate result:
    (a) If the laboratory detects the presence of 6-acetylmorphine (6-
AM) in the specimen, you must verify the test result positive.
    (b) In the absence of 6-AM, if the laboratory detects the presence 
of either morphine or codeine at 15,000 ng/mL or above, you must verify 
the test result positive unless the employee presents a legitimate 
medical explanation for the presence of the drug or drug metabolite in 
his or her system, as in the case of other drugs (see Sec. 40.137). 
Consumption of food products (e.g., poppy seeds) must not be considered 
a legitimate medical explanation for the employee having morphine or 
codeine at these concentrations.
    (c) For all other opiate positive results, you must verify a 
confirmed positive test result for opiates only if you determine that 
there is clinical evidence, in addition to the urine test, of 
unauthorized use of any opium, opiate, or opium derivative (i.e., 
morphine, heroin, or codeine).
    (1) As an MRO, it is your responsibility to use your best 
professional and ethical judgement and discretion to determine whether 
there is clinical evidence of unauthorized use of opiates. Examples of 
information that you may consider in making this judgement include, but 
are not limited to, the following:
    (i) Recent needle tracks;
    (ii) Behavioral and psychological signs of acute opiate intoxication 
or withdrawal;
    (iii) Clinical history of unauthorized use recent enough to have 
produced the laboratory test result;
    (iv) Use of a medication from a foreign country. See Sec. 40.137(e) 
for guidance on how to make this determination.
    (2) In order to establish the clinical evidence referenced in 
paragraphs (c)(1)(i) and (ii) of this section, personal observation of 
the employee is essential.
    (i) Therefore, you, as the MRO, must conduct, or cause another 
physician to conduct, a face-to-face examination of the employee.
    (ii) No face-to-face examination is needed in establishing the 
clinical evidence referenced in paragraph (c)(1)(iii) or (iv) of this 
section.
    (3) To be the basis of a verified positive result for opiates, the 
clinical evidence you find must concern a drug that the laboratory found 
in the specimen. (For example, if the test confirmed the presence of 
codeine, and the employee admits to unauthorized use of hydrocodone, you 
do not have grounds for verifying the test positive. The admission must 
be for the substance that was found).
    (4) As the MRO, you have the burden of establishing that there is 
clinical evidence of unauthorized use of opiates referenced in this 
paragraph (c). If you cannot make this determination (e.g., there is not 
sufficient clinical evidence or history), you must verify the test as 
negative. The employee does not need to show you that a legitimate 
medical explanation exists if no clinical evidence is established.



Sec. 40.141  How does the MRO obtain information for the verification
decision?

    As the MRO, you must do the following as you make the determinations 
needed for a verification decision:
    (a) You must conduct a medical interview. You must review the 
employee's medical history and any other relevant biomedical factors 
presented to you by the employee. You may direct the employee to undergo 
further medical evaluation by you or another physician.
    (b) If the employee asserts that the presence of a drug or drug 
metabolite in his or her specimen results from taking prescription 
medication, you must review and take all reasonable

[[Page 557]]

and necessary steps to verify the authenticity of all medical records 
the employee provides. You may contact the employee's physician or other 
relevant medical personnel for further information.



Sec. 40.143  [Reserved]



Sec. 40.145  On what basis does the MRO verify test results involving 
adulteration or substitution?

    (a) As an MRO, when you receive a laboratory report that a specimen 
is adulterated or substituted, you must treat that report in the same 
way you treat the laboratory's report of a confirmed positive for a drug 
or drug metabolite.
    (b) You must follow the same procedures used for verification of a 
confirmed positive test for a drug or drug metabolite (see Sec. Sec. 
40.129-40.135, 40.141, 40.151), except as otherwise provided in this 
section.
    (c) In the verification interview, you must explain the laboratory 
findings to the employee and address technical questions or issues the 
employee may raise.
    (d) You must offer the employee the opportunity to present a 
legitimate medical explanation for the laboratory findings with respect 
to presence of the adulterant in, or the creatinine and specific gravity 
findings for, the specimen.
    (e) The employee has the burden of proof that there is a legitimate 
medical explanation.
    (1) To meet this burden in the case of an adulterated specimen, the 
employee must demonstrate that the adulterant found by the laboratory 
entered the specimen through physiological means.
    (2) To meet this burden in the case of a substituted specimen, the 
employee must demonstrate that he or she did produce or could have 
produced urine through physiological means, meeting the creatinine 
concentration criterion of less than 2 mg/dL and the specific gravity 
criteria of less than or equal to 1.0010 or greater than or equal to 
1.0200 (see Sec. 40.93(b)).
    (3) The employee must present information meeting this burden at the 
time of the verification interview. As the MRO, you have discretion to 
extend the time available to the employee for this purpose for up to 
five days before verifying the specimen, if you determine that there is 
a reasonable basis to believe that the employee will be able to produce 
relevant evidence supporting a legitimate medical explanation within 
that time.
    (f) As the MRO or the employer, you are not responsible for 
arranging, conducting, or paying for any studies, examinations or 
analyses to determine whether a legitimate medical explanation exists.
    (g) As the MRO, you must exercise your best professional judgment in 
deciding whether the employee has established a legitimate medical 
explanation.
    (1) If you determine that the employee's explanation does not 
present a reasonable basis for concluding that there may be a legitimate 
medical explanation, you must report the test to the DER as a verified 
refusal to test because of adulteration or substitution, as applicable.
    (2) If you believe that the employee's explanation may present a 
reasonable basis for concluding that there is a legitimate medical 
explanation, you must direct the employee to obtain, within the five-day 
period set forth in paragraph (e)(3) of this section, a further medical 
evaluation. This evaluation must be performed by a licensed physician 
(the ``referral physician''), acceptable to you, with expertise in the 
medical issues raised by the employee's explanation. (The MRO may 
perform this evaluation if the MRO has appropriate expertise.)
    (i) As the MRO or employer, you are not responsible for finding or 
paying a referral physician. However, on request of the employee, you 
must provide reasonable assistance to the employee's efforts to find 
such a physician. The final choice of the referral physician is the 
employee's, as long as the physician is acceptable to you.
    (ii) As the MRO, you must consult with the referral physician, 
providing guidance to him or her concerning his or her responsibilities 
under this section. As part of this consultation, you must provide the 
following information to the referral physician:

[[Page 558]]

    (A) That the employee was required to take a DOT drug test, but the 
laboratory reported that the specimen was adulterated or substituted, 
which is treated as a refusal to test;
    (B) The consequences of the appropriate DOT agency regulation for 
refusing to take the required drug test;
    (C) That the referral physician must agree to follow the 
requirements of paragraphs (g)(3) through (g)(4) of this section; and
    (D) That the referral physician must provide you with a signed 
statement of his or her recommendations.
    (3) As the referral physician, you must evaluate the employee and 
consider any evidence the employee presents concerning the employee's 
medical explanation. You may conduct additional tests to determine 
whether there is a legitimate medical explanation. Any additional urine 
tests must be performed in an HHS-certified laboratory.
    (4) As the referral physician, you must then make a written 
recommendation to the MRO about whether the MRO should determine that 
there is a legitimate medical explanation. As the MRO, you must 
seriously consider and assess the referral physician's recommendation in 
deciding whether there is a legitimate medical explanation.
    (5) As the MRO, if you determine that there is a legitimate medical 
explanation, you must cancel the test and inform ODAPC in writing of the 
determination and the basis for it (e.g., referral physician's findings, 
evidence produced by the employee).
    (6) As the MRO, if you determine that there is not a legitimate 
medical explanation, you must report the test to the DER as a verified 
refusal to test because of adulteration or substitution.
    (h) The following are examples of types of evidence an employee 
could present to support an assertion of a legitimate medical 
explanation for a substituted result.
    (1) Medically valid evidence demonstrating that the employee is 
capable of physiologically producing urine meeting the creatinine and 
specific gravity criteria of Sec. 40.93(b).
    (i) To be regarded as medically valid, the evidence must have been 
gathered using appropriate methodology and controls to ensure its 
accuracy and reliability.
    (ii) Assertion by the employee that his or her personal 
characteristics (e.g., with respect to race, gender, weight, diet, 
working conditions) are responsible for the substituted result does not, 
in itself, constitute a legitimate medical explanation. To make a case 
that there is a legitimate medical explanation, the employee must 
present evidence showing that the cited personal characteristics 
actually result in the physiological production of urine meeting the 
creatinine and specific gravity criteria of Sec. 40.93(b).
    (2) Information from a medical evaluation under paragraph (g) of 
this section that the individual has a medical condition that has been 
demonstrated to cause the employee to physiologically produce urine 
meeting the creatinine and specific gravity criteria of Sec. 40.93(b).
    (i) A finding or diagnosis by the physician that an employee has a 
medical condition, in itself, does not constitute a legitimate medical 
explanation.
    (ii) To establish there is a legitimate medical explanation, the 
employee must demonstrate that the cited medical condition actually 
results in the physiological production of urine meeting the creatinine 
and specific gravity criteria of Sec. 40.93(b).

[65 FR 79526, Dec. 19, 2000, as amended at 68 FR 31626, May 28, 2003; 69 
FR 64867, Nov. 9, 2004]



Sec. 40.147  [Reserved]



Sec. 40.149  May the MRO change a verified drug test result?

    (a) As the MRO, you may change a verified test result only in the 
following situations:
    (1) When you have reopened a verification that was done without an 
interview with an employee (see Sec. 40.133(d)).
    (2) If you receive information, not available to you at the time of 
the original verification, demonstrating that the laboratory made an 
error in identifying (e.g., a paperwork mistake)

[[Page 559]]

or testing (e.g., a false positive or negative) the employee's primary 
or split specimen. For example, suppose the laboratory originally 
reported a positive test result for Employee X and a negative result for 
Employee Y. You verified the test results as reported to you. Then the 
laboratory notifies you that it mixed up the two test results, and X was 
really negative and Y was really positive. You would change X's test 
result from positive to negative and contact Y to conduct a verification 
interview.
    (3) If, within 60 days of the original verification decision--
    (i) You receive information that could not reasonably have been 
provided to you at the time of the decision demonstrating that there is 
a legitimate medical explanation for the presence of drug(s)/
metabolite(s) in the employee's specimen; or
    (ii) You receive credible new or additional evidence that a 
legitimate medical explanation for an adulterated or substituted result 
exists.

    Example to Paragraph (a)(3): If the employee's physician provides 
you a valid prescription that he or she failed to find at the time of 
the original verification, you may change the test result from positive 
to negative if you conclude that the prescription provides a legitimate 
medical explanation for the drug(s)/ metabolite(s) in the employee's 
specimen.

    (4) If you receive the information in paragraph (a)(3) of this 
section after the 60-day period, you must consult with ODAPC prior to 
changing the result.
    (5) When you have made an administrative error and reported an 
incorrect result.
    (b) If you change the result, you must immediately notify the DER in 
writing, as provided in Sec. Sec. 40.163-40.165.
    (c) You are the only person permitted to change a verified test 
result, such as a verified positive test result or a determination that 
an individual has refused to test because of adulteration or 
substitution. This is because, as the MRO, you have the sole authority 
under this part to make medical determinations leading to a verified 
test (e.g., a determination that there was or was not a legitimate 
medical explanation for a laboratory test result). For example, an 
arbitrator is not permitted to overturn the medical judgment of the MRO 
that the employee failed to present a legitimate medical explanation for 
a positive, adulterated, or substituted test result of his or her 
specimen.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 73 
FR 35971, June 25, 2008]



Sec. 40.151  What are MROs prohibited from doing as part of the 
verification process?

    As an MRO, you are prohibited from doing the following as part of 
the verification process:
    (a) You must not consider any evidence from tests of urine samples 
or other body fluids or tissues (e.g., blood or hair samples) that are 
not collected or tested in accordance with this part. For example, if an 
employee tells you he went to his own physician, provided a urine 
specimen, sent it to a laboratory, and received a negative test result 
or a DNA test result questioning the identity of his DOT specimen, you 
are required to ignore this test result.
    (b) It is not your function to make decisions about factual disputes 
between the employee and the collector concerning matters occurring at 
the collection site that are not reflected on the CCF (e.g., concerning 
allegations that the collector left the area or left open urine 
containers where other people could access them).
    (c) It is not your function to determine whether the employer should 
have directed that a test occur. For example, if an employee tells you 
that the employer misidentified her as the subject of a random test, or 
directed her to take a reasonable suspicion or post-accident test 
without proper grounds under a DOT agency drug or alcohol regulation, 
you must inform the employee that you cannot play a role in deciding 
these issues.
    (d) It is not your function to consider explanations of confirmed 
positive, adulterated, or substituted test results that would not, even 
if true, constitute a legitimate medical explanation. For example, an 
employee may tell you that someone slipped amphetamines into her drink 
at a party, that she unknowingly ingested a marijuana

[[Page 560]]

brownie, or that she traveled in a closed car with several people 
smoking crack. MROs are unlikely to be able to verify the facts of such 
passive or unknowing ingestion stories. Even if true, such stories do 
not present a legitimate medical explanation. Consequently, you must not 
declare a test as negative based on an explanation of this kind.
    (e) You must not verify a test negative based on information that a 
physician recommended that the employee use a drug listed in Schedule I 
of the Controlled Substances Act. (e.g., under a state law that purports 
to authorize such recommendations, such as the ``medical marijuana'' 
laws that some states have adopted).
    (f) You must not accept an assertion of consumption or other use of 
a hemp or other non-prescription marijuana-related product as a basis 
for verifying a marijuana test negative. You also must not accept such 
an explanation related to consumption of coca teas as a basis for 
verifying a cocaine test result as negative. Consuming or using such a 
product is not a legitimate medical explanation.
    (g) You must not accept an assertion that there is a legitimate 
medical explanation for the presence of PCP or 6-AM in a specimen. There 
are no legitimate medical explanations for the presence of these 
substances.
    (h) You must not accept, as a legitimate medical explanation for an 
adulterated specimen, an assertion that soap, bleach, or glutaraldehyde 
entered a specimen through physiological means. There are no 
physiological means through which these substances can enter a specimen.
    (i) You must not accept, as a legitimate medical explanation for a 
substituted specimen, an assertion that an employee can produce urine 
with no detectable creatinine. There are no physiological means through 
which a person can produce a urine specimen having this characteristic.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001]



Sec. 40.153  How does the MRO notify employees of their right to
a test of the split specimen?

    (a) As the MRO, when you have verified a drug test as positive for a 
drug or drug metabolite, or as a refusal to test because of adulteration 
or substitution, you must notify the employee of his or her right to 
have the split specimen tested. You must also notify the employee of the 
procedures for requesting a test of the split specimen.
    (b) You must inform the employee that he or she has 72 hours from 
the time you provide this notification to him or her to request a test 
of the split specimen.
    (c) You must tell the employee how to contact you to make this 
request. You must provide telephone numbers or other information that 
will allow the employee to make this request. As the MRO, you must have 
the ability to receive the employee's calls at all times during the 72 
hour period (e.g., by use of an answering machine with a ``time stamp'' 
feature when there is no one in your office to answer the phone).
    (d) You must tell the employee that if he or she makes this request 
within 72 hours, the employer must ensure that the test takes place, and 
that the employee is not required to pay for the test from his or her 
own funds before the test takes place. You must also tell the employee 
that the employer may seek reimbursement for the cost of the test (see 
Sec. 40.173 ).
    (e) You must tell the employee that additional tests of the specimen 
e.g., DNA tests) are not authorized.



Sec. 40.155  What does the MRO do when a negative or positive test result
is also dilute?

    (a) When the laboratory reports that a specimen is dilute, you must, 
as the MRO, report to the DER that the specimen, in addition to being 
negative or positive, is dilute.
    (b) You must check the ``dilute'' box (Step 6) on Copy 2 of the CCF.
    (c) When you report a dilute specimen to the DER, you must explain 
to the DER the employer's obligations and choices under Sec. 40.197, to 
include the requirement for an immediate recollection under direct 
observation if

[[Page 561]]

the creatinine concentration of a negative-dilute specimen was greater 
than or equal to 2mg/dL but less than or equal to 5mg/dL.
    (d) If the employee's recollection under direct observation, in 
paragraph (c) of this section, results in another negative-dilute, as 
the MRO, you must:
    (1) Review the CCF to ensure that there is documentation that the 
recollection was directly observed.
    (2) If the CCF documentation shows that the recollection was 
directly observed as required, report this result to the DER as a 
negative-dilute result.
    (3) If CCF documentation indicates that the recollection was not 
directly observed as required, do not report a result but again explain 
to the DER that there must be an immediate recollection under direct 
observation.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 68 
FR 31626, May 28, 2003; 69 FR 64867, Nov. 9, 2004; 73 FR 35971, June 25, 
2008]



Sec. 40.157  [Reserved]



Sec. 40.159  What does the MRO do when a drug test result is invalid?

    (a) As the MRO, when the laboratory reports that the test result is 
an invalid result, you must do the following:
    (1) Discuss the laboratory results with a certifying scientist to 
determine if the primary specimen should be tested at another HHS 
certified laboratory. If the laboratory did not contact you as required 
by Sec. Sec. 40.91(e) and 40.96(c), you must contact the laboratory.
    (2) If you and the laboratory have determined that no further 
testing is necessary, contact the employee and inform the employee that 
the specimen was invalid. In contacting the employee, use the procedures 
set forth in Sec. 40.131.
    (3) After explaining the limits of disclosure (see Sec. Sec. 
40.135(d) and 40.327), you must determine if the employee has a medical 
explanation for the invalid result. You must inquire about the 
medications the employee may have taken.
    (4) If the employee gives an explanation that is acceptable, you 
must:
    (i) Place a check mark in the ``Test Cancelled'' box (Step 6) on 
Copy 2 of the CCF and enter ``Invalid Result'' and ``direct observation 
collection not required'' on the ``Remarks'' line.
    (ii) Report to the DER that the test is cancelled, the reason for 
cancellation, and that no further action is required unless a negative 
test result is required (i.e., pre-employment, return-to-duty, or 
follow-up tests).
    (iii) If a negative test result is required and the medical 
explanation concerns a situation in which the employee has a permanent 
or long-term medical condition that precludes him or her from providing 
a valid specimen, as the MRO, you must follow the procedures outlined at 
Sec. 40.160 for determining if there is clinical evidence that the 
individual is an illicit drug user.
    (5) If the employee is unable to provide an explanation and/or a 
valid prescription for a medication that interfered with the immunoassay 
test but denies having adulterated the specimen, you must:
    (i) Place a check mark in the ``Test Cancelled'' box (Step 6) on 
Copy 2 of the CCF and enter ``Invalid Result'' and ``direct observation 
collection required'' on the ``Remarks'' line.
    (ii) Report to the DER that the test is cancelled, the reason for 
cancellation, and that a second collection must take place immediately 
under direct observation.
    (iii) Instruct the employer to ensure that the employee has the 
minimum possible advance notice that he or she must go to the collection 
site.
    (b) You may only report an invalid test result when you are in 
possession of a legible copy of Copy 1 of the CCF. In addition, you must 
have Copy 2 of the CCF, a legible copy of it, or any other copy of the 
CCF containing the employee's signature.
    (c) If the employee admits to having adulterated or substituted the 
specimen, you must, on the same day, write and sign your own statement 
of what the employee told you. You must then report a refusal to test in 
accordance with Sec. 40.163 .
    (d) If the employee admits to using a drug, you must, on the same 
day, write and sign your own statement of what the employee told you. 
You must then report that admission to the DER for appropriate action 
under DOT Agency

[[Page 562]]

regulations. This test will be reported as cancelled with the reason 
noted.
    (e) If the employee's recollection (required at paragraph (a)(5) of 
this section) results in another invalid result for the same reason as 
reported for the first specimen, as the MRO, you must:
    (1) Review the CCF to ensure that there is documentation that the 
recollection was directly observed.
    (2) If the CCF review indicates that the recollection was directly 
observed as required, document that the employee had another specimen 
with an invalid result for the same reason.
    (3) Follow the recording and reporting procedures at (a)(4)(i) and 
(ii) of this section.
    (4) If a negative result is required (i.e., pre-employment, return-
to-duty, or follow-up tests), follow the procedures at Sec. 40.160 for 
determining if there is clinical evidence that the individual is an 
illicit drug user.
    (5) If the recollection was not directly observed as required, do 
not report a result but again explain to the DER that there must be an 
immediate recollection under direct observation.
    (f) If the employee's recollection (required at paragraph (a)(5) of 
this section) results in another invalid result for a different reason 
than that reported for the first specimen, as the MRO, you must:
    (1) Review the CCF to ensure that there is documentation that the 
recollection was directly observed.
    (2) If the CCF review indicates that the recollection was directly 
observed as required, document that the employee had another specimen 
with an invalid result for a different reason.
    (3) As the MRO, you should not contact the employee to discuss the 
result, but rather direct the DER to conduct an immediate recollection 
under direct observation without prior notification to the employee.
    (4) If the CCF documentation indicates that the recollection was not 
directly observed as required, do not report a result but again explain 
to the DER that there must be an immediate recollection under direct 
observation.
    (g) If, as the MRO, you receive a laboratory invalid result in 
conjunction with a positive, adulterated, and/or substituted result and 
you verify any of those results as being a positive and/or refusal to 
test, you do not report the invalid result unless the split specimen 
fails to reconfirm the result(s) of the primary specimen.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35972, June 25, 2008]



Sec. 40.160  What does the MRO do when a valid test result cannot be 
produced and a negative result is required?

    (a) If a valid test result cannot be produced and a negative result 
is required, (under Sec. 40.159 (a)(5)(iii) and (e)(4)), as the MRO, 
you must determine if there is clinical evidence that the individual is 
currently an illicit drug user. You must make this determination by 
personally conducting, or causing to be conducted, a medical evaluation. 
In addition, if appropriate, you may also consult with the employee's 
physician to gather information you need to reach this determination.
    (b) If you do not personally conduct the medical evaluation, as the 
MRO, you must ensure that one is conducted by a licensed physician 
acceptable to you.
    (c) For purposes of this section, the MRO or the physician 
conducting the evaluation may conduct an alternative test (e.g., blood) 
as part of the medically appropriate procedures in determining clinical 
evidence of drug use.
    (d) If the medical evaluation reveals no clinical evidence of drug 
use, as the MRO, you must report this to the employer as a negative test 
result with written notations regarding the medical examination. The 
report must also state why the medical examination was required (i.e., 
either the basis for the determination that a permanent or long-term 
medical condition exists or because the recollection under direct 
observation resulted in another invalid result for the same reason, as 
appropriate) and for the determination that no signs and symptoms of 
drug use exist.
    (1) Check ``Negative'' (Step 6) on the CCF.
    (2) Sign and date the CCF.
    (e) If the medical evaluation reveals clinical evidence of drug use, 
as the MRO, you must report the result to the employer as a cancelled 
test with written notations regarding the results of

[[Page 563]]

the medical examination. The report must also state why the medical 
examination was required (i.e., either the basis for the determination 
that a permanent or long-term medical condition exists or because the 
recollection under direct observation resulted in another invalid result 
for the same reason, as appropriate) and state the reason for the 
determination that signs and symptoms of drug use exist. Because this is 
a cancelled test, it does not serve the purpose of an actual negative 
test result (i.e., the employer is not authorized to allow the employee 
to begin or resume performing safety-sensitive functions, because a 
negative test result is needed for that purpose).

[73 FR 35972, June 25, 2008]



Sec. 40.161  What does the MRO do when a drug test specimen is rejected
for testing?

    As the MRO, when the laboratory reports that the specimen is 
rejected for testing (e.g., because of a fatal or uncorrected flaw), you 
must do the following:
    (a) Place a check mark in the ``Test Cancelled'' box (Step 6) on 
Copy 2 of the CCF and enter the reason on the ``Remarks'' line.
    (b) Report to the DER that the test is cancelled and the reason for 
cancellation, and that no further action is required unless a negative 
test is required (e.g., in the case of a pre-employment, return-to-duty, 
or follow-up test).
    (c) You may only report a test cancelled because of a rejected for 
testing test result when you are in possession of a legible copy of Copy 
1 of the CCF. In addition, you must have Copy 2 of the CCF, a legible 
copy of it, or any other copy of the CCF containing the employee's 
signature.



Sec. 40.162  What must MROs do with multiple verified results for
the same testing event?

    (a) If the testing event is one in which there was one specimen 
collection with multiple verified non-negative results, as the MRO, you 
must report them all to the DER. For example, if you verified the 
specimen as being positive for marijuana and cocaine and as being a 
refusal to test because the specimen was also adulterated, as the MRO, 
you should report the positives and the refusal to the DER.
    (b) If the testing event was one in which two separate specimen 
collections (e.g., a specimen out of temperature range and the 
subsequent observed collection) were sent to the laboratory, as the MRO, 
you must:
    (1) If both specimens were verified negative, report the result as 
negative.
    (2) If either of the specimens was verified negative and the other 
was verified as one or more non-negative(s), report the non-negative 
result(s) only. For example, if you verified one specimen as negative 
and the other as a refusal to test because the second specimen was 
substituted, as the MRO you should report only the refusal to the DER.
    (i) If the first specimen is reported as negative, but the result of 
the second specimen has not been reported by the laboratory, as the MRO, 
you should hold--not report--the result of the first specimen until the 
result of the second specimen is received.
    (ii) If the first specimen is reported as non-negative, as the MRO, 
you should report the result immediately and not wait to receive the 
result of the second specimen.
    (3) If both specimens were verified non-negative, report all of the 
non-negative results. For example, if you verified one specimen as 
positive and the other as a refusal to test because the specimen was 
adulterated, as the MRO, you should report the positive and the refusal 
results to the DER.
    (c) As an exception to paragraphs (a) and (b) of this section, as 
the MRO, you must follow procedures at Sec. 40.159(f) when any verified 
non-negative result is also invalid.

[73 FR 35972, June 25, 2008]



Sec. 40.163  How does the MRO report drug test results?

    (a) As the MRO, it is your responsibility to report all drug test 
results to the employer.
    (b) You may use a signed or stamped and dated legible photocopy of 
Copy 2 of the CCF to report test results.

[[Page 564]]

    (c) If you do not report test results using Copy 2 of the CCF for 
this purpose, you must provide a written report (e.g., a letter) for 
each test result. This report must, as a minimum, include the following 
information:
    (1) Full name, as indicated on the CCF, of the employee tested;
    (2) Specimen ID number from the CCF and the donor SSN or employee ID 
number;
    (3) Reason for the test, if indicated on the CCF (e.g., random, 
post-accident);
    (4) Date of the collection;
    (5) Date you received Copy 2 of the CCF;
    (6) Result of the test (i.e., positive, negative, dilute, refusal to 
test, test cancelled) and the date the result was verified by the MRO;
    (7) For verified positive tests, the drug(s)/metabolite(s) for which 
the test was positive;
    (8) For cancelled tests, the reason for cancellation; and
    (9) For refusals to test, the reason for the refusal determination 
(e.g., in the case of an adulterated test result, the name of the 
adulterant).
    (d) As an exception to the reporting requirements of paragraph (b) 
and (c) of this section, the MRO may report negative results using an 
electronic data file.
    (1) If you report negatives using an electronic data file, the 
report must contain, as a minimum, the information specified in 
paragraph (c) of this section, as applicable for negative test results.
    (2) In addition, the report must contain your name, address, and 
phone number, the name of any person other than you reporting the 
results, and the date the electronic results report is released.
    (e) You must retain a signed or stamped and dated copy of Copy 2 of 
the CCF in your records. If you do not use Copy 2 for reporting results, 
you must maintain a copy of the signed or stamped and dated letter in 
addition to the signed or stamped and dated Copy 2. If you use the 
electronic data file to report negatives, you must maintain a 
retrievable copy of that report in a format suitable for inspection and 
auditing by a DOT representative.
    (f) You must not use Copy 1 of the CCF to report drug test results.
    (g) You must not provide quantitative values to the DER or C/TPA for 
drug or validity test results. However, you must provide the test 
information in your possession to a SAP who consults with you (see Sec. 
40.293(g)).

[66 FR 41952, Aug. 9, 2001]



Sec. 40.165  To whom does the MRO transmit reports of drug test results?

    (a) As the MRO, you must report all drug test results to the DER, 
except in the circumstances provided for in Sec. 40.345 .
    (b) If the employer elects to receive reports of results through a 
C/TPA, acting as an intermediary as provided in Sec. 40.345 , you must 
report the results through the designated C/TPA.



Sec. 40.167  How are MRO reports of drug results transmitted to 
the employer?

    As the MRO or C/TPA who transmits drug test results to the employer, 
you must comply with the following requirements:
    (a) You must report the results in a confidential manner.
    (b) You must transmit to the DER on the same day the MRO verifies 
the result or the next business day all verified positive test results, 
results requiring an immediate collection under direct observation, 
adulterated or substituted specimen results, and other refusals to test.
    (1) Direct telephone contact with the DER is the preferred method of 
immediate reporting. Follow up your phone call with appropriate 
documentation (see Sec. 40.163).
    (2) You are responsible for identifying yourself to the DER, and the 
DER must have a means to confirm your identification.
    (3) The MRO's report that you transmit to the employer must contain 
all of the information required by Sec. 40.163 .
    (c) You must transmit the MRO's report(s) of verified tests to the 
DER so that the DER receives it within two days of verification by the 
MRO.
    (1) You must fax, courier, mail, or electronically transmit a 
legible image or copy of either the signed or stamped

[[Page 565]]

and dated Copy 2 or the written report (see Sec. 40.163(b) and (c)).
    (2) Negative results reported electronically (i.e., computer data 
file) do not require an image of Copy 2 or the written report.
    (d) In transmitting test results, you or the C/TPA and the employer 
must ensure the security of the transmission and limit access to any 
transmission, storage, or retrieval systems.
    (e) MRO reports are not subject to modification or change by anyone 
other than the MRO, as provided in Sec. 40.149(c).

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41953, Aug. 9, 2001]



Sec. 40.169  Where is other information concerning the role of MROs 
and the verification process found in this regulation?

    You can find more information concerning the role of MROs in several 
sections of this part:

Sec. 40.3--Definition.
Sec. Sec. 40.47-40.49--Correction of form and kit errors.
Sec. 40.67--Role in direct observation and other atypical test 
          situations.
Sec. 40.83--Laboratory handling of fatal and correctable flaws.
Sec. 40.97--Laboratory handling of test results and quantitative 
          values.
Sec. 40.99--Authorization of longer laboratory retention of specimens.
Sec. 40.101--Relationship with laboratories; avoidance of conflicts of 
          interest.
Sec. 40.105--Notification of discrepancies in blind specimen results.
Sec. 40.171--Request for test of split specimen.
Sec. 40.187--Action concerning split specimen test results.
Sec. 40.193--Role in ``shy bladder'' situations.
Sec. 40.195--Role in cancelling tests.
Sec. Sec. 40.199-40.203--Documenting errors in tests.
Sec. 40.327--Confidentiality and release of information.
Sec. 40.347--Transfer of records.
Sec. 40.353--Relationships with service agents.



                     Subpart H_Split Specimen Tests



Sec. 40.171  How does an employee request a test of a split specimen?

    (a) As an employee, when the MRO has notified you that you have a 
verified positive drug test and/or refusal to test because of 
adulteration or substitution, you have 72 hours from the time of 
notification to request a test of the split specimen. The request may be 
verbal or in writing. If you make this request to the MRO within 72 
hours, you trigger the requirements of this section for a test of the 
split specimen. There is no split specimen testing for an invalid 
result.
    (b)(1) If, as an employee, you have not requested a test of the 
split specimen within 72 hours, you may present to the MRO information 
documenting that serious injury, illness, lack of actual notice of the 
verified test result, inability to contact the MRO (e.g., there was no 
one in the MRO's office and the answering machine was not working), or 
other circumstances unavoidably prevented you from making a timely 
request.
    (2) As the MRO, if you conclude from the employee's information that 
there was a legitimate reason for the employee's failure to contact you 
within 72 hours, you must direct that the test of the split specimen 
take place, just as you would when there is a timely request.
    (c) When the employee makes a timely request for a test of the split 
specimen under paragraphs (a) and (b) of this section, you must, as the 
MRO, immediately provide written notice to the laboratory that tested 
the primary specimen, directing the laboratory to forward the split 
specimen to a second HHS-certified laboratory. You must also document 
the date and time of the employee's request.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35972, June 25, 2008]



Sec. 40.173  Who is responsible for paying for the test of a split specimen?

    (a) As the employer, you are responsible for making sure (e.g., by 
establishing appropriate accounts with laboratories for testing split 
specimens) that the MRO, first laboratory, and second laboratory perform 
the functions noted in Sec. Sec. 40.175-40.185 in a timely manner, once 
the employee has made a timely request for a test of the split specimen.
    (b) As the employer, you must not condition your compliance with 
these requirements on the employee's direct payment to the MRO or 
laboratory or the employee's agreement to reimburse

[[Page 566]]

you for the costs of testing. For example, if you ask the employee to 
pay for some or all of the cost of testing the split specimen, and the 
employee is unwilling or unable to do so, you must ensure that the test 
takes place in a timely manner, even though this means that you pay for 
it.
    (c) As the employer, you may seek payment or reimbursement of all or 
part of the cost of the split specimen from the employee (e.g., through 
your written company policy or a collective bargaining agreement). This 
part takes no position on who ultimately pays the cost of the test, so 
long as the employer ensures that the testing is conducted as required 
and the results released appropriately.



Sec. 40.175  What steps does the first laboratory take with a split specimen?

    (a) As the laboratory at which the primary and split specimen first 
arrive, you must check to see whether the split specimen is available 
for testing.
    (b) If the split specimen is unavailable or appears insufficient, 
you must then do the following:
    (1) Continue the testing process for the primary specimen as you 
would normally. Report the results for the primary specimen without 
providing the MRO information regarding the unavailable split specimen.
    (2) Upon receiving a letter from the MRO instructing you to forward 
the split specimen to another laboratory for testing, report to the MRO 
that the split specimen is unavailable for testing. Provide as much 
information as you can about the cause of the unavailability.
    (c) As the laboratory that tested the primary specimen, you are not 
authorized to open the split specimen under any circumstances (except 
when the split specimen is redesignated as provided in Sec. 40.83).
    (d) When you receive written notice from the MRO instructing you to 
send the split specimen to another HHS-certified laboratory, you must 
forward the following items to the second laboratory:
    (1) The split specimen in its original specimen bottle, with the 
seal intact;
    (2) A copy of the MRO's written request; and
    (3) A copy of Copy 1 of the CCF, which identifies the drug(s)/
metabolite(s) or the validity criteria to be tested for.
    (e) You must not send to the second laboratory any information about 
the identity of the employee. Inadvertent disclosure does not, however, 
cause a fatal flaw.
    (f) This subpart does not prescribe who gets to decide which HHS-
certified laboratory is used to test the split specimen. That decision 
is left to the parties involved.



Sec. 40.177  What does the second laboratory do with the split specimen 
when it is tested to reconfirm the presence of a drug or drug metabolite?

    (a) As the laboratory testing the split specimen, you must test the 
split specimen for the drug(s)/drug metabolite(s) detected in the 
primary specimen.
    (b) You must conduct this test without regard to the cutoff 
concentrations of Sec. 40.87.
    (c) If the test fails to reconfirm the presence of the drug(s)/drug 
metabolite(s) that were reported positive in the primary specimen, you 
must conduct validity tests in an attempt to determine the reason for 
being unable to reconfirm the presence of the drug(s)/metabolite(s). You 
should conduct the same validity tests as you would conduct on a primary 
specimen set forth in Sec. 40.91.
    (d) In addition, if the test fails to reconfirm the presence of the 
drug(s)/ drug metabolite(s) reported in the primary specimen, you may 
send the specimen or an aliquot of it for testing at another HHS-
certified laboratory that has the capability to conduct another 
reconfirmation test.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35972, June 25, 2008]



Sec. 40.179  What does the second laboratory do with the split specimen 
when it is tested to reconfirm an adulterated test result?

    (a) As the laboratory testing the split specimen, you must test the 
split specimen for the adulterant detected in the primary specimen, 
using the confirmatory test for the adulterant and using

[[Page 567]]

criteria in Sec. 40.95 and confirmatory cutoff levels required by the 
HHS Mandatory Guidelines.
    (b) In addition, if the test fails to reconfirm the adulterant 
result reported in the primary specimen, you may send the specimen or an 
aliquot of it for testing at another HHS-certified laboratory that has 
the capability to conduct another reconfirmation test.

[73 FR 35973, June 25, 2008]



Sec. 40.181  What does the second laboratory do with the split specimen
when it is tested to reconfirm a substituted test result?

    As the laboratory testing the split specimen, you must test the 
split specimen using the confirmatory tests for creatinine and specific 
gravity, and using the confirmatory criteria set forth in Sec. 
40.93(b).

[73 FR 35973, June 25, 2008]



Sec. 40.183  What information do laboratories report to MROs regarding
split specimen results?

    (a) As the laboratory responsible for testing the split specimen, 
you must report split specimen test results by checking the 
``Reconfirmed'' box and/or the ``Failed to Reconfirm'' box (Step 5(b)) 
on Copy 1 of the CCF, as appropriate, and by providing clarifying 
remarks using current HHS Mandatory Guidelines requirements.
    (b) As the laboratory certifying scientist, enter your name, sign, 
and date the CCF.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35972, June 25, 2008]



Sec. 40.185  Through what methods and to whom must a laboratory report
split specimen results?

    (a) As the laboratory testing the split specimen, you must report 
laboratory results directly, and only, to the MRO at his or her place of 
business. You must not report results to or through the DER or another 
service agent (e.g., a C/TPA).
    (b) You must fax, courier, mail, or electronically transmit a 
legible image or copy of the fully-completed Copy 1 of the CCF, which 
has been signed by the certifying scientist.
    (c) You must transmit the laboratory result to the MRO immediately, 
preferably on the same day or next business day as the result is signed 
and released.



Sec. 40.187  What does the MRO do with split specimen laboratory results?

    As the MRO, the split specimen laboratory results you receive will 
fall into five categories. You must take the following action, as 
appropriate, when a laboratory reports split specimen results to you.
    (a) Category 1: The laboratory reconfirmed one or more of the 
primary specimen results. As the MRO, you must report to the DER and the 
employee the result(s) that was/were reconfirmed.
    (1) In the case of a reconfirmed positive test(s) for drug(s) or 
drug metabolite(s), the positive is the final result.
    (2) In the case of a reconfirmed adulterated or substituted result, 
the refusal to test is the final result.
    (3) In the case of a combination positive and refusal to test 
results, the final result is both positive and refusal to test.
    (b) Category 2: The laboratory failed to reconfirm all of the 
primary specimen results because, as appropriate, drug(s)/drug 
metabolite(s) were not detected; adulteration criteria were not met; 
and/or substitution criteria were not met. As the MRO, you must report 
to the DER and the employee that the test must be cancelled.
    (1) As the MRO, you must inform ODAPC of the failure to reconfirm 
using the format in Appendix D to this part.
    (2) In a case where the split failed to reconfirm because the 
substitution criteria were not met and the split specimen creatinine 
concentration was equal to or greater than 2mg/dL but less than or equal 
to 5mg/dL, as the MRO, you must, in addition to step (b)(1) of this 
paragraph, direct the DER to ensure the immediate collection of another 
specimen from the employee under direct observation, with no notice 
given to the employee of this collection requirement until immediately 
before the collection.
    (3) In a case where the split failed to reconfirm and the primary 
specimen's

[[Page 568]]

result was also invalid, direct the DER to ensure the immediate 
collection of another specimen from the employee under direct 
observation, with no notice given to the employee of this collection 
requirement until immediately before the collection.
    (c) Category 3: The laboratory failed to reconfirm all of the 
primary specimen results, and also reported that the split specimen was 
invalid, adulterated, and/or substituted.
    (1) In the case where the laboratory failed to reconfirm all of the 
primary specimen results and the split was reported as invalid, as the 
MRO, you must:
    (i) Report to the DER and the employee that the test must be 
cancelled and the reason for the cancellation.
    (ii) Direct the DER to ensure the immediate collection of another 
specimen from the employee under direct observation, with no notice 
given to the employee of this collection requirement until immediately 
before the collection.
    (iii) Inform ODAPC of the failure to reconfirm using the format in 
Appendix D to this part.
    (2) In the case where the laboratory failed to reconfirm any of the 
primary specimen results, and the split was reported as adulterated and/
or substituted, as the MRO, you must:
    (i) Contact the employee and inform the employee that the laboratory 
has determined that his or her split specimen is adulterated and/or 
substituted, as appropriate.
    (ii) Follow the procedures of Sec. 40.145 to determine if there is 
a legitimate medical explanation for the laboratory finding of 
adulteration and/or substitution, as appropriate.
    (iii) If you determine that there is a legitimate medical 
explanation for the adulterated and/or substituted test result, report 
to the DER and the employee that the test must be cancelled; and inform 
ODAPC of the failure to reconfirm using the format in Appendix D to this 
part.
    (iv) If you determine that there is not a legitimate medical 
explanation for the adulterated and/or substituted test result, you must 
take the following steps:
    (A) Report the test to the DER and the employee as a verified 
refusal to test. Inform the employee that he or she has 72 hours to 
request a test of the primary specimen to determine if the adulterant 
found in the split specimen is also present in the primary specimen and/
or to determine if the primary specimen meets appropriate substitution 
criteria.
    (B) Except when the request is for a test of the primary specimen 
and is being made to the laboratory that tested the primary specimen, 
follow the procedures of Sec. Sec. 40.153, 40.171, 40.173, 40.179, 
40.181, and 40.185, as appropriate.
    (C) As the laboratory that tests the primary specimen to reconfirm 
the presence of the adulterant found in the split specimen and/or to 
determine that the primary specimen meets appropriate substitution 
criteria, report your result to the MRO on a photocopy (faxed, mailed, 
scanned, couriered) of Copy 1 of the CCF.
    (D) If the test of the primary specimen reconfirms the adulteration 
and/or substitution finding of the split specimen, as the MRO you must 
report the result as a refusal to test as provided in paragraph (a)(2) 
of this section.
    (E) If the test of the primary specimen fails to reconfirm the 
adulteration and/or substitution finding of the split specimen, as the 
MRO you must cancel the test, following procedures in paragraph (b) of 
this section.
    (d) Category 4: The laboratory failed to reconfirm one or more but 
not all of the primary specimen results, and also reported that the 
split specimen was invalid, adulterated, and/or substituted. As the MRO, 
in the case where the laboratory reconfirmed one or more of the primary 
specimen result(s), you must follow procedures in paragraph (a) of this 
section and:
    (1) Report that the split was also reported as being invalid, 
adulterated, and/or substituted (as appropriate).
    (2) Inform the DER to take action only on the reconfirmed result(s).
    (e) Category 5: The split specimen was not available for testing or 
there was no split laboratory available to test the specimen. As the 
MRO, you must:
    (1) Report to the DER and the employee that the test must be 
cancelled and the reason for the cancellation;

[[Page 569]]

    (2) Direct the DER to ensure the immediate recollection of another 
specimen from the employee under direct observation, with no notice 
given to the employee of this collection requirement until immediately 
before the collection; and
    (3) Notify ODAPC of the failure to reconfirm using the format in 
Appendix D to this part.
    (f) For all split specimen results, as the MRO you must:
    (1) Enter your name, sign, and date (Step 7) of Copy 2 of the CCF.
    (2) Send a legible copy of Copy 2 of the CCF (or a signed and dated 
letter, see Sec. 40.163) to the employer and keep a copy for your 
records. Transmit the document as provided in Sec. 40.167.

[73 FR 35973, June 25, 2008]



Sec. 40.189  Where is other information concerning split specimens 
found in this regulation?

    You can find more information concerning split specimens in several 
sections of this part:

Sec. 40.3--Definition.
Sec. 40.65--Quantity of split specimen.
Sec. 40.67--Directly observed test when split specimen is unavailable.
Sec. Sec. 40.71-40.73--Collection process for split specimens.
Sec. 40.83--Laboratory accessioning of split specimens.
Sec. 40.99--Laboratory retention of split specimens.
Sec. 40.103--Blind split specimens.
Sec. 40.153--MRO notice to employees on tests of split specimen.
Sec. Sec. 40.193 and 40.201--MRO actions on insufficient or unavailable 
          split specimens.
Appendix D to Part 40--Report format for split specimen failure to 
          reconfirm.



                    Subpart I_Problems in Drug Tests



Sec. 40.191  What is a refusal to take a DOT drug test, and what are 
the consequences?

    (a) As an employee, you have refused to take a drug test if you:
    (1) Fail to appear for any test (except a pre-employment test) 
within a reasonable time, as determined by the employer, consistent with 
applicable DOT agency regulations, after being directed to do so by the 
employer. This includes the failure of an employee (including an owner-
operator) to appear for a test when called by a C/TPA (see Sec. 
40.61(a));
    (2) Fail to remain at the testing site until the testing process is 
complete; Provided, That an employee who leaves the testing site before 
the testing process commences (see Sec. 40.63 (c)) for a pre-employment 
test is not deemed to have refused to test;
    (3) Fail to provide a urine specimen for any drug test required by 
this part or DOT agency regulations; Provided, That an employee who does 
not provide a urine specimen because he or she has left the testing site 
before the testing process commences (see Sec. 40.63 (c)) for a pre-
employment test is not deemed to have refused to test;
    (4) In the case of a directly observed or monitored collection in a 
drug test, fail to permit the observation or monitoring of your 
provision of a specimen (see Sec. Sec. 40.67(l) and 40.69(g));
    (5) Fail to provide a sufficient amount of urine when directed, and 
it has been determined, through a required medical evaluation, that 
there was no adequate medical explanation for the failure (see Sec. 
40.193(d)(2));
    (6) Fail or decline to take an additional drug test the employer or 
collector has directed you to take (see, for instance, Sec. 40.197(b));
    (7) Fail to undergo a medical examination or evaluation, as directed 
by the MRO as part of the verification process, or as directed by the 
DER under Sec. 40.193(d). In the case of a pre-employment drug test, 
the employee is deemed to have refused to test on this basis only if the 
pre-employment test is conducted following a contingent offer of 
employment. If there was no contingent offer of employment, the MRO will 
cancel the test; or
    (8) Fail to cooperate with any part of the testing process (e.g., 
refuse to empty pockets when directed by the collector, behave in a 
confrontational way that disrupts the collection process, fail to wash 
hands after being directed to do so by the collector).
    (9) For an observed collection, fail to follow the observer's 
instructions to raise your clothing above the waist, lower clothing and 
underpants, and to turn around to permit the observer to determine if 
you have any type of prosthetic or other device that could be

[[Page 570]]

used to interfere with the collection process.
    (10) Possess or wear a prosthetic or other device that could be used 
to interfere with the collection process.
    (11) Admit to the collector or MRO that you adulterated or 
substituted the specimen.
    (b) As an employee, if the MRO reports that you have a verified 
adulterated or substituted test result, you have refused to take a drug 
test.
    (c) As an employee, if you refuse to take a drug test, you incur the 
consequences specified under DOT agency regulations for a violation of 
those DOT agency regulations.
    (d) As a collector or an MRO, when an employee refuses to 
participate in the part of the testing process in which you are 
involved, you must terminate the portion of the testing process in which 
you are involved, document the refusal on the CCF (including, in the 
case of the collector, printing the employee's name on Copy 2 of the 
CCF), immediately notify the DER by any means (e.g., telephone or secure 
fax machine) that ensures that the refusal notification is immediately 
received. As a referral physician (e.g., physician evaluating a ``shy 
bladder'' condition or a claim of a legitimate medical explanation in a 
validity testing situation), you must notify the MRO, who in turn will 
notify the DER.
    (1) As the collector, you must note the refusal in the ``Remarks'' 
line (Step 2), and sign and date the CCF.
    (2) As the MRO, you must note the refusal by checking the ``refused 
to test because'' box (Step 6) on Copy 2 of the CCF, and add the reason 
on the ``Remarks'' line. You must then sign and date the CCF.
    (e) As an employee, when you refuse to take a non-DOT test or to 
sign a non-DOT form, you have not refused to take a DOT test. There are 
no consequences under DOT agency regulations for refusing to take a non-
DOT test.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41953, Aug. 9, 2001; 68 
FR 31626, May 28, 2003; 71 FR 49384, Aug. 23, 2006; 73 FR 35974, June 
25, 2008]



Sec. 40.193  What happens when an employee does not provide a sufficient
amount of urine for a drug test?

    (a) This section prescribes procedures for situations in which an 
employee does not provide a sufficient amount of urine to permit a drug 
test (i.e., 45 mL of urine).
    (b) As the collector, you must do the following:
    (1) Discard the insufficient specimen, except where the insufficient 
specimen was out of temperature range or showed evidence of adulteration 
or tampering (see Sec. 40.65(b) and (c)).
    (2) Urge the employee to drink up to 40 ounces of fluid, distributed 
reasonably through a period of up to three hours, or until the 
individual has provided a sufficient urine specimen, whichever occurs 
first. It is not a refusal to test if the employee declines to drink. 
Document on the Remarks line of the CCF (Step 2), and inform the 
employee of, the time at which the three-hour period begins and ends.
    (3) If the employee refuses to make the attempt to provide a new 
urine specimen or leaves the collection site before the collection 
process is complete, you must discontinue the collection, note the fact 
on the ``Remarks'' line of the CCF (Step 2), and immediately notify the 
DER. This is a refusal to test.
    (4) If the employee has not provided a sufficient specimen within 
three hours of the first unsuccessful attempt to provide the specimen, 
you must discontinue the collection, note the fact on the ``Remarks'' 
line of the CCF (Step 2), and immediately notify the DER.
    (5) Send Copy 2 of the CCF to the MRO and Copy 4 to the DER. You 
must send or fax these copies to the MRO and DER within 24 hours or the 
next business day.
    (c) As the DER, when the collector informs you that the employee has 
not provided a sufficient amount of urine (see paragraph (b)(4) of this 
section), you must, after consulting with the MRO, direct the employee 
to obtain, within five days, an evaluation from a licensed physician, 
acceptable to the MRO, who has expertise in the medical issues raised by 
the employee's failure to provide a sufficient specimen. (The

[[Page 571]]

MRO may perform this evaluation if the MRO has appropriate expertise.)
    (1) As the MRO, if another physician will perform the evaluation, 
you must provide the other physician with the following information and 
instructions:
    (i) That the employee was required to take a DOT drug test, but was 
unable to provide a sufficient amount of urine to complete the test;
    (ii) The consequences of the appropriate DOT agency regulation for 
refusing to take the required drug test;
    (iii) That the referral physician must agree to follow the 
requirements of paragraphs (d) through (g) of this section.
    (2) [Reserved]
    (d) As the referral physician conducting this evaluation, you must 
recommend that the MRO make one of the following determinations:
    (1) A medical condition has, or with a high degree of probability 
could have, precluded the employee from providing a sufficient amount of 
urine. As the MRO, if you accept this recommendation, you must:
    (i) Check ``Test Cancelled'' (Step 6) on the CCF; and
    (ii) Sign and date the CCF.
    (2) There is not an adequate basis for determining that a medical 
condition has, or with a high degree of probability could have, 
precluded the employee from providing a sufficient amount of urine. As 
the MRO, if you accept this recommendation, you must:
    (i) Check ``Refusal to test because'' (Step 6) on the CCF and enter 
reason in the remarks line; and
    (ii) Sign and date the CCF.
    (e) For purposes of this paragraph, a medical condition includes an 
ascertainable physiological condition (e.g., a urinary system 
dysfunction) or a medically documented pre-existing psychological 
disorder, but does not include unsupported assertions of ``situational 
anxiety'' or dehydration.
    (f) As the referral physician making the evaluation, after 
completing your evaluation, you must provide a written statement of your 
recommendations and the basis for them to the MRO. You must not include 
in this statement detailed information on the employee's medical 
condition beyond what is necessary to explain your conclusion.
    (g) If, as the referral physician making this evaluation in the case 
of a pre-employment test, you determine that the employee's medical 
condition is a serious and permanent or long-term disability that is 
highly likely to prevent the employee from providing a sufficient amount 
of urine for a very long or indefinite period of time, you must set 
forth your determination and the reasons for it in your written 
statement to the MRO. As the MRO, upon receiving such a report, you must 
follow the requirements of Sec. 40.195, where applicable.
    (h) As the MRO, you must seriously consider and assess the referral 
physician's recommendations in making your determination about whether 
the employee has a medical condition that has, or with a high degree of 
probability could have, precluded the employee from providing a 
sufficient amount of urine. You must report your determination to the 
DER in writing as soon as you make it.
    (i) As the employer, when you receive a report from the MRO 
indicating that a test is cancelled as provided in paragraph (d)(1) of 
this section, you take no further action with respect to the employee. 
The employee remains in the random testing pool.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41953, Aug. 9, 2001]



Sec. 40.195  What happens when an individual is unable to provide a
sufficient amount of urine for a pre-employment follow-up or return-to-duty

test because of a permanent or long-term medical condition?

    (a) This section concerns a situation in which an employee has a 
medical condition that precludes him or her from providing a sufficient 
specimen for a pre-employment follow-up or return-to-duty test and the 
condition involves a permanent or long-term disability. As the MRO in 
this situation, you must do the following:
    (1) You must determine if there is clinical evidence that the 
individual is an illicit drug user. You must make this determination by 
personally conducting, or causing to be conducted, a

[[Page 572]]

medical evaluation and through consultation with the employee's 
physician and/or the physician who conducted the evaluation under Sec. 
40.193(d).
    (2) If you do not personally conduct the medical evaluation, you 
must ensure that one is conducted by a licensed physician acceptable to 
you.
    (3) For purposes of this section, the MRO or the physician 
conducting the evaluation may conduct an alternative test (e.g., blood) 
as part of the medically appropriate procedures in determining clinical 
evidence of drug use.
    (b) If the medical evaluation reveals no clinical evidence of drug 
use, as the MRO, you must report the result to the employer as a 
negative test with written notations regarding results of both the 
evaluation conducted under Sec. 40.193(d) and any further medical 
examination. This report must state the basis for the determination that 
a permanent or long-term medical condition exists, making provision of a 
sufficient urine specimen impossible, and for the determination that no 
signs and symptoms of drug use exist.
    (1) Check ``Negative'' (Step 6) on the CCF.
    (2) Sign and date the CCF.
    (c) If the medical evaluation reveals clinical evidence of drug use, 
as the MRO, you must report the result to the employer as a cancelled 
test with written notations regarding results of both the evaluation 
conducted under Sec. 40.193(d) and any further medical examination. 
This report must state that a permanent or long-term medical condition 
exists, making provision of a sufficient urine specimen impossible, and 
state the reason for the determination that signs and symptoms of drug 
use exist. Because this is a cancelled test, it does not serve the 
purposes of a negative test (i.e., the employer is not authorized to 
allow the employee to begin or resume performing safety-sensitive 
functions, because a negative test is needed for that purpose).
    (d) For purposes of this section, permanent or long-term medical 
conditions are those physiological, anatomic, or psychological 
abnormalities documented as being present prior to the attempted 
collection, and considered not amenable to correction or cure for an 
extended period of time, if ever.
    (1) Examples would include destruction (any cause) of the glomerular 
filtration system leading to renal failure; unrepaired traumatic 
disruption of the urinary tract; or a severe psychiatric disorder 
focused on genito-urinary matters.
    (2) Acute or temporary medical conditions, such as cystitis, 
urethritis or prostatitis, though they might interfere with collection 
for a limited period of time, cannot receive the same exceptional 
consideration as the permanent or long-term conditions discussed in 
paragraph (d)(1) of this section.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41953, Aug. 9, 2001]



Sec. 40.197  What happens when an employer receives a report of 
a dilute specimen?

    (a) As the employer, if the MRO informs you that a positive drug 
test was dilute, you simply treat the test as a verified positive test. 
You must not direct the employee to take another test based on the fact 
that the specimen was dilute.
    (b) As an employer, if the MRO informs you that a negative test was 
dilute, take the following action:
    (1) If the MRO directs you to conduct a recollection under direct 
observation (i.e., because the creatinine concentration of the specimen 
was equal to or greater than 2mg/dL, but less than or equal to 5 mg/dL 
(see Sec. 40.155(c)), you must do so immediately.
    (2) Otherwise (i.e., if the creatinine concentration of the dilute 
specimen is greater than 5 mg/dL), you may, but are not required to, 
direct the employee to take another test immediately.
    (i) Such recollections must not be collected under direct 
observation, unless there is another basis for use of direct observation 
(see Sec. 40.67 (b) and (c)).
    (ii) You must treat all employees the same for this purpose. For 
example, you must not retest some employees and not others. You may, 
however, establish different policies for different types of tests 
(e.g., conduct retests in pre-employment situations, but not in

[[Page 573]]

random test situations). You must inform your employees in advance of 
your decisions on these matters.
    (c) The following provisions apply to all tests you direct an 
employee to take under paragraph (b) of this section:
    (1) You must ensure that the employee is given the minimum possible 
advance notice that he or she must go to the collection site;
    (2) You must treat the result of the test you directed the employee 
to take under paragraph (b) of this section--and not a prior test--as 
the test result of record, on which you rely for purposes of this part;
    (3) If the result of the test you directed the employee to take 
under paragraph (b)(1) of this section is also negative and dilute, you 
are not permitted to make the employee take an additional test because 
the result was dilute.
    (4) If the result of the test you directed the employee to take 
under paragraph (b)(2) of this section is also negative and dilute, you 
are not permitted to make the employee take an additional test because 
the result was dilute. Provided, however, that if the MRO directs you to 
conduct a recollection under direct observation under paragraph (b)(1) 
of this section, you must immediately do so.
    (5) If the employee declines to take a test you directed him or her 
to take under paragraph (b) of this section, the employee has refused 
the test for purposes of this part and DOT agency regulations.

[68 FR 31626, May 28, 2003, as amended at 69 FR 64867, Nov. 9, 2004; 73 
FR 35974, June 25, 2008]



Sec. 40.199  What problems always cause a drug test to be cancelled?

    (a) As the MRO, when the laboratory discovers a ``fatal flaw'' 
during its processing of incoming specimens (see Sec. 40.83), the 
laboratory will report to you that the specimen has been ``Rejected for 
Testing'' (with the reason stated). You must always cancel such a test.
    (b) The following are ``fatal flaws'':
    (1) There is no printed collector's name and no collector's 
signature;
    (2) The specimen ID numbers on the specimen bottle and the CCF do 
not match;
    (3) The specimen bottle seal is broken or shows evidence of 
tampering (and a split specimen cannot be redesignated, see Sec. 
40.83(g)); and
    (4) Because of leakage or other causes, there is an insufficient 
amount of urine in the primary specimen bottle for analysis and the 
specimens cannot be redesignated (see Sec. 40.83(g)).
    (c) You must report the result as provided in Sec. 40.161 .



Sec. 40.201  What problems always cause a drug test to be cancelled 
and may result in a requirement for another collection?

    As the MRO, you must cancel a drug test when a laboratory reports 
that any of the following problems have occurred. You must inform the 
DER that the test was cancelled. You must also direct the DER to ensure 
that an additional collection occurs immediately, if required by the 
applicable procedures specified in paragraphs (a) through (e) of this 
section.
    (a) The laboratory reports an ``Invalid Result.'' You must follow 
applicable procedures in Sec. 40.159 (recollection under direct 
observation may be required).
    (b) The laboratory reports the result as ``Rejected for Testing.'' 
You must follow applicable procedures in Sec. 40.161 (a recollection 
may be required).
    (c) The laboratory reports that the split specimen failed to 
reconfirm all of the primary specimen results because the drug(s)/drug 
metabolite(s) were not detected; adulteration criteria were not met; 
and/or substitution criteria were not met. You must follow the 
applicable procedures in Sec. 40.187(b)--no recollection is required in 
this case, unless the split specimen creatinine concentration for a 
substituted primary specimen was greater than or equal to 2mg/dL but 
less than or equal to 5mg/ dL, or the primary specimen had an invalid 
result which was not reported to the DER. Both these cases require 
recollection under direct observation.
    (d) The laboratory reports that the split specimen failed to 
reconfirm all of the primary specimen results, and that

[[Page 574]]

the split specimen was invalid. You must follow the procedures in Sec. 
40.187(c)(1)--recollection under direct observation is required in this 
case.
    (e) The laboratory reports that the split specimen failed to 
reconfirm all of the primary specimen results because the split specimen 
was not available for testing or there was no split laboratory available 
to test the specimen. You must follow the applicable procedures in Sec. 
40.187(e)--recollection under direct observation is required in this 
case.
    (f) The examining physician has determined that there is an 
acceptable medical explanation of the employee's failure to provide a 
sufficient amount of urine. You must follow applicable procedures in 
Sec. 40.193(d)(1) (no recollection is required in this case).

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35974, June 25, 2008]



Sec. 40.203  What problems cause a drug test to be cancelled unless 
they are corrected?

    (a) As the MRO, when a laboratory discovers a ``correctable flaw'' 
during its processing of incoming specimens (see Sec. 40.83), the 
laboratory will attempt to correct it. If the laboratory is unsuccessful 
in this attempt, it will report to you that the specimen has been 
``Rejected for Testing'' (with the reason stated).
    (b) The following is a ``correctable flaw'' that laboratories must 
attempt to correct: The collector's signature is omitted on the 
certification statement on the CCF.
    (c) As the MRO, when you discover a ``correctable flaw'' during your 
review of the CCF, you must cancel the test unless the flaw is 
corrected.
    (d) The following are correctable flaws that you must attempt to 
correct:
    (1) The employee's signature is omitted from the certification 
statement, unless the employee's failure or refusal to sign is noted on 
the ``Remarks'' line of the CCF.
    (2) The certifying scientist's signature is omitted on the 
laboratory copy of the CCF for a positive, adulterated, substituted, or 
invalid test result.
    (3) The collector uses a non-Federal form or an expired Federal form 
for the test. This flaw may be corrected through the procedure set forth 
in Sec. 40.205(b)(2), provided that the collection testing process has 
been conducted in accordance with the procedures of this part in an HHS-
certified laboratory. During the period August 1-October 31, 2001, you 
are not required to cancel a test because of the use of an expired 
Federal form. Beginning November 1, 2001, if the problem is not 
corrected, you must cancel the test.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec. 40.205  How are drug test problems corrected?

    (a) As a collector, you have the responsibility of trying to 
successfully complete a collection procedure for each employee.
    (1) If, during or shortly after the collection process, you become 
aware of any event that prevents the completion of a valid test or 
collection (e.g., a procedural or paperwork error), you must try to 
correct the problem promptly, if doing so is practicable. You may 
conduct another collection as part of this effort.
    (2) If another collection is necessary, you must begin the new 
collection procedure as soon as possible, using a new CCF and a new 
collection kit.
    (b) If, as a collector, laboratory, MRO, employer, or other person 
implementing these drug testing regulations, you become aware of a 
problem that can be corrected (see Sec. 40.203 ), but which has not 
already been corrected under paragraph (a) of this section, you must 
take all practicable action to correct the problem so that the test is 
not cancelled.
    (1) If the problem resulted from the omission of required 
information, you must, as the person responsible for providing that 
information, supply in writing the missing information and a statement 
that it is true and accurate. For example, suppose you are a collector, 
and you forgot to make a notation on the ``Remarks'' line of the CCF 
that the employee did not sign the certification. You would, when the 
problem is called to your attention, supply a signed statement that the 
employee failed or refused to sign the certification and that your 
statement is true

[[Page 575]]

and accurate. You must supply this information on the same business day 
on which you are notified of the problem, transmitting it by fax or 
courier.
    (2) If the problem is the use of a non-Federal form or an expired 
Federal form, you must provide a signed statement (i.e., a memorandum 
for the record). It must state that the incorrect form contains all the 
information needed for a valid DOT drug test, and that the incorrect 
form was used inadvertently or as the only means of conducting a test, 
in circumstances beyond your control. The statement must also list the 
steps you have taken to prevent future use of non-Federal forms or 
expired Federal forms for DOT tests. For this flaw to be corrected, the 
test of the specimen must have occurred at a HHS-certified laboratory 
where it was tested consistent with the requirements of this part. You 
must supply this information on the same business day on which you are 
notified of the problem, transmitting it by fax or courier.
    (3) You must maintain the written documentation of a correction with 
the CCF.
    (4) You must mark the CCF in such a way (e.g., stamp noting 
correction) as to make it obvious on the face of the CCF that you 
corrected the flaw.
    (c) If the correction does not take place, as the MRO you must 
cancel the test.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec. 40.207  What is the effect of a cancelled drug test?

    (a) A cancelled drug test is neither positive nor negative.
    (1) As an employer, you must not attach to a cancelled test the 
consequences of a positive test or other violation of a DOT drug testing 
regulation (e.g., removal from a safety-sensitive position).
    (2) As an employer, you must not use a cancelled test for the 
purposes of a negative test to authorize the employee to perform safety-
sensitive functions (i.e., in the case of a pre-employment, return-to-
duty, or follow-up test).
    (3) However, as an employer, you must not direct a recollection for 
an employee because a test has been cancelled, except in the situations 
cited in paragraph (a)(2) of this section or other provisions of this 
part that require another test to be conducted (e.g., Sec. Sec. 
40.159(a)(5) and 40.187(b)(2), (c)(1), and (e).
    (b) A cancelled test does not count toward compliance with DOT 
requirements (e.g., being applied toward the number of tests needed to 
meet the employer's minimum random testing rate).
    (c) A cancelled DOT test does not provide a valid basis for an 
employer to conduct a non-DOT test (i.e., a test under company 
authority).

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35975, June 25, 2008]



Sec. 40.208  What problem requires corrective action but does not 
result in the cancellation of a test?

    (a) If, as a laboratory, collector, employer, or other person 
implementing the DOT drug testing program, you become aware that the 
specimen temperature on the CCF was not checked and the ``Remarks'' line 
did not contain an entry regarding the temperature being out of range, 
you must take corrective action, including securing a memorandum for the 
record explaining the problem and taking appropriate action to ensure 
that the problem does not recur.
    (b) This error does not result in the cancellation of the test.
    (c) As an employer or service agent, this error, even though not 
sufficient to cancel a drug test result, may subject you to enforcement 
action under DOT agency regulations or Subpart R of this part.

[66 FR 41954, Aug. 9, 2001]



Sec. 40.209  What procedural problems do not result in the cancellation 
of a test and do not require correction?

    (a) As a collector, laboratory, MRO, employer or other person 
administering the drug testing process, you must document any errors in 
the testing process of which you become aware, even if they are not 
considered problems that will cause a test to be cancelled as listed in 
this subpart. Decisions about the ultimate impact of these errors will 
be determined by

[[Page 576]]

other administrative or legal proceedings, subject to the limitations of 
paragraph (b) of this section.
    (b) No person concerned with the testing process may declare a test 
cancelled based on an error that does not have a significant adverse 
effect on the right of the employee to have a fair and accurate test. 
Matters that do not result in the cancellation of a test include, but 
are not limited to, the following:
    (1) A minor administrative mistake (e.g., the omission of the 
employee's middle initial, a transposition of numbers in the employee's 
social security number);
    (2) An error that does not affect employee protections under this 
part (e.g., the collector's failure to add bluing agent to the toilet 
bowl, which adversely affects only the ability of the collector to 
detect tampering with the specimen by the employee);
    (3) The collection of a specimen by a collector who is required to 
have been trained (see Sec. 40.33), but who has not met this 
requirement;
    (4) A delay in the collection process (see Sec. 40.61(a));
    (5) Verification of a test result by an MRO who has the basic 
credentials to be qualified as an MRO (see Sec. 40.121(a) through (b)) 
but who has not met training and/or documentation requirements (see 
Sec. 40.121(c) through (e));
    (6) The failure to directly observe or monitor a collection that the 
rule requires or permits to be directly observed or monitored, or the 
unauthorized use of direct observation or monitoring for a collection;
    (7) The fact that a test was conducted in a facility that does not 
meet the requirements of Sec. 40.41;
    (8) If the specific name of the courier on the CCF is omitted or 
erroneous;
    (9) Personal identifying information is inadvertently contained on 
the CCF (e.g., the employee signs his or her name on the laboratory 
copy); or
    (10) Claims that the employee was improperly selected for testing.
    (c) As an employer or service agent, these types of errors, even 
though not sufficient to cancel a drug test result, may subject you to 
enforcement action under DOT agency regulations or action under Subpart 
R of this part.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



                   Subpart J_Alcohol Testing Personnel



Sec. 40.211  Who conducts DOT alcohol tests?

    (a) Screening test technicians (STTs) and breath alcohol technicians 
(BATs) meeting their respective requirements of this subpart are the 
only people authorized to conduct DOT alcohol tests.
    (b) An STT can conduct only alcohol screening tests, but a BAT can 
conduct alcohol screening and confirmation tests.
    (c) As a BAT- or STT-qualified immediate supervisor of a particular 
employee, you may not act as the STT or BAT when that employee is 
tested, unless no other STT or BAT is available and DOT agency 
regulations do not prohibit you from doing so.



Sec. 40.213  What training requirements must STTs and BATs meet?

    To be permitted to act as a BAT or STT in the DOT alcohol testing 
program, you must meet each of the requirements of this section:
    (a) Basic information. You must be knowledgeable about the alcohol 
testing procedures in this part and the current DOT guidance. These 
documents and information are available from ODAPC (Department of 
Transportation, 400 7th Street, SW., Room 10403, Washington DC, 20590, 
202-366-3784, or on the ODAPC web site, http://www.dot.gov/ost/dapc)).
    (b) Qualification training. You must receive qualification training 
meeting the requirements of this paragraph (b).
    (1) Qualification training must be in accordance with the DOT Model 
BAT or STT Course, as applicable. The DOT Model Courses are available 
from ODAPC (Department of Transportation, 1200 New Jersey Avenue, SE., 
Washington DC, 20590, 202-366-3784, or on the ODAPC web site, http://
www.dot.gov/ost/dapc). The training can also be provided using a course 
of instruction equivalent to the DOT Model

[[Page 577]]

Courses. On request, ODAPC will review BAT and STT instruction courses 
for equivalency.
    (2) Qualification training must include training to proficiency in 
using the alcohol testing procedures of this part and in the operation 
of the particular alcohol testing device(s) (i.e., the ASD(s) or EBT(s)) 
you will be using.
    (3) The training must emphasize that you are responsible for 
maintaining the integrity of the testing process, ensuring the privacy 
of employees being tested, and avoiding conduct or statements that could 
be viewed as offensive or inappropriate.
    (4) The instructor must be an individual who has demonstrated 
necessary knowledge, skills, and abilities by regularly conducting DOT 
alcohol tests as an STT or BAT, as applicable, for a period of at least 
a year, who has conducted STT or BAT training, as applicable, under this 
part for a year, or who has successfully completed a ``train the 
trainer'' course.
    (c) Initial Proficiency Demonstration. Following your completion of 
qualification training under paragraph (b) of this section, you must 
demonstrate proficiency in alcohol testing under this part by completing 
seven consecutive error-free mock tests (BATs) or five consecutive 
error-free tests (STTs).
    (1) Another person must monitor and evaluate your performance, in 
person or by a means that provides real-time observation and interaction 
between the instructor and trainee, and attest in writing that the mock 
collections are ``error-free.'' This person must be an individual who 
meets the requirements of paragraph (b)(4) of this section.
    (2) These tests must use the alcohol testing devices (e.g., EBT(s) 
or ASD(s)) that you will use as a BAT or STT.
    (3) If you are an STT who will be using an ASD that indicates 
readings by changes, contrasts, or other readings in color, you must 
demonstrate as part of the mock test that you are able to discern 
changes, contrasts, or readings correctly.
    (d) Schedule for qualification training and initial proficiency 
demonstration. The following is the schedule for qualification training 
and the initial proficiency demonstration you must meet:
    (1) If you became a BAT or STT before August 1, 2001, you were 
required to have met the requirements set forth in paragraphs (b) and 
(c) of this section, and you do not have to meet them again.
    (2) If you become a BAT or STT on or after August 1, 2001, you must 
meet the requirements of paragraphs (b) and (c) of this section before 
you begin to perform BAT or STT functions.
    (e) Refresher training. No less frequently than every five years 
from the date on which you satisfactorily complete the requirements of 
paragraphs (b) and (c) of this section, you must complete refresher 
training that meets all the requirements of paragraphs (b) and (c) of 
this section. If you are a BAT or STT who completed qualification 
training before January 1, 1998, you are not required to complete 
refresher training until January 1, 2003.
    (f) Error Correction Training. If you make a mistake in the alcohol 
testing process that causes a test to be cancelled (i.e., a fatal or 
uncorrected flaw), you must undergo error correction training. This 
training must occur within 30 days of the date you are notified of the 
error that led to the need for retraining.
    (1) Error correction training must be provided and your proficiency 
documented in writing by a person who meets the requirements of 
paragraph (b)(4) of this section.
    (2) Error correction training is required to cover only the subject 
matter area(s) in which the error that caused the test to be cancelled 
occurred.
    (3) As part of the error correction training, you must demonstrate 
your proficiency in the alcohol testing procedures of this part by 
completing three consecutive error-free mock tests. The mock tests must 
include one uneventful scenario and two scenarios related to the area(s) 
in which your error(s) occurred. The person providing the training must 
monitor and evaluate your performance and attest in writing that the 
mock tests were error-free.
    (g) Documentation. You must maintain documentation showing that you 
currently meet all requirements of this

[[Page 578]]

section. You must provide this documentation on request to DOT agency 
representatives and to employers and C/TPAs who are negotiating to use 
your services.
    (h) Other persons who may serve as BATs or STTs. (1) Anyone meeting 
the requirements of this section to be a BAT may act as an STT, provided 
that the individual has demonstrated initial proficiency in the 
operation of the ASD that he or she is using, as provided in paragraph 
(c) of this section.
    (2) Law enforcement officers who have been certified by state or 
local governments to conduct breath alcohol testing are deemed to be 
qualified as BATs. They are not required to also complete the training 
requirements of this section in order to act as BATs. In order for a 
test conducted by such an officer to be accepted under DOT alcohol 
testing requirements, the officer must have been certified by a state or 
local government to use the EBT or ASD that was used for the test.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec. 40.215  What information about the DER do employers have to 
provide to BATs and STTs?

    As an employer, you must provide to the STTs and BATs the name and 
telephone number of the appropriate DER (and C/TPA, where applicable) to 
contact about any problems or issues that may arise during the testing 
process.



Sec. 40.217  Where is other information on the role of STTs and BATs
found in this regulation?

    You can find other information on the role and functions of STTs and 
BATs in the following sections of this part:

Sec. 40.3--Definitions.
Sec. 40.223--Responsibility for supervising employees being tested.
Sec. Sec. 40.225-40.227--Use of the alcohol testing form.
Sec. Sec. 40.241-40.245--Screening test procedures with ASDs and EBTs.
Sec. Sec. 40.251-40.255--Confirmation test procedures.
Sec. 40.261--Refusals to test.
Sec. Sec. 40.263-40.265--Insufficient saliva or breath.
Sec. 40.267--Problems requiring cancellation of tests.
Sec. Sec. 40.269-40.271--Correcting problems in tests.



 Subpart K_Testing Sites, Forms, Equipment and Supplies Used in Alcohol 
                                 Testing



Sec. 40.221  Where does an alcohol test take place?

    (a) A DOT alcohol test must take place at an alcohol testing site 
meeting the requirements of this section.
    (b) If you are operating an alcohol testing site, you must ensure 
that it meets the security requirements of Sec. 40.223.
    (c) If you are operating an alcohol testing site, you must ensure 
that it provides visual and aural privacy to the employee being tested, 
sufficient to prevent unauthorized persons from seeing or hearing test 
results.
    (d) If you are operating an alcohol testing site, you must ensure 
that it has all needed personnel, materials, equipment, and facilities 
to provide for the collection and analysis of breath and/or saliva 
samples, and a suitable clean surface for writing.
    (e) If an alcohol testing site fully meeting all the visual and 
aural privacy requirements of paragraph (c) is not readily available, 
this part allows a reasonable suspicion or post-accident test to be 
conducted at a site that partially meets these requirements. In this 
case, the site must afford visual and aural privacy to the employee to 
the greatest extent practicable.
    (f) An alcohol testing site can be in a medical facility, a mobile 
facility (e.g., a van), a dedicated collection facility, or any other 
location meeting the requirements of this section.



Sec. 40.223  What steps must be taken to protect the security of
alcohol testing sites?

    (a) If you are a BAT, STT, or other person operating an alcohol 
testing site, you must prevent unauthorized personnel from entering the 
testing site.
    (1) The only people you are to treat as authorized persons are 
employees being tested, BATs, STTs, and other alcohol testing site 
workers, DERs, employee representatives authorized by the employer 
(e.g., on the basis of employer policy or labor-management agreement), 
and DOT agency representatives.

[[Page 579]]

    (2) You must ensure that all persons are under the supervision of a 
BAT or STT at all times when permitted into the site.
    (3) You may remove any person who obstructs, interferes with, or 
causes unnecessary delay in the testing process.
    (b) As the BAT or STT, you must not allow any person other than you, 
the employee, or a DOT agency representative to actually witness the 
testing process (see Sec. Sec. 40.241-40.255).
    (c) If you are operating an alcohol testing site, you must ensure 
that when an EBT or ASD is not being used for testing, you store it in a 
secure place.
    (d) If you are operating an alcohol testing site, you must ensure 
that no one other than BATs or other employees of the site have access 
to the site when an EBT is unsecured.
    (e) As a BAT or STT, to avoid distraction that could compromise 
security, you are limited to conducting an alcohol test for only one 
employee at a time.
    (1) When an EBT screening test on an employee indicates an alcohol 
concentration of 0.02 or higher, and the same EBT will be used for the 
confirmation test, you are not allowed to use the EBT for a test on 
another employee before completing the confirmation test on the first 
employee.
    (2) As a BAT who will conduct both the screening and the 
confirmation test, you are to complete the entire screening and 
confirmation process on one employee before starting the screening 
process on another employee.
    (3) You are not allowed to leave the alcohol testing site while the 
testing process for a given employee is in progress, except to notify a 
supervisor or contact a DER for assistance in the case an employee or 
other person who obstructs, interferes with, or unnecessarily delays the 
testing process.



Sec. 40.225  What form is used for an alcohol test?

    (a) The DOT Alcohol Testing Form (ATF) must be used for every DOT 
alcohol test beginning February 1, 2002. The ATF must be a three-part 
carbonless manifold form. The ATF is found in Appendix G to this part. 
You may view this form on the ODAPC web site (http://www.dot.gov/ost/
dapc).
    (b) As an employer in the DOT alcohol testing program, you are not 
permitted to modify or revise the ATF except as follows:
    (1) You may include other information needed for billing purposes, 
outside the boundaries of the form.
    (2) You may use a ATF directly generated by an EBT which omits the 
space for affixing a separate printed result to the ATF, provided the 
EBT prints the result directly on the ATF.
    (3) You may use an ATF that has the employer's name, address, and 
telephone number preprinted. In addition, a C/TPA's name, address, and 
telephone number may be included, to assist with negative results.
    (4) You may use an ATF in which all pages are printed on white 
paper. You may modify the ATF by using colored paper, or have clearly 
discernable borders or designation statements on Copy 2 and Copy 3. When 
colors are used, they must be green for Copy 2 and blue for Copy 3.
    (5) As a BAT or STT, you may add, on the ``Remarks'' line of the 
ATF, the name of the DOT agency under whose authority the test occurred.
    (6) As a BAT or STT, you may use a ATF that has your name, address, 
and telephone number preprinted, but under no circumstances can your 
signature be preprinted.
    (c) As an employer, you may use an equivalent foreign-language 
version of the ATF approved by ODAPC. You may use such a non-English 
language form only in a situation where both the employee and BAT/STT 
understand and can use the form in that language.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec. 40.227  May employers use the ATF for non-DOT tests, or non-DOT
forms for DOT tests?

    (a) No, as an employer, BAT, or STT, you are prohibited from using 
the ATF for non-DOT alcohol tests. You are also prohibited from using 
non-DOT forms for DOT alcohol tests. Doing either subjects you to 
enforcement action under DOT agency regulations.
    (b) If the STT or BAT, either by mistake, or as the only means to 
conduct

[[Page 580]]

a test under difficult circumstances (e.g., post-accident test with 
insufficient time to obtain the ATF), uses a non-DOT form for a DOT 
test, the use of a non-DOT form does not, in and of itself, require the 
employer or service agent to cancel the test. However, in order for the 
test to be considered valid, a signed statement must be obtained from 
the STT or BAT in accordance with Sec. 40.271(b) .



Sec. 40.229  What devices are used to conduct alcohol screening tests?

    EBTs and ASDs on the NHTSA conforming products lists (CPL) for 
evidential and non-evidential devices are the only devices you are 
allowed to use to conduct alcohol screening tests under this part. You 
may use an ASD that is on the NHTSA CPL for DOT alcohol tests only if 
there are instructions for its use in this part. An ASD can be used only 
for screening tests for alcohol, and may not be used for confirmation 
tests.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec. 40.231  What devices are used to conduct alcohol confirmation tests?

    (a) EBTs on the NHTSA CPL for evidential devices that meet the 
requirements of paragraph (b) of this section are the only devices you 
may use to conduct alcohol confirmation tests under this part. Note 
that, among devices on the CPL for EBTs, only those devices listed 
without an asterisk (*) are authorized for use in confirmation testing 
in the DOT alcohol testing program.
    (b) To conduct a confirmation test, you must use an EBT that has the 
following capabilities:
    (1) Provides a printed triplicate result (or three consecutive 
identical copies of a result) of each breath test;
    (2) Assigns a unique number to each completed test, which the BAT 
and employee can read before each test and which is printed on each copy 
of the result;
    (3) Prints, on each copy of the result, the manufacturer's name for 
the device, its serial number, and the time of the test;
    (4) Distinguishes alcohol from acetone at the 0.02 alcohol 
concentration level;
    (5) Tests an air blank; and
    (6) Performs an external calibration check.



Sec. 40.233  What are the requirements for proper use and care of EBTs?

    (a) As an EBT manufacturer, you must submit, for NHTSA approval, a 
quality assurance plan (QAP) for your EBT before NHTSA places the EBT on 
the CPL.
    (1) Your QAP must specify the methods used to perform external 
calibration checks on the EBT, the tolerances within which the EBT is 
regarded as being in proper calibration, and the intervals at which 
these checks must be performed. In designating these intervals, your QAP 
must take into account factors like frequency of use, environmental 
conditions (e.g., temperature, humidity, altitude) and type of operation 
(e.g., stationary or mobile).
    (2) Your QAP must also specify the inspection, maintenance, and 
calibration requirements and intervals for the EBT.
    (b) As the manufacturer, you must include, with each EBT, 
instructions for its use and care consistent with the QAP.
    (c) As the user of the EBT (e.g., employer, service agent), you must 
do the following:
    (1) You must follow the manufacturer's instructions (see paragraph 
(b) of this section), including performance of external calibration 
checks at the intervals the instructions specify.
    (2) In conducting external calibration checks, you must use only 
calibration devices appearing on NHTSA's CPL for ``Calibrating Units for 
Breath Alcohol Tests.''
    (3) If an EBT fails an external check of calibration, you must take 
the EBT out of service. You may not use the EBT again for DOT alcohol 
testing until it is repaired and passes an external calibration check.
    (4) You must maintain records of the inspection, maintenance, and 
calibration of EBTs as provided in Sec. 40.333(a)(2) .
    (5) You must ensure that inspection, maintenance, and calibration of 
the

[[Page 581]]

EBT are performed by its manufacturer or a maintenance representative 
certified either by the manufacturer or by a state health agency or 
other appropriate state agency.



Sec. 40.235  What are the requirements for proper use and care of ASDs?

    (a) As an ASD manufacturer, you must submit, for NHTSA approval, a 
QAP for your ASD before NHTSA places the ASD on the CPL. Your QAP must 
specify the methods used for quality control checks, temperatures at 
which the ASD must be stored and used, the shelf life of the device, and 
environmental conditions (e.g., temperature, altitude, humidity) that 
may affect the ASD's performance.
    (b) As a manufacturer, you must include with each ASD instructions 
for its use and care consistent with the QAP. The instructions must 
include directions on the proper use of the ASD, and, where applicable 
the time within which the device must be read, and the manner in which 
the reading is made.
    (c) As the user of the ADS (e.g., employer, STT), you must follow 
the QAP instructions.
    (d) You are not permitted to use an ASD that does not pass the 
specified quality control checks or that has passed its expiration date.
    (e) As an employer, with respect to breath ASDs, you must also 
follow the device use and care requirements of Sec. 40.233 .



                    Subpart L_Alcohol Screening Tests



Sec. 40.241  What are the first steps in any alcohol screening test?

    As the BAT or STT you will take the following steps to begin all 
alcohol screening tests, regardless of the type of testing device you 
are using:
    (a) When a specific time for an employee's test has been scheduled, 
or the collection site is at the employee's worksite, and the employee 
does not appear at the collection site at the scheduled time, contact 
the DER to determine the appropriate interval within which the DER has 
determined the employee is authorized to arrive. If the employee's 
arrival is delayed beyond that time, you must notify the DER that the 
employee has not reported for testing. In a situation where a C/TPA has 
notified an owner/operator or other individual employee to report for 
testing and the employee does not appear, the C/TPA must notify the 
employee that he or she has refused to test.
    (b) Ensure that, when the employee enters the alcohol testing site, 
you begin the alcohol testing process without undue delay. For example, 
you must not wait because the employee says he or she is not ready or 
because an authorized employer or employee representative is delayed in 
arriving.
    (1) If the employee is also going to take a DOT drug test, you must, 
to the greatest extent practicable, ensure that the alcohol test is 
completed before the urine collection process begins.
    (2) If the employee needs medical attention (e.g., an injured 
employee in an emergency medical facility who is required to have a 
post-accident test), do not delay this treatment to conduct a test.
    (c) Require the employee to provide positive identification. You 
must see a photo ID issued by the employer (other than in the case of an 
owner-operator or other self-employer individual) or a Federal, state, 
or local government (e.g., a driver's license). You may not accept faxes 
or photocopies of identification. Positive identification by an employer 
representative (not a co-worker or another employee being tested) is 
also acceptable. If the employee cannot produce positive identification, 
you must contact a DER to verify the identity of the employee.
    (d) If the employee asks, provide your identification to the 
employee. Your identification must include your name and your employer's 
name but is not required to include your picture, address, or telephone 
number.
    (e) Explain the testing procedure to the employee, including showing 
the employee the instructions on the back of the ATF.
    (f) Complete Step 1 of the ATF.
    (g) Direct the employee to complete Step 2 on the ATF and sign the 
certification. If the employee refuses to sign this certification, you 
must document this refusal on the ``Remarks'' line of

[[Page 582]]

the ATF and immediately notify the DER. This is a refusal to test.



Sec. 40.243  What is the procedure for an alcohol screening test using
an EBT or non-evidential breath ASD?

    As the BAT or STT, you must take the following steps:
    (a) Select, or allow the employee to select, an individually wrapped 
or sealed mouthpiece from the testing materials.
    (b) Open the individually wrapped or sealed mouthpiece in view of 
the employee and insert it into the device in accordance with the 
manufacturer's instructions.
    (c) Instruct the employee to blow steadily and forcefully into the 
mouthpiece for at least six seconds or until the device indicates that 
an adequate amount of breath has been obtained.
    (d) Show the employee the displayed test result.
    (e) If the device is one that prints the test number, testing device 
name and serial number, time, and result directly onto the ATF, you must 
check to ensure that the information has been printed correctly onto the 
ATF.
    (f) If the device is one that prints the test number, testing device 
name and serial number, time and result, but on a separate printout 
rather than directly onto the ATF, you must affix the printout of the 
information to the designated space on the ATF with tamper-evident tape 
or use a self-adhesive label that is tamper-evident.
    (g) If the device is one that does not print the test number, 
testing device name and serial number, time, and result, or it is a 
device not being used with a printer, you must record this information 
in Step 3 of the ATF.



Sec. 40.245  What is the procedure for an alcohol screening test using
a saliva ASD or a breath tube ASD?

    (a) As the STT or BAT, you must take the following steps when using 
the saliva ASD:
    (1) Check the expiration date on the device or on the package 
containing the device and show it to the employee. You may not use the 
device after its expiration date.
    (2) Open an individually wrapped or sealed package containing the 
device in the presence of the employee.
    (3) Offer the employee the opportunity to use the device. If the 
employee uses it, you must instruct the employee to insert it into his 
or her mouth and use it in a manner described by the device's 
manufacturer.
    (4) If the employee chooses not to use the device, or in all cases 
in which a new test is necessary because the device did not activate 
(see paragraph (a)(7) of this section), you must insert the device into 
the employee's mouth and gather saliva in the manner described by the 
device's manufacturer. You must wear single-use examination or similar 
gloves while doing so and change them following each test.
    (5) When the device is removed from the employee's mouth, you must 
follow the manufacturer's instructions regarding necessary next steps in 
ensuring that the device has activated.
    (6)(i) If you were unable to successfully follow the procedures of 
paragraphs (a)(3) through (a)(5) of this section (e.g., the device 
breaks, you drop the device on the floor), you must discard the device 
and conduct a new test using a new device.
    (ii) The new device you use must be one that has been under your 
control or that of the employee before the test.
    (iii) You must note on the ``Remarks'' line of the ATF the reason 
for the new test. (Note: You may continue using the same ATF with which 
you began the test.)
    (iv) You must offer the employee the choice of using the device or 
having you use it unless the employee, in the opinion of the STT or BAT, 
was responsible (e.g., the employee dropped the device) for the new test 
needing to be conducted.
    (v) If you are unable to successfully follow the procedures of 
paragraphs (a)(3) through (a)(5) of this section on the new test, you 
must end the collection and put an explanation on the ``Remarks'' line 
of the ATF.
    (vi) You must then direct the employee to take a new test 
immediately, using an EBT for the screening test.
    (7) If you are able to successfully follow the procedures of 
paragraphs (a)(3)-(a)(5) of this section, but the device does not 
activate, you must discard the device and conduct a new test, in the 
same manner as provided in paragraph

[[Page 583]]

(a)(6) of this section. In this case, you must place the device into the 
employee's mouth to collect saliva for the new test.
    (8) You must read the result displayed on the device no sooner than 
the device's manufacturer instructs. In all cases the result displayed 
must be read within 15 minutes of the test. You must then show the 
device and it's reading to the employee and enter the result on the ATF.
    (9) You must never re-use devices, swabs, gloves or other materials 
used in saliva testing.
    (10) You must note the fact that you used a saliva ASD in Step 3 of 
the ATF.
    (b) As the STT or BAT, you must take the following steps when using 
the breath tube ASD:
    (1) Check the expiration date on the detector device and the 
electronic analyzer or on the package containing the device and the 
analyzer and show it to the employee. You must not use the device or the 
analyzer after their expiration date. You must not use an analyzer which 
is not specifically pre-calibrated for the device being used in the 
collection.
    (2) Remove the device from the package and secure an inflation bag 
onto the appropriate end of the device, as directed by the manufacturer 
on the device's instructions.
    (3) Break the tube's ampoule in the presence of the employee.
    (4) Offer the employee the opportunity to use the device. If the 
employee chooses to use (e.g. hold) the device, instruct the employee to 
blow forcefully and steadily into the blowing end of device until the 
inflation bag fills with air (approximately 12 seconds).
    (5) If the employee chooses not to hold the device, you must hold it 
and provide the use instructions in paragraph (b)(4) of this section.
    (6) When the employee completes the breath process, take the device 
from the employee (or if you were holding it, remove it from the 
employee's mouth), remove the inflation bag, and prepare the device to 
be read by the analyzer in accordance with the manufacturer's 
directions.
    (7)(i) If you were unable to successfully follow the procedures of 
paragraphs (b)(4) through (b)(6) of this section (e.g., the device 
breaks apart, the employee did not fill the inflation bag), you must 
discard the device and conduct a new test using a new one.
    (ii) The new device you use must be one that has been under your 
control or that of the employer before the test.
    (iii) You must note on the ``Remarks'' line of the ATF the reason 
for the new test. (Note: You may continue using the same ATF with which 
you began the test.)
    (iv) You must offer the employee the choice of holding the device or 
having you hold it unless the employee, in the your opinion, was 
responsible (e.g., the employee failed to fill the inflation bag) for 
the new test needing to be conducted.
    (v) If you are unable to successfully follow the procedures of 
paragraphs (b)(4) through (b)(6) of this section on the new test, you 
must end the collection and put an explanation on the ``Remarks'' line 
of the ATF.
    (vi) You must then direct the employee to take a new test 
immediately, using another type of ASD (e.g., saliva device) or an EBT.
    (8) If you were able to successfully follow the procedures of 
paragraphs (b)(4) through (b)(6) of this section and after having waited 
the required amount of time directed by the manufacturer for the 
detector device to incubate, you must place the device in the analyzer 
in accordance with the manufacturer's directions. The result must be 
read from the analyzer no earlier then the required incubation time of 
the device. In all cases, the result must be read within 15 minutes of 
the test.
    (9) You must follow the manufacturer's instructions for determining 
the result of the test. You must show the analyzer result to the 
employee and record the result on Step 3 of the ATF.
    (10) You must never re-use detector devices or any gloves used in 
breath tube testing. The inflation bag must be voided of air following 
removal from a device. Inflation bags and electronic analyzers may be 
re-used but only in accordance with the manufacturer's directions.

[[Page 584]]

    (11) You must note the fact that you used a breath tube device in 
Step 3 of the ATF.

[67 FR 61522, Oct. 1, 2002, as amended at 72 FR 1299, Jan. 11, 2007]



Sec. 40.247  What procedures does the BAT or STT follow after a
screening test result?

    (a) If the test result is an alcohol concentration of less than 
0.02, as the BAT or STT, you must do the following:
    (1) Sign and date Step 3 of the ATF; and
    (2) Transmit the result to the DER in a confidential manner, as 
provided in Sec. 40.255 .
    (b) If the test result is an alcohol concentration of 0.02 or 
higher, as the BAT or STT, you must direct the employee to take a 
confirmation test.
    (1) If you are the BAT who will conduct the confirmation test, you 
must then conduct the test using the procedures beginning at Sec. 
40.251 .
    (2) If you are not the BAT who will conduct the confirmation test, 
direct the employee to take a confirmation test, sign and date Step 3 of 
the ATF, and give the employee Copy 2 of the ATF.
    (3) If the confirmation test will be performed at a different site 
from the screening test, you must take the following additional steps:
    (i) Advise the employee not to eat, drink, put anything (e.g., 
cigarette, chewing gum) into his or her mouth, or belch;
    (ii) Tell the employee the reason for the waiting period required by 
Sec. 40.251(a) (i.e., to prevent an accumulation of mouth alcohol from 
leading to an artificially high reading);
    (iii) Explain that following your instructions concerning the 
waiting period is to the employee's benefit;
    (iv) Explain that the confirmation test will be conducted at the end 
of the waiting period, even if the instructions have not been followed;
    (v) Note on the ``Remarks'' line of the ATF that the waiting period 
instructions were provided;
    (vi) Instruct the person accompanying the employee to carry a copy 
of the ATF to the BAT who will perform the confirmation test; and
    (vii) Ensure that you or another BAT, STT, or employer 
representative observe the employee as he or she is transported to the 
confirmation testing site. You must direct the employee not to attempt 
to drive a motor vehicle to the confirmation testing site.
    (c) If the screening test is invalid, you must, as the BAT or STT, 
tell the employee the test is cancelled and note the problem on the 
``Remarks'' line of the ATF. If practicable, repeat the testing process 
(see Sec. 40. 271).



                  Subpart M_Alcohol Confirmation Tests



Sec. 40.251  What are the first steps in an alcohol confirmation test?

    As the BAT for an alcohol confirmation test, you must follow these 
steps to begin the confirmation test process:
    (a) You must carry out a requirement for a waiting period before the 
confirmation test, by taking the following steps:
    (1) You must ensure that the waiting period lasts at least 15 
minutes, starting with the completion of the screening test. After the 
waiting period has elapsed, you should begin the confirmation test as 
soon as possible, but not more than 30 minutes after the completion of 
the screening test.
    (i) If the confirmation test is taking place at a different location 
from the screening test (see Sec. 40.247(b)(3)) the time of transit 
between sites counts toward the waiting period if the STT or BAT who 
conducted the screening test provided the waiting period instructions.
    (ii) If you cannot verify, through review of the ATF, that waiting 
period instructions were provided, then you must carry out the waiting 
period requirement.
    (iii) You or another BAT or STT, or an employer representative, must 
observe the employee during the waiting period.
    (2) Concerning the waiting period, you must tell the employee:
    (i) Not to eat, drink, put anything (e.g., cigarette, chewing gum) 
into his or her mouth, or belch;
    (ii) The reason for the waiting period (i.e., to prevent an 
accumulation of

[[Page 585]]

mouth alcohol from leading to an artificially high reading);
    (iii) That following your instructions concerning the waiting period 
is to the employee's benefit; and
    (iv) That the confirmation test will be conducted at the end of the 
waiting period, even if the instructions have not been followed.
    (3) If you become aware that the employee has not followed the 
instructions, you must note this on the ``Remarks'' line of the ATF.
    (b) If you did not conduct the screening test for the employee, you 
must require positive identification of the employee, explain the 
confirmation procedures, and use a new ATF. You must note on the 
``Remarks'' line of the ATF that a different BAT or STT conducted the 
screening test.
    (c) Complete Step 1 of the ATF.
    (d) Direct the employee to complete Step 2 on the ATF and sign the 
certification. If the employee refuses to sign this certification, you 
must document this refusal on the ``Remarks'' line of the ATF and 
immediately notify the DER. This is a refusal to test.
    (e) Even if more than 30 minutes have passed since the screening 
test result was obtained, you must begin the confirmation test 
procedures in Sec. 40.253, not another screening test.
    (f) You must note on the ``Remarks'' line of the ATF the time that 
elapsed between the two events, and if the confirmation test could not 
begin within 30 minutes of the screening test, the reason why.
    (g) Beginning the confirmation test procedures after the 30 minutes 
have elapsed does not invalidate the screening or confirmation tests, 
but it may constitute a regulatory violation subject to DOT agency 
sanction.



Sec. 40.253  What are the procedures for conducting an alcohol
confirmation test?

    As the BAT conducting an alcohol confirmation test, you must follow 
these steps in order to complete the confirmation test process:
    (a) In the presence of the employee, you must conduct an air blank 
on the EBT you are using before beginning the confirmation test and show 
the reading to the employee.
    (1) If the reading is 0.00, the test may proceed. If the reading is 
greater than 0.00, you must conduct another air blank.
    (2) If the reading on the second air blank is 0.00, the test may 
proceed. If the reading is greater than 0.00, you must take the EBT out 
of service.
    (3) If you take an EBT out of service for this reason, no one may 
use it for testing until the EBT is found to be within tolerance limits 
on an external check of calibration.
    (4) You must proceed with the test of the employee using another 
EBT, if one is available.
    (b) You must open a new individually wrapped or sealed mouthpiece in 
view of the employee and insert it into the device in accordance with 
the manufacturer's instructions.
    (c) You must ensure that you and the employee read the unique test 
number displayed on the EBT.
    (d) You must instruct the employee to blow steadily and forcefully 
into the mouthpiece for at least six seconds or until the device 
indicates that an adequate amount of breath has been obtained.
    (e) You must show the employee the result displayed on the EBT.
    (f) You must show the employee the result and unique test number 
that the EBT prints out either directly onto the ATF or onto a separate 
printout.
    (g) If the EBT provides a separate printout of the result, you must 
attach the printout to the designated space on the ATF with tamper-
evident tape, or use a self-adhesive label that is tamper-evident.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec. 40.255  What happens next after the alcohol confirmation test result?

    (a) After the EBT has printed the result of an alcohol confirmation 
test, you must, as the BAT, take the following additional steps:
    (1) Sign and date Step 3 of the ATF.
    (2) If the alcohol confirmation test result is lower than 0.02, 
nothing further is required of the employee. As the BAT, you must sign 
and date Step 3 of the ATF.

[[Page 586]]

    (3) If the alcohol confirmation test result is 0.02 or higher, 
direct the employee to sign and date Step 4 of the ATF. If the employee 
does not do so, you must note this on the ``Remarks'' line of the ATF. 
However, this is not considered a refusal to test.
    (4) If the test is invalid, tell the employee the test is cancelled 
and note the problem on the ``Remarks'' line of the ATF. If practicable, 
conduct a re-test. (see Sec. 40.271).
    (5) Immediately transmit the result directly to the DER in a 
confidential manner.
    (i) You may transmit the results using Copy 1 of the ATF, in person, 
by telephone, or by electronic means. In any case, you must immediately 
notify the DER of any result of 0.02 or greater by any means (e.g., 
telephone or secure fax machine) that ensures the result is immediately 
received by the DER. You must not transmit these results through C/TPAs 
or other service agents.
    (ii) If you do not make the initial transmission in writing, you 
must follow up the initial transmission with Copy 1 of the ATF.
    (b) As an employer, you must take the following steps with respect 
to the receipt and storage of alcohol test result information:
    (1) If you receive any test results that are not in writing (e.g., 
by telephone or electronic means), you must establish a mechanism to 
establish the identity of the BAT sending you the results.
    (2) You must store all test result information in a way that 
protects confidentiality.



                  Subpart N_Problems in Alcohol Testing



Sec. 40.261  What is a refusal to take an alcohol test, and what
are the consequences?

    (a) As an employee, you are considered to have refused to take an 
alcohol test if you:
    (1) Fail to appear for any test (except a pre-employment test) 
within a reasonable time, as determined by the employer, consistent with 
applicable DOT agency regulations, after being directed to do so by the 
employer. This includes the failure of an employee (including an owner-
operator) to appear for a test when called by a C/TPA (see Sec. 
40.241(a));
    (2) Fail to remain at the testing site until the testing process is 
complete; Provided, That an employee who leaves the testing site before 
the testing process commences (see Sec. 40.243(a)) for a pre-employment 
test is not deemed to have refused to test;
    (3) Fail to provide an adequate amount of saliva or breath for any 
alcohol test required by this part or DOT agency regulations; Provided, 
That an employee who does not provide an adequate amount of breath or 
saliva because he or she has left the testing site before the testing 
process commences (see Sec. 40.243(a)) for a pre-employment test is not 
deemed to have refused to test;
    (4) Fail to provide a sufficient breath specimen, and the physician 
has determined, through a required medical evaluation, that there was no 
adequate medical explanation for the failure (see Sec. 40.265(c));
    (5) Fail to undergo a medical examination or evaluation, as directed 
by the employer as part of the insufficient breath procedures outlined 
at Sec. 40.265(c);
    (6) Fail to sign the certification at Step 2 of the ATF (see 
Sec. Sec. 40.241(g) and 40.251(d)); or
    (7) Fail to cooperate with any part of the testing process.
    (b) As an employee, if you refuse to take an alcohol test, you incur 
the same consequences specified under DOT agency regulations for a 
violation of those DOT agency regulations.
    (c) As a BAT or an STT, or as the physician evaluating a ``shy 
lung'' situation, when an employee refuses to test as provided in 
paragraph (a) of this section, you must terminate the portion of the 
testing process in which you are involved, document the refusal on the 
ATF (or in a separate document which you cause to be attached to the 
form), immediately notify the DER by any means (e.g., telephone or 
secure fax machine) that ensures the refusal notification is immediately 
received. You must make this notification directly to the DER (not using 
a C/TPA as an intermediary).

[[Page 587]]

    (d) As an employee, when you refuse to take a non-DOT test or to 
sign a non-DOT form, you have not refused to take a DOT test. There are 
no consequences under DOT agency regulations for such a refusal.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec. 40.263  What happens when an employee is unable to provide a
sufficient amount of saliva for an alcohol screening test?

    (a) As the STT, you must take the following steps if an employee is 
unable to provide sufficient saliva to complete a test on a saliva 
screening device (e.g., the employee does not provide sufficient saliva 
to activate the device).
    (1) You must conduct a new screening test using a new screening 
device.
    (2) If the employee refuses to make the attempt to complete the new 
test, you must discontinue testing, note the fact on the ``Remarks'' 
line of the ATF, and immediately notify the DER. This is a refusal to 
test.
    (3) If the employee has not provided a sufficient amount of saliva 
to complete the new test, you must note the fact on the ``Remarks'' line 
of the ATF and immediately notify the DER.
    (b) As the DER, when the STT informs you that the employee has not 
provided a sufficient amount of saliva (see paragraph (a)(3) of this 
section), you must immediately arrange to administer an alcohol test to 
the employee using an EBT or other breath testing device.



Sec. 40.265  What happens when an employee is unable to provide a 
sufficient amount of breath for an alcohol test?

    (a) If an employee does not provide a sufficient amount of breath to 
permit a valid breath test, you must take the steps listed in this 
section.
    (b) As the BAT or STT, you must instruct the employee to attempt 
again to provide a sufficient amount of breath and about the proper way 
to do so.
    (1) If the employee refuses to make the attempt, you must 
discontinue the test, note the fact on the ``Remarks'' line of the ATF, 
and immediately notify the DER. This is a refusal to test.
    (2) If the employee again attempts and fails to provide a sufficient 
amount of breath, you may provide another opportunity to the employee to 
do so if you believe that there is a strong likelihood that it could 
result in providing a sufficient amount of breath.
    (3) When the employee's attempts under paragraph (b)(2) of this 
section have failed to produce a sufficient amount of breath, you must 
note the fact on the ``Remarks'' line of the ATF and immediately notify 
the DER.
    (4) If you are using an EBT that has the capability of operating 
manually, you may attempt to conduct the test in manual mode.
    (5) If you are qualified to use a saliva ASD and you are in the 
screening test stage, you may change to a saliva ASD only to complete 
the screening test.
    (c) As the employer, when the BAT or STT informs you that the 
employee has not provided a sufficient amount of breath, you must direct 
the employee to obtain, within five days, an evaluation from a licensed 
physician who is acceptable to you and who has expertise in the medical 
issues raised by the employee's failure to provide a sufficient 
specimen.
    (1) You are required to provide the physician who will conduct the 
evaluation with the following information and instructions:
    (i) That the employee was required to take a DOT breath alcohol 
test, but was unable to provide a sufficient amount of breath to 
complete the test;
    (ii) The consequences of the appropriate DOT agency regulation for 
refusing to take the required alcohol test;
    (iii) That the physician must provide you with a signed statement of 
his or her conclusions; and
    (iv) That the physician, in his or her reasonable medical judgment, 
must base those conclusions on one of the following determinations:
    (A) A medical condition has, or with a high degree of probability 
could have, precluded the employee from providing a sufficient amount of 
breath. The physician must not include in the signed statement detailed 
information on the employee's medical condition. In this case, the test 
is cancelled.

[[Page 588]]

    (B) There is not an adequate basis for determining that a medical 
condition has, or with a high degree of probability could have, 
precluded the employee from providing a sufficient amount of breath. 
This constitutes a refusal to test.
    (C) For purposes of paragraphs (c)(1)(iv)(A) and (B) of this 
section, a medical condition includes an ascertainable physiological 
condition (e.g., a respiratory system dysfunction) or a medically 
documented pre-existing psychological disorder, but does not include 
unsupported assertions of ``situational anxiety'' or hyperventilation.
    (2) As the physician making the evaluation, after making your 
determination, you must provide a written statement of your conclusions 
and the basis for them to the DER directly (and not through a C/TPA 
acting as an itermediary). You must not include in this statement 
detailed information on the employee's medical condition beyond what is 
necessary to explain your conclusion.
    (3) Upon receipt of the report from the examining physician, as the 
DER you must immediately inform the employee and take appropriate action 
based upon your DOT agency regulations.



Sec. 40.267  What problems always cause an alcohol test to be cancelled?

    As an employer, a BAT, or an STT, you must cancel an alcohol test if 
any of the following problems occur. These are ``fatal flaws.'' You must 
inform the DER that the test was cancelled and must be treated as if the 
test never occurred. These problems are:
    (a) In the case of a screening test conducted on a saliva ASD or a 
breath tube ASD:
    (1) The STT or BAT reads the result either sooner than or later than 
the time allotted by the manufacturer and this Part (see Sec. 
40.245(a)(8) for the saliva ASD and Sec. 40.245(b)(8) for the breath 
tube ASD).
    (2) The saliva ASD does not activate (see Sec. 40.245(a)(7); or
    (3) The device is used for a test after the expiration date printed 
on the device or on its package (see Sec. 40.245(a)(1) for the saliva 
ASD and Sec. 40.245(b)(1) for the breath tube ASD).
    (4) The breath tube ASD is tested with an analyzer which has not 
been pre-calibrated for that device's specific lot (see Sec. 
40.245(b)(1)).
    (b) In the case of a screening or confirmation test conducted on an 
EBT, the sequential test number or alcohol concentration displayed on 
the EBT is not the same as the sequential test number or alcohol 
concentration on the printed result (see Sec. 40.253(c), (e) and (f)).
    (c) In the case of a confirmation test:
    (1) The BAT conducts the confirmation test before the end of the 
minimum 15-minute waiting period (see Sec. 40.251(a)(1));
    (2) The BAT does not conduct an air blank before the confirmation 
test (see Sec. 40.253(a));
    (3) There is not a 0.00 result on the air blank conducted before the 
confirmation test (see Sec. 40.253(a)(1) and (2));
    (4) The EBT does not print the result (see Sec. 40.253(f)); or
    (5) The next external calibration check of the EBT produces a result 
that differs by more than the tolerance stated in the QAP from the known 
value of the test standard. In this case, every result of 0.02 or above 
obtained on the EBT since the last valid external calibration check is 
cancelled (see Sec. 40.233(a)(1) and (c)(3)).

[65 FR 79526, Dec. 19, 2000, as amended at 67 FR 61522, Oct. 1, 2002; 71 
FR 49384, Aug. 23, 2006; 72 FR 1299, Jan. 11, 2007]



Sec. 40.269  What problems cause an alcohol test to be cancelled unless 
they are corrected?

    As a BAT or STT, or employer, you must cancel an alcohol test if any 
of the following problems occur, unless they are corrected. These are 
``correctable flaws.'' These problems are:
    (a) The BAT or STT does not sign the ATF (see Sec. Sec. 
40.247(a)(1) and 40.255(a)(1)).
    (b) The BAT or STT fails to note on the ``Remarks'' line of the ATF 
that the employee has not signed the ATF after the result is obtained 
(see Sec. 40.255(a)(3)).
    (c) The BAT or STT uses a non-DOT form for the test (see Sec. 
40.225(a)).

[65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006]

[[Page 589]]



Sec. 40.271  How are alcohol testing problems corrected?

    (a) As a BAT or STT, you have the responsibility of trying to 
complete successfully an alcohol test for each employee.
    (1) If, during or shortly after the testing process, you become 
aware of any event that will cause the test to be cancelled (see Sec. 
40.267 ), you must try to correct the problem promptly, if practicable. 
You may repeat the testing process as part of this effort.
    (2) If repeating the testing process is necessary, you must begin a 
new test as soon as possible. You must use a new ATF, a new sequential 
test number, and, if needed, a new ASD and/or a new EBT. It is 
permissible to use additional technical capabilities of the EBT (e.g., 
manual operation) if you have been trained to do so in accordance with 
Sec. 40.213(c) .
    (3) If repeating the testing process is necessary, you are not 
limited in the number of attempts to complete the test, provided that 
the employee is making a good faith effort to comply with the testing 
process.
    (4) If another testing device is not available for the new test at 
the testing site, you must immediately notify the DER and advise the DER 
that the test could not be completed. As the DER who receives this 
information, you must make all reasonable efforts to ensure that the 
test is conducted at another testing site as soon as possible.
    (b) If, as an STT, BAT, employer or other service agent 
administering the testing process, you become aware of a ``correctable 
flaw'' (see Sec. 40.269 ) that has not already been corrected, you must 
take all practicable action to correct the problem so that the test is 
not cancelled.
    (1) If the problem resulted from the omission of required 
information, you must, as the person responsible for providing that 
information, supply in writing the missing information and a signed 
statement that it is true and accurate. For example, suppose you are a 
BAT and you forgot to make a notation on the ``Remarks'' line of the ATF 
that the employee did not sign the certification. You would, when the 
problem is called to your attention, supply a signed statement that the 
employee failed or refused to sign the certification after the result 
was obtained, and that your signed statement is true and accurate.
    (2) If the problem is the use of a non-DOT form, you must, as the 
person responsible for the use of the incorrect form, certify in writing 
that the incorrect form contains all the information needed for a valid 
DOT alcohol test. You must also provide a signed statement that the 
incorrect form was used inadvertently or as the only means of conducting 
a test, in circumstances beyond your control, and the steps you have 
taken to prevent future use of non-DOT forms for DOT tests. You must 
supply this information on the same business day on which you are 
notified of the problem, transmitting it by fax or courier.
    (c) If you cannot correct the problem, you must cancel the test.



Sec. 40.273  What is the effect of a cancelled alcohol test?

    (a) A cancelled alcohol test is neither positive nor negative.
    (1) As an employer, you must not attach to a cancelled test the 
consequences of a test result that is 0.02 or greater (e.g., removal 
from a safety-sensitive position).
    (2) As an employer, you must not use a cancelled test in a situation 
where an employee needs a test result that is below 0.02 (e.g., in the 
case of a return-to-duty or follow-up test to authorize the employee to 
perform safety-sensitive functions).
    (3) As an employer, you must not direct a recollection for an 
employee because a test has been cancelled, except in the situations 
cited in paragraph (a)(2) of this section or other provisions of this 
part.
    (b) A cancelled test does not count toward compliance with DOT 
requirements, such as a minimum random testing rate.
    (c) When a test must be cancelled, if you are the BAT, STT, or other 
person who determines that the cancellation is necessary, you must 
inform the affected DER within 48 hours of the cancellation.
    (d) A cancelled DOT test does not provide a valid basis for an 
employer to

[[Page 590]]

conduct a non-DOT test (i.e., a test under company authority).



Sec. 40.275  What is the effect of procedural problems that are not
sufficient to cancel an alcohol test?

    (a) As an STT, BAT, employer, or a service agent administering the 
testing process, you must document any errors in the testing process of 
which you become aware, even if they are not ``fatal flaws'' or 
``correctable flaws'' listed in this subpart. Decisions about the 
ultimate impact of these errors will be determined by administrative or 
legal proceedings, subject to the limitation of paragraph (b) of this 
section.
    (b) No person concerned with the testing process may declare a test 
cancelled based on a mistake in the process that does not have a 
significant adverse effect on the right of the employee to a fair and 
accurate test. For example, it is inconsistent with this part to cancel 
a test based on a minor administrative mistake (e.g., the omission of 
the employee's middle initial) or an error that does not affect employee 
protections under this part. Nor does the failure of an employee to sign 
in Step 4 of the ATF result in the cancellation of the test. Nor is a 
test to be cancelled on the basis of a claim by an employee that he or 
she was improperly selected for testing.
    (c) As an employer, these errors, even though not sufficient to 
cancel an alcohol test result, may subject you to enforcement action 
under DOT agency regulations.



Sec. 40.277  Are alcohol tests other than saliva or breath permitted 
under these regulations?

    No, other types of alcohol tests (e,g., blood and urine) are not 
authorized for testing done under this part. Only saliva or breath for 
screening tests and breath for confirmation tests using approved devices 
are permitted.



 Subpart O_Substance Abuse Professionals and the Return-to-Duty Process



Sec. 40.281  Who is qualified to act as a SAP?

    To be permitted to act as a SAP in the DOT drug and alcohol testing 
program, you must meet each of the requirements of this section:
    (a) Credentials. You must have one of the following credentials:
    (1) You are a licensed physician (Doctor of Medicine or Osteopathy);
    (2) You are a licensed or certified social worker;
    (3) You are a licensed or certified psychologist;
    (4) You are a licensed or certified employee assistance 
professional;
    (5) You are a state-licensed or certified marriage and family 
therapist; or
    (6) You are a drug and alcohol counselor certified by the National 
Association of Alcoholism and Drug Abuse Counselors Certification 
Commission (NAADAC); or by the International Certification Reciprocity 
Consortium/Alcohol and Other Drug Abuse (ICRC); or by the National Board 
for Certified Counselors, Inc. and Affiliates/Master Addictions 
Counselor (NBCC).
    (b) Basic knowledge. You must be knowledgeable in the following 
areas:
    (1) You must be knowledgeable about and have clinical experience in 
the diagnosis and treatment of alcohol and controlled substances-related 
disorders.
    (2) You must be knowledgeable about the SAP function as it relates 
to employer interests in safety-sensitive duties.
    (3) You must be knowledgeable about this part, the DOT agency 
regulations applicable to the employers for whom you evaluate employees, 
and the DOT SAP Guidelines, and you keep current on any changes to these 
materials. These documents are available from ODAPC (Department of 
Transportation, 1200 New Jersey Avenue, SE., Washington DC, 20590 (202-
366-3784), or on the ODAPC web site (http://www.dot.gov/ost/dapc).
    (c) Qualification training. You must receive qualification training 
meeting the requirements of this paragraph (c).
    (1) Qualification training must provide instruction on the following 
subjects:
    (i) Background, rationale, and coverage of the Department's drug and 
alcohol testing program;
    (ii) 49 CFR Part 40 and DOT agency drug and alcohol testing rules;

[[Page 591]]

    (iii) Key DOT drug testing requirements, including collections, 
laboratory testing, MRO review, and problems in drug testing;
    (iv) Key DOT alcohol testing requirements, including the testing 
process, the role of BATs and STTs, and problems in alcohol tests;
    (v) SAP qualifications and prohibitions;
    (vi) The role of the SAP in the return-to-duty process, including 
the initial employee evaluation, referrals for education and/or 
treatment, the follow-up evaluation, continuing treatment 
recommendations, and the follow-up testing plan;
    (vii) SAP consultation and communication with employers, MROs, and 
treatment providers;
    (viii) Reporting and recordkeeping requirements;
    (ix) Issues that SAPs confront in carrying out their duties under 
the program.
    (2) Following your completion of qualification training under 
paragraph (c)(1) of this section, you must satisfactorily complete an 
examination administered by a nationally-recognized professional or 
training organization. The examination must comprehensively cover all 
the elements of qualification training listed in paragraph (c)(1) of 
this section.
    (3) The following is the schedule for qualification training you 
must meet:
    (i) If you became a SAP before August 1, 2001, you must meet the 
qualification training requirement no later than December 31, 2003.
    (ii) If you become a SAP between August 1, 2001, and December 31, 
2003, you must meet the qualification training requirement no later than 
December 31, 2003.
    (iii) If you become a SAP on or after January 1, 2004, you must meet 
the qualification training requirement before you begin to perform SAP 
functions.
    (d) Continuing education. During each three-year period from the 
date on which you satisfactorily complete the examination under 
paragraph (c)(2) of this section, you must complete continuing education 
consisting of at least 12 professional development hours (e.g., CEUs) 
relevant to performing SAP functions.
    (1) This continuing education must include material concerning new 
technologies, interpretations, recent guidance, rule changes, and other 
information about developments in SAP practice, pertaining to the DOT 
program, since the time you met the qualification training requirements 
of this section.
    (2) Your continuing education activities must include documentable 
assessment tools to assist you in determining whether you have 
adequately learned the material.
    (e) Documentation. You must maintain documentation showing that you 
currently meet all requirements of this section. You must provide this 
documentation on request to DOT agency representatives and to employers 
and C/TPAs who are using or contemplating using your services.

[65 FR 79526, Dec. 19, 2000, as amended at 69 FR 3022, Jan. 22, 2004; 71 
FR 49384; Aug. 23, 2006; 71 FR 55347, Sept. 22, 2006]



Sec. 40.283  How does a certification organization obtain recognition
for its members as SAPs?

    (a) If you represent a certification organization that wants DOT to 
authorize its certified drug and alcohol counselors to be added to Sec. 
40.281(a)(6), you may submit a written petition to DOT requesting a 
review of your petition for inclusion.
    (b) You must obtain the National Commission for Certifying Agencies 
(NCCA) accreditation before DOT will act on your petition.
    (c) You must also meet the minimum requirements of Appendix E to 
this part before DOT will act on your petition.

[65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006]



Sec. 40.285  When is a SAP evaluation required?

    (a) As an employee, when you have violated DOT drug and alcohol 
regulations, you cannot again perform any DOT safety-sensitive duties 
for any employer until and unless you complete the SAP evaluation, 
referral, and education/treatment process set forth in this subpart and 
in applicable DOT

[[Page 592]]

agency regulations. The first step in this process is a SAP evaluation.
    (b) For purposes of this subpart, a verified positive DOT drug test 
result, a DOT alcohol test with a result indicating an alcohol 
concentration of 0.04 or greater, a refusal to test (including by 
adulterating or substituting a urine specimen) or any other violation of 
the prohibition on the use of alcohol or drugs under a DOT agency 
regulation constitutes a DOT drug and alcohol regulation violation.



Sec. 40.287  What information is an employer required to provide concerning
SAP services to an employee who has a DOT drug and alcohol regulation violation?

    As an employer, you must provide to each employee (including an 
applicant or new employee) who violates a DOT drug and alcohol 
regulation a listing of SAPs readily available to the employee and 
acceptable to you, with names, addresses, and telephone numbers. You 
cannot charge the employee any fee for compiling or providing this list. 
You may provide this list yourself or through a C/TPA or other service 
agent.



Sec. 40.289  Are employers required to provide SAP and treatment
services to employees?

    (a) As an employer, you are not required to provide a SAP evaluation 
or any subsequent recommended education or treatment for an employee who 
has violated a DOT drug and alcohol regulation.
    (b) However, if you offer that employee an opportunity to return to 
a DOT safety-sensitive duty following a violation, you must, before the 
employee again performs that duty, ensure that the employee receives an 
evaluation by a SAP meeting the requirements of Sec. 40.281 and that 
the employee successfully complies with the SAP's evaluation 
recommendations.
    (c) Payment for SAP evaluations and services is left for employers 
and employees to decide and may be governed by existing management-labor 
agreements and health care benefits.



Sec. 40.291  What is the role of the SAP in the evaluation, referral,
and treatment process of an employee who has violated DOT agency drug

and alcohol testing  regulations?

    (a) As a SAP, you are charged with:
    (1) Making a face-to-face clinical assessment and evaluation to 
determine what assistance is needed by the employee to resolve problems 
associated with alcohol and/or drug use;
    (2) Referring the employee to an appropriate education and/or 
treatment program;
    (3) Conducting a face-to-face follow-up evaluation to determine if 
the employee has actively participated in the education and/or treatment 
program and has demonstrated successful compliance with the initial 
assessment and evaluation recommendations;
    (4) Providing the DER with a follow-up drug and/or alcohol testing 
plan for the employee; and
    (5) Providing the employee and employer with recommendations for 
continuing education and/or treatment.
    (b) As a SAP, you are not an advocate for the employer or employee. 
Your function is to protect the public interest in safety by 
professionally evaluating the employee and recommending appropriate 
education/treatment, follow-up tests, and aftercare.



Sec. 40.293  What is the SAP's function in conducting the initial 
evaluation of an employee?

    As a SAP, for every employee who comes to you following a DOT drug 
and alcohol regulation violation, you must accomplish the following:
    (a) Provide a comprehensive face-to-face assessment and clinical 
evaluation.
    (b) Recommend a course of education and/or treatment with which the 
employee must demonstrate successful compliance prior to returning to 
DOT safety-sensitive duty.
    (1) You must make such a recommendation for every individual who has 
violated a DOT drug and alcohol regulation.
    (2) You must make a recommendation for education and/or treatment 
that will, to the greatest extent possible, protect public safety in the 
event

[[Page 593]]

that the employee returns to the performance of safety-sensitive 
functions.
    (c) Appropriate education may include, but is not limited to, self-
help groups (e.g., Alcoholics Anonymous) and community lectures, where 
attendance can be independently verified, and bona fide drug and alcohol 
education courses.
    (d) Appropriate treatment may include, but is not limited to, in-
patient hospitalization, partial in-patient treatment, out-patient 
counseling programs, and aftercare.
    (e) You must provide a written report directly to the DER 
highlighting your specific recommendations for assistance (see Sec. 
40.311(c)).
    (f) For purposes of your role in the evaluation process, you must 
assume that a verified positive test result has conclusively established 
that the employee committed a DOT drug and alcohol regulation violation. 
You must not take into consideration in any way, as a factor in 
determining what your recommendation will be, any of the following:
    (1) A claim by the employee that the test was unjustified or 
inaccurate;
    (2) Statements by the employee that attempt to mitigate the 
seriousness of a violation of a DOT drug or alcohol regulation (e.g., 
related to assertions of use of hemp oil, ``medical marijuana'' use, 
``contact positives,'' poppy seed ingestion, job stress); or
    (3) Personal opinions you may have about the justification or 
rationale for drug and alcohol testing.
    (g) In the course of gathering information for purposes of your 
evaluation in the case of a drug-related violation, you may consult with 
the MRO. As the MRO, you are required to cooperate with the SAP and 
provide available information the SAP requests. It is not necessary to 
obtain the consent of the employee to provide this information.



Sec. 40.295  May employees or employers seek a second SAP evaluation 
if they disagree with the first SAP's recommendations?

    (a) As an employee with a DOT drug and alcohol regulation violation, 
when you have been evaluated by a SAP, you must not seek a second SAP's 
evaluation in order to obtain another recommendation.
    (b) As an employer, you must not seek a second SAP's evaluation if 
the employee has already been evaluated by a qualified SAP. If the 
employee, contrary to paragraph (a) of this section, has obtained a 
second SAP evaluation, as an employer you may not rely on it for any 
purpose under this part.



Sec. 40.297  Does anyone have the authority to change a SAP's initial
evaluation?

    (a) Except as provided in paragraph (b) of this section, no one 
(e.g., an employer, employee, a managed-care provider, any service 
agent) may change in any way the SAP's evaluation or recommendations for 
assistance. For example, a third party is not permitted to make more or 
less stringent a SAP's recommendation by changing the SAP's evaluation 
or seeking another SAP's evaluation.
    (b) The SAP who made the initial evaluation may modify his or her 
initial evaluation and recommendations based on new or additional 
information (e.g., from an education or treatment program).



Sec. 40.299  What is the SAP's role and what are the limits on a SAP's
discretion in referring employees for education and treatment?

    (a) As a SAP, upon your determination of the best recommendation for 
assistance, you will serve as a referral source to assist the employee's 
entry into an education and/or treatment program.
    (b) To prevent the appearance of a conflict of interest, you must 
not refer an employee requiring assistance to your private practice or 
to a person or organization from which you receive payment or to a 
person or organization in which you have a financial interest. You are 
precluded from making referrals to entities with which you are 
financially associated.
    (c) There are four exceptions to the prohibitions contained in 
paragraph (b) of this section. You may refer an employee to any of the 
following providers of assistance, regardless of your relationship with 
them:

[[Page 594]]

    (1) A public agency (e.g., treatment facility) operated by a state, 
county, or municipality;
    (2) The employer or a person or organization under contract to the 
employer to provide alcohol or drug treatment and/or education services 
(e.g., the employer's contracted treatment provider);
    (3) The sole source of therapeutically appropriate treatment under 
the employee's health insurance program (e.g., the single substance 
abuse in-patient treatment program made available by the employee's 
insurance coverage plan); or
    (4) The sole source of therapeutically appropriate treatment 
reasonably available to the employee (e.g., the only treatment facility 
or education program reasonably located within the general commuting 
area).



Sec. 40.301  What is the SAP's function in the follow-up evaluation 
of an employee?

    (a) As a SAP, after you have prescribed assistance under Sec. 
40.293, you must re-evaluate the employee to determine if the employee 
has successfully carried out your education and/or treatment 
recommendations.
    (1) This is your way to gauge for the employer the employee's 
ability to demonstrate successful compliance with the education and/or 
treatment plan.
    (2) Your evaluation may serve as one of the reasons the employer 
decides to return the employee to safety-sensitive duty.
    (b) As the SAP making the follow-up evaluation determination, you 
must:
    (1) Confer with or obtain appropriate documentation from the 
appropriate education and/or treatment program professionals where the 
employee was referred; and
    (2) Conduct a face-to-face clinical interview with the employee to 
determine if the employee demonstrates successful compliance with your 
initial evaluation recommendations.
    (c) (1) If the employee has demonstrated successful compliance, you 
must provide a written report directly to the DER highlighting your 
clinical determination that the employee has done so with your initial 
evaluation recommendation (see Sec. 40.311(d)).
    (2) You may determine that an employee has successfully demonstrated 
compliance even though the employee has not yet completed the full 
regimen of education and/or treatment you recommended or needs 
additional asssitance. For example, if the employee has successfully 
completed the 30-day in-patient program you prescribed, you may make a 
``successful compliance'' determination even though you conclude that 
the employee has not yet completed the out-patient counseling you 
recommended or should continue in an aftercare program.
    (d)(1) As the SAP, if you believe, as a result of the follow-up 
evaluation, that the employee has not demonstrated successful compliance 
with your recommendations, you must provide written notice directly to 
the DER (see Sec. 40.311(e)).
    (2) As an employer who receives the SAP's written notice that the 
employee has not successfully complied with the SAP's recommendations, 
you must not return the employee to the performance of safety-sensitive 
duties.
    (3) As the SAP, you may conduct additional follow-up evaluation(s) 
if the employer determines that doing so is consistent with the 
employee's progress as you have reported it and with the employer's 
policy and/or labor-management agreements.
    (4) As the employer, following a SAP report that the employee has 
not demonstrated successful compliance, you may take personnel action 
consistent with your policy and/or labor-management agreements.



Sec. 40.303  What happens if the SAP believes the employee needs 
additional treatment, aftercare, or support group services even

after the employee returns to  safety-sensitive duties?

    (a) As a SAP, if you believe that ongoing services (in addition to 
follow-up tests) are needed to assist an employee to maintain sobriety 
or abstinence from drug use after the employee resumes the performance 
of safety-sensitive duties, you must provide recommendations for these 
services in your follow-up evaluation report (see Sec. 40.311(d)(10)).

[[Page 595]]

    (b) As an employer receiving a recommendation for these services 
from a SAP, you may, as part of a return-to-duty agreement with the 
employee, require the employee to participate in the recommended 
services. You may monitor and document the employee's participation in 
the recommended services. You may also make use of SAP and employee 
assistance program (EAP) services in assisting and monitoring employees' 
compliance with SAP recommendations. Nothing in this section permits an 
employer to fail to carry out its obligations with respect to follow-up 
testing (see Sec. 40.309 ).
    (c) As an employee, you are obligated to comply with the SAP's 
recommendations for these services. If you fail or refuse to do so, you 
may be subject to disciplinary action by your employer.



Sec. 40.305  How does the return-to-duty process conclude?

    (a) As the employer, if you decide that you want to permit the 
employee to return to the performance of safety-sensitive functions, you 
must ensure that the employee takes a return-to-duty test. This test 
cannot occur until after the SAP has determined that the employee has 
successfully complied with prescribed education and/or treatment. The 
employee must have a negative drug test result and/or an alcohol test 
with an alcohol concentration of less than 0.02 before resuming 
performance of safety-sensitive duties.
    (b) As an employer, you must not return an employee to safety-
sensitive duties until the employee meets the conditions of paragraph 
(a) of this section. However, you are not required to return an employee 
to safety-sensitive duties because the employee has met these 
conditions. That is a personnel decision that you have the discretion to 
make, subject to collective bargaining agreements or other legal 
requirements.
    (c) As a SAP or MRO, you must not make a ``fitness for duty'' 
determination as part of this re-evaluation unless required to do so 
under an applicable DOT agency regulation. It is the employer, rather 
than you, who must decide whether to put the employee back to work in a 
safety-sensitive position.



Sec. 40.307  What is the SAP's function in prescribing the employee's
follow-up tests?

    (a) As a SAP, for each employee who has committed a DOT drug or 
alcohol regulation violation, and who seeks to resume the performance of 
safety-sensitive functions, you must establish a written follow-up 
testing plan. You do not establish this plan until after you determine 
that the employee has successfully complied with your recommendations 
for education and/or treatment.
    (b) You must present a copy of this plan directly to the DER (see 
Sec. 40.311(d)(9)).
    (c) You are the sole determiner of the number and frequency of 
follow-up tests and whether these tests will be for drugs, alcohol, or 
both, unless otherwise directed by the appropriate DOT agency 
regulation. For example, if the employee had a positive drug test, but 
your evaluation or the treatment program professionals determined that 
the employee had an alcohol problem as well, you should require that the 
employee have follow-up tests for both drugs and alcohol.
    (d) However, you must, at a minimum, direct that the employee be 
subject to six unannounced follow-up tests in the first 12 months of 
safety-sensitive duty following the employee's return to safety-
sensitive functions.
    (1) You may require a greater number of follow-up tests during the 
first 12-month period of safety-sensitive duty (e.g., you may require 
one test a month during the 12-month period; you may require two tests 
per month during the first 6-month period and one test per month during 
the final 6-month period).
    (2) You may also require follow-up tests during the 48 months of 
safety-sensitive duty following this first 12-month period.
    (3) You are not to establish the actual dates for the follow-up 
tests you prescribe. The decision on specific dates to test is the 
employer's.
    (4) As the employer, you must not impose additional testing 
requirements (e.g., under company authority) on the employee that go 
beyond the SAP's follow-up testing plan.

[[Page 596]]

    (e) The requirements of the SAP's follow-up testing plan ``follow 
the employee'' to subsequent employers or through breaks in service.

    Example 1 to Paragraph (e): The employee returns to duty with 
Employer A. Two months afterward, after completing the first two of six 
follow-up tests required by the SAP's plan, the employee quits his job 
with Employer A and begins to work in a similar position for Employer B. 
The employee remains obligated to complete the four additional tests 
during the next 10 months of safety-sensitive duty, and Employer B is 
responsible for ensuring that the employee does so. Employer B learns of 
this obligation through the inquiry it makes under Sec. 40.25.
    Example 2 to Paragraph (e): The employee returns to duty with 
Employer A. Three months later, after the employee completes the first 
two of six follow-up tests required by the SAP's plan, Employer A lays 
the employee off for economic or seasonal employment reasons. Four 
months later, Employer A recalls the employee. Employer A must ensure 
that the employee completes the remaining four follow-up tests during 
the next nine months.

    (f) As the SAP, you may modify the determinations you have made 
concerning follow-up tests. For example, even if you recommended follow-
up testing beyond the first 12-months, you can terminate the testing 
requirement at any time after the first year of testing. You must not, 
however, modify the requirement that the employee take at least six 
follow-up tests within the first 12 months after returning to the 
performance of safety-sensitive functions.



Sec. 40.309  What are the employer's responsibilities with respect to
the SAP's directions for follow-up tests?

    (a) As the employer, you must carry out the SAP's follow-up testing 
requirements. You may not allow the employee to continue to perform 
safety-sensitive functions unless follow-up testing is conducted as 
directed by the SAP.
    (b) You should schedule follow-up tests on dates of your own 
choosing, but you must ensure that the tests are unannounced with no 
discernable pattern as to their timing, and that the employee is given 
no advance notice.
    (c) You cannot substitute any other tests (e.g., those carried out 
under the random testing program) conducted on the employee for this 
follow-up testing requirement.
    (d) You cannot count a follow-up test that has been cancelled as a 
completed test. A cancelled follow-up test must be recollected.



Sec. 40.311  What are the requirements concerning SAP reports?

    (a) As the SAP conducting the required evaluations, you must send 
the written reports required by this section in writing directly to the 
DER and not to a third party or entity for forwarding to the DER (except 
as provided in Sec. 40.355(e)). You may, however, forward the document 
simultaneously to the DER and to a C/TPA.
    (b) As an employer, you must ensure that you receive SAP written 
reports directly from the SAP performing the evaluation and that no 
third party or entity changed the SAP's report in any way.
    (c) The SAP's written report, following an initial evaluation that 
determines what level of assistance is needed to address the employee's 
drug and/or alcohol problems, must be on the SAP's own letterhead (and 
not the letterhead of another service agent) signed and dated by the 
SAP, and must contain the following delineated items:
    (1) Employee's name and SSN;
    (2) Employer's name and address;
    (3) Reason for the assessment (specific violation of DOT regulations 
and violation date);
    (4) Date(s) of the assessment;
    (5) SAP's education and/or treatment recommendation; and
    (6) SAP's telephone number.
    (d) The SAP's written report concerning a follow-up evaluation that 
determines the employee has demonstrated successful compliance must be 
on the SAP's own letterhead (and not the letterhead of another service 
agent), signed by the SAP and dated, and must contain the following 
items:
    (1) Employee's name and SSN;
    (2) Employer's name and address;
    (3) Reason for the initial assessment (specific violation of DOT 
regulations and violation date);
    (4) Date(s) of the initial assessment and synopsis of the treatment 
plan;

[[Page 597]]

    (5) Name of practice(s) or service(s) providing the recommended 
education and/or treatment;
    (6) Inclusive dates of employee's program participation;
    (7) Clinical characterization of employee's program participation;
    (8) SAP's clinical determination as to whether the employee has 
demonstrated successful compliance;
    (9) Follow-up testing plan;
    (10) Employee's continuing care needs with specific treatment, 
aftercare, and/or support group services recommendations; and
    (11) SAP's telephone number.
    (e) The SAP's written report concerning a follow-up evaluation that 
determines the employee has not demonstrated successful compliance must 
be on the SAP's own letterhead (and not the letterhead of another 
service agent), signed by the SAP and dated, and must contain the 
following items:
    (1) Employee's name and SSN;
    (2) Employer's name and address;
    (3) Reason for the initial assessment (specific DOT violation and 
date);
    (4) Date(s) of initial assessment and synopsis of treatment plan;
    (5) Name of practice(s) or service(s) providing the recommended 
education and/or treatment;
    (6) Inclusive dates of employee's program participation;
    (7) Clinical characterization of employee's program participation;
    (8) Date(s) of the first follow-up evaluation;
    (9) Date(s) of any further follow-up evaluation the SAP has 
scheduled;
    (10) SAP's clinical reasons for determining that the employee has 
not demonstrated successful compliance; and
    (11) SAP's telephone number.
    (f) As a SAP, you must also provide these written reports directly 
to the employee if the employee has no current employer and to the 
gaining DOT regulated employer in the event the employee obtains another 
transportation industry safety-sensitive position.
    (g) As a SAP, you are to maintain copies of your reports to 
employers for 5 years, and your employee clinical records in accordance 
with Federal, state, and local laws regarding record maintenance, 
confidentiality, and release of information. You must make these records 
available, on request, to DOT agency representatives (e.g., inspectors 
conducting an audit or safety investigation) and representatives of the 
NTSB in an accident investigation.
    (h) As an employer, you must maintain your reports from SAPs for 5 
years from the date you received them.



Sec. 40.313  Where is other information on SAP functions and the
return-to-duty process found in this regulation?

    You can find other information on the role and functions of SAPs in 
the following sections of this part:

Sec. 40.3--Definition.
Sec. 40.347--Service agent assistance with SAP-required follow-up 
          testing.
Sec. 40.355--Transmission of SAP reports.
Sec. 40.329(c)--Making SAP reports available to employees on request.
Appendix E to Part 40--SAP Equivalency Requirements for Certification 
          Organizations.



          Subpart P_Confidentiality and Release of Information



Sec. 40.321  What is the general confidentiality rule for drug and 
alcohol test information?

    Except as otherwise provided in this subpart, as a service agent or 
employer participating in the DOT drug or alcohol testing process, you 
are prohibited from releasing individual test results or medical 
information about an employee to third parties without the employee's 
specific written consent.
    (a) A ``third party'' is any person or organization to whom other 
subparts of this regulation do not explicitly authorize or require the 
transmission of information in the course of the drug or alcohol testing 
process.
    (b) ``Specific written consent'' means a statement signed by the 
employee that he or she agrees to the release of a particular piece of 
information to a particular, explicitly identified, person or 
organization at a particular time. ``Blanket releases,'' in which an 
employee agrees to a release of a category of information (e.g., all 
test results) or to release information to a category of parties (e.g., 
other employers who are members of a C/TPA, companies to

[[Page 598]]

which the employee may apply for employment), are prohibited under this 
part.



Sec. 40.323  May program participants release drug or alcohol test 
information in connection with legal proceedings?

    (a) As an employer, you may release information pertaining to an 
employee's drug or alcohol test without the employee's consent in 
certain legal proceedings.
    (1) These proceedings include a lawsuit (e.g., a wrongful discharge 
action), grievance (e.g., an arbitration concerning disciplinary action 
taken by the employer), or administrative proceeding (e.g., an 
unemployment compensation hearing) brought by, or on behalf of, an 
employee and resulting from a positive DOT drug or alcohol test or a 
refusal to test (including, but not limited to, adulterated or 
substituted test results).
    (2) These proceedings also include a criminal or civil action 
resulting from an employee's performance of safety-sensitive duties, in 
which a court of competent jurisdiction determines that the drug or 
alcohol test information sought is relevant to the case and issues an 
order directing the employer to produce the information. For example, in 
personal injury litigation following a truck or bus collision, the court 
could determine that a post-accident drug test result of an employee is 
relevant to determining whether the driver or the driver's employer was 
negligent. The employer is authorized to respond to the court's order to 
produce the records.
    (b) In such a proceeding, you may release the information to the 
decisionmaker in the proceeding (e.g., the court in a lawsuit). You may 
release the information only with a binding stipulation that the 
decisionmaker to whom it is released will make it available only to 
parties to the proceeding.
    (c) If you are a service agent, and the employer requests its 
employee's drug or alcohol testing information from you to use in a 
legal proceeding as authorized in paragraph (a) of this section (e.g., 
the laboratory's data package), you must provide the requested 
information to the employer.
    (d) As an employer or service agent, you must immediately notify the 
employee in writing of any information you release under this section.



Sec. 40.325  [Reserved]



Sec. 40.327  When must the MRO report medical information gathered in 
the verification process?

    (a) As the MRO, you must, except as provided in paragraph (c) of 
this section, report drug test results and medical information you 
learned as part of the verification process to third parties without the 
employee's consent if you determine, in your reasonable medical 
judgment, that:
    (1) The information is likely to result in the employee being 
determined to be medically unqualified under an applicable DOT agency 
regulation; or
    (2) The information indicates that continued performance by the 
employee of his or her safety-sensitive function is likely to pose a 
significant safety risk.
    (b) The third parties to whom you are authorized to provide 
information by this section include the employer, a physician or other 
health care provider responsible for determining the medical 
qualifications of the employee under an applicable DOT agency safety 
regulation, a SAP evaluating the employee as part of the return to duty 
process (see Sec. 40.293(g)), a DOT agency, or the National 
Transportation Safety Board in the course of an accident investigation.
    (c) If the law of a foreign country (e.g., Canada) prohibits you 
from providing medical information to the employer, you may comply with 
that prohibition.



Sec. 40.329  What information must laboratories, MROs, and other service
agents release to employees?

    (a) As an MRO or service agent you must provide, within 10 business 
days of receiving a written request from an employee, copies of any 
records pertaining to the employee's use of alcohol and/or drugs, 
including records of the employee's DOT-mandated drug and/or alcohol 
tests. You may charge no more than the cost of preparation and 
reproduction for copies of these records.

[[Page 599]]

    (b) As a laboratory, you must provide, within 10 business days of 
receiving a written request from an employee, and made through the MRO, 
the records relating to the results of the employee's drug test (i.e., 
laboratory report and data package). You may charge no more than the 
cost of preparation and reproduction for copies of these records.
    (c) As a SAP, you must make available to an employee, on request, a 
copy of all SAP reports (see Sec. 40.311). However, you must redact 
follow-up testing information from the report before providing it to the 
employee.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec. 40.331  To what additional parties must employers and service 
agents release information?

    As an employer or service agent you must release information under 
the following circumstances:
    (a) If you receive a specific, written consent from an employee 
authorizing the release of information about that employee's drug or 
alcohol tests to an identified person, you must provide the information 
to the identified person. For example, as an employer, when you receive 
a written request from a former employee to provide information to a 
subsequent employer, you must do so. In providing the information, you 
must comply with the terms of the employee's consent.
    (b) If you are an employer, you must, upon request of DOT agency 
representatives, provide the following:
    (1) Access to your facilities used for this part and DOT agency drug 
and alcohol program functions.
    (2) All written, printed, and computer-based drug and alcohol 
program records and reports (including copies of name-specific records 
or reports), files, materials, data, documents/documentation, 
agreements, contracts, policies, and statements that are required by 
this part and DOT agency regulations. You must provide this information 
at your principal place of business in the time required by the DOT 
agency.
    (3) All items in paragraph (b)(2) of this section must be easily 
accessible, legible, and provided in an organized manner. If electronic 
records do not meet these standards, they must be converted to printed 
documentation that meets these standards.
    (c) If you are a service agent, you must, upon request of DOT agency 
representatives, provide the following:
    (1) Access to your facilities used for this part and DOT agency drug 
and alcohol program functions.
    (2) All written, printed, and computer-based drug and alcohol 
program records and reports (including copies of name-specific records 
or reports), files, materials, data, documents/documentation, 
agreements, contracts, policies, and statements that are required by 
this part and DOT agency regulations. You must provide this information 
at your principal place of business in the time required by the DOT 
agency.
    (3) All items in paragraph (c)(2) of this section must be easily 
accessible, legible, and provided in an organized manner. If electronic 
records do not meet these standards, they must be converted to printed 
documentation that meets these standards.
    (d) If requested by the National Transportation Safety Board as part 
of an accident investigation, you must provide information concerning 
post-accident tests administered after the accident.
    (e) If requested by a Federal, state or local safety agency with 
regulatory authority over you or the employee, you must provide drug and 
alcohol test records concerning the employee.
    (f) Except as otherwise provided in this part, as a laboratory you 
must not release or provide a specimen or a part of a specimen to a 
requesting party, without first obtaining written consent from ODAPC. If 
a party seeks a court order directing you to release a specimen or part 
of a specimen contrary to any provision of this part, you must take 
necessary legal steps to contest the issuance of the order (e.g., seek 
to quash a subpoena, citing the requirements of Sec. 40.13 ). This part 
does not require you to disobey a court order, however.
    (g) Notwithstanding any other provision of this Part, as an employer 
of Commercial Motor Vehicle (CMV) drivers holding commercial driving 
licenses (CDLs) or as a third party administrator for owner-operator CMV

[[Page 600]]

drivers with CDLs, you are authorized to comply with State laws 
requiring you to provide to State CDL licensing authorities information 
about all violations of DOT drug and alcohol testing rules (including 
positive tests and refusals) by any CMV driver holding a CDL.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001; 73 
FR 33737, June 13, 2008]



Sec. 40.333  What records must employers keep?

    (a) As an employer, you must keep the following records for the 
following periods of time:
    (1) You must keep the following records for five years:
    (i) Records of alcohol test results indicating an alcohol 
concentration of 0.02 or greater;
    (ii) Records of verified positive drug test results;
    (iii) Documentation of refusals to take required alcohol and/or drug 
tests (including substituted or adulterated drug test results);
    (iv) SAP reports; and
    (v) All follow-up tests and schedules for follow-up tests.
    (2) You must keep records for three years of information obtained 
from previous employers under Sec. 40.25 concerning drug and alcohol 
test results of employees.
    (3) You must keep records of the inspection, maintenance, and 
calibration of EBTs, for two years.
    (4) You must keep records of negative and cancelled drug test 
results and alcohol test results with a concentration of less than 0.02 
for one year.
    (b) You do not have to keep records related to a program requirement 
that does not apply to you (e.g., a maritime employer who does not have 
a DOT-mandated random alcohol testing program need not maintain random 
alcohol testing records).
    (c) You must maintain the records in a location with controlled 
access.
    (d) A service agent may maintain these records for you. However, you 
must ensure that you can produce these records at your principal place 
of business in the time required by the DOT agency. For example, as a 
motor carrier, when an FMCSA inspector requests your records, you must 
ensure that you can provide them within two business days.
    (e) If you store records electronically, where permitted by this 
part, you must ensure that the records are easily accessible, legible, 
and formatted and stored in an organized manner. If electronic records 
do not meet these criteria, you must convert them to printed 
documentation in a rapid and readily auditable manner, at the request of 
DOT agency personnel.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001]



         Subpart Q_Roles and Responsibilities of Service Agents



Sec. 40.341  Must service agents comply with DOT drug and alcohol
testing requirements?

    (a) As a service agent, the services you provide to transportation 
employers must meet the requirements of this part and the DOT agency 
drug and alcohol testing regulations.
    (b) If you do not comply, DOT may take action under the Public 
Interest Exclusions procedures of this part (see Subpart R of this part) 
or applicable provisions of other DOT agency regulations.



Sec. 40.343  What tasks may a service agent perform for an employer?

    As a service agent, you may perform for employers the tasks needed 
to comply with DOT agency drug and alcohol testing regulations, subject 
to the requirements and limitations of this part.



Sec. 40.345  In what circumstances may a C/TPA act as an intermediary
in the transmission of drug and alcohol testing information to employers?

    (a) As a C/TPA or other service agent, you may act as an 
intermediary in the transmission of drug and alcohol testing information 
in the circumstances specified in this section only if the employer 
chooses to have you do so. Each employer makes the decision about 
whether to receive some or all of this information from you, acting as 
an intermediary, rather than directly from the service agent who

[[Page 601]]

originates the information (e.g., an MRO or BAT).
    (b) The specific provisions of this part concerning which you may 
act as an intermediary are listed in Appendix F to this part. These are 
the only situations in which you may act as an intermediary. You are 
prohibited from doing so in all other situations.
    (c) In every case, you must ensure that, in transmitting information 
to employers, you meet all requirements (e.g., concerning 
confidentiality and timing) that would apply if the service agent 
originating the information (e.g., an MRO or collector) sent the 
information directly to the employer. For example, if you transmit drug 
testing results from MROs to DERs, you must transmit each drug test 
result to the DER in compliance with the MRO requirements set forth in 
Sec. 40.167 .



Sec. 40.347  What functions may C/TPAs perform with respect to 
administering testing?

    As a C/TPA, except as otherwise specified in this part, you may 
perform the following functions for employers concerning random 
selection and other selections for testing.
    (a) You may operate random testing programs for employers and may 
assist (i.e., through contracting with laboratories or collection sites, 
conducting collections) employers with other types of testing (e.g., 
pre-employment, post-accident, reasonable suspicion, return-to-duty, and 
follow-up).
    (b) You may combine employees from more than one employer or one 
transportation industry in a random pool if permitted by all the DOT 
agency drug and alcohol testing regulations involved.
    (1) If you combine employees from more than one transportation 
industry, you must ensure that the random testing rate is at least equal 
to the highest rate required by each DOT agency.
    (2) Employees not covered by DOT agency regulations may not be part 
of the same random pool with DOT covered employees.
    (c) You may assist employers in ensuring that follow-up testing is 
conducted in accordance with the plan established by the SAP. However, 
neither you nor the employer are permitted to randomly select employees 
from a ``follow-up pool'' for follow-up testing.



Sec. 40.349  What records may a service agent receive and maintain?

    (a) Except where otherwise specified in this part, as a service 
agent you may receive and maintain all records concerning DOT drug and 
alcohol testing programs, including positive, negative, and refusal to 
test individual test results. You do not need the employee's consent to 
receive and maintain these records.
    (b) You may maintain all information needed for operating a drug/
alcohol program (e.g., CCFs, ATFs, names of employees in random pools, 
random selection lists, copies of notices to employers of selected 
employees) on behalf of an employer.
    (c) If a service agent originating drug or alcohol testing 
information, such as an MRO or BAT, sends the information directly to 
the DER, he or she may also provide the information simultaneously to 
you, as a C/TPA or other service agent who maintains this information 
for the employer.
    (d) If you are serving as an intermediary in transmitting 
information that is required to be provided to the employer, you must 
ensure that it reaches the employer in the same time periods required 
elsewhere in this part.
    (e) You must ensure that you can make available to the employer 
within two business days any information the employer is asked to 
produce by a DOT agency representative.
    (f) On request of an employer, you must, at any time on the request 
of an employer, transfer immediately all records pertaining to the 
employer and its employees to the employer or to any other service agent 
the employer designates. You must carry out this transfer as soon as the 
employer requests it. You are not required to obtain employee consent 
for this transfer. You must not charge more than your reasonable 
administrative costs for conducting this transfer. You may not charge a 
fee for the release of these records.
    (g) If you are planning to go out of business or your organization 
will be

[[Page 602]]

bought by or merged with another organization, you must immediately 
notify all employers and offer to transfer all records pertaining to the 
employer and its employees to the employer or to any other service agent 
the employer designates. You must carry out this transfer as soon as the 
employer requests it. You are not required to obtain employee consent 
for this transfer. You must not charge more than your reasonable 
administrative costs for conducting this transfer. You may not charge a 
fee for the release of these records.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001]



Sec. 40.351  What confidentiality requirements apply to service agents?

    Except where otherwise specified in this part, as a service agent 
the following confidentiality requirements apply to you:
    (a) When you receive or maintain confidential information about 
employees (e.g., individual test results), you must follow the same 
confidentiality regulations as the employer with respect to the use and 
release of this information.
    (b) You must follow all confidentiality and records retention 
requirements applicable to employers.
    (c) You may not provide individual test results or other 
confidential information to another employer without a specific, written 
consent from the employee. For example, suppose you are a C/TPA that has 
employers X and Y as clients. Employee Jones works for X, and you 
maintain Jones' drug and alcohol test for X. Jones wants to change jobs 
and work for Y. You may not inform Y of the result of a test conducted 
for X without having a specific, written consent from Jones. Likewise, 
you may not provide this information to employer Z, who is not a C/TPA 
member, without this consent.
    (d) You must not use blanket consent forms authorizing the release 
of employee testing information.
    (e) You must establish adequate confidentiality and security 
measures to ensure that confidential employee records are not available 
to unauthorized persons. This includes protecting the physical security 
of records, access controls, and computer security measures to safeguard 
confidential data in electronic data bases.



Sec. 40.353  What principles govern the interaction between MROs and 
other service agents?

    As a service agent other than an MRO (e.g., a C/TPA), the following 
principles govern your interaction with MROs:
    (a) You may provide MRO services to employers, directly or through 
contract, if you meet all applicable provisions of this part.
    (b) If you employ or contract for an MRO, the MRO must perform 
duties independently and confidentially. When you have a relationship 
with an MRO, you must structure the relationship to ensure that this 
independence and confidentiality are not compromised. Specific means 
(including both physical and operational measures, as appropriate) to 
separate MRO functions and other service agent functions are essential.
    (c) Only your staff who are actually under the day-to-day 
supervision and control of an MRO with respect to MRO functions may 
perform these functions. This does not mean that those staff may not 
perform other functions at other times. However, the designation of your 
staff to perform MRO functions under MRO supervision must be limited and 
not used as a subterfuge to circumvent confidentiality and other 
requirements of this part and DOT agency regulations. You must ensure 
that MRO staff operate under controls sufficient to ensure that the 
independence and confidentiality of the MRO process are not compromised.
    (d) Like other MROs, an MRO you employ or contract with must 
personally conduct verification interviews with employees and must 
personally make all verification decisions. Consequently, your staff 
cannot perform these functions.



Sec. 40.355  What limitations apply to the activities of service agents?

    As a service agent, you are subject to the following limitations 
concerning your activities in the DOT drug and alcohol testing program.

[[Page 603]]

    (a) You must not require an employee to sign a consent, release, 
waiver of liability, or indemnification agreement with respect to any 
part of the drug or alcohol testing process covered by this part 
(including, but not limited to, collections, laboratory testing, MRO, 
and SAP services). No one may do so on behalf of a service agent.
    (b) You must not act as an intermediary in the transmission of drug 
test results from the laboratory to the MRO. That is, the laboratory may 
not send results to you, with you in turn sending them to the MRO for 
verification. For example, a practice in which the laboratory transmits 
results to your computer system, and you then assign the results to a 
particular MRO, is not permitted.
    (c) You must not transmit drug test results directly from the 
laboratory to the employer (by electronic or other means) or to a 
service agent who forwards them to the employer. All confirmed 
laboratory results must be processed by the MRO before they are released 
to any other party.
    (d) You must not act as an intermediary in the transmission of 
alcohol test results of 0.02 or higher from the STT or BAT to the DER.
    (e) Except as provided in paragraph (f) of this section, you must 
not act as an intermediary in the transmission of individual SAP reports 
to the actual employer. That is, the SAP may not send such reports to 
you, with you in turn sending them to the actual employer. However, you 
may maintain individual SAP summary reports and follow-up testing plans 
after they are sent to the DER, and the SAP may transmit such reports to 
you simultaneously with sending them to the DER.
    (f) As an exception to paragraph (e) of this section, you may act as 
an intermediary in the transmission of SAP report from the SAP to an 
owner-operator or other self-employed individual.
    (g) Except as provided in paragraph (h) of this section, you must 
not make decisions to test an employee based upon reasonable suspicion, 
post-accident, return-to-duty, and follow-up determination criteria. 
These are duties the actual employer cannot delegate to a C/TPA. You 
may, however, provide advice and information to employers regarding 
these testing issues and how the employer should schedule required 
testing.
    (h) As an exception to paragraph (g) of this section, you may make 
decisions to test an employee based upon reasonable suspicion, post-
accident, return-to-duty, and follow-up determination criteria with 
respect to an owner-operator or other self-employed individual.
    (i) Except as provided in paragraph (j) of this section, you must 
not make a determination that an employee has refused a drug or alcohol 
test. This is a non-delegable duty of the actual employer. You may, 
however, provide advice and information to employers regarding refusal-
to-test issues.
    (j) As an exception to paragraph (i) of this section, you may make a 
determination that an employee has refused a drug or alcohol test, if:
    (1) You schedule a required test for an owner-operator or other 
self-employed individual, and the individual fails to appear for the 
test without a legitimate reason; or
    (2) As an MRO, you determine that an individual has refused to test 
on the basis of adulteration or substitution.
    (k) You must not act as a DER. For example, while you may be 
responsible for transmitting information to the employer about test 
results, you must not act on behalf of the employer in actions to remove 
employees from safety-sensitive duties.
    (l) In transmitting documents to laboratories, you must ensure that 
you send to the laboratory that conducts testing only the laboratory 
copy of the CCF. You must not transmit other copies of the CCF or any 
ATFs to the laboratory.
    (m) You must not impose conditions or requirements on employers that 
DOT regulations do not authorize. For example, as a C/TPA serving 
employers in the pipeline or motor carrier industry, you must not 
require employers to have provisions in their DOT plans that PHMSA or 
FMCSA regulations do not require.
    (n) You must not intentionally delay the transmission of drug or 
alcohol testing-related documents concerning

[[Page 604]]

actions you have performed, because of a payment dispute or other 
reasons.

    Example 1 to Paragraph (n): A laboratory that has tested a specimen 
must not delay transmitting the documentation of the test result to an 
MRO because of a billing or payment dispute with the MRO or a C/TPA.
    Example 2 to Paragraph (n): An MRO or SAP who has interviewed an 
employee must not delay sending a verified test result or SAP report to 
the employer because of such a dispute with the employer or employee.
    Example 3 to Paragraph (n): A collector who has performed a urine 
specimen collection must not delay sending the drug specimen and CCF to 
the laboratory because of a payment or other dispute with the laboratory 
or a C/TPA.
    Example 4 to Paragraph (n): A BAT who has conducted an alcohol test 
must not delay sending test result information to an employer or C/TPA 
because of a payment or other dispute with the employer or C/TPA.

    (o) While you must follow the DOT agency regulations, the actual 
employer remains accountable to DOT for compliance, and your failure to 
implement any aspect of the program as required in this part and other 
applicable DOT agency regulations makes the employer subject to 
enforcement action by the Department.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001; 71 
FR 49384, Aug. 23, 2006]



                  Subpart R_Public Interest Exclusions



Sec. 40.361  What is the purpose of a public interest exclusion (PIE)?

    (a) To protect the public interest, including protecting 
transportation employers and employees from serious noncompliance with 
DOT drug and alcohol testing rules, the Department's policy is to ensure 
that employers conduct business only with responsible service agents.
    (b) The Department therefore uses PIEs to exclude from participation 
in DOT's drug and alcohol testing program any service agent who, by 
serious noncompliance with this part or other DOT agency drug and 
alcohol testing regulations, has shown that it is not currently acting 
in a responsible manner.
    (c) A PIE is a serious action that the Department takes only to 
protect the public interest. We intend to use PIEs only to remedy 
situations of serious noncompliance. PIEs are not used for the purpose 
of punishment.
    (d) Nothing in this subpart precludes a DOT agency or the Inspector 
General from taking other action authorized by its regulations with 
respect to service agents or employers that violate its regulations.



Sec. 40.363  On what basis may the Department issue a PIE?

    (a) If you are a service agent, the Department may issue a PIE 
concerning you if we determine that you have failed or refused to 
provide drug or alcohol testing services consistent with the 
requirements of this part or a DOT agency drug and alcohol regulation.
    (b) The Department also may issue a PIE if you have failed to 
cooperate with DOT agency representatives concerning inspections, 
complaint investigations, compliance and enforcement reviews, or 
requests for documents and other information about compliance with this 
part or DOT agency drug and alcohol regulations.



Sec. 40.365  What is the Department's policy concerning starting
a PIE proceeding?

    (a) It is the Department's policy to start a PIE proceeding only in 
cases of serious, uncorrected noncompliance with the provisions of this 
part, affecting such matters as safety, the outcomes of test results, 
privacy and confidentiality, due process and fairness for employees, the 
honesty and integrity of the testing program, and cooperation with or 
provision of information to DOT agency representatives.
    (b) The following are examples of the kinds of serious noncompliance 
that, as a matter of policy, the Department views as appropriate grounds 
for starting a PIE proceeding. These examples are not intended to be an 
exhaustive or exclusive list of the grounds for starting a PIE 
proceeding. We intend them to illustrate the level of seriousness that 
the Department believes supports starting a PIE proceeding. The examples 
follow:

[[Page 605]]

    (1) For an MRO, verifying tests positive without interviewing the 
employees as required by this part or providing MRO services without 
meeting the qualifications for an MRO required by this part;
    (2) For a laboratory, refusing to provide information to the 
Department, an employer, or an employee as required by this part; 
failing or refusing to conduct a validity testing program when required 
by this part; or a pattern or practice of testing errors that result in 
the cancellation of tests. (As a general matter of policy, the 
Department does not intend to initiate a PIE proceeding concerning a 
laboratory with respect to matters on which HHS initiates certification 
actions under its laboratory guidelines.);
    (3) For a collector, a pattern or practice of directly observing 
collections when doing so is unauthorized, or failing or refusing to 
directly observe collections when doing so is mandatory;
    (4) For collectors, BATs, or STTs, a pattern or practice of using 
forms, testing equipment, or collection kits that do not meet the 
standards in this part;
    (5) For a collector, BAT, or STT, a pattern or practice of ``fatal 
flaws'' or other significant uncorrected errors in the collection 
process;
    (6) For a laboratory, MRO or C/TPA, failing or refusing to report 
tests results as required by this part or DOT agency regulations;
    (7) For a laboratory, falsifying, concealing, or destroying 
documentation concerning any part of the drug testing process, 
including, but not limited to, documents in a ``litigation package'';
    (8) For SAPs, providing SAP services while not meeting SAP 
qualifications required by this part or performing evaluations without 
face-to-face interviews;
    (9) For any service agent, maintaining a relationship with another 
party that constitutes a conflict of interest under this part (e.g., a 
laboratory that derives a financial benefit from having an employer use 
a specific MRO);
    (10) For any service agent, representing falsely that the service 
agent or its activities is approved or certified by the Department or a 
DOT agency;
    (11) For any service agent, disclosing an employee's test result 
information to any party this part or a DOT agency regulation does not 
authorize, including by obtaining a ``blanket'' consent from employees 
or by creating a data base from which employers or others can retrieve 
an employee's DOT test results without the specific consent of the 
employee;
    (12) For any service agent, interfering or attempting to interfere 
with the ability of an MRO to communicate with the Department, or 
retaliating against an MRO for communicating with the Department;
    (13) For any service agent, directing or recommending that an 
employer fail or refuse to implement any provision of this part; or
    (14) With respect to noncompliance with a DOT agency regulation, 
conduct that affects important provisions of Department-wide concern 
(e.g., failure to properly conduct the selection process for random 
testing).



Sec. 40.367  Who initiates a PIE proceeding?

    The following DOT officials may initiate a PIE proceeding:
    (a) The drug and alcohol program manager of a DOT agency;
    (b) An official of ODAPC, other than the Director; or
    (c) The designee of any of these officials.



Sec. 40.369  What is the discretion of an initiating official in 
starting a PIE proceeding?

    (a) Initiating officials have broad discretion in deciding whether 
to start a PIE proceeding.
    (b) In exercising this discretion, the initiating official must 
consider the Department's policy regarding the seriousness of the 
service agent's conduct (see Sec. 40.365) and all information he or she 
has obtained to this point concerning the facts of the case. The 
initiating official may also consider the availability of the resources 
needed to pursue a PIE proceeding.
    (c) A decision not to initiate a PIE proceeding does not necessarily 
mean that the Department regards a service agent as being in compliance 
or that

[[Page 606]]

the Department may not use other applicable remedies in a situation of 
noncompliance.



Sec. 40.371  On what information does an initiating official rely in 
deciding whether to start a PIE proceeding?

    (a) An initiating official may rely on credible information from any 
source as the basis for starting a PIE proceeding.
    (b) Before sending a correction notice (see Sec. 40.373), the 
initiating official informally contacts the service agent to determine 
if there is any information that may affect the initiating official's 
determination about whether it is necessary to send a correction notice. 
The initiating official may take any information resulting from this 
contact into account in determining whether to proceed under this 
subpart.



Sec. 40.373  Before starting a PIE proceeding, does the initiating 
official give the service agent an opportunity to correct problems?

    (a) If you are a service agent, the initiating official must send 
you a correction notice before starting a PIE proceeding.
    (b) The correction notice identifies the specific areas in which you 
must come into compliance in order to avoid being subject to a PIE 
proceeding.
    (c) If you make and document changes needed to come into compliance 
in the areas listed in the correction notice to the satisfaction of the 
initiating official within 60 days of the date you receive the notice, 
the initiating official does not start a PIE proceeding. The initiating 
official may conduct appropriate fact finding to verify that you have 
made and maintained satisfactory corrections. When he or she is 
satisfied that you are in compliance, the initiating official sends you 
a notice that the matter is concluded.



Sec. 40.375  How does the initiating official start a PIE proceeding?

    (a) As a service agent, if your compliance matter is not correctable 
(see Sec. 40.373(a)), or if have not resolved compliance matters as 
provided in Sec. 40.373(c), the initiating official starts a PIE 
proceeding by sending you a notice of proposed exclusion (NOPE). The 
NOPE contains the initiating official's recommendations concerning the 
issuance of a PIE, but it is not a decision by the Department to issue a 
PIE.
    (b) The NOPE includes the following information:
    (1) A statement that the initiating official is recommending that 
the Department issue a PIE concerning you;
    (2) The factual basis for the initiating official's belief that you 
are not providing drug and/or alcohol testing services to DOT-regulated 
employers consistent with the requirements of this part or are in 
serious noncompliance with a DOT agency drug and alcohol regulation;
    (3) The factual basis for the initiating official's belief that your 
noncompliance has not been or cannot be corrected;
    (4) The initiating official's recommendation for the scope of the 
PIE;
    (5) The initiating official's recommendation for the duration of the 
PIE; and
    (6) A statement that you may contest the issuance of the proposed 
PIE, as provided in Sec. 40.379.
    (c) The initiating official sends a copy of the NOPE to the ODAPC 
Director at the same time he or she sends the NOPE to you.



Sec. 40.377  Who decides whether to issue a PIE?

    (a) The ODAPC Director, or his or her designee, decides whether to 
issue a PIE. If a designee is acting as the decisionmaker, all 
references in this subpart to the Director refer to the designee.
    (b) To ensure his or her impartiality, the Director plays no role in 
the initiating official's determination about whether to start a PIE 
proceeding.
    (c) There is a ``firewall'' between the initiating official and the 
Director. This means that the initiating official and the Director are 
prohibited from having any discussion, contact, or exchange of 
information with one another about the matter, except for documents and 
discussions that are part of the record of the proceeding.

[[Page 607]]



Sec. 40.379  How do you contest the issuance of a PIE?

    (a) If you receive a NOPE, you may contest the issuance of the PIE.
    (b) If you want to contest the proposed PIE, you must provide the 
Director information and argument in opposition to the proposed PIE in 
writing, in person, and/or through a representative. To contest the 
proposed PIE, you must take one or more of the steps listed in this 
paragraph (b) within 30 days after you receive the NOPE.
    (1) You may request that the Director dismiss the proposed PIE 
without further proceedings, on the basis that it does not concern 
serious noncompliance with this part or DOT agency regulations, 
consistent with the Department's policy as stated in Sec. 40.365.
    (2) You may present written information and arguments, consistent 
with the provisions of Sec. 40.381, contesting the proposed PIE.
    (3) You may arrange with the Director for an informal meeting to 
present your information and arguments.
    (c) If you do not take any of the actions listed in paragraph (b) of 
this section within 30 days after you receive the NOPE, the matter 
proceeds as an uncontested case. In this event, the Director makes his 
or her decision based on the record provided by the initiating official 
(i.e., the NOPE and any supporting information or testimony) and any 
additional information the Director obtains.



Sec. 40.381  What information do you present to contest the proposed 
issuance of a PIE?

    (a) As a service agent who wants to contest a proposed PIE, you must 
present at least the following information to the Director:
    (1) Specific facts that contradict the statements contained in the 
NOPE (see Sec. 40.375(b)(2) and (3)). A general denial is insufficient 
to raise a genuine dispute over facts material to the issuance of a PIE;
    (2) Identification of any existing, proposed or prior PIE; and
    (3) Identification of your affiliates, if any.
    (b) You may provide any information and arguments you wish 
concerning the proposed issuance, scope and duration of the PIE (see 
Sec. 40.375(b)(4) and (5)).
    (c) You may provide any additional relevant information or arguments 
concerning any of the issues in the matter.



Sec. 40.383  What procedures apply if you contest the issuance of a PIE?

    (a) DOT conducts PIE proceedings in a fair and informal manner. The 
Director may use flexible procedures to allow you to present matters in 
opposition. The Director is not required to follow formal rules of 
evidence or procedure in creating the record of the proceeding.
    (b) The Director will consider any information or argument he or she 
determines to be relevant to the decision on the matter.
    (c) You may submit any documentary evidence you want the Director to 
consider. In addition, if you have arranged an informal meeting with the 
Director, you may present witnesses and confront any person the 
initiating official presents as a witness against you.
    (d) In cases where there are material factual issues in dispute, the 
Director or his or her designee may conduct additional fact-finding.
    (e) If you have arranged a meeting with the Director, the Director 
will make a transcribed record of the meeting available to you on your 
request. You must pay the cost of transcribing and copying the meeting 
record.



Sec. 40.385  Who bears the burden of proof in a PIE proceeding?

    (a) As the proponent of issuing a PIE, the initiating official bears 
the burden of proof.
    (b) This burden is to demonstrate, by a preponderance of the 
evidence, that the service agent was in serious noncompliance with the 
requirements of this part for drug and/or alcohol testing-related 
services or with the requirements of another DOT agency drug and alcohol 
testing regulation.



Sec. 40.387  What matters does the Director decide concerning 
a proposed PIE?

    (a) Following the service agent's response (see Sec. 40.379(b)) or, 
if no response

[[Page 608]]

is received, after 30 days have passed from the date on which the 
service agent received the NOPE, the Director may take one of the 
following steps:
    (1) In response to a request from the service agent (see Sec. 
40.379(b)(1)) or on his or her own motion, the Director may dismiss a 
PIE proceeding if he or she determines that it does not concern serious 
noncompliance with this part or DOT agency regulations, consistent with 
the Department's policy as stated in Sec. 40.365.
    (i) If the Director dismisses a proposed PIE under this paragraph 
(a), the action is closed with respect to the noncompliance alleged in 
the NOPE.
    (ii) The Department may initiate a new PIE proceeding against you on 
the basis of different or subsequent conduct that is in noncompliance 
with this part or other DOT drug and alcohol testing rules.
    (2) If the Director determines that the initiating official's 
submission does not have complete information needed for a decision, the 
Director may remand the matter to the initiating official. The 
initiating official may resubmit the matter to the Director when the 
needed information is complete. If the basis for the proposed PIE has 
changed, the initiating official must send an amended NOPE to the 
service agent.
    (b) The Director makes determinations concerning the following 
matters in any PIE proceeding that he or she decides on the merits:
    (1) Any material facts that are in dispute;
    (2) Whether the facts support issuing a PIE;
    (3) The scope of any PIE that is issued; and
    (4) The duration of any PIE that is issued.



Sec. 40.389  What factors may the Director consider?

    This section lists examples of the kind of mitigating and 
aggravating factors that the Director may consider in determining 
whether to issue a PIE concerning you, as well as the scope and duration 
of a PIE. This list is not exhaustive or exclusive. The Director may 
consider other factors if appropriate in the circumstances of a 
particular case. The list of examples follows:
    (a) The actual or potential harm that results or may result from 
your noncompliance;
    (b) The frequency of incidents and/or duration of the noncompliance;
    (c) Whether there is a pattern or prior history of noncompliance;
    (d) Whether the noncompliance was pervasive within your 
organization, including such factors as the following:
    (1) Whether and to what extent your organization planned, initiated, 
or carried out the noncompliance;
    (2) The positions held by individuals involved in the noncompliance, 
and whether your principals tolerated their noncompliance; and
    (3) Whether you had effective standards of conduct and control 
systems (both with respect to your own organization and any contractors 
or affiliates) at the time the noncompliance occurred;
    (e) Whether you have demonstrated an appropriate compliance 
disposition, including such factors as the following:
    (1) Whether you have accepted responsibility for the noncompliance 
and recognize the seriousness of the conduct that led to the cause for 
issuance of the PIE;
    (2) Whether you have cooperated fully with the Department during the 
investigation. The Director may consider when the cooperation began and 
whether you disclosed all pertinent information known to you;
    (3) Whether you have fully investigated the circumstances of the 
noncompliance forming the basis for the PIE and, if so, have made the 
result of the investigation available to the Director;
    (4) Whether you have taken appropriate disciplinary action against 
the individuals responsible for the activity that constitutes the 
grounds for issuance of the PIE; and
    (5) Whether your organization has taken appropriate corrective 
actions or remedial measures, including implementing actions to prevent 
recurrence;
    (f) With respect to noncompliance with a DOT agency regulation, the 
degree to which the noncompliance affects matters common to the DOT drug 
and alcohol testing program;

[[Page 609]]

    (g) Other factors appropriate to the circumstances of the case.



Sec. 40.391  What is the scope of a PIE?

    (a) The scope of a PIE is the Department's determination about the 
divisions, organizational elements, types of services, affiliates, and/
or individuals (including direct employees of a service agent and its 
contractors) to which a PIE applies.
    (b) If, as a service agent, the Department issues a PIE concerning 
you, the PIE applies to all your divisions, organizational elements, and 
types of services that are involved with or affected by the 
noncompliance that forms the factual basis for issuing the PIE.
    (c) In the NOPE (see Sec. 40.375(b)(4)), the initiating official 
sets forth his or her recommendation for the scope of the PIE. The 
proposed scope of the PIE is one of the elements of the proceeding that 
the service agent may contest (see Sec. 40.381(b)) and about which the 
Director makes a decision (see Sec. 40.387(b)(3)).
    (d) In recommending and deciding the scope of the PIE, the 
initiating official and Director, respectively, must take into account 
the provisions of paragraphs (e) through (j) of this section.
    (e) The pervasiveness of the noncompliance within a service agent's 
organization (see Sec. 40.389(d)) is an important consideration in 
determining the scope of a PIE. The appropriate scope of a PIE grows 
broader as the pervasiveness of the noncompliance increases.
    (f) The application of a PIE is not limited to the specific location 
or employer at which the conduct that forms the factual basis for 
issuing the PIE was discovered.
    (g) A PIE applies to your affiliates, if the affiliate is involved 
with or affected by the conduct that forms the factual basis for issuing 
the PIE.
    (h) A PIE applies to individuals who are officers, employees, 
directors, shareholders, partners, or other individuals associated with 
your organization in the following circumstances:
    (1) Conduct forming any part of the factual basis of the PIE 
occurred in connection with the individual's performance of duties by or 
on behalf of your organization; or
    (2) The individual knew of, had reason to know of, approved, or 
acquiesced in such conduct. The individual's acceptance of benefits 
derived from such conduct is evidence of such knowledge, acquiescence, 
or approval.
    (i) If a contractor to your organization is solely responsible for 
the conduct that forms the factual basis for a PIE, the PIE does not 
apply to the service agent itself unless the service agent knew or 
should have known about the conduct and did not take action to correct 
it.
    (j) PIEs do not apply to drug and alcohol testing that DOT does not 
regulate.
    (k) The following examples illustrate how the Department intends the 
provisions of this section to work:

    Example 1 to Sec. 40.391. Service Agent P provides a variety of 
drug testing services. P's SAP services are involved in a serious 
violation of this Part 40. However, P's other services fully comply with 
this part, and P's overall management did not plan or concur in the 
noncompliance, which in fact was contrary to P's articulated standards. 
Because the noncompliance was isolated in one area of the organization's 
activities, and did not pervade the entire organization, the scope of 
the PIE could be limited to SAP services.
    Example 2 to Sec. 40.391. Service Agent Q provides a similar 
variety of services. The conduct forming the factual basis for a PIE 
concerns collections for a transit authority. As in Example 1, the 
noncompliance is not pervasive throughout Q's organization. The PIE 
would apply to collections at all locations served by Q, not just the 
particular transit authority or not just in the state in which the 
transit authority is located.
    Example 3 to Sec. 40.391. Service Agent R provides a similar array 
of services. One or more of the following problems exists: R's 
activities in several areas--collections, MROs, SAPs, protecting the 
confidentiality of information--are involved in serious noncompliance; 
DOT determines that R's management knew or should have known about 
serious noncompliance in one or more areas, but management did not take 
timely corrective action; or, in response to an inquiry from DOT 
personnel, R's management refuses to provide information about its 
operations. In each of these three cases, the scope of the PIE would 
include all aspects of R's services.
    Example 4 to Sec. 40.391. Service Agent W provides only one kind of 
service (e.g., laboratory or MRO services). The Department

[[Page 610]]

issues a PIE concerning these services. Because W only provides this one 
kind of service, the PIE necessarily applies to all its operations.
    Example 5 to Sec. 40.391. Service Agent X, by exercising reasonably 
prudent oversight of its collection contractor, should have known that 
the contractor was making numerous ``fatal flaws'' in tests. 
Alternatively, X received a correction notice pointing out these 
problems in its contractor's collections. In neither case did X take 
action to correct the problem. X, as well as the contractor, would be 
subject to a PIE with respect to collections.
    Example 6 to Sec. 40.391. Service Agent Y could not reasonably have 
known that one of its MROs was regularly failing to interview employees 
before verifying tests positive. When it received a correction notice, Y 
immediately dismissed the erring MRO. In this case, the MRO would be 
subject to a PIE but Y would not.
    Example 7 to Sec. 40.391. The Department issues a PIE with respect 
to Service Agent Z. Z provides services for DOT-regulated transportation 
employers, a Federal agency under the HHS-regulated Federal employee 
testing program, and various private businesses and public agencies that 
DOT does not regulate. The PIE applies only to the DOT-regulated 
transportation employers with respect to their DOT-mandated testing, not 
to the Federal agency or the other public agencies and private 
businesses. The PIE does not prevent the non-DOT regulated entities from 
continuing to use Z's services.



Sec. 40.393  How long does a PIE stay in effect?

    (a) In the NOPE (see Sec. 40.375(b)(5)), the initiating official 
proposes the duration of the PIE. The duration of the PIE is one of the 
elements of the proceeding that the service agent may contest (see Sec. 
40.381(b)) and about which the Director makes a decision (see Sec. 
40.387(b)(4)).
    (b) In deciding upon the duration of the PIE, the Director considers 
the seriousness of the conduct on which the PIE is based and the 
continued need to protect employers and employees from the service 
agent's noncompliance. The Director considers factors such as those 
listed in Sec. 40.389 in making this decision.
    (c) The duration of a PIE will be between one and five years, unless 
the Director reduces its duration under Sec. 40.407.



Sec. 40.395  Can you settle a PIE proceeding?

    At any time before the Director's decision, you and the initiating 
official can, with the Director's concurrence, settle a PIE proceeding.



Sec. 40.397  When does the Director make a PIE decision?

    The Director makes his or her decision within 60 days of the date 
when the record of a PIE proceeding is complete (including any meeting 
with the Director and any additional fact-finding that is necessary). 
The Director may extend this period for good cause for additional 
periods of up to 30 days.



Sec. 40.399  How does the Department notify service agents of its decision?

    If you are a service agent involved in a PIE proceeding, the 
Director provides you written notice as soon as he or she makes a PIE 
decision. The notice includes the following elements:
    (a) If the decision is not to issue a PIE, a statement of the 
reasons for the decision, including findings of fact with respect to any 
material factual issues that were in dispute.
    (b) If the decision is to issue a PIE--
    (1) A reference to the NOPE;
    (2) A statement of the reasons for the decision, including findings 
of fact with respect to any material factual issues that were in 
dispute;
    (3) A statement of the scope of the PIE; and
    (4) A statement of the duration of the PIE.



Sec. 40.401  How does the Department notify employers and the public
about a PIE?

    (a) The Department maintains a document called the ``List of 
Excluded Drug and Alcohol Service Agents.'' This document may be found 
on the Department's web site (http://www.dot.gov/ost/dapc). You may also 
request a copy of the document from ODAPC.
    (b) When the Director issues a PIE, he or she adds to the List the 
name and address of the service agent, and any other persons or 
organizations, to whom the PIE applies and information about the scope 
and duration of the PIE.

[[Page 611]]

    (c) When a service agent ceases to be subject to a PIE, the Director 
removes this information from the List.
    (d) The Department also publishes a Federal Register notice to 
inform the public on any occasion on which a service agent is added to 
or taken off the List.



Sec. 40.403  Must a service agent notify its clients when the
Department issues a PIE?

    (a) As a service agent, if the Department issues a PIE concerning 
you, you must notify each of your DOT-regulated employer clients, in 
writing, about the issuance, scope, duration, and effect of the PIE. You 
may meet this requirement by sending a copy of the Director's PIE 
decision or by a separate notice. You must send this notice to each 
client within three business days of receiving from the Department the 
notice provided for in Sec. 40.399(b).
    (b) As part of the notice you send under paragraph (a) of this 
section, you must offer to transfer immediately all records pertaining 
to the employer and its employees to the employer or to any other 
service agent the employer designates. You must carry out this transfer 
as soon as the employer requests it.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001]



Sec. 40.405  May the Federal courts review PIE decisions?

    The Director's decision is a final administrative action of the 
Department. Like all final administrative actions of Federal agencies, 
the Director's decision is subject to judicial review under the 
Administrative Procedure Act (5 U.S.C. 551 et. seq).



Sec. 40.407  May a service agent ask to have a PIE reduced or terminated?

    (a) Yes, as a service agent concerning whom the Department has 
issued a PIE, you may request that the Director terminate a PIE or 
reduce its duration and/or scope. This process is limited to the issues 
of duration and scope. It is not an appeal or reconsideration of the 
decision to issue the PIE.
    (b) Your request must be in writing and supported with 
documentation.
    (c) You must wait at least nine months from the date on which the 
Director issued the PIE to make this request.
    (d) The initiating official who was the proponent of the PIE may 
provide information and arguments concerning your request to the 
Director.
    (e) If the Director verifies that the sources of your noncompliance 
have been eliminated and that all drug or alcohol testing-related 
services you would provide to DOT-regulated employers will be consistent 
with the requirements of this part, the Director may issue a notice 
terminating or reducing the PIE.



Sec. 40.409  What does the issuance of a PIE mean to transportation employers?

    (a) As an employer, you are deemed to have notice of the issuance of 
a PIE when it appears on the List mentioned in Sec. 40.401(a) or the 
notice of the PIE appears in the Federal Register as provided in Sec. 
40.401(d). You should check this List to ensure that any service agents 
you are using or planning to use are not subject to a PIE.
    (b) As an employer who is using a service agent concerning whom a 
PIE is issued, you must stop using the services of the service agent no 
later than 90 days after the Department has published the decision in 
the Federal Register or posted it on its web site. You may apply to the 
ODAPC Director for an extension of 30 days if you demonstrate that you 
cannot find a substitute service agent within 90 days.
    (c) Except during the period provided in paragraph (b) of this 
section, you must not, as an employer, use the services of a service 
agent that are covered by a PIE that the Director has issued under this 
subpart. If you do so, you are in violation of the Department's 
regulations and subject to applicable DOT agency sanctions (e.g., civil 
penalties, withholding of Federal financial assistance).
    (d) You also must not obtain drug or alcohol testing services 
through a contractor or affiliate of the service agent to whom the PIE 
applies.

    Example to Paragraph (d): Service Agent R was subject to a PIE with 
respect to SAP services. As an employer, not only must you

[[Page 612]]

not use R's own SAP services, but you also must not use SAP services you 
arrange through R, such as services provided by a subcontractor or 
affiliate of R or a person or organization that receives financial gain 
from its relationship with R.

    (e) This section's prohibition on using the services of a service 
agent concerning which the Director has issued a PIE applies to 
employers in all industries subject to DOT drug and alcohol testing 
regulations.

    Example to Paragraph (e): The initiating official for a PIE was the 
FAA drug and alcohol program manager, and the conduct forming the basis 
of the PIE pertained to the aviation industry. As a motor carrier, 
transit authority, pipeline, railroad, or maritime employer, you are 
also prohibited from using the services of the service agent involved in 
connection with the DOT drug and alcohol testing program.

    (f) The issuance of a PIE does not result in the cancellation of 
drug or alcohol tests conducted using the service agent involved before 
the issuance of the Director's decision or up to 90 days following its 
publication in the Federal Register or posting on the Department's web 
site, unless otherwise specified in the Director's PIE decision or the 
Director grants an extension as provided in paragraph (b) of this 
section.

    Example to Paragraph (f): The Department issues a PIE concerning 
Service Agent N on September 1. All tests conducted using N's services 
before September 1, and through November 30, are valid for all purposes 
under DOT drug and alcohol testing regulations, assuming they meet all 
other regulatory requirements.



Sec. 40.411  What is the role of the DOT Inspector General's office?

    (a) Any person may bring concerns about waste, fraud, or abuse on 
the part of a service agent to the attention of the DOT Office of 
Inspector General.
    (b) In appropriate cases, the Office of Inspector General may pursue 
criminal or civil remedies against a service agent.
    (c) The Office of Inspector General may provide factual information 
to other DOT officials for use in a PIE proceeding.



Sec. 40.413  How are notices sent to service agents?

    (a) If you are a service agent, DOT sends notices to you, including 
correction notices, notices of proposed exclusion, decision notices, and 
other notices, in any of the ways mentioned in paragraph (b) or (c) of 
this section.
    (b) DOT may send a notice to you, your identified counsel, your 
agent for service of process, or any of your partners, officers, 
directors, owners, or joint venturers to the last known street address, 
fax number, or e-mail address. DOT deems the notice to have been 
received by you if sent to any of these persons.
    (c) DOT considers notices to be received by you--
    (1) When delivered, if DOT mails the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if DOT sends the notice by fax or five days after we 
send it if the fax is undeliverable; or
    (3) When delivered, if DOT sends the notice by e-mail or five days 
after DOT sends it if the e-mail is undeliverable.



   Sec. Appendix A to Part 40--DOT Standards for Urine Collection Kits

                       The Collection Kit Contents

    1. Collection Container
    a. Single-use container, made of plastic, large enough to easily 
catch and hold at least 55 mL of urine voided from the body.
    b. Must have graduated volume markings clearly noting levels of 45 
mL and above.
    c. Must have a temperature strip providing graduated temperature 
readings 32-38 [deg]C/90-100 [deg]F, that is affixed or can be affixed 
at a proper level on the outside of the collection container. Other 
methodologies (e.g., temperature device built into the wall of the 
container) are acceptable provided the temperature measurement is 
accurate and such that there is no potential for contamination of the 
specimen.
    d. Must be individually wrapped in a sealed plastic bag or shrink 
wrapping; or must have a peelable, sealed lid or other easily visible 
tamper-evident system.
    e. May be made available separately at collection sites to address 
shy bladder situations when several voids may be required to complete 
the testing process.
    2. Plastic Specimen Bottles
    a. Each bottle must be large enough to hold at least 35 mL; or 
alternatively, they may be two distinct sizes of specimen bottles

[[Page 613]]

provided that the bottle designed to hold the primary specimen holds at 
least 35 mL of urine and the bottle designed to hold the split specimen 
holds at least 20 mL.
    b. Must have screw-on or snap-on caps that prevent seepage of the 
urine from the bottles during shipment.
    c. Must have markings clearly indicating the appropriate levels (30 
mL for the primary specimen and 15 mL for the split) of urine that must 
be poured into the bottles.
    d. Must be designed so that the required tamper-evident bottle seals 
made available on the CCF fit with no damage to the seal when the 
employee initials it nor with the chance that the seal overlap would 
conceal printed information.
    e. Must be wrapped (with caps) together in a sealed plastic bag or 
shrink wrapping separate from the collection container; or must be 
wrapped (with cap) individually in sealed plastic bags or shrink 
wrapping; or must have peelable, sealed lid or other easily visible 
tamper-evident system.
    f. Plastic material must be leach resistant.
    3. Leak-Resistant Plastic Bag
    a. Must have two sealable compartments or pouches which are leak-
resistant; one large enough to hold two specimen bottles and the other 
large enough to hold the CCF paperwork.
    b. The sealing methodology must be such that once the compartments 
are sealed, any tampering or attempts to open either compartment will be 
evident.
    4. Absorbent material
    Each kit must contain enough absorbent material to absorb the entire 
contents of both specimen bottles. Absorbent material must be designed 
to fit inside the leak-resistant plastic bag pouch into which the 
specimen bottles are placed.
    5. Shipping Container
    a. Must be designed to adequately protect the specimen bottles from 
shipment damage in the transport of specimens from the collection site 
to the laboratory (e.g., standard courier box, small cardboard box, 
plastic container).
    b. May be made available separately at collection sites rather than 
being part of an actual kit sent to collection sites.
    c. A shipping container is not necessary if a laboratory courier 
hand-delivers the specimen bottles in the plastic leak-proof bags from 
the collection site to the laboratory.



  Sec. Appendix B to Part 40--DOT Drug Testing Semi-Annual Laboratory 
                           Report to Employers

    The following items are required on each report:
Reporting Period: (inclusive dates)
Laboratory Identification: (name and address)
Employer Identification: (name; may include Billing Code or ID code)
C/TPA Identification: (where applicable; name and address)
1. Specimen Results Reported (total number)
By Type of Test
(a) Pre-employment (number)
(b) Post-Accident (number)
(c) Random (number)
(d) Reasonable Suspicion/Cause (number)
(e) Return-to-Duty (number)
(f) Follow-up (number)
(g) Type of Test Not Noted on CCF (number)
2. Specimens Reported
(a) Negative (number)
(b) Negative and Dilute (number)
3. Specimens Reported as Rejected for Testing (total number)
By Reason
(a) Fatal flaw (number)
(b) Uncorrected Flaw (number)
4. Specimens Reported as Positive (total number) By Drug
(a) Marijuana Metabolite (number)
(b) Cocaine Metabolite (number)
(c) Opiates (number)
(1) Codeine (number)
(2) Morphine (number)
(3) 6-AM (number)
(d) Phencyclidine (number)
(e) Amphetamines (number)
(1) Amphetamine (number)
(2) Methamphetamine (number)
5. Adulterated (number)
6. Substituted (number)
7. Invalid Result (number)

[73 FR 35975, June 25, 2008]



  Sec. Appendix C to Part 40--DOT Drug Testing Semi-Annual Laboratory 
                              Report to DOT

    Mail, fax, or e-mail to: U.S. Department of Transportation, Office 
of Drug and Alcohol Policy and Compliance, W62-300, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, Fax: (202) 366-3897, E-mail: 
[email protected].
    The following items are required on each report:
Reporting Period: (inclusive dates)
Laboratory Identification: (name and address)
1. DOT Specimen Results Reported (number)
2. Negative Results Reported (number)
3. Rejected for Testing Reported (number) By Reason (number)
4. Positive Results Reported (number) By Drug (number)
5. Adulterated Results Reported (number) By Reason (number)
6. Substituted Results Reported (number)
7. Invalid Results Reported (number) By Reason (number)

[73 FR 35975, June 25, 2008]

[[Page 614]]



  Sec. Appendix D to Part 40--Report Format: Split Specimen Failure To 
                                Reconfirm

    Mail, fax, or submit electronically to: U.S. Department of 
Transportation, Office of Drug and Alcohol Policy and Compliance, W62-
300, 1200 New Jersey Avenue, SE., Washington, DC 20590, Fax: (202) 366-
3897, Submit Electronically: http://www.dot.gov/ost/dapc/mro--
split.html.
    The following items are required on each report:
    1. MRO name, address, phone number, and fax number.
    2. Collection site name, address, and phone number.
    3. Date of collection.
    4. Specimen I.D. number.
    5. Laboratory accession number.
    6. Primary specimen laboratory name, address, and phone number.
    7. Date result reported or certified by primary laboratory.
    8. Split specimen laboratory name, address, and phone number.
    9. Date split specimen result reported or certified by split 
specimen laboratory.
    10. Primary specimen results (e.g., name of drug, adulterant) in the 
primary specimen.
    11. Reason for split specimen failure-to-reconfirm result (e.g., 
drug or adulterant not present, specimen invalid, split not collected, 
insufficient volume).
    12. Actions taken by the MRO (e.g., notified employer of failure to 
reconfirm and requirement for recollection).
    13. Additional information explaining the reason for cancellation.
    14. Name of individual submitting the report (if not the MRO).

[73 FR 35975, June 25, 2008]



      Sec. Appendix E to Part 40--SAP Equivalency Requirements for 
                       Certification Organizations

    1. Experience: Minimum requirements are for three years of full-time 
supervised experience or 6,000 hours of supervised experience as an 
alcoholism and/or drug abuse counselor. The supervision must be provided 
by a licensed or certified practitioner. Supervised experience is 
important if the individual is to be considered a professional in the 
field of alcohol and drug abuse evaluation and counseling.
    2. Education: There exists a requirement of 270 contact hours of 
education and training in alcoholism and/or drug abuse or related 
training. These hours can take the form of formal education, in-service 
training, and professional development courses. Part of any professional 
counselor's development is participation in formal and non-formal 
education opportunities within the field.
    3. Continuing Education: The certified counselor must receive at 
least 40-60 hours of continuing education units (CEU) during each two 
year period. These CEUs are important to the counselor's keeping abreast 
of changes and improvements in the field.
    4. Testing: A passing score on a national test is a requirement. The 
test must accurately measure the application of the knowledge, skills, 
and abilities possessed by the counselor. The test establishes a 
national standard that must be met to practice.
    5. Testing Validity: The certification examination must be reviewed 
by an independent authority for validity (examination reliability and 
relationship to the knowledge, skills, and abilities required by the 
counseling field). The reliability of the exam is paramount if counselor 
attributes are to be accurately measured. The examination passing score 
point must be placed at an appropriate minimal level score as gauged by 
statistically reliable methodology.
    6. Measurable Knowledge Base: The certification process must be 
based upon measurable knowledge possessed by the applicant and verified 
through collateral data and testing. That level of knowledge must be of 
sufficient quantity to ensure a high quality of SAP evaluation and 
referral services.
    7. Measurable Skills Base: The certification process must be based 
upon measurable skills possessed by the applicant and verified through 
collateral data and testing. That level of skills must be of sufficient 
quality to ensure a high quality of SAP evaluation and referral 
services.
    8. Quality Assurance Plan: The certification agency must ensure that 
a means exists to determine that applicant records are verified as being 
true by the certification staff. This is an important check to ensure 
that true information is being accepted by the certifying agency.
    9. Code of Ethics: Certified counselors must pledge to adhere to an 
ethical standard for practice. It must be understood that code 
violations could result in de-certification. These standards are vital 
in maintaining the integrity of practitioners. High ethical standards 
are required to ensure quality of client care and confidentiality of 
client information as well as to guard against inappropriate referral 
practices.
    10. Re-certification Program: Certification is not just a one-time 
event. It is a continuing privilege with continuing requirements. Among 
these are continuing education, continuing state certification, and 
concomitant adherence to the code of ethics. Re-certification serves as 
a protector of client interests by removing poor performers from the 
certified practice.
    11. Fifty State Coverage: Certification must be available to 
qualified counselors in all 50 states and, therefore, the test must be 
available to qualified applicants in all 50 states.

[[Page 615]]

Because many companies are multi-state operators, consistency in SAP 
evaluation quality and opportunities is paramount. The test need not be 
given in all 50 states but should be accessible to candidates from all 
states.
    12. National Commission for Certifying Agencies (NCCA) 
Accreditation: Having NCCA accreditation is a means of demonstrating to 
the Department of Transportation that your certification has been 
reviewed by a panel of impartial experts that have determined that your 
examination(s) has met stringent and appropriate testing standards.



Sec. Appendix F to Part 40--Drug and Alcohol Testing Information that C/
                     TPAs May Transmit to Employers

    1. If you are a C/TPA, you may, acting as an intermediary, transmit 
the information in the following sections of this part to the DER for an 
employer, if the employer chooses to have you do so. These are the only 
items that you are permitted to transmit to the employer as an 
intermediary. The use of C/TPA intermediaries is prohibited in all other 
cases, such as transmission of laboratory drug test results to MROs, the 
transmission of medical information from MROs to employers, the 
transmission of SAP reports to employers, the transmission of positive 
alcohol test results, and the transmission of medical information from 
MROs to employers.
    2. In every case, you must ensure that, in transmitting the 
information, you meet all requirements (e.g., concerning confidentiality 
and timing) that would apply if the party originating the information 
(e.g., an MRO or collector) sent the information directly to the 
employer. For example, if you transmit MROs' drug testing results to 
DERs, you must transmit each drug test result to the DER in compliance 
with the requirements for MROs set forth in Sec. 40.167.

                        Drug Testing Information

Sec. 40.25: Previous two years' test results
Sec. 40.35: Notice to collectors of contact information for DER
Sec. 40.61(a): Notification to DER that an employee is a ``no show'' 
          for a drug test
Sec. 40.63(e): Notification to DER of a collection under direct 
          observation
Sec. 40.65(b)(6) and (7) and (c)(2) and (3): Notification to DER of a 
          refusal to provide a specimen or an insufficient specimen
Sec. 40.73(a)(9): Transmission of CCF copies to DER (However, MRO copy 
          of CCF must be sent by collector directly to the MRO, not 
          through the C/TPA.)
Sec. 40.111(a): Transmission of laboratory statistical report to 
          employer
Sec. 40.127(f): Report of test results to DER
Sec. Sec. 40.127(g), 40.129(d), 40.159(a)(4)(ii); 40.161(b): Reports to 
          DER that test is cancelled
Sec. 40.129 (d): Report of test results to DER
Sec. 40.129(g)(1): Report to DER of confirmed positive test in stand-
          down situation
Sec. Sec. 40.149(b): Report to DER of changed test result
Sec. 40.155(a): Report to DER of dilute specimen
Sec. 40.167(b) and (c): Reports of test results to DER
Sec. 40.187(a)-(e) Reports to DER concerning the reconfirmation of 
          tests
Sec. 40.191(d): Notice to DER concerning refusals to test
Sec. 40.193(b)(3): Notification to DER of refusal in shy bladder 
          situation
Sec. 40.193(b)(4): Notification to DER of insufficient specimen
Sec. 40.193(b)(5): Transmission of CCF copies to DER (not to MRO)
Sec. 40.199: Report to DER of cancelled test and direction to DER for 
          additional collection
Sec. 40.201: Report to DER of cancelled test

                       Alcohol Testing Information

Sec. 40.215: Notice to BATs and STTs of contact information for DER
Sec. 40.241(b)(1): Notification to DER that an employee is a ``no 
          show'' for an alcohol test
Sec. 40.247(a)(2): Transmission of alcohol screening test results only 
          when the test result is less than 0.02
Sec. 40.255(a)(4): Transmission of alcohol confirmation test results 
          only when the test result is less than 0.02
Sec. 40.263(a)(3) and 263(b)(3): Notification of insufficient saliva 
          and failure to provide sufficient amount of breath

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001; 73 
FR 35975, June 25, 2008]

               Appendix G to Part 40--Alcohol Testing Form

    The following form is the alcohol testing form required for use in 
the DOT alcohol testing program beginning August 1, 2001. Use of the 
form is authorized beginning January 18, 2001.

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  Sec. Appendix H to Part 40--DOT Drug and Alcohol Testing Management 
              Information System (MIS) Data Collection Form

    The following form and instructions must be used when an employer is 
required to report MIS data to a DOT agency.

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[68 FR 43952, July 25, 2003]



PART 41_SEISMIC SAFETY--Table of Contents




Sec.
41.100 Purpose and applicability.
41.105 Definitions.
41.110 New DOT owned buildings and additions to buildings.
41.115 New buildings to be leased for DOT occupancy.
41.117 Buildings built with Federal assistance.
41.119 DOT regulated buildings.
41.120 Acceptable model codes.
41.125 Judicial review.

    Authority: 42 U.S.C. 7701 et seq.; 49 U.S.C. 322; E.O. 12699, 3 CFR, 
1990 Comp., p. 269.

    Source: 58 FR 32871, June 14, 1993, unless otherwise noted.



Sec. 41.100  Purpose and applicability.

    (a) This part implements the provisions of 49 U.S.C. 7701 et seq. 
and Executive Order (E.O.) 12699, ``Seismic Safety of Federal and 
Federally-Assisted or Regulated New Building Construction'' (3 CFR, 1990 
Comp., p. 269). Under the Executive Order the DOT is given the 
responsibility for developing and implementing its own mission-
appropriate and cost-effective regulations governing seismic safety.
    (b) This part applies to new DOT owned buildings and to new DOT 
leased, assisted and regulated buildings. The purpose of this part is to 
reduce risk to lives of the building occupants, improve the capabilities 
of essential buildings to function during or after an earthquake, and to 
reduce earthquake losses of public buildings and investments.
    (c) This part may be further implemented by the DOT Operating 
Administrations.



Sec. 41.105  Definitions.

    As used in this part--
    Operating Administration includes the Office of the Secretary.
    DOT means the U.S. Department of Transportation.



Sec. 41.110  New DOT owned buildings and additions to buildings.

    (a) DOT Operating Administrations responsible for the design and 
construction of new DOT Federally owned buildings will ensure that each 
building is designed and constructed in accord with the seismic design 
and construction standards set out in Sec. 41.120 of this part.
    (b) This section pertains to all building projects for which 
development of detailed plans and specifications was initiated after 
January 5, 1990. It applies to additions to existing buildings as well 
as to new buildings. It applies worldwide.
    (c) For DOT Federally owned buildings, a certification of compliance 
with the seismic design and construction requirements of this part is 
required prior to the acceptance of the building. Such statements of 
compliance may include the engineer's and architect's authenticated 
verifications of seismic design codes, standards, and practices used in 
the design and construction of the building, construction observation 
reports, local or state building department plan review documents, or 
other

[[Page 633]]

documents deemed appropriate by the DOT Operating Administration.



Sec. 41.115  New buildings to be leased for DOT occupancy.

    (a) DOT Operating Administrations responsible for the design and 
construction of new buildings to be leased for DOT occupancy or use will 
ensure that each building is designed and constructed in accord with the 
seismic design and construction standards set out in Sec. 41.120 of 
this part.
    (b) This section pertains to all new building projects for which the 
agreement covering development of detailed plans and specifications was 
executed after January 5, 1990.
    (c) For new Federally leased buildings, a certification of 
compliance with the seismic design and construction requirements of this 
part is required prior to the acceptance of the building. Such 
statements of compliance may include the engineer's and architect's 
authenticated verifications of seismic design codes, standards, and 
practices used in the design and construction of the building, 
construction observation reports, local or state building department 
plan review documents, or other documents deemed appropriate by the DOT 
Operating Administration.



Sec. 41.117  Buildings built with Federal assistance.

    (a) Each DOT Operating Administration assisting in the financing, 
through Federal grants or loans, or guaranteeing the financing, through 
loan or mortgage insurance programs, of newly constructed buildings will 
ensure that any building constructed with such assistance is constructed 
in accord with seismic standards set out in Sec. 41.120 of this part.
    (b) This section applies to new buildings and additions to existing 
buildings financed in whole or in part through Federal grants or loans 
administered by DOT Operating Administrations, or through guaranteed 
financing through loan or mortgage insurance programs administered by 
DOT Operating Administrations.
    (c) Any building constructed with Federal financial assistance, 
after July 14, 1993 must be designed and constructed in accord with 
seismic standards approved by the DOT operating Administration under 
Sec. 41.120 of this part in order to be eligible for Federal financial 
assistance.
    (d) For buildings built with Federal financial assistance, a 
certification of compliance with the seismic design and construction 
requirements of this part is required prior to the furnishing of such 
assistance. Such statements of compliance may include the engineer's and 
architect's authenticated verifications of seismic design codes, 
standards, and practices used in the design and construction of the 
building, construction observation reports, local or state building 
department plan review documents, or other documents deemed appropriate 
by the DOT Operating Administration.



Sec. 41.119  DOT regulated buildings.

    (a) Each DOT Operating Administration with responsibility for 
regulating the structural safety of buildings and additions to existing 
buildings will ensure that each DOT regulated building is designed and 
constructed in accord with seismic design and construction standards as 
provided by this part.
    (b) This section pertains to all new building projects for which 
development of detailed plans and specifications begin after July 14, 
1993.
    (c) Any building for which a DOT Operating Administration 
responsible for regulating the structural safety must comply with the 
seismic design and construction standards in this part.
    (d) For DOT regulated buildings a certification of compliance with 
the seismic design and construction requirements of this part is 
required prior to the acceptance of the building. Such statements of 
compliance may include the engineer's and architect's authenticated 
verification of seismic design codes, standards, and practices used in 
the design and construction of the building, construction observation 
reports, local or state building department plan review documents, or 
other documents deemed appropriate by the DOT Operating Administration.



Sec. 41.120  Acceptable model codes.

    (a) This section describes the standards that must be used to meet 
the

[[Page 634]]

seismic design and construction requirements of this part.
    (b)(1) The following are model codes which have been found to 
provide a level of seismic safety substantially equivalent to that 
provided by use of the 1988 National Earthquake Hazards Reduction 
Program (NEHRP) Recommended Provisions (Copies are available from the 
Office of Earthquakes and Natural Hazards, Federal Emergency Management 
Agency, 500 C Street, SW., Washington, DC 20472.):
    (i) The 1991 International Conference of Building Officials (ICBO) 
Uniform Building Code, published by the International Conference of 
Building Officials, 5360 South Workman Mill Rd., Whittier, Cal. 90601;
    (ii) The 1992 Supplement to the Building Officials and Code 
Administrators International (BOCA) National Building Code, published by 
the Building Officials and Code Administrators, 4051 West Flossmoor Rd., 
Country Club Hills, Ill. 60478-5795; and
    (iii) The 1992 Amendments to the Southern Building Code Congress 
(SBCC) Standard Building Code, published by the Southern Building Code 
Congress International, 900 Montclair Rd., Birmingham, Ala. 35213-1206.
    (2) Versions of the NEHRP seismic maps have been adopted along with 
the NEHRP Recommended Provisions into the BOCA National and SBCC 
Standard building codes. The seismic zone map in the ICBO Uniform 
Building Code is also based on one of the USGS maps of horizontal ground 
acceleration. However, the ICBO map should be used only with the ICBO 
code. Also, it is not appropriate to use the NEHRP maps with the ICBO 
Uniform Building Code, because the design requirements of building codes 
are keyed to the numerical values of the map they reference.
    (c) Revisions to the model codes listed in paragraph (b) of this 
section that are substantially equivalent to or exceed the then current 
or immediately preceding edition of the NEHRP recommended provisions, as 
it is updated, may be approved by a DOT Operating Administration to meet 
the requirements in this part.
    (d) State, county, local, or other jurisdictional building 
ordinances adopting and enforcing the model codes, listed in paragraph 
(b) of this section, in their entirety, without significant revisions or 
changes in the direction of less seismic safety, meet the requirements 
in this part. For ordinances that do not adopt the model codes listed in 
paragraph (b) of this section, substantial equivalency of the ordinances 
to the seismic safety level contained in the NEHRP recommended 
provisions must be determined by the DOT Operating Administration before 
the ordinances may be used to meet the requirements of this part.
    (e) DOT Operating Administrations that, as of January 5, 1990, 
required seismic safety levels higher than those imposed by this part in 
new building construction programs will continue to maintain such levels 
in force.
    (f) Emergencies. Nothing in this part applies to assistance provided 
for emergency work or for assistance essential to save lives and protect 
property and public health and safety performed pursuant to sections 
402, 403, 502, and 503 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (Stafford Act), 42 U.S.C. 5170a, 5170b, 5192, 
and 5193, or for temporary housing assistance programs and individual 
and family grants performed pursuant to Sections 408 and 411 of the 
Stafford Act, 42 U.S.C. 5174 and 5178. However, this part applies to 
other provisions of the Stafford Act after a Presidentially declared 
major disaster or emergency when assistance actions involve new 
construction or total replacement of a building.



Sec. 41.125  Judicial review.

    Nothing in this part is intended to create any right or benefit, 
substantive or procedural, enforceable at law by a party against the 
DOT, its Operating Administrations, its officers, or any person.



PART 71_STANDARD TIME ZONE BOUNDARIES--Table of Contents




Sec.
71.1 Limits defined; exceptions authorized for certain rail operating 
          purposes only.
71.2 Annual advancement of standard time.
71.3 Atlantic zone.
71.4 Eastern zone.
71.5 Boundary line between eastern and central zones.

[[Page 635]]

71.6 Central zone.
71.7 Boundary line between central and mountain zones.
71.8 Mountain zone.
71.9 Boundary line between mountain and Pacific zones.
71.10 Pacific zone.
71.11 Alaska zone.
71.12 Hawaii-Aleutian zone.
71.13 Samoa zone.
71.14 Chamorro Zone.

    Authority: Secs. 1-4, 40 Stat. 450, as amended; sec. 1, 41 Stat. 
1446, as amended; secs. 2-7, 80 Stat. 107, as amended; 100 Stat. 764; 
Act of Mar. 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-267; Pub. L. 99-359; Pub. L. 106-564, 15 
U.S.C. 263, 114 Stat. 2811; 49 CFR 1.59(a), unless otherwise noted.

    Source: Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, unless otherwise 
noted.



Sec. 71.1  Limits defined; exceptions authorized for certain rail operating 
purposes only.

    (a) This part prescribes the geographic limits of each of the eight 
standard time zones established by section 1 of the Standard Time Act, 
as amended by section 4 of the Uniform Time Act of 1966 (15 U.S.C. 261). 
It also contains lists of operating exceptions granted for specified 
rail carriers, whose operations cross the time zone boundaries 
prescribed by this part, authorizing them to carry the standard of time 
on which the major portion of a particular operation is conducted into 
an adjoining time zone.
    (b) Any rail carrier whose operations cross a time zone boundary 
prescribed by this part may apply for an operating exception to the 
General Counsel, Department of Transportation, Washington, DC 20590. 
However, each rail carrier for which an operating exception is granted 
shall, in its advertisements, time cards, station bulletin boards, and 
other publications, show arrival and departure times in terms of the 
standard time for the place concerned.
    (c) The time zones established by the Standard Time Zone Act, as 
amended by the Uniform Time Act of 1966, are Atlantic, eastern, central, 
mountain, Pacific, Alaska, Hawaii-Aleutian, and Samoa.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-21, 52 
FR 41631, Nov. 18, 1986]



Sec. 71.2  Annual advancement of standard time.

    (a) The Uniform Time Act of 1966 (15 U.S.C. 260a(a)), as amended, 
requires that the standard time of each State observing Daylight Saving 
Time shall be advanced 1 hour beginning at 2:00 a.m. on the first Sunday 
in April of each year and ending on the last Sunday in October. This 
advanced time shall be the standard time of each zone during such 
period. The Act authorizes any State to exempt itself from this 
requirement. States in two or more time zones may exempt the easternmost 
time zone portion from this requirement.
    (b) Section 3(b) of the Uniform Time Act of 1966 (15 U.S.C. 260a(b)) 
provides that ``it is the express intent of Congress * * * to supersede 
any and all laws of the States or political subdivisions thereof insofar 
as they may now or hereafter provide for advances in time or changeover 
dates different from those specified in [section 3(a) of that Act]'', 
which are those specified in paragraph (a) of this section.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-21, 52 
FR 41631, Nov. 18, 1986]



Sec. 71.3  Atlantic zone.

    The first zone, the Atlantic standard time zone, includes that part 
of the United States that is between 52[deg]30[sec] W. longitude and 
67[deg]30[sec] W. longitude and that part of the Commonwealth of Puerto 
Rico that is west of 67[deg]30[sec] W. longitude, but does not include 
any part of the State of Maine.



Sec. 71.4  Eastern zone.

    The second zone, the eastern standard time zone, includes that part 
of the United States that is west of 67[deg]30[sec] W. longitude and 
east of the boundary line described in Sec. 71.5, and includes all of 
the State of Maine, but does not include any part of the Commonwealth of 
Puerto Rico.



Sec. 71.5  Boundary line between eastern and central zones.

    (a) Minnesota-Michigan-Wisconsin. From the junction of the western 
boundary of the State of Michigan with the boundary between the United

[[Page 636]]

States and Canada northerly and easterly along the west line of Gogebic 
County to the west line of Ontonagon County; thence south along the west 
line of Ontonagon County to the north line of Gogebic County; thence 
southerly and easterly along the north line of Gogebic County to the 
west line of Iron County; thence north along the west line of Iron 
County to the north line of Iron County; thence east along the north 
line of Iron County to the east line of Iron County; thence south along 
the east line of Iron County to the north line of Dickinson County; 
thence east along the north line of Dickinson County to the east line of 
Dickinson County; thence south along the east line of Dickinson County 
to the north line of Menominee County; thence east along the north line 
of Menominee County to the east line of Menominee County; thence 
southerly and easterly along the east line of Menominee County to Lake 
Michigan; thence east to the western boundary of the State of Michigan; 
thence southerly and easterly along the western boundary of the State of 
Michigan to a point in the middle of Lake Michigan opposite the main 
channel of Green Bay; thence southerly along the western boundary of the 
State of Michigan to its junction with the southern boundary thereof and 
the northern boundary of the State of Indiana.
    (b) Indiana-Illinois. From the junction of the western boundary of 
the State of Michigan with the northern boundary of the State of Indiana 
easterly along the northern boundary of the State of Indiana to the east 
line of LaPorte County; thence southerly along the east line of LaPorte 
County to the north line of Starke County; thence east along the north 
line of Starke County to the west line of Marshall County; thence south 
along the west line of Marshall County; thence west along the north line 
of Pulaski County to the east line of Jasper County; thence south along 
the east line of Jasper County to the south line of Jasper County; 
thence west along the south lines of Jasper and Newton Counties to the 
western boundary of the State of Indiana; thence south along the western 
boundary of the State of Indiana to the north line of Gibson County; 
thence easterly and northerly along the north line of Gibson County to 
the west line of Pike County; thence south along the west line of Pike 
County to the north line of Warrick County; thence east along the north 
line of Warrick and Spencer Counties to the west line of Perry County; 
thence easterly and southerly along the north and east line of Perry 
County to the Indiana-Kentucky boundary.
    (c) Kentucky. From the junction of the east line of Perry County, 
Ind., with the Indiana-Kentucky boundary easterly along that boundary to 
the west line of Meade County, Ky.; thence southeasterly and 
southwesterly along the west lines of Meade and Hardin Counties to the 
southwest corner of Hardin County; thence along the south lines of 
Hardin and Larue Counties to the northwest corner of Taylor County; 
thence southeasterly along the west (southwest) lines of Taylor County 
and northeasterly along the east (southeast) line of Taylor County to 
the west line of Casey County; and thence southerly along the west and 
south lines of Casey and Pulaski Counties to the intersection with the 
western boundary of Wayne County; and then south along the western 
boundary of Wayne County to the Kentucky-Tennessee boundary.
    (d) Tennessee. From the junction of the west line of McCreary 
County, Ky., with the Kentucky-Tennessee boundary westerly along that 
boundary to the west line of Scott County, Tenn.; thence southerly along 
the west line of Scott County, the north and west lines of Morgan 
County, and the north line of Roane County to the north line of Rhea 
County; thence northwesterly along the north line of Rhea County; and 
thence southwesterly along the west lines of Rhea and Hamilton Counties 
to the Tennessee-Georgia boundary.
    (e) Georgia-Alabama. From the junction of the west line of Hamilton 
County, Tenn., with the Tennessee-Georgia boundary westerly along that 
boundary to its junction with the Alabama-Georgia boundary; thence 
southerly along that boundary and the Florida-Georgia boundary to the 
southwest corner of the State of Georgia.

[[Page 637]]

    (f) Florida. From the southwest corner of the State of Georgia to 
the midpoint of the Apalachicola River on the downstream side of Jim 
Woodruff Dam; thence southerly along the middle of the main channel of 
the Apalachicola River to its intersection with the Jackson River; 
thence westerly along the center of the Jackson River to its 
intersection with the Intracoastal Waterway; thence westerly along the 
center of the Intracoastal Waterway to the west line of Gulf County; 
thence southerly along the west line of Gulf County to the Gulf of 
Mexico.
    (g) [Reserved]
    (h) Municipalities on boundary line. All municipalities located upon 
the zone boundary line described in this section are in the central 
standard time zone.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-12, 37 
FR 11972, June 16, 1972; Amdt. 71-13, 38 FR 9229, Apr. 12, 1973; Amdt. 
71-14, 38 FR 13725, May 25, 1973; Amdt. 77-13, 42 FR 56610, Oct. 27, 
1977; Amdt. 91-17, 56 FR 52003, Oct. 17, 1991; 65 FR 50158, Aug. 17, 
2000; 71 FR 3245, Jan. 20, 2006; 72 FR 6177, Feb. 9, 2007; 72 FR 54377, 
Sept. 25, 2007]



Sec. 71.6  Central zone.

    The third zone, the central standard time zone, includes that part 
of the United States that is west of the boundary line between the 
eastern and central standard time zones described in Sec. 71.5 and east 
of the boundary line between the central and mountain standard time 
zones described in Sec. 71.7.



Sec. 71.7  Boundary line between central and mountain zones.

    (a) Montana-North Dakota. Beginning at the junction of the Montana-
North Dakota boundary with the boundary of the United States and Canada 
southerly along the Montana-North Dakota boundary to the Missouri River; 
thence southerly and easterly along the middle of that river to the 
midpoint of the confluence of the Missouri and Yellowstone Rivers; 
thence southerly and easterly along the middle of the Yellowstone River 
to the north boundary of T. 150 N., R. 104 W.; thence east to the 
northwest corner of T. 150 N., R. 102 W.; thence south to the southwest 
corner of T. 149 N., R. 102 W.; thence east to the northwest corner of 
T. 148 N., R. 102 W.; thence south to the northwest corner of 147 N., R. 
102 W.; thence east to the southwest corner of T. 148 N., R. 101 W., 
thence south to the middle of the Little Missouri; thence easterly and 
northerly along the middle of that river to the midpoint of its 
confluence with the Missouri River; thence southerly and easterly along 
the middle of the Missouri River to the midpoint of its confluence with 
the northern land boundary of Oliver County; thence west along the 
northern county line to the northwest boundary; thence south along the 
western county line to the southwest boundary; thence west along the 
northern county boundary of Morton County; thence south along the 
western county boundary of Morton County and then east and south along 
the southern county boundary to the intersection with the boundary with 
Sioux County; thence west and south along the northern boundary of Sioux 
County to the center of State Highway 31; thence south along the center 
of State Highway 31 to the state border with South Dakota; thence east 
along the southern boundary of Sioux County to the middle of the 
Missouri River.
    (b) South Dakota. From the junction of the North Dakota-South Dakota 
boundary with the Missouri River southerly along the main channel of 
that river to the crossing of the original Chicago & North Western 
Railway near Pierre; thence southwesterly to the northern boundary of 
Jones County at the northeast corner of the NE 1, Sec. 6, T. 2 N., R. 30 
E.; thence west along the northern boundary of Jones County; thence 
south along the western boundaries of Jones, Mellette and Todd Counties 
to the South Dakota-Nebraska boundary.
    (c) Nebraska. From the junction of the west line of Tripp County, 
South Dakota with the South Dakota-Nebraska boundary west along that 
boundary to the west line of R. 30 W.; thence south along the range line 
between Rs. 30 and 31 W. to the southwest corner of sec. 19, T. 33 N., 
R. 30 W.; thence easterly along section lines to the northeast corner of 
sec. 29, T. 33 N., R. 30 W.; thence southerly along section lines with 
their offsets to the northeast corner of sec. 17, T. 32 N., R. 30 W.; 
thence westerly along section lines to the northwest corner of sec. 18,

[[Page 638]]

T. 32 N., R. 30 W.; thence southerly along the range line to the 
southwest corner of T. 31 N., R. 30 W.; thence easterly along the 
township line to the northeast corner of T. 30 N., R. 30 W.; thence 
southerly along the range line to the southwest corner of T. 29 N., R. 
29 W.; thence westerly along the township line to the northwest corner 
of sec. 4, T. 28 N., R. 30 W.; thence southerly along section lines to 
the southwest corner of sec. 33, T. 28 N., R. 30 W.; thence easterly 
along the township line to the northeast corner of sec. 4, T. 27 N., R. 
30 W.; thence southerly along section lines to the southwest corner of 
sec. 22, T. 26 N., R. 30 W.; thence easterly along section lines to the 
southeast corner of sec. 24, T. 26 N., R. 30 W.; thence southerly along 
the range line to the north line of Thomas County; thence westerly along 
the north line of Thomas County to the west line of Thomas County; 
thence south along the west line of Thomas County to the north line of 
McPherson County; thence west along the north line of McPherson County 
to the west line of McPherson County; thence south along the west line 
of McPherson County to the north line of Keith County; thence east along 
the north line of Keith County to the west line of Lincoln County; 
thence south along the west line of Lincoln County to the north line of 
Hayes County; thence west along the north lines of Hayes County to the 
west line of Hayes County; thence south along the west line of Hayes and 
Hitchcock Counties to the Nebraska-Kansas boundary.
    (d) Kansas-Colorado. From the junction of the west line of Hitchcock 
County, Nebraska, with the Nebraska-Kansas boundary westerly along that 
boundary to the northwest corner of the State of Kansas; thence 
southerly along Kansas-Colorado boundary to the north line of Sherman 
County, Kansas; thence easterly along the north line of Sherman County 
to the east line of Sherman County; thence southerly along the east line 
of Sherman County to the north line of Logan County; thence westerly 
along the north line of Logan County to the east line of Wallace County; 
thence southerly along the east line of Wallace County to the north line 
Wichita County; thence westerly along the north line of Wichita County; 
thence westerly along the north line of Wichita County to the east line 
of Greeley County; thence southerly along the east lines of Greeley 
County and Hamilton Counties; thence westerly along the south line of 
Hamilton County to the Kansas-Colorado boundary; thence southerly along 
the Kansas Colorado boundary to the junction of that boundary with the 
north boundary of the State of Oklahoma.
    (e) Oklahoma-Texas-New Mexico. From the junction of the Kansas-
Colorado boundary with the northern boundary of the State of Oklahoma 
westerly along the Colorado-Oklahoma boundary to the northwest corner of 
the State of Oklahoma; thence southerly along the west boundary of the 
State of Oklahoma and the west boundary of the State of Texas to the 
southeast corner of the State of New Mexico; thence westerly along the 
Texas-New Mexico boundary to the east line of Hudspeth County, Tex.; 
thence southerly along the east line of Hudspeth County, Tex., to the 
boundary between the United States and Mexico.
    (f) [Reserved]
    (g) Points on boundary line. All municipalities located upon the 
zone boundary line described in this section are in the mountain 
standard time zone, except Murdo, S. Dak., which is in the central 
standard time zone.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-14, 38 
FR 13725, May 25, 1973; Amdt. 71-16, 43 FR 42763, Sept. 21, 1978; 55 FR 
30914, July 30, 1990; 57 FR 48339, Oct. 23, 1992; 68 FR 43336, July 22, 
2003; 68 FR 49373, Aug. 18, 2003; 68 FR 61372, Oct. 28, 2003]



Sec. 71.8  Mountain zone.

    The fourth zone, the mountain standard time zone, includes that part 
of the United States that is west of the boundary line between the 
central and mountain standard time zones described in Sec. 71.7 and 
east of the boundary line between the mountain and Pacific standard time 
zones described in Sec. 71.9.

[[Page 639]]



Sec. 71.9  Boundary line between mountain and Pacific zones.

    (a) Montana-Idaho-Oregon. From the junction of the Idaho-Montana 
boundary with the boundary between the United States and Canada 
southerly along the Idaho-Montana boundary to the boundary line between 
Idaho County, Idaho, and Lemhi County, Idaho; thence southwesterly along 
the boundary line between those two counties to the main channel of the 
Salmon River; thence westerly along the main channel of the Salmon River 
to the Idaho-Oregon boundary; thence southerly along that boundary to 
the boundary line between Baker County, Oreg., and Malheur County, 
Oreg.; thence westerly along the north line of Malheur County to the 
northwest corner of Malheur County; thence southerly along the west line 
of Malheur County to the southwest corner of T. 35 S., R. 37 E.; thence 
east to the Idaho-Oregon boundary; thence south along that boundary to 
the southwest corner of the State of Idaho; thence easterly along the 
Idaho-Nevada boundary to the northeast corner of the State of Nevada.
    (b) Utah-Nevada-Arizona-California. From the northeast corner of the 
State of Nevada southerly along the Utah-Nevada boundary to the junction 
with the northern border of the City of West Wendover, Nevada. Then 
westward along the northern, western, and southern boundaries of the 
City of West Wendover back to the Utah-Nevada boundary. Then southerly 
along the Utah-Nevada boundary, the Nevada-Arizona boundary, and the 
Arizona-California boundary to the boundary between the United States 
and Mexico.
    (c) [Reserved]
    (d) Points on boundary line. All municipalities located upon the 
zone boundary line described in this section are in the mountain 
standard time zone.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-14, 38 
FR 13725, May 25, 1973; 64 FR 56707, Oct. 21, 1999]



Sec. 71.10  Pacific zone.

    The fifth zone, the Pacific standard time zone, includes that part 
of the continental United States that is west of the boundary line 
between the mountain and Pacific standard time zones described in Sec. 
71.9, but does not include any part of the State of Alaska.

(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983]



Sec. 71.11  Alaska zone.

    The sixth zone, the Alaska standard time zone, includes the entire 
State of Alaska, except as provided in Sec. 71.12 of this title.

(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983, as amended by Amdt. 71-20, 48 
FR 55289, Dec. 12, 1983]



Sec. 71.12  Hawaii-Aleutian zone.

    The seventh zone, the Hawaii-Aleutian standard time zone, includes 
the entire State of Hawaii and, in the State of Alaska, that part of the 
Aleutian Islands that is west of 169 degrees 30 minutes west longitude.

(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983, as amended by Amdt. 71-20, 48 
FR 55289, Dec. 12, 1983]



Sec. 71.13  Samoa zone.

    The eighth zone, the Samoa standard time zone, includes that part of 
the United States that is between 169 degrees 30 minutes west longitude 
and 172 degrees 30 minutes west longitude, but does not include any part 
of the States of Hawaii and Alaska.

(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983, as amended by Amdt. 71-20, 48 
FR 55289, Dec. 12, 1983]



Sec. 71.14  Chamorro Zone.

    The ninth zone, the Chamorro standard time zone, includes the Island 
of Guam and the Commonwealth of the Northern Mariana Islands.

[68 FR 49712, Aug. 19, 2003]

[[Page 640]]



PART 79_MEDALS OF HONOR--Table of Contents




Sec.
79.1 Scope.
79.3 Application.
79.5 Investigation.
79.7 Award.
79.9 Design.

    Authority: 49 U.S.C. 80504.

    Source: 61 FR 17578, Apr. 22, 1996, unless otherwise noted.



Sec. 79.1  Scope.

    (a) This part implements 49 U.S.C. 80504, which authorizes the 
President of the United States to award a bronze medal for bravery to 
any person who, by extreme daring, risks his/her life in trying to 
prevent, or to save the life of a person in, a grave accident/incident 
in the United States that involves an interstate rail carrier or a motor 
vehicle being operated on public highways.
    (b) The actions for which the medal may be awarded must reflect such 
unusual daring and bravery that a person would not normally be expected 
to perform them as a regular part of his/her regular work or vocation.



Sec. 79.3  Application.

    (a) Any person may apply for the award of the medal described in 
Sec. 79.1, but only on behalf of another person, by writing to the 
Secretary of Transportation, Attention: Medals of Honor, within two (2) 
years of the action that is the subject of the application.
    (b) Although no application form is required, the following 
information must be provided:
    (1) Name, address, and telephone number of the person submitting the 
application.
    (2) Name, address, and telephone number of the person on whose 
behalf the application is submitted.
    (3) Date, time, place, and weather conditions of the action that is 
the subject of the application.
    (4) Identification of rail or motor carrier involved, or of operator 
of motor vehicles involved.
    (5) Identification of any public or private authority that 
investigated the accident/incident involved.
    (6) Name, address, and telephone number of any witness to the action 
that is the subject of the application.
    (7) Detailed description of the action that is the subject of the 
application, including why the person submitting the application thinks 
that the action merits the extraordinary recognition embodied in the 
Medal of Honor.
    (c) An application and any documentary or other evidence supporting 
it must be supported by oath or affirmation, or by the signer's 
acknowledgment that a knowingly false statement is punishable as 
perjury.



Sec. 79.5  Investigation.

    The Department of Transportation may make any investigation of an 
application that it deems appropriate, including the taking of testimony 
under oath or affirmation.



Sec. 79.7  Award.

    If the Secretary of Transportation decides that it is warranted, the 
Secretary shall award the Medal on behalf of and in the name of the 
President of the United States.



Sec. 79.9  Design.

    The Department is authorized to adopt and revise the existing 
designs for the award, rosette, and ribbon provided for by statute.



PART 80_CREDIT ASSISTANCE FOR SURFACE TRANSPORTATION PROJECTS--
Table of Contents




Sec.
80.1 Purpose.
80.3 Definitions.
80.5 Limitations on assistance.
80.7 Application process.
80.9 Federal requirements.
80.11 Investment-grade ratings.
80.13 Threshold criteria.
80.15 Selection criteria.
80.17 Fees.
80.19 Reporting requirements.
80.21 Use of administrative offset.

    Authority: Secs. 1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241, 
as amended; 23 U.S.C. 181-189 and 315; 49 CFR 1.48, 1.49, and 1.51.

    Source: 64 FR 29750, June 2, 1999, unless otherwise noted.



Sec. 80.1  Purpose.

    This part implements a Federal credit assistance program for surface 
transportation projects.

[[Page 641]]



Sec. 80.3  Definitions.

    The following definitions apply to this part:
    Administrative offset means the right of the government to apply 
moneys held by the government and otherwise owed to a debtor for the 
extinguishment of claims due the government from the debtor.
    Conditional term sheet means a contractual agreement between the 
U.S. Department of Transportation (DOT) and the project sponsor (and the 
lender, if applicable) by which the DOT reserves TIFIA funding for a 
specific project and commits to providing Federal credit assistance to 
that project at a future point in time upon satisfaction of specified 
conditions and subject to the future availability of obligation 
authority. The DOT will not legally obligate budget authority until 
those conditions are met. Upon satisfaction of those conditions, the 
conditional term sheet can be amended and/or restated to trigger an 
obligation of funds.
    Credit agreement means a contractual agreement between the DOT and 
the project sponsor (and the lender, if applicable) that formalizes the 
terms and conditions established in the term sheet (or conditional term 
sheet) and authorizes the execution of a secured loan, loan guarantee, 
or line of credit.
    Eligible project costs mean amounts substantially all of which are 
paid by, or for the account of, an obligor in connection with a project, 
including the cost of:
    (1) Development phase activities, including planning, feasibility 
analysis, revenue forecasting, environmental review, permitting, 
preliminary engineering and design work, and other pre-construction 
activities;
    (2) Construction, reconstruction, rehabilitation, replacement, and 
acquisition of real property (including land related to the project and 
improvements to land), environmental mitigation, construction 
contingencies, and acquisition of equipment; and
    (3) Capitalized interest necessary to meet market requirements, 
reasonably required reserve funds, capital issuance expenses, and other 
carrying costs during construction.
    Federal credit instrument means a secured loan, loan guarantee, or 
line of credit authorized to be made available under this subchapter 
with respect to a project.
    Investment-grade rating means a rating category of BBB minus, Baa3, 
or higher assigned by a rating agency to project obligations offered 
into the capital markets.
    Lender means any non-Federal qualified institutional buyer (as 
defined in 17 CFR 230.144A(a)), known as Rule 144A(a) of the Securities 
and Exchange Commission and issued under the Securities Act of 1933 (15 
U.S.C. 77a et seq.), including:
    (1) A qualified retirement plan (as defined in section 4974(c) of 
the Internal Revenue Code of 1986, 26 U.S.C. 4974(c)) that is a 
qualified institutional buyer; and
    (2) A governmental plan (as defined in section 414(d) of the 
Internal Revenue Code of 1986, 26 U.S.C. 414(d)) that is a qualified 
institutional buyer.
    Line of credit means an agreement entered into by the Secretary with 
an obligor under section 184 of title 23 to provide a direct loan at a 
future date upon the occurrence of certain events.
    Loan guarantee means any guarantee or other pledge by the Secretary 
to pay all or part of the principal of and interest on a loan or other 
debt obligation issued by an obligor and funded by a lender.
    Local servicer means:
    (1) A State infrastructure bank established under title 23; or
    (2) A State or local government or any agency of a State or local 
government that is responsible for servicing a Federal credit instrument 
on behalf of the Secretary.
    Obligor means a party primarily liable for payment of the principal 
of or interest on a Federal credit instrument, which party may be a 
corporation, partnership, joint venture, trust, or governmental entity, 
agency, or instrumentality.
    Project means:
    (1) Any surface transportation project eligible for Federal 
assistance under title 23 or chapter 53 of title 49;
    (2) A project for an international bridge or tunnel for which an 
international entity authorized under Federal or State law is 
responsible;

[[Page 642]]

    (3) A project for intercity passenger bus or rail facilities and 
vehicles, including facilities and vehicles owned by the National 
Railroad Passenger Corporation, and components of magnetic levitation 
transportation systems; and
    (4) A project for publicly owned intermodal surface freight transfer 
facilities, other than seaports and airports, if the facilities are 
located on or adjacent to National Highway System routes or connections 
to the National Highway System.
    Project obligation means any note, bond, debenture, or other debt 
obligation issued by an obligor in connection with the financing of a 
project, other than a Federal credit instrument.
    Project sponsor, for the purposes of this part, means an applicant 
for TIFIA assistance or an obligor, as appropriate.
    Rating agency means a bond rating agency identified by the 
Securities and Exchange Commission as a Nationally Recognized 
Statistical Rating Organization.
    Secured loan means a direct loan or other debt obligation issued by 
an obligor and funded by the Secretary in connection with the financing 
of a project under section 183 of title 23.
    State means any one of the fifty states, the District of Columbia, 
or Puerto Rico.
    Subsidy amount means the amount of budget authority sufficient to 
cover the estimated long-term cost to the Federal Government of a 
Federal credit instrument, calculated on a net present value basis, 
excluding administrative costs and any incidental effects on 
governmental receipts or outlays in accordance with the provisions of 
the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.).
    Substantial completion means the opening of a project to vehicular 
or passenger traffic or a comparable event as determined by the 
Secretary and specified in the credit agreement.
    Term sheet means a contractual agreement between the DOT and the 
project sponsor (and the lender, if applicable) that sets forth the key 
business terms and conditions of a Federal credit instrument. Execution 
of this document represents a legal obligation of budget authority.
    TIFIA means the Transportation Infrastructure Finance and Innovation 
Act of 1998, Pub. L. 105-178, 112 Stat. 107, 241 (1998).

[64 FR 29750, June 2, 1999, as amended at 65 FR 44939, July 19, 2000]



Sec. 80.5  Limitations on assistance.

    (a) The total amount of credit assistance offered to any project 
under this part shall not exceed 33 percent of the anticipated eligible 
project costs, as measured on an aggregate cash (year-of-expenditure) 
basis.
    (b) Costs incurred prior to a project sponsor's submission of an 
application for credit assistance may be considered in calculating 
eligible project costs only upon approval of the Secretary. In addition, 
applicants shall not include application charges or any other expenses 
associated with the application process (such as charges associated with 
obtaining the required preliminary rating opinion letter) among the 
eligible project costs.
    (c) No costs financed internally or with interim funding may be 
refinanced under this part later than a year following substantial 
completion of the project.
    (d)(1) Within the overall credit assistance limitation of 33 percent 
of eligible project costs, the Secretary may consider making future-year 
or multi-year contingent commitments of budget authority and associated 
credit assistance for projects temporarily lacking certain requirements 
or with extended construction periods and financing needs. The TIFIA's 
effectiveness in stimulating private investment in transportation 
infrastructure depends, in large part, on investor recognition that 
TIFIA credit instruments represent solid and reliable Federal 
commitments. Therefore, the Secretary shall make any future-year or 
multi-year contingent commitment of funds for a project using a 
conditional term sheet. The conditional term sheet will resemble the 
standard term sheet that enables the obligation of budget authority, but 
will also specify the additional actions necessary to trigger subsequent 
obligation(s). The conditional term sheet will include fixed dates by

[[Page 643]]

which any requirements must be met in order for the reserved funding to 
be obligated.
    (2) Upon execution of the conditional term sheet, the Secretary 
shall reserve budget authority attributable to the appropriate year(s). 
This reservation will ensure that a project with a conditional 
commitment will have a priority claim (along with that of any other 
projects receiving such contingent commitments) on budget authority 
becoming available in the specified year(s), provided that the project 
sponsor satisfies each condition outlined in the conditional term sheet. 
The Secretary will limit such reservations to not more than 50 percent 
of the budget authority becoming available in the applicable year(s). If 
a multi-year contingent commitment is made, each year's loan will be 
tied to distinct, clearly identified project segments or stages or other 
milestones as specified in the credit agreement.
    (e) The obligor may draw upon the line of credit only if net project 
revenues (including, among other sources, any debt service reserve fund) 
are insufficient to pay costs specified in 23 U.S.C. 184(a)(2) under the 
line of credit, including debt service costs. Debt service costs include 
direct payments of principal and interest as well as reimbursements for 
such payments in the form of legally required deposits to a debt service 
reserve fund.
    (f) The Secretary shall not obligate funds in favor of a project 
that has not received an environmental Categorical Exclusion, Finding of 
No Significant Impact, or Record of Decision.
    (g) The Secretary shall fund a secured loan based on the project's 
financing needs. The credit agreement shall include the anticipated 
schedule for such loan disbursements.

[64 FR 29750, June 2, 1999, as amended at 65 FR 44939, July 19, 2000]



Sec. 80.7  Application process.

    (a) Public and private applicants for credit assistance under this 
part will be required to submit applications to the DOT in order to be 
considered for approval by the Secretary.
    (b) At a minimum, such applications shall provide:
    (1) Documentation sufficient to demonstrate that the project 
satisfies each of the threshold criteria in Sec. 80.13 and describe the 
extent to which the project satisfies each of the selection criteria in 
Sec. 80.15;
    (2) Background information on the project for which assistance is 
sought, such as the project's description, status of environmental and 
other major governmental permits and approvals, and construction 
schedule;
    (3) Background information on the applicant (project sponsor);
    (4) Historical information, if applicable, concerning the 
applicant's financial condition, including, for example, independently 
audited financial statements and certifications concerning bankruptcies 
or delinquencies on other debt; and
    (5) Current financial information concerning both the project and 
the applicant, such as sources and uses of funds for the project and a 
forecast of cash flows available to service all debt instruments.
    (c) An application for a project located in or sponsored by more 
than one State or other entity shall be submitted to the DOT by just one 
State or entity. The sponsoring States or entities shall designate a 
single obligor for purposes of applying for, receiving, and repaying 
TIFIA credit assistance.
    (d) Each fiscal year for which Federal assistance is available under 
this part, the DOT shall publish a Federal Register notice to solicit 
applications for credit assistance. Such notice will specify the 
relevant due dates, the estimated amount of funding available to support 
TIFIA credit instruments for the current and future fiscal years, 
contact name(s), and other details for that year's application 
submissions and funding approvals.



Sec. 80.9  Federal requirements.

    All projects receiving credit assistance under this part shall 
comply with:
    (a) The relevant requirements of title 23, U.S.C., for highway 
projects, chapter 53 of title 49, U.S.C., for transit projects, and 
section 5333(a) of title 49 for rail projects, as appropriate;
    (b) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.);

[[Page 644]]

    (c) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.);
    (d) The Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970 (42 U.S.C. 4601 et seq.); and
    (e) Other Federal and compliance requirements as may be applicable.



Sec. 80.11  Investment-grade ratings.

    (a) At the time a project sponsor submits an application, the DOT 
shall require a preliminary rating opinion letter. This letter is a 
conditional credit assessment from a nationally recognized credit rating 
agency that provides a preliminary indication of the project's overall 
creditworthiness and that specifically addresses the potential of the 
project's senior debt obligations (those obligations having a lien 
senior to that of the TIFIA credit instrument on the pledged security) 
to achieve an investment-grade rating.
    (b) The full funding of a secured (direct) loan, loan guarantee, or 
line of credit shall be contingent on the assignment of an investment-
grade rating by a nationally recognized bond rating agency to all 
project obligations that have a lien senior to that of the Federal 
credit instrument on the pledged security.
    (c) Neither the preliminary rating opinion letter nor the formal 
credit rating should reflect the effect of bond insurance, unless that 
insurance provides credit enhancement that secures the TIFIA obligation.
    (d) The project sponsor must annually provide, at no cost to the 
Federal Government, ongoing credit evaluations of the project and 
related debt obligations, including an annual assessment of the TIFIA 
credit instrument. The evaluations are to be performed by a nationally 
recognized credit rating agency and provided to the DOT throughout the 
life of the TIFIA credit instrument. In addition, the project sponsor 
will furnish the DOT with any other credit surveillance reports on the 
TIFIA-assisted project as soon as they are available.

[64 FR 29750, June 2, 1999, as amended at 65 FR 44939, July 19, 2000]



Sec. 80.13  Threshold criteria.

    (a) To be eligible to receive Federal credit assistance under this 
part, a project shall meet the following five threshold criteria:
    (1) The project shall be consistent with the State transportation 
plan, if located in a metropolitan area shall be included in that area's 
metropolitan transportation plan, and shall appear in an approved State 
transportation improvement program before the DOT and the project 
sponsor execute a term sheet or credit agreement that results in the 
obligation of funds;
    (2) The State, local servicer, or other entity undertaking the 
project shall submit a project application to the Secretary of 
Transportation;
    (3) A project shall have eligible project costs that are reasonably 
anticipated to equal or exceed the lesser of $100 million or 50 percent 
of the amount of Federal-aid highway funds apportioned for the most 
recently completed fiscal year to the State in which the project is 
located (in the case of a project principally involving the installation 
of Intelligent Transportation Systems (ITS), eligible project costs 
shall be reasonably anticipated to equal or exceed $30 million);
    (4) Project financing shall be repayable, in whole or in part, from 
tolls, user fees or other dedicated revenue sources; and
    (5) In the case of a project that is undertaken by an entity that is 
not a State or local government or an agency or instrumentality of a 
State or local government, the project that the entity is undertaking 
shall be included in the State transportation plan and an approved State 
Transportation Improvement Program as provided in paragraph (a)(1) of 
this section.
    (b) With respect to paragraph (a)(3) of this section, for a project 
located in more than one State, the minimum cost threshold size shall be 
the lesser of $100 million or 50 percent of the amount of Federal-aid 
highway funds apportioned for the most recently completed fiscal year to 
the participating State that receives the least amount of such funds.
    (c) With respect to paragraph (a)(4) of this section, the Secretary 
may accept general obligation pledges or general

[[Page 645]]

corporate promissory pledges and will determine the acceptability of 
other pledges and forms of collateral as dedicated revenue sources on a 
case-by-case basis. The Secretary shall not accept a pledge of Federal 
funds, regardless of source, as security for the TIFIA credit 
instrument.



Sec. 80.15  Selection criteria.

    (a) The Secretary shall assign weights as indicated to the following 
eight selection criteria in evaluating and selecting among eligible 
projects to receive credit assistance:
    (1) The extent to which the project is nationally or regionally 
significant, in terms of generating economic benefits, supporting 
international commerce, or otherwise enhancing the national 
transportation system (20 percent);
    (2) The creditworthiness of the project, including a determination 
by the Secretary that any financing for the project has appropriate 
security features, such as a rate covenant, to ensure repayment (12.5 
percent);
    (3) The extent to which such assistance would foster innovative 
public-private partnerships and attract private debt or equity 
investment (20 percent);
    (4) The likelihood that such assistance would enable the project to 
proceed at an earlier date than the project would otherwise be able to 
proceed (12.5 percent);
    (5) The extent to which the project uses new technologies, including 
Intelligent Transportation Systems (ITS), that enhance the efficiency of 
the project (5 percent);
    (6) The amount of budget authority required to fund the Federal 
credit instrument made available (5 percent);
    (7) The extent to which the project helps maintain or protect the 
environment (20 percent); and
    (8) The extent to which such assistance would reduce the 
contribution of Federal grant assistance to the project (5 percent).
    (b) In addition, 23 U.S.C. 182(b)(2)(B) conditions a project's 
approval for credit assistance on receipt of a preliminary rating 
opinion letter indicating that the project's senior debt obligations 
have the potential to attain an investment-grade rating.
    (c) The Secretary may also give preference to applications for loan 
guarantees rather than other forms of Federal credit assistance. This 
preference is consistent with Federal policy that, when Federal credit 
assistance is necessary to meet a Federal objective, loan guarantees 
should be favored over direct loans, unless attaining the Federal 
objective requires a subsidy, as defined by the Federal Credit Reform 
Act of 1990 (2 U.S.C. 661 et seq.), deeper than can be provided by a 
loan guarantee.

[64 FR 29750, June 2, 1999, as amended at 65 FR 44940, July 19, 2000]



Sec. 80.17  Fees.

    (a) The DOT will require a non-refundable application fee for each 
project applying for credit assistance under the TIFIA. The DOT may also 
require an additional credit processing fee for projects selected to 
receive TIFIA assistance. Any required application initiation or credit 
processing fee must be paid by the project sponsor applying for TIFIA 
assistance and cannot be paid by another party on behalf of the project 
sponsor. The proceeds of any such fees will equal a portion of the costs 
to the Federal Government of soliciting and evaluating applications, 
selecting projects to receive assistance, and negotiating credit 
agreements. For FY 2000, the DOT will require payment of a fee of $5,000 
for each project applying for credit assistance under the TIFIA, to be 
submitted concurrently with the formal application. The DOT will not 
impose any credit processing fees for FY 2000. For each application and 
approval cycle in FY 2001 and beyond, the DOT may adjust the amount of 
the application fee and will determine the appropriate amount of the 
credit processing fee based on program implementation experience. The 
DOT will publish these amounts in each Federal Register solicitation for 
applications.
    (b) Applicants shall not include application initiation or credit 
processing fees or any other expenses associated with the application 
process (such as fees associated with obtaining the required preliminary 
rating opinion letter) among eligible project costs

[[Page 646]]

for the purpose of calculating the maximum 33 percent credit amount 
referenced in Sec. 80.5(a).
    (c) If, in any given year, there is insufficient budget authority to 
fund the credit instrument for a qualified project that has been 
selected to receive assistance under TIFIA, the DOT and the approved 
applicant may agree upon a supplemental fee to be paid by or on behalf 
of the approved applicant at the time of execution of the term sheet to 
reduce the subsidy cost of that project. No such fee may be included 
among eligible project costs for the purpose of calculating the maximum 
33 percent credit amount referenced in Sec. 80.5(a).
    (d) The DOT will require borrowers to pay servicing fees for each 
credit instrument approved for funding. Separate fees may apply for each 
type of credit instrument (e.g., a loan guarantee, a secured loan with a 
single disbursement, a secured loan with multiple disbursements, or a 
line of credit), depending on the costs of servicing the credit 
instrument as determined by the Secretary. Such fees will be set at a 
level to enable the DOT to recover all or a portion of the costs to the 
Federal Government of TIFIA credit instruments.

[65 FR 44940, July 19, 2000]



Sec. 80.19  Reporting requirements.

    At a minimum, any recipient of Federal credit assistance under this 
part shall submit an annual project performance report and audited 
financial statements to the DOT within no more than 180 days following 
the recipient's fiscal year-end for each year during which the 
recipient's obligation to the Federal Government remains in effect. The 
DOT may conduct periodic financial and compliance audits of the 
recipient of credit assistance, as determined necessary by the DOT. The 
specific credit agreement between the recipient of credit assistance and 
the DOT may contain additional reporting requirements.

[65 FR 44940, July 19, 2000]



Sec. 80.21  Use of administrative offset.

    The DOT will not apply an administrative offset to recover any 
losses to the Federal Government resulting from project risk the DOT has 
assumed under a TIFIA credit instrument. The DOT may, however, use an 
administrative offset in cases of fraud, misrepresentation, false 
claims, or similar criminal acts or acts of malfeasance or wrongdoing.

[65 FR 44940, July 19, 2000]



PART 89_IMPLEMENTATION OF THE FEDERAL CLAIMS COLLECTION ACT--
Table of Contents




                            Subpart A_General

Sec.
89.1 Purpose.
89.3 Applicability.
89.5 Delegations of authority.
89.7 Exceptions to delegated authority.
89.9 Redelegation.
89.11 Standards for exercise of delegated authority.
89.13 Documentary evidence of compromise.
89.15 Regulations, reports, and supporting documentation.

                     Subpart B_Collection of Claims

89.21 Administrative collection.
89.23 Interest, late payment penalties, and collection charges.
89.25 Collection by administrative offset.
89.27 Referral for litigation.
89.29 Disclosure to commercial credit bureaus and consumer reporting 
          agencies.
89.31 Use of professional debt collection agencies.
89.33 [Reserved]
89.35 Administrative wage garnishment.

        Subpart C_Referral of Debts to IRS for Tax Refund Offset

89.37 Applicability and scope.
89.39 Administrative charges.
89.41 Notice requirement before offset.
89.43 Review within the Department.
89.45 Department determination.
89.47 Stay of offset.

    Authority: Pub. L. 89-508; Pub. L. 89-365, secs. 3, 10, 11, 13(b), 
31 U.S.C. 3701-3720A; Pub. L. 98-167; Pub. L. 98-369; Pub. L. 99-578; 
Pub. L. 101-552, 31 U.S.C. 3711(a)(2).

    Source: 53 FR 51238, Dec. 21, 1988, unless otherwise noted.



                            Subpart A_General



Sec. 89.1  Purpose.

    This part implements the Federal Claims Collection Act of 1966, 31 
U.S.C. 3701-3720 A, as amended primarily by

[[Page 647]]

the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749) and the 
Debt Collection Amendments of 1986 (Pub. L. 99-578, 100 Stat. 3305). It 
supplements the Federal Claims Collection Standards (FCCS), 4 CFR parts 
101-105, issued jointly by the Comptroller General of the United States 
and the Attorney General of the United States under 31 U.S.C. 
3711(e)(2). Pursuant to the Federal Claims Collection Act, as amended, 
and the FCCS, this part sets forth procedures by which the Department of 
Transportation (DOT) and its operating elements (see 49 CFR 1.3) through 
designated officials:
    (a) Collect claims owed to the United States arising from activities 
under its jurisdiction;
    (b) Determine and collect interest and other charges on those 
claims;
    (c) Compromise claims; and
    (d) Refer unpaid claims for litigation.



Sec. 89.3  Applicability.

    (a) The part applies to collection of all claims due the United 
States under the Federal Claims Collection Act of 1966 as amended by the 
Debt Collection Act of 1982 and the Debt Collection Amendments of 1986 
(Pub. L. 99-578), arising from activities under the jurisdiction of DOT 
including amounts due the United States from fees, overpayments, fines, 
civil penalties, loans, damages, interest, and other sources.
    (b) This part does not apply to collection, settlement or compromise 
of debts owed the United States pursuant to authority other than Title 
31, Chapter 37, Subchapter II: for example, application of this part to 
the enforcement of contracts under 46 U.S.C. 1117, delegated to the DOT 
Maritime Administration, is not required.
    (c) Section 89.23 (interest, late payment penalties, and collection 
charges) and Sec. 89.25 (collection by administrative offset) of this 
part do not apply to debts which other United States government agencies 
or state governments or units of general local government owe the 
Department (see 31 U.S.C. 3701(c)); however, other statutory or common 
law may provide legal authority. Neither does the proposed rule apply to 
recovery of debts owed by current or former employees of the United 
States governed by 5 U.S.C. 5514.
    (d) Claims arising out of contracts that contain specific provisions 
relating to claims are governed by those specific provisions to the 
extent that those provisions comply with existing law and with 4 CFR 
chapter II.
    (e) As used in this part, the terms debt and claims are 
interchangeable and have the meaning defined in 4 CFR 101.2(a). A 
debtor's liability arising out of a particular incident or adjudication 
exclusive of interest, administrative costs, and late payment penalties, 
is a single claim.
    (f) Except as provided in paragraphs (b), (c) and (d) of this 
section the provisions of this part shall apply to the collection of all 
debts and claims owed to any DOT operating element. A claim arising from 
the assessment of civil penalty or fine is not subject to the procedures 
of this subpart until the claim has been reduced to a liquidated debt by 
a signed settlement agreement, a court order or judgment, or a final 
administrative determination.



Sec. 89.5  Delegations of authority.

    The functions, powers, and duties of the Secretary of Transportation 
to attempt collection of claims, to compromise claims of the United 
States not exceeding $100,000 (excluding interest) and to suspend and 
terminate action to collect such claims are delegated to:
    (a) The Assistant Secretary for Administration with respect to 
collection, compromise, suspension and termination of claims arising out 
of the activities of, or referred to, the Working Capital Fund;
    (b) The Assistant Secretary for Budget and Programs with respect to 
collection, compromise, suspension and termination of collection of 
claims under 31 U.S.C. 3711 arising out of the activities of, or 
referred to, the Office of the Secretary (excluding claims pertaining to 
the Working Capital Fund); and
    (c) The heads of other DOT operating elements with respect to claims 
arising out of the activities of, or referred to, their organizations.

[53 FR 51238, Dec. 21, 1988, as amended at 58 FR 6898, Feb. 3, 1993; 73 
FR 57269, Oct. 2, 2008]

[[Page 648]]



Sec. 89.7  Exceptions to delegated authority.

    The authority delegated under Sec. 89.5 does not apply to any 
claim:
    (a) As to which there is an indication of (1) fraud; (2) the 
presentation of a false claim; or (3) misrepresentation on the part of 
the debtor or any other party having an interest in the claim;
    (b) Based on tax statutes; or
    (c) Arising from an exception made by the General Accounting Office 
in the account of an accountable officer.



Sec. 89.9  Redelegation.

    Each officer to whom authority is delegated under Sec. 89.5 may 
redelegate and authorize successive redelegations of the authority 
within the organization under his or her jurisdiction.



Sec. 89.11  Standards for exercise of delegated authority.

    The authority delegated under Sec. 89.5 shall be exercised in 
accordance with the standards for the collection and compromise of 
claims and for the suspension and termination of action to collect 
claims promulgated by the United States General Accounting Office and 
the United States Department of Justice, and published at 4 CFR chapter 
II, as those standards may be amended.



Sec. 89.13  Documentary evidence of compromise.

    A compromise of any claim is not final or binding on the United 
States unless it is in writing, signed by an officer or employee 
authorized to compromise that claim.



Sec. 89.15  Regulations and supporting documentation.

    (a) Each officer to whom authority is delegated under Sec. 89.5 may 
promulgate regulations for the exercise of that authority within his or 
her organization. These regulations shall be revised, as necessary, to 
conform to any amendments to this part.
    (b) Each officer to whom authority is delegated under 89.5 shall 
furnish the following information to the Assistant Secretary for 
Administration and the Assistant Secretary for Budget and Programs:
    (1) A copy of each redelegation of that authority.
    (2) A copy of any implementing regulations governing the exercise of 
the authority delegated under Sec. 89.5, and any amendments to those 
regulations.
    (c) Each officer or employee to whom the Secretary's authority has 
been delegated or redelegated, before exercising such authority, shall 
acquire sufficient documentation to demonstrate that the action taken is 
in the best interests of the United States. This documentation will be 
retained with and treated as part of the file concerning the debt.
    (d) The failure of any officer or employee to comply with this 
section does not limit or impair his or her exercise of authority.

[53 FR 51238, Dec. 21, 1988, as amended at 73 FR 57269, Oct. 2, 2008]



                     Subpart B_Collection of Claims

    Authority: Public Law 89-508; Public Law 89-365, secs. 3, 10, 11, 
13(b), 31 U.S.C. 3701-3720A; Public Law 98-167; Public Law 98-369; 
Public Law 99-578; Public Law 101-552, 31 U.S.C. 3711(a)(2); 31 CFR 
3711, 3716-3720E.



Sec. 89.21  Administrative collection.

    Except as provided differently by the DOT operating elements 
pursuant to Sec. 89.3:
    (a) DOT shall send a debtor a total of three progressively stronger 
written demands at not more than 30-day intervals, unless a response to 
the first or second demand indicates that a further demand would be 
futile or the debtor's response does not require rebuttal, or other 
pertinent information indicates that additional written demands would be 
unnecessary.
    (b) The initial written demand for payment (and the notice of offset 
under Sec. 89.25) shall inform the debtor of:
    (1) The basis for the indebtedness and the debtor's right to obtain 
review (see Sec. 89.21(f) for details on review).
    (2) The amount of the claim;
    (3) That domestic and overseas payment in excess of ten thousand 
dollars or more shall be made by wire transfer through the Federal 
Reserve communications, commonly known as Fedwire, to the account of the 
U.S.

[[Page 649]]

Treasury in accordance with the instructions provided in the demand 
letter; payments originating in foreign countries shall be made by wire 
transfer to the extent practicable.
    (4) The delinquency date, or the date by which payment is to be made 
(30 days from the date of mailing or hand delivery of the initial demand 
letter);
    (5) The standard for interest, penalties, and administrative charges 
in accordance with 31 U.S.C. 3717, if payment is not received by the due 
date (see Sec. 89.23 for details regarding interest, collection 
charges, and late payment penalty charges);
    (6) Where a notice of offset is concerned, the right to make 
voluntary payment before collection by offset begins (see Sec. 89.25).
    (7) The possible reporting of the claim to commercial credit bureaus 
and consumer reporting agencies; however a notice of offset should not 
include this warning.
    (8) The possibility that DOT will forward the claim to a collection 
agency, the General Accounting Office, the Department of Justice, or 
private counsel contracting with the Department of Justice for 
collection; however a notice of offset should not include this warning.
    (c) If the debtor fails to respond to the demands for payment by the 
due date specified in the notice, the Department may take further action 
under this part or the FCCS under 4 CFR parts 101 through 105, pursuant 
to 31 U.S.C. 3701-3720A. These actions may include reports to commercial 
credit bureaus, consumer reporting agencies, contracts with commercial 
collection agencies, revocation of licenses, or the use of 
administrative offset, as authorized in 31 U.S.C. 3701-3720A.
    (d) DOT may collect by administrative offset, (see Sec. 89.25, 
Collection by administrative offset), if the debtor:
    (1) Has not made payment by the payment due date;
    (2) Has not requested a review of the claim within the agency as set 
out in paragraph (f) of this section; or
    (3) Has not made an arrangement for payment by the payment due date;
    (e) Except for information that may properly be withheld under 49 
CFR part 7, the debtor may inspect and copy the records of the agency 
related to the claim. Any reasonable costs associated with the copying 
and inspection of the records shall be borne by the debtor. (Payment of 
cost is governed by 49 CFR part 7, subpart I.) The debtor shall give 
reasonable notice in advance to the agency of the date on which it 
intends to inspect and copy the records involved;
    (f)(1) Except for debts established by settlement agreement, court 
order or judgment, or final administrative decision, the debtor may 
request review of the validity or amount of a claim. To do so, the 
debtor shall make a request in writing for review of the claim prior to 
it becoming delinquent. (See 4 CFR 101.2 for definition of when a debt 
is considered delinquent.) The debtor's written response shall state the 
basis for the dispute, and provide all factual information, documents, 
citation to authority, argument and any other matters to be considered. 
If only part of the claim is disputed, the undisputed portion shall be 
paid by the delinquency date stated in the initial demand. During the 
period that the claim is being reviewed, the amount of the debt is owed, 
but the accrual of interest and accrual of time to delinquency may be 
suspended on the disputed portion of the debt.
    (2) Review of claims shall be based upon the written record unless 
an oral hearing is required by 4 CFR 102.3(c). Upon completion of 
review, within 30 days whenever feasible, the Department shall advise 
the debtor whether the debt has been found to be valid in any amount, or 
that collection will be terminated. If the claim is found to be valid in 
any amount, the accrual of interest and time to delinquency shall 
commence 15 days after mailing of the notification of the review 
results. The notification of the review may also include notice of a 
specific collection action to be undertaken if payment is not received.
    (g) The debtor may offer to make a written agreement to pay the 
amount of the claim. The acceptance of such an agreement is 
discretionary with DOT. If the debtor requests an installment payment 
arrangement because a lump sum payment would create a financial 
hardship, DOT may agree to a written

[[Page 650]]

installment payment schedule with the debtor (see 4 CFR 102.11(a)). The 
debtor shall execute a confess-judgment note which specifies all of the 
terms of the arrangement and includes a provision accelerating the debt 
in the event the debtor defaults. The size and frequency of installment 
payments shall bear a reasonable relation to the size of the debt and 
the debtor's ability to pay. Interest shall be provided in the note (see 
Sec. 89.23). The debtor shall be provided with a written explanation of 
the consequences of signing a confess-judgment note. The debtor shall 
sign a statement acknowledging receipt of the written explanation, which 
shall recite that the statement was read and understood before execution 
of the note and that the note is being signed knowingly and voluntarily. 
Evidence of these facts shall be maintained in DOT's file on the debtor 
in accordance with the practice of the DOT operating element.



Sec. 89.23  Interest, late payment penalties, and collection charges.

    (a) DOT shall charge interest on an outstanding debt at the Treasury 
Current Value of Funds Rate published by the Secretary of the Treasury 
in accordance with 31 U.S.C. 3717 and 4 CFR 102.13(c), unless DOT 
determines that a higher rate is necessary to protect the interests of 
the United States. DOT shall charge a late payment penalty at a rate of 
six percent a year on any portion of a debt that is more than 90 days 
past due. DOT shall also assess administrative charges to cover 
additional cost incurred in processing and handling the debt beyond the 
payment due date. The imposition of interest, collection charges, and 
late payment penalty charges shall be made in accordance with 31 U.S.C. 
3717, 4 CFR 102.13 (see Sec. 89.3(c) regarding payment of such charges 
by Federal, state and local government agencies).
    (b) Interest on debt shall begin to accrue on the date on which the 
debtor is mailed or delivered notice of the debt and the interest 
requirements or, in the case of advance billings, on the calendar day 
following the specified due date of the debt, provided the advance 
billing gives notice of the interest requirements for late payment. 
Interest on the debt shall continue to accrue until payment is received. 
Interest shall be calculated only on the principal of the debt (simple 
interest). The rate of interest assessed shall be the rate in effect on 
the date from which interest begins to accrue, and will remain fixed for 
the duration of the indebtedness. The rate of interest assessed will 
generally be the Treasury Current Value of Funds Rate.
    (c) The Department shall waive interest on debt that is paid within 
30 calendar days after the date on which interest began to accrue.
    (d) Collection charges on debt shall be computed to cover the cost 
of processing and handling the delinquent debt. It shall be either the 
actual cost to process the particular delinquent debt to which it is 
applied, or operating elements may set the amount of such monthly charge 
by cost analysis establishing the average of actual additional costs 
incurred by the operating element in processing similar debts. 
Collection charges may also include the expense of obtaining credit 
reports and of using a professional debt collection contractor.
    (e) DOT may waive interest, collection charges, or late payment 
penalty charges if it finds that:
    (1) The debtor would be eligible for compromise under standards set 
forth in 4 CFR 103.2 with regard to the amount of the debt;
    (2) Collection of interest, administrative charges, or penalties 
will jeopardize collection of the principal of the debt; or
    (3) It is otherwise in the best interests of the United States, 
including the situation in which an offset or installment payment 
agreement is in effect.



Sec. 89.25  Collection by administrative offset.

    (a) Whenever feasible, after a debtor fails to pay a claim, request 
a review of a claim, or make an arrangement for payment following a 
demand made in accordance with Sec. 89.21, DOT shall collect claims 
under this part by means of administrative offset against obligations of 
the United States to the debtor pursuant to 31 U.S.C. 3716 and 4 CFR 
102.3. Salary offset against present or former employees of the United 
States

[[Page 651]]

is not governed by this part (see 49 CFR part 92).
    (b) The Department shall notify the debtor in writing in conformance 
with 31 U.S.C. 3716 and the FCCS of its intent to collect the debt by 
offset, unless the debtor pays the debt in full, including all interest, 
administrative charges, and penalties, or executes an agreement to pay 
the debt by installment at terms acceptable to DOT.
    (c) In making collection by administrative offset under 31 U.S.C. 
3716, DOT must do so in accordance with the requirements set forth in 
Sec. 89.21(b)(1-6). (See also procedures for recovery of debts to the 
United States by salary offset, 49 CFR part 92.)



Sec. 89.27  Referral for litigation.

    Claims that are not settled or for which collection action is not 
compromised, suspended or terminated under 4 CFR parts 103 and 104 or 
collected by collection agencies shall be referred to the General 
Accounting Office or the Department of Justice for litigation in 
accordance with the procedures in 4 CFR part 105.



Sec. 89.29  Disclosure to commercial credit bureaus and consumer 
reporting agencies.

    (a) Data on all delinquent commercial and consumer debts may be 
reported to commercial credit bureaus and consumer reporting agencies 
(see 31 U.S.C. 3701(a)(3)). Sixty days prior to release of information 
to a consumer reporting agency, the debtor shall be notified, in 
writing, of the intent to disclose the existence of the debt to a 
consumer reporting agency. Such notice of intent may be by separate 
correspondence or included in correspondence demanding direct payment. 
The notice shall be in conformance with 31 U.S.C. 3711(f) and the 
Federal Claims Collection Standards.
    (b) The information that may be disclosed is the debtor's name, 
address, social security number or taxpayer identification number, and 
any other information to establish the identity and location of the 
individual, the amount of the claim, status and history of the claim, 
and the program under which the claim arose.



Sec. 89.31  Use of professional debt collection agencies.

    Debts over 90 days delinquent (see Sec. 89.21(b)(4)) may be turned 
over to professional debt collection agencies except for those debts 
owed by State and local governments, other Federal agencies, current 
employees, and other debts prohibited by statute from being turned over 
to commercial collection agencies.



Sec. 89.33  [Reserved]



Sec. 89.35  Administrative wage garnishment.

    (a) General. The Secretary may use administrative wage garnishment 
for debts referred to cross-servicing at Financial Management Service, 
Department of Treasury. Regulations in 31 CFR 285.11 govern the 
collection of debts owed to federal agencies through administrative wage 
garnishment. Whenever the Financial Management Service collects a debt 
for the Secretary using administrative wage garnishment, the statutory 
administrative requirements in 31 CFR 285.11 will govern.
    (b) Hearing official. Any hearing required to establish the 
Secretary's right to collect a debt through administrative wage 
garnishment shall be conducted by a qualified individual selected at the 
discretion of the Secretary of Transportation, as specified in 31 CFR 
285.11. The qualified individual may include an Administrative Law 
Judge.

[74 FR 40523, Aug. 12, 2009]



        Subpart C_Referral of Debts to IRS for Tax Refund Offset

    Source: 54 FR 28681, July 7, 1989, unless otherwise noted.



Sec. 89.37  Applicability and scope.

    (a) This subpart implements 31 U.S.C. 3720A which authorizes the IRS 
to reduce a tax refund by the amount of a past-due legally enforceable 
debt owed to the United States.
    (b) For purposes of this subpart, a past-due legally enforceable 
debt referable to the IRS is:
    (1) A debt which:

[[Page 652]]

    (i) Is owed to the United States;
    (ii) Is at least $25.00;
    (iii) Except in the case of a judgment debt, has been delinquent for 
at least three months but has not been delinquent for more than ten 
years at the time the offset is made;
    (iv) Cannot be currently collected pursuant to the salary offset 
provisions of 5 U.S.C. 5514(a)(1);
    (v) Is ineligible for administrative offset under 31 U.S.C. 3716(a) 
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by 
administrative offset under 31 U.S.C. 3716(a) by the Department against 
amounts payable to or on behalf of the debtor by or on behalf of the 
Department;
    (vi) Has been disclosed by the Department to a consumer reporting 
agency as authorized by 31 U.S.C. 3711(f), unless a consumer reporting 
agency would be prohibited from using such information by 15 U.S.C. 
1681c, or unless the amount of the debt does not exceed $100.00; and
    (2) A debt for which the Department has:
    (i) Notified or has made reasonable attempt to notify the taxpayer 
that the debt is past-due and, that the debt, unless repaid within 60 
days thereafter, will be referred to the IRS for offset against any 
overpayment of tax;
    (ii) Given the debtor at least 60 days from the date of notification 
to present information that all or part of the debt is not past-due or 
legally enforceable, has considered information presented by such 
debtor, and has determined that an amount of debt is past-due and 
legally enforceable;



Sec. 89.39  Administrative charges.

    In accordance with 4 CFR 102.13, all administrative charges incurred 
in connection with the referral of the debt to the IRS shall be added to 
the debt and thus increase the amount of the offset.



Sec. 89.41  Notice requirement before offset.

    A request for offset from an IRS tax refund will be made only after 
the Department has made a determination that an amount is owed and past-
due and provides the debtor with 60 days written notice. The 
Department's notice of intention to collect by IRS tax refund offset 
(Notice of Intent) includes:
    (a) The amount of the debt;
    (b) That unless the debt is repaid within 60 days from the date of 
the Department's Notice of Intent, the Department will refer the debt to 
the IRS for offset against any amount due the debtor as a tax refund;
    (c) That the debtor has a right to present information that all or 
part of the debt is not past-due or legally enforceable; and
    (d) A mailing address for forwarding any written correspondence and 
a contact name and telephone number for any questions.



Sec. 89.43  Review within the Department.

    (a) Notification by debtor. A debtor who receives a Notice of Intent 
may present, for 60 days from the date of the Notice of Intent, 
information that all or part of the debt is not past-due or legally 
enforceable. (However, this does not extend the regulatory period for 
submitting written statements or for requesting an administrative 
hearing on the merits of an alleged violation, nor does it extend the 
period to appeal an assessed civil penalty.) To comply with this 
procedure, the debtor must:
    (1) Send a written request for a review of the information to the 
address provided in the notice.
    (2) State in the request the amount disputed and the reasons why the 
debtor believes that the debt is not past-due or legally enforceable.
    (3) Include in the request any documents which the debtor wishes to 
be considered or state that additional information will be submitted 
within the remainder of the 60 day period.
    (b) Submission of information. The debtor may submit information 
showing that all or part of the debt is not past-due or not legally 
enforceable along with the notification required by paragraph (a) of 
this section. Failure to submit the information within the remainder of 
the 60 day period will be interpreted as there is no additional 
information for consideration.
    (c) Review of the information. The Department considers all 
available information related to the issue of whether

[[Page 653]]

the debt is past-due and the issue of whether the debt is legally 
enforceable. After a decision has been reached, the Department notifies 
the debtor whether the Department has sustained amended, or cancelled 
its determination that the debt is past-due and legally enforceable.



Sec. 89.45  Department determination.

    (a) Following review of the information, the Department notifies the 
debtor with a written decision that includes the supporting rationale.
    (b) If the Department either sustains or amends its determination, 
it shall notify the debtor that the debt is being referred to the IRS 
for offset against the debtor's Federal income tax refund. If the 
Department determines that there is no legally enforceable debt or that 
full payment has been made, the case will be closed.



Sec. 89.47  Stay of offset.

    If the debtor timely notifies the Department that he or she is 
complying with the procedures in Sec. 89.43(a) of this subpart and 
timely submits additional information in accordance with Sec. 89.43(b) 
of this subpart, the debt will not be referred to the IRS while the 
matter is under review by the Department. Referral will not be made 
until the issuance of a written decision, in accordance with Sec. 89.45 
of this subpart, which sustains or amends the Department's original 
determination.



PART 91_INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES--
Table of Contents




Sec.
91.1 Purpose.
91.3 Investigations.
91.5 Findings and recommendations.
91.7 Determination of compensatory charges.
91.9 Distribution of compensatory funds.
91.11 Standards.
91.13 Refunds.

    Authority: Secs. 2-3, 88 Stat. 2103, 49 U.S.C. 1159a and 1159b, Pub. 
L. 93-623.

    Source: 41 FR 54770, Dec. 15, 1976, unless otherwise noted.



Sec. 91.1  Purpose.

    The purpose of this part is to prescribe the Secretary's role in 
executing his responsibilities under sections 2 and 3 of the 
International Air Transportation Fair Competitive Practices Act of 1974 
to the end that U.S. flag air carriers operating in foreign air 
transportation are protected from all forms of discrimination or unfair 
competitive practices and are compensated for excessive or otherwise 
discriminatory charges levied by foreign governments or other foreign 
entities for the use of airport or airway property.



Sec. 91.3  Investigations.

    The Assistant Secretary for Policy, Plans and International Affairs 
(Assistant Secretary), in coordination with the General Counsel and the 
Federal Aviation Administrator (Administrator), on complaint of any U.S. 
flag air carrier or on their own initiative, shall investigate: (a) 
Instances of alleged excessive or otherwise discriminatory user charges 
or (b) discriminatory or unfair competitive practices to which U.S. flag 
air carriers are subjected by a foreign government or other foreign 
entity. Excessive or otherwise discriminatory charges include, but are 
not limited to, unreasonable landing fees, unreasonable monopoly ground 
handling fees and unreasonable air navigation charges. Discriminatory or 
unfair competitive practices include, but are not limited to, 
unreasonably differentiated fuel allocations, cargo, charter or currency 
restrictions and inferior monopoly ground handling services.



Sec. 91.5  Findings and recommendations.

    (a) Upon finding that a foreign government or entity imposes 
excessive or otherwise discriminatory charges against U.S. flag air 
carriers or causes such carriers to be subjected to discriminatory or 
unfair competitive practices, the Assistant Secretary, in coordination 
with the General Counsel and the Administrator, shall determine the 
extent of the discrimination or unfair competitive practices.
    (b) Where the matter involves excessive or otherwise discriminatory 
charges, the Assistant Secretary shall prepare a report and recommend 
that

[[Page 654]]

the Secretary promptly submit a report of the case to the Secretary of 
State and the Civil Aeronautics Board in accordance with section 11 of 
the International Aviation Facilities Act, 49 U.S.C. 1159a.
    (c) Where the matter involves discrimination or unfair competitive 
practices other than user charges, the Assistant Secretary shall prepare 
a report and recommend that the Secretary take such other action within 
the jurisdiction of the Department as is appropriate under the 
circumstances in accordance with 49 U.S.C. 1159b.
    (d) If the Secretary determines, after review of the report and 
recommendations made under paragraph (b) of this section, that 
unreasonably excessive or otherwise discriminatory charges exist, the 
Secretary will submit a report on the matter to the Secretary of State 
and the Chairman of the Civil Aeronautics Board in accordance with 49 
U.S.C. 1159a.
    (e) If the Secretary determines, after review of the report and 
recommendations made under paragraph (c) of this section, that 
discriminatory or unfair competitive practices exist, the Secretary will 
commence all appropriate action within his jurisdiction in accordance 
with 49 U.S.C. 1159b.



Sec. 91.7  Determination of compensatory charges.

    (a) Upon indication by the Secretary of State that the excessive or 
otherwise discriminatory user charges have not been reduced or 
eliminated, the Secretary will direct the Assistant Secretary to compute 
the appropriate amount of compensatory charges.
    (b) Upon approving the amount of compensatory charges computed under 
paragraph (a) of this section, the Secretary will notify the Secretary 
of State and the Secretary of the Treasury of his determination.



Sec. 91.9  Distribution of compensatory funds.

    (a) On or after January 1 and July 1 of each year, each U.S. flag 
air carrier which has been subjected to excessive or otherwise 
discriminatory charges for which compensatory charges have been 
collected shall, upon compliance with paragraph (c) of this section, be 
entitled to pro rata reimbursement for excessive or otherwise 
discriminatory charges incurred to date, not to exceed the amount of 
such charges actually paid by that carrier.
    (b) The Secretary will publish in the Federal Register, at least 30 
days before a U.S. flag air carrier becomes entitled to reimbursement, a 
notice setting forth the procedures to be followed in making claims for 
reimbursement. This notice will specify the form in which application 
shall be made and the specific items of proof, if any, to be submitted.
    (c) On or after January 1 and July 1 of each year, each U.S. flag 
carrier claiming a right to reimbursement shall apply for such 
reimbursement in accordance with the Federal Register notice referred to 
in paragraph (b) of this section.
    (d) The Assistant Secretary shall, on the basis of the application 
and such other data as may be available, compute the amount to which 
such carrier is entitled.
    (e) Subject to the provisions of Sec. 91.13(b), upon approving the 
computation made by the Assistant Secretary, the Secretary shall issue 
such certificate as will entitle each such carrier to payment from the 
account maintained by the Secretary of the Treasury for this purpose.



Sec. 91.11  Standards.

    (a) To minimize the burden of implementing this part on the United 
States, on U.S. flag air carriers and on foreign air carriers, estimates 
and periodic adjustments will be used to determine the amount of 
discrimination and compensatory charges therefor.
    (b) For the purpose of determining the amount of excessive or 
otherwise discriminatory charges imposed upon U.S. flag air carriers by 
an entity:
    (1) A service or use of airport or airway property includes, but is 
not limited to, fueling, food service, ticketing, baggage handling, 
runways, ramps, parking areas, navigational aids, communications 
facilities or any other service necessary and incidental to the conduct 
of a flight.
    (2) An excessive or otherwise discriminatory charge includes, but is 
not limited to, a charge substantially

[[Page 655]]

above the cost of providing a service or any charge for a service that 
is substantially inferior to that which the U.S. flag air carrier could 
have provided for itself, at the same cost, by contract or otherwise 
(see also Sec. 91.3).
    (c) In determining the amount of compensatory charge:
    (1) The total amount of excessive or otherwise discriminatory 
charges levied against U.S. flag air carriers will be estimated in 
dollars.
    (2) The total volume of operations to the United States by air 
carriers of the nation concerned will be estimated for the succeeding 
six-month period.
    (3) The total amount of excessive or otherwise discriminatory 
charges in paragraph (c)(1) of this section will be divided by the total 
volume of operations in paragraph (c)(2) of this section, and
    (4) The quotient thus computed (which may be adjusted to reflect the 
type of aircraft) will constitute the compensatory charge to be 
collected as a condition to acceptance of the general declaration at the 
time of landing or takeoff of such air carriers of the nation concerned.



Sec. 91.13  Refunds.

    (a) Where, in his discretion, the Secretary finds that good cause 
has been shown, the Secretary may authorize a refund of collected 
compensatory charges. For purposes of this section, good cause includes, 
but is not limited to, an error of fact, a miscalculation, or a 
determination that an original conclusion of entitlement was 
insufficient, invalid, erroneous or invalidated by subsequent events.
    (b) Notwithstanding the provisions of Sec. 91.9(e) the Secretary 
may suspend for a reasonable time the issuance of a certificate of 
entitlement upon a showing by a payor of compensatory charges that there 
is a substantial likelihood that the payor will make a showing of good 
cause under Sec. 91.13(a).
    (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 
section, the issuance of a certificate of entitlement under Sec. 
91.9(e) or the distribution to U.S. flag air carriers of funds collected 
under this part shall be with prejudice to any claim for refund under 
this section.



PART 92_RECOVERING DEBTS TO THE UNITED STATES BY SALARY OFFSET--
Table of Contents




Sec.
92.1 Purpose.
92.3 Scope.
92.5 Definitions.
92.7 Notice, hearing, written response and decision.
92.9 Exceptions to notice, hearing, written response, and final 
          decision.
92.11 Demand for payment.
92.13 Request for hearing.
92.15 Request for hearing after time expires.
92.17 Form of hearings and written decisions.
92.19 Obtaining the services of a hearing official.
92.21 Deduction from pay.
92.23 Collection.
92.25 Source of deductions.
92.27 Duration of deductions.
92.29 Limitation on amount of deductions.
92.31 Liquidation from final payment.
92.33 Recovery from other payments due a separated employee.
92.35 Interest, penalties and administrative costs.
92.37 Non-waiver of rights by payment.
92.39 Refunds.
92.41 Requesting recovery when the Department is not the paying agency.
92.43 Requests for recovery when the Department is the paying agency.
92.45 Other debt collections.

    Authority: 5 U.S.C. 5514, as amended; 5 CFR part 550, subpart K; 4 
CFR parts 101-105.

    Source: 53 FR 4171, Feb. 12, 1988, unless otherwise noted.



Sec. 92.1  Purpose.

    This part implements 5 U.S.C. 5514 (Installment Deduction for 
Indebtedness to the United States), as amended by the Debt Collection 
Act of 1982 (Pub. L. 97-365, 96 Stat. 1749, 1751). It supplements 5 CFR 
part 550, subpart K, and the Federal Claims Collections Standards (4 CFR 
parts 101-105) issued jointly by the Comptroller General of the United 
States and the Attorney General of the United States under 31 U.S.C. 
3711(e)(2). It sets forth the procedures by which the Department of 
Transportation (DOT), including its operating elements (see 49 CFR 1.3):
    (a) Collects debts owed to the United States by current and former 
DOT employees;

[[Page 656]]

    (b) Determines and collects interest and other charges on that 
indebtedness.
    (c) Offsets the salary of DOT employees to collect debts owed to the 
United States by those employees; and,
    (d) Obtains salary offset to collect debts owed to the United States 
by employees of other agencies under programs administered by DOT.



Sec. 92.3  Scope.

    The provisions of this part are applicable to the indebtedness of a 
current or former employee of DOT incurred under any program 
administered by DOT. The provisions of this part do not apply to the 
collection of indebtedness by authority other than 5 U.S.C. 5514.



Sec. 92.5  Definitions.

    As used in this part:
    (a) Agency means an Executive Agency as defined by section 105 of 
title 5, United States Code, the U.S. Postal Service, the U.S. Postal 
Rate Commission, a Military Department as defined by section 102 of 
title 5, United States Code, an agency or court in the judicial branch, 
an agency of the legislative branch, and any other independent 
establishments which are entities of the Federal Government. In DOT each 
operating element will act for the agency in collecting debts under this 
rule.
    (b) Creditor agency means the agency to which the debt is owed.
    (c) Debt means an amount owed to the United States from sources 
which include, but are not necessarily limited to, erronerous payments 
made to employees, overpayments of benefits, salary or other allowances, 
loans insured or guaranteed by the United States and all other amounts 
due the United States from fees, leases, rents, royalties, services, 
sales of real or personal property, overpayments, penalties, damages, 
interest, fines and forfeitures (except those arising under the Uniform 
Code of Military Justice) and all other similar sources. This term does 
not include a Government claim arising under the Internal Revenue Code 
of 1954 (26 U.S.C. 1-9602) as amended; the Social Security Act (42 
U.S.C. 301-1397f); the tariff laws of the United States; or any case 
where collection of a debt by salary offset is explicitly provided for 
or prohibited by another statute (e.g., emergency and travel advances 
under 5 U.S.C. 5522, 5705 or 5724 and employee training expenses under 5 
U.S.C. 4108).
    (d) Debt Claim Form means the form used by DOT when requesting that 
an agency, other than DOT, assist in the recovery of funds.
    (e) Delinquent debt means a debt which has not been paid by the date 
specified in the agency's initial written notification or applicable 
contractual agreement, unless other satisfactory payment arrangements 
have been made by that date, or if, at any time thereafter, the debtor 
fails to satisfy obligations under a payment agreement with the creditor 
agency.
    (f) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, or in the case of an 
employee not entitled to basic pay, other authorized pay remaining after 
the deduction of any amount required by law to be withheld. (See 5 CFR 
581.105 (b) through (f) for items required by law to be withheld, and 
therefore excluded from disposable pay for the purposes of this 
regulation).
    (g) DOT operating element (see 49 CFR 1.3) means a DOT Operating 
Administration including--
    (1) U.S. Coast Guard.
    (2) Federal Aviation Administration.
    (3) Federal Highway Administration.
    (4) Federal Railroad Administration.
    (5) National Highway Traffic Safety Administration.
    (6) Urban Mass Transportation Administration.
    (7) St. Lawrence Seaway Development Corporation.
    (8) Maritime Administration.
    (9) Research and Special Program Administration.
    (10) The Office of the Secretary.
    (h) Employee means a current or former employee of a Federal agency, 
including a member of the Armed Forces (including retired members) or a 
Reserve of the Armed Forces (Reserves). However, employees paid from 
non-appropriated funds are not included.
    (i) FCCS means the Federal Claims Collection Standards, 4 CFR Ch. 
II, jointly published by the Department of

[[Page 657]]

Justice and the General Accounting Office.
    (j) Hearing means an informal conference before a hearing official 
in which the employee and the DOT operating element are given an 
opportunity to present evidence, witnesses, and argument. The hearing 
official shall be either an administrative law judge or an individual 
not under the supervision or control of the Department.
    (k) Paying agency means the agency authorizing the payment of the 
employee's current pay.
    (l) Salary offset means an administrative offset to collect a debt 
under 5 U.S.C. 5514 by deduction(s) at one or more officially 
established pay intervals from the current pay account of a present or 
former employee with or without his or her consent. It includes a single 
offset from the final salary of an employee whose employment ends.
    (m) Waiver means the cancellation, remission, forgiveness or non-
recovery of a debt allegedly owed by an employee to an agency as 
permitted or required by 5 U.S.C. 5584, 5 U.S.C. 8346(b), 10 U.S.C. 
2774, or 32 U.S.C. 716, or any other law.



Sec. 92.7  Notice, hearing, written response and decision.

    (a) Except as provided in Sec. 92.9 of this part, each employee 
from whom the department proposes to offset a debt against the Federal 
pay of an employee who is indebted to the United States under a program 
administrated by DOT under these regulations is entitled to receive a 
minimum of 30 days written notice as described in Sec. 92.11 of this 
part (see also Sec. 92.21(a)).
    (b) Each employee owing a debt to the United States which will be 
collected by salary offset is entitled to petition for a hearing before 
collection starts. This petition shall be filed directly with the 
accounting or finance office of the DOT creditor operating element which 
shall make appropriate hearing arrangements consistent with law and 
regulations. The DOT creditor operating element shall provide an 
explanation of the rights of the employee. If a hearing is provided, the 
following issues shall be heard:
    (1) The determination of the DOT creditor operating element 
concerning the existence and amount of the debt; and
    (2) The terms of the repayment schedule, if not previously 
established by written agreement between the employee and the DOT 
creditor operating element. (See Sec. 92.21(c) regarding copy of 
written decision by hearing officer describing method and amount of 
salary offset).



Sec. 92.9  Exceptions to notice, hearing, written response, and final decision.

    (a) Exceptions. The procedural requirements of 5 U.S.C. 5514 do not 
apply to recovery by way of retroactive deductions for administrative 
adjustments associated with the Federal benefits program. In such cases 
the content of the notification to employees is stated in Sec. 92.9(b).
    (b) Simplified procedures to be followed. In the event that a 
retroactive deduction from pay or allowances is required to recover an 
insufficiency of deductions arising through normal processing delays, 
and those insufficient deductions did not occur in more than four pay 
periods, rather than following the specific procedures required by 5 
U.S.C. 5514(a)(2), and set forth in Sec. 92.11 through Sec. 92.17 of 
this part, the DOT creditor operating element shall issue in advance of 
the collection a simplified notice to the employee that:
    (1) Because of the employee's election for changes in voluntary 
payroll deduction, corresponding deductions shall be imposed on the 
employee's salary to cover the period between the effective date of the 
election and the first regular withholding. The employee may dispute the 
amount of the retroactive collection by notifying his or her accounting 
or finance officer; or
    (2) Due to a normal ministerial adjustment in pay or allowances 
which could not be placed into effect immediately, future pay will be 
reduced to permit the DOT creditor operating element to recover any 
excess pay or allowances received by the employee. The employee may 
dispute the amount of the retroactive collection by notifying his or her 
accounting or finance officer.
    (c) Limitation on exceptions. The exceptions described in paragraph 
(a) of

[[Page 658]]

this section shall not include a recovery required to be made for any 
reason other than routine processing delays in putting the change into 
effect, even if the period of time for which the amounts must be 
retroactively recovered is less than four pay periods. If normal 
processing delays exceed four pay periods, then the full procedures 
prescribed under 5 U.S.C. 5514 and Sec. Sec. 92.11 through 92.17 of 
this part will be extended to the employee.

[53 FR 4171, Feb. 12, 1988, as amended at 53 FR 51279, Dec. 21, 1988]



Sec. 92.11  Demand for payment.

    (a) The DOT creditor operating element shall send a debtor a total 
of three progressively stronger written demands at not more than 30-day 
intervals, unless a response to the first or second demand indicates 
that a further demand would be futile and the debtor's response does not 
require rebuttal (see also Sec. 92.21(a)). Other information may also 
indicate that additional written demands are unnecessary.
    (b) The initial written demand for payment shall inform the debtor 
of:
    (1) The basis for the indebtedness;
    (2) The amount of the claim;
    (3) The date by which payment is to be made:
    (4) The debtor's liability for interest, penalties and 
administrative charges in accordance with 31 U.S.C. 3717 and Sec. 92.35 
of this part, if payment is not received within 30 days of the due date 
(see Sec. 92.35 for details regarding interest, penalties and 
administrative costs);
    (5) The intent of the agency to collect by salary offset, including 
asking the assistance of other Federal agencies to help in the offset 
whenever possible, if the debtor:
    (i) Has not made payment by the payment due date;
    (ii) Has not requested a review of the claim within the agency as 
set out in paragraph (b)(8) of this section; or
    (iii) Has not made an arrangement for payment by the payment due 
date:
    (6) The possible submission of claims to a collection agency or 
referral to the General Accounting Office or the Department of Justice 
for litigation in accordance with the procedures in 4 CFR part 105.
    (7) The right of the debtor to inspect and copy the records of the 
agency related to the claim. Any reasonable costs associated with the 
inspection and copying of these records shall be borne by the debtor. 
The debtor shall give reasonable notice in advance to the agency of the 
date upon which he or she intends to inspect and copy the records 
involved.
    (8) The right of the debtor to a review of the claim within the 
agency. If the claim is disputed in full or in part, the debtor shall 
respond to the demand by making a request in writing for a review of the 
claim within the agency by the payment due date stated in the demand. 
The debtor's written response shall state the basis for the dispute. If 
only part of the claim is disputed, the undisputed portion shall be paid 
by the due date. The DOT creditor operating element shall acknowledge 
receipt of the request for a review, and upon completion of 
consideration shall notify the debtor whether its determination has been 
sustained, amended, or canceled within 15 days of the receipt of the 
request for a review. If the DOT operating element either sustains or 
amends its determination, it shall notify the debtor of its intent to 
collect by salary offset unless payment is received within 15 days of 
the mailing of the notification of its decision following a review of 
the claim.
    (9) The right of the debtor to offer to make a written agreement to 
repay the amount of the claim (see Sec. 92.23). The acceptance of such 
an agreement is discretionary with the agency. If the debtor requests a 
repayment arrangement because a payment of the amount due would create a 
financial hardship, the DOT creditor operating element will analyze the 
debtor's financial condition. Depending on its evaluation of the 
financial strength of the debtor, the DOT operating element may agree to 
a written installment repayment schedule with the debtor. The debtor 
shall execute a confession of judgment note which specifies all of the 
terms of the arrangement. The size and frequency of installment payments 
should bear a reasonable relation to the size of the debt and the 
debtor's ability to pay. Interest, penalties and administrative charges 
shall be provided in the

[[Page 659]]

note (see Sec. 92.35). The debtor shall be provided with a written 
explanation of the consequences of signing a confession of judgment 
note. The debtor shall sign a statement acknowledging receipt of the 
written explanation which shall recite that the statement was read and 
understood before execution of the note and that the note is being 
signed knowingly and voluntarily. Some form of evidence of these facts 
shall be maintained in the agency's file on the debtor.
    (10) The right to an oral hearing or a hearing based on written 
submissions conducted by an administrative law judge or by a hearing 
official not under the control of the head of the Department in 
accordance with Sec. 92.13 of this part.
    (11) The consequences of any knowingly false statements, 
representations, or evidence provided by the employee, which may 
include:
    (i) Disciplinary procedures under 5 U.S.C. chapter 75, 5 CFR part 
752, or any other applicable statutes or regulations;
    (ii) Criminal penalties under 18 U.S.C. 286, 287, 1001 and 1002, or 
any other applicable statute; or,
    (iii) Penalties under the False Claims Act, 31 U.S.C. 3729, et seq., 
or any other applicable statute.
    (12) Proceedings under any other statutory authority for the 
collection of claims of the DOT operating element.
    (13) The fact that amounts paid on or deducted from the debt which 
are later waived or found not owed to the United States will be promptly 
refunded to the employee unless there are applicable contractual or 
statutory provisions to the contrary.
    (14) The name, address, and telephone number of the accounting or 
finance officer who may be contacted if the employee wishes to review 
the records or to obtain information.



Sec. 92.13  Request for hearing.

    (a) The employee shall be advised in the notification that a hearing 
may be requested by filing a written petition within 15 calendar days of 
receipt of the notification, addressed to the chief of the paying 
agency's accounting or finance office.
    (b) The petition shall state the grounds upon which the employee 
disputes the proposed collection of the alleged debt. The petition shall 
identify and explain with reasonable specificity the facts, evidence 
which, and witnesses who the employee believes support his or her 
position.
    (c) The timely filing of a petition for hearing shall stay any 
further collection proceedings. A decision by the administrative law 
judge or other hearing official (see Sec. 92.5(j)) will be issued at 
the earliest practical date, but no later than 60 days after the filing 
of a petition for hearing, unless a delay is granted at the request of 
the employee.



Sec. 92.15  Request for hearing after time expires.

    The Department may accept late requests for a hearing if the 
employee can show that delay in requesting a hearing beyond the period 
provided in the notice described in Sec. 92.11 of this part was caused 
by circumstances beyond his or her control or because of failure to 
receive notice of the time limit (unless he or she was otherwise aware 
of it) or because of new information.



Sec. 92.17  Form of hearings and written decisions.

    (a) Hearings shall consist of informal conferences before an 
administrative law judge or other hearing official (see Sec. 92.5(j)) 
in which the employee and the DOT creditor operating element are given 
full opportunity to present evidence, witnesses, and argument. The DOT 
operating element will maintain a summary record of a hearing provided 
under these procedures.
    (b) Written decisions provided after a request for hearing shall, at 
a minimum, summarize the evidence alleged to substantiate the nature and 
origin of the alleged debt; the administrative law judge's or other 
hearing official's analysis, findings, and conclusions; the amount and 
validity of the alleged debt; and, where applicable, the repayment 
schedule.
    (c) A copy of the administrative law judge's or other hearing 
official's final decision shall be provided to the employee as well as 
the chief of the office

[[Page 660]]

authorized to collect debts by deduction from salary.
    (d) The decision of the administrative law judge or other hearing 
official shall be final and binding on the parties.



Sec. 92.19  Obtaining the services of a hearing official.

    (a) Where a DOT operating element is the creditor agency, the chief 
of the appropriate accounting or finance office shall schedule a hearing 
before an administrative law judge or other hearing official.
    (b) If another (non-DOT) agency is the creditor agency, then it is 
the responsibility of that agency to arrange for a hearing if one is 
requested.
    (c) Agents for the paying agency are designated in appendix A to 5 
CFR part 581. (This appendix lists the agents designated to accept legal 
process for the executive branch, the U.S. Postal Service, the Postal 
Rate Commission, the District of Columbia, American Samoa, Guam, the 
Virgin Islands, and the Smithsonian Institution.)



Sec. 92.21  Deduction from pay.

    (a) After other, less severe collection actions have failed, the DOT 
operating element (see Sec. 92.5(g)) may implement steps to obtain 
collection by salary offset. The method and the amount of the salary 
offset shall be the method and amount stated in the creditor agency's 
demand letter (see Sec. 92.11) or notice (see Sec. 92.7), or, if 
applicable, in the decision of an administrative law judge or other 
hearing official after an employee-requested hearing on the matter. If a 
DOT operating element is the creditor, the procedures stated in Sec. 
92.11 shall be followed.
    (b) Before a collection by salary offset may be made, the chief of 
the accounting or finance office of the paying DOT operating element 
shall be furnished with certified documentation by the creditor agency 
indicating that the creditor agency has sent the employee a demand 
letter pursuant to Sec. 92.11 of this part stating as a minimum:
    (1) The nature and amount of the indebtedness and the intention of 
the agency to initiate, at the expiration of thirty days, a proceeding 
to collect the debt by salary offset; and an explanation of the rights 
of the employee under this subsection;
    (2) That the employee has the opportunity to inspect and copy 
Government records relating to the debt;
    (3) That the employee has an opportunity to enter into a written 
agreement with the agency to establish a schedule for the repayment of 
the debt;
    (4) That the employee has an opportunity for a hearing on the 
determination of the agency concerning the existence or the amount of 
the debt, and in the case of an individual whose repayment schedule is 
established other than by a written agreement as described in paragraph 
(b)(3) of this section concerning the terms of the repayment schedule; 
and
    (5) That the creditor agency's regulations implementing 5 U.S.C. 
5514 have been approved by OPM (see 5 CFR 550.1108(a)).
    (c) Where a hearing has been held, a copy of the decision of the 
administrative law judge or other hearing official must be furnished to 
the chief of the accounting or finance office of the paying DOT 
operating element before collection of the indebtedness by salary offset 
may be initiated. The method and amount of the offset will be as stated 
in the decision.



Sec. 92.23  Collection.

    (a) A debt shall be collected in a lump sum or by installment 
deductions at officially established pay intervals from an employee's 
current pay account, unless the employee and the DOT operating element 
agree to alternative arrangements for payment (see Sec. 92.11(b)(9) 
describing such voluntary repayment arrangements). The alternative 
arrangement shall be in writing, signed by both the employee and the 
chief of the appropriate accounting or finance office, and shall be 
documented in the DOT operating element's files.
    (b) Under 31 U.S.C. 3716 and 4 CFR 102.3(b)(3), agencies may not 
initiate offset to collect a debt more than 10 years after the 
Government's right to collect the debt accrued, unless facts material to 
the Government's rights to collect the debt were not known by the DOT 
operating element's official or officials charged with the 
responsibility to discover and collect the debt.

[[Page 661]]



Sec. 92.25  Source of deductions.

    Except as provided in Sec. 92.31 and Sec. 92.33 of this part (with 
respect to separated employees), the paying DOT operating element will 
make deductions only from disposable pay (see Sec. 92.5(f)).



Sec. 92.27  Duration of deductions.

    Debts shall be collected in one lump sum where possible. However, if 
the employee is financially unable to pay in one lump sum or the amount 
of the debt exceeds 15 percent of disposable pay payable in one pay 
period, collection will be made in installments. Such installment 
deductions will be made over a period not greater than the anticipated 
period of employment or active duty, as the case may be, except as 
provided in Sec. Sec. 92.29, 92.31, and 92.33 of this part.



Sec. 92.29  Limitation on amount of deductions.

    The size and frequency of installment deductions shall bear a 
reasonable relation to the size of the debt and the employee's ability 
to pay. However, the amount deducted for any period may not exceed 15 
percent of the disposable pay from which the deduction is made, unless 
the employee has agreed in writing to the deduction of a greater amount.



Sec. 92.31  Liquidation from final payment.

    If the employee retires, resigns his or her employment, is 
terminated, or the employment or period of active duty ends before 
collection of the debt is completed, there shall be an offset from 
subsequent payments of any nature (e.g., final salary, lump sum leave, 
etc.) due the employee from the DOT operating element on the date of 
separation to the extent necessary to liquidate the debt.



Sec. 92.33  Recovery from other payments due a separated employee.

    If the debt cannot be liquidated by offset from any final payment 
due the employee as of the date of separation, the DOT operating element 
shall liquidate the debt by administrative offset pursuant to 31 U.S.C. 
3716 from later payments of any kind due the former employee from the 
United States, where appropriate (see Sec. 92.41(b)(2)(ii)).



Sec. 92.35  Interest, penalties and administrative costs.

    (a) Where a DOT creditor operating element (see Sec. 92.5(g)) is 
the creditor, it shall charge interest on an outstanding debt at the 
rate published by the Secretary of the Treasury in accordance with 31 
U.S.C. 3717. The rate of interest assessed shall be the rate of the 
current value of funds to the United States Treasury (i.e., the Treasury 
tax and loan account rate), as prescribed and published by the Secretary 
of the Treasury in the Federal Register and the Treasury Financial 
Manual Bulletins annually or quarterly, in accordance with 31 U.S.C. 
3717. The DOT creditor operating element shall charge a penalty of six 
percent a year, in addition to interest, on any portion of a debt that 
is more than 90 days past due. It shall assess administrative charges to 
cover additional costs incurred in processing and handling the debt 
beyond the payment due date. The imposition of interest, penalties and 
administrative charges is made in accordance with 31 U.S.C. 3717 and 4 
CFR 102.13.
    (b) Interest on debt shall begin to accrue on the date on which the 
debtor is first sent or delivered notice of the debt and of the interest 
requirements or, in the case of advance billings, on the calendar date 
following the specified due date of the debt provided the advance 
billing gives notice of the interest requirements for late payment. 
Interest on the debt shall continue to accrue until payment is received. 
Interest shall be calculated only on the principal of the debt (simple 
interest). The rate of interest charged shall be the rate in effect on 
the date from which interest begins to accrue, and shall remain fixed 
for the duration of the indebtedness.
    (c) A DOT creditor operating element shall waive the monthly 
interest on debt that is paid within 30 calendar days after the date on 
which interest began to accrue.
    (d) A DOT creditor operating element may waive interest, penalties 
and/or administrative charges if it finds that:

[[Page 662]]

    (1) The debtor is unable to pay any significant sum toward the claim 
within a reasonable period of time;
    (2) Collection of interest, penalties or administrative charges will 
jeopardize collection of the principal of the debt; or
    (3) It is otherwise in the best interest of the United States, 
including the situation where an offset or installment payment agreement 
is in effect.



Sec. 92.37  Non-waiver of rights by payment.

    An employee's payment or agreement to pay, whether voluntary or 
involuntary, of all or any portion of an alleged debt being collected 
pursuant to these procedures shall not be construed as a waiver of any 
rights which the employee may have under this part to the extent of such 
payment or agreement.



Sec. 92.39  Refunds.

    (a) Amounts paid or deducted from the account of a current or former 
employee of the United States Government, pursuant to this part, for a 
debt which is found not owing to the United States shall be promptly 
refunded to the employee.
    (b) Amounts which are waived shall, after proper application, be 
promptly returned after approval of the application.



Sec. 92.41  Requesting recovery when the Department is not the paying agency.

    (a) Format of the request for recovery. (1) Where the DOT operating 
element is the creditor agency and another agency is the paying agency, 
the chief of the accounting of finance office of the appropriate DOT 
operating element (see Sec. 92.5(g)) shall complete and certify the 
``Debt Claim Form'' (see Attachment 1), and attach a copy of the demand 
letter sent to the employee pursuant to Sec. 92.11 with a statement of 
the employee's response thereto, or, if a hearing was held pursuant to 
Sec. 92.13, attach a copy of the decision of the administrative law 
judge or other hearing official. The DOT creditor operating element 
shall certify that the employee owes the debt, the amount and basis of 
the debt, the date on which payment is due, the date the Government's 
right to collect the debt accrued, and that the Departmental regulations 
implementing 5 U.S.C. 5514 have been approved by the Office of Personnel 
Management.
    (2) If the collection is to be made in voluntary or involuntary 
installments (see Attachment 1), the DOT creditor operating element 
shall also advise the paying agency of the amount of the installments 
and, if a date for the beginning of payments other than the next 
officially established pay period is required, the date of the first 
installment.
    (3) Unless the employee has voluntarily agreed to the salary offset 
in writing or, in the absence of such agreement, has signed a statement 
acknowledging receipt of the procedures required by 5 U.S.C. 5514(a)(2) 
and the writing or statement is attached to the debt claim form, the DOT 
creditor operating element shall also indicate the action(s) taken under 
5 U.S.C. 5514 and give the date(s) the action(s) were taken.
    (b) Submitting the request for recovery--(1) Current employees. The 
DOT creditor operating element shall submit the ``Debt Claim Form'' 
(Attachment 1) to the employee's paying agency.
    (2) Employees who are separating or have separated--(i) Employees 
who are in the processs of separating. If the employee is in the process 
of separating, the DOT creditor operating element shall submit its debt 
claim (Attachment 1) to the employee's paying agency for collection as 
provided in Sec. 92.31 of this part. The paying agency is required to 
certify the total amount of its collection made or to be made prior to 
separation and notify the DOT creditor operating element and the 
employee as provided in Sec. 92.41 (b)(2)(iii). If the paying agency is 
aware that the employee is entitled to payments from the Civil Service 
Retirement and Disability Fund, or other similar payments, it shall 
advise the DOT operating element and send a copy of the debt claim and 
certification to the agency responsible for making such payments as 
notice that a debt is outstanding.

[[Page 663]]

    (ii) Employees who have already separated. If the employee has 
already separated and all payments due from his or her former paying 
agency have been paid, the DOT operating element may request, unless 
otherwise prohibited for example by court order, that monies which are 
due and payable to the employee from the Civil Service Retirement and 
Disability Fund (5 CFR 831.1801 et seq.) or other similar funds, be 
administratively offset in order to collect the debt (see 31 U.S.C. 3716 
and the FCCS).
    (iii) Employees who transfer from one paying agency to another. If, 
after the DOT creditor operating element has submitted the debt claim to 
the employee's paying agency, the employee transfers to a position 
served by a different paying agency before the debt is collected in 
full, the paying agency from which the employee separates shall certify 
the total amount of the collection made on the debt. One copy of the 
certification shall be furnished to the employee and another to the DOT 
operating element along with notice of the employee's transfer. The 
original of the debt claim form shall be inserted in the employee's 
official personnel folder along with a copy of the certification of the 
amount which has been collected. Upon receiving the official personnel 
folder, the new paying agency shall, in accordnce with the DOT operating 
element's properly certified claim, resume the collection from the 
employee's current pay account and notify the employee and the DOT 
creditor operating element of the resumption. The DOT operating element 
is not required to repeat the required collection procedures from the 
beginning in order to resume the collection. However, it shall be the 
responsibility of the DOT creditor operating element to review the debt 
upon receiving the former paying agency's notice of the employee's 
transfer to make sure the collection is resumed by the new paying 
agency.



Sec. 92.43  Requests for recovery when the Department is the paying agency.

    (a) Incomplete request for recovery. If the request for recovery 
received by the chief of the accounting or finance office of the 
appropriate DOT operating element is incomplete in any respect (see 
Sec. 92.21(b)) including, but not limited to, the failure to certify in 
writing that the employee owes the debt, the amount and basis of the 
debt, the date on which payment(s) is due, the date the creditor 
agency's right to collect the debt first accrued, and that the creditor 
agency's regulations implementing 5 U.S.C. 5514 were approved by OPM, 
the request shall be returned to the creditor agency with a statement of 
the deficiency. No action to implement salary offset may be initiated 
until a complete request has been received.
    (b) Complete request for recovery. If a complete request for 
recovery is received by the chief of the accounting or finance office of 
the appropriate DOT operating element, a copy of the request and any 
supporting documentation shall be transmitted to the appropriate payroll 
office, and deductions shall be scheduled to begin at the next 
officially established pay interval. A copy of the request and any 
supporting documentation shall be provided to the debtor, along with a 
notice of the date deductions will begin.
    (c) The DOT operating element may not review the merits of the 
creditor agency's determination with respect to the amount or validity 
of the debt as stated in the request for recovery.



Sec. 92.45  Other debt collections.

    Separate rules exist for general collection of debts owed the United 
States under 31 U.S.C. 3711, 3716-18; 4 CFR Ch. II.

[[Page 664]]

[GRAPHIC] [TIFF OMITTED] TC02FE91.213



PART 93_AIRCRAFT ALLOCATION--Table of Contents




Sec.
93.1 Issuance of aircraft allocations.
93.3 Reporting requirements.

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



Sec. 93.1  Issuance of aircraft allocations.

    From time to time, the Director, Office of Emergency Transportation, 
issues planning orders allocating aircraft to the Department of Defense, 
identified by FAA registration number, for the Civil Reserve Air Fleet 
Program, or as a reserve fleet for use in certain contingencies in the 
Civil Reserve Air Fleet Program of the Department of Defense. The 
current listing of aircraft allocations may be obtained upon request 
from the Director, Office

[[Page 665]]

of Emergency Transportation, Department of Transportation, Washington, 
DC 20590.

[32 FR 20778, Dec. 23, 1967, as amended by Amdt. 93-1, 33 FR 7821, May 
29, 1968]



Sec. 93.3  Reporting requirements.

    In the event any aircraft identified in the allocations in effect:
    (a) Is destroyed or suffers major damage the owner or operator, or 
both, shall give immediate notice thereof to the Director, Office of 
Emergency Transportation; or
    (b) Is sold, leased, or otherwise transferred, the transferor or 
owner, or both, shall give immediate notice thereof to the Director, 
Office of Emergency Transportation, together with full information 
concerning the identity of the transferee, the date and place of 
transfer, and the terms and conditions of the transfer.

[32 FR 20778, Dec. 23, 1967]



PART 95_ADVISORY COMMITTEES--Table of Contents




Sec.
95.1 Applicability.
95.3 Definitions.
95.5 Use of advisory committees generally.
95.7 Industry advisory committees: Membership.
95.9 Meetings; other than industry advisory committees.
95.11 Meetings; industry advisory committees.
95.13 Antitrust laws.
95.15 Conflicts of interest statutes, orders, and regulations.

    Authority: Sec. 9, 80 Stat. 944 (49 U.S.C. 1657); E.O. 11007, 3 CFR, 
1959-1963 Comp., p. 573.

    Source: 33 FR 467, Jan. 12, 1968, unless otherwise noted.



Sec. 95.1  Applicability.

    (a) This part prescribes uniform regulations governing the formation 
and use of advisory committees by the Office of the Secretary of 
Transportation, the U.S. Coast Guard, the Federal Aviation 
Administration, the Federal Highway Administration, the Federal Railroad 
Administration, the Urban Mass Transportation Administration, the 
National Highway Traffic Safety Administration, and the St. Lawrence 
Seaway Development Corporation. It does not apply to the National 
Transportation Safety Board.
    (b) This part applies to advisory committees formed or used by the 
organizations named in paragraph (a) of this section. It also applies to 
those organizations whenever they affiliate with, participate in, or use 
similar advisory committees formed or used by other departments or 
agencies of the Executive Branch of the Government, unless specifically 
exempted under paragraph (c) of this section. Advisory committees whose 
membership includes ``consultants and advisers'' are subject to this 
part regardless of whether those members are considered to be Government 
employees on the days they attend committee meetings.
    (c) This part does not apply to:
    (1) Any advisory committee the purpose, composition, and operation 
of which is specified by statute, unless and to the extent that statute 
authorizes the President to prescribe regulations for the committee's 
formation and use.
    (2) Any advisory committee composed wholly of representatives of 
State or local agencies or of charitable, religious, educational, civic, 
social welfare, or similar nonprofit organizations.
    (3) Any local, regional, or national committee whose only function 
is to disseminate information for public agencies, or any local civil 
committee whose primary function is to perform a public service, other 
than giving advice or making recommendations to the Government.

[33 FR 467, Jan. 12, 1968, as amended by Amdt. 95-2, 35 FR 5331, Mar. 
31, 1970; Amdt. 95-3, 36 FR 431, Jan. 13, 1971]



Sec. 95.3  Definitions.

    For the purposes of this part:
    (a) Advisory committee includes any committee, board, commission, 
council, conference, panel, task force, or other similar group, or any 
subcommittee, or other subgroup thereof, which is formed within the 
Department in the interest of obtaining advice or recommendations, or 
for any other purpose, and which is not composed wholly of officers or 
employees of the Government. It also includes any committee,

[[Page 666]]

board, commission, council, conference, panel, task force, or other 
similar group, or any subcommittee or subgroup thereof, which is not 
formed within the Department, but only during the period it is being 
used by the Department in the same manner as a Government-formed 
advisory committee.
    (b) Industry advisory committee includes any advisory committee 
composed predominately of members or representatives of a single 
industry or group of related industries, or any subdivision of a single 
industry, made on a geographic, service, or product basis.
    (c) Department means Department of Transportation.
    (d) Secretary means the Secretary of Transportation.



Sec. 95.5  Use of advisory committees generally.

    (a) Advisory committees are formed to provide a means of obtaining 
advice, views, and recommendations of benefit to the operations of the 
Government from industrialists, businessmen, scientists, engineers, 
educators, and other public and private citizens whose experience and 
talents would not otherwise be available to the Department. An advisory 
committee may be used when its counsel is desired on matters under 
consideration by any part of the Department. Unless specifically 
authorized by law to the contrary, no advisory committee may be used for 
functions which are not solely advisory. Determinations of action to be 
taken with respect to matters upon which an advisory committee advises 
or recommends may be made only by a full-time, salaried officer or 
employee of the Government.
    (b) An advisory committee may be established to serve the Department 
as a whole, the Office of the Secretary, any operating administration, 
any combination of the Office of the Secretary and the operating 
administrations, or the operating administrations collectively. However, 
no advisory committee may be formed or used unless (1) the committee is 
specifically authorized by law, or (2) the committee is specifically 
approved, in writing, by the Secretary or his designee, to be in the 
public interest in connection with the performance of duties imposed on 
the Department or any part of it.



Sec. 95.7  Industry advisory committees: Membership.

    Each industry advisory committee must be reasonably representative 
of the group of industries, the single industry, or the product segment 
thereof to which it relates, taking into account the size and function 
of business enterprises in the industry or industries and their 
location, affiliation, and competitive status among other factors. 
Selection of industry members shall, unless otherwise provided by 
statute, be limited to persons actively engaged in operations in the 
particular industry, industries, or segments concerned, except in cases 
in which the Secretary or his designee considers that such a limitation 
would interfere with effective committee operations.



Sec. 95.9  Meetings; other than industry advisory committees.

    (a) Meetings of an advisory committee, other than an industry 
advisory committee, may be held only at the call, or with the advance 
approval, of a full-time, salaried officer or employee of the 
Department, with an agenda formulated or approved by that officer or 
employee.
    (b) Each meeting shall be chaired by, or be conducted in the 
presence of, a full-time, salaried officer or employee of the Government 
who is required to adjourn the meeting whenever he considers it to be in 
the public interest.
    (c) Minutes shall be kept of each meeting. As a minimum, the minutes 
must contain a record of the persons present, a description of the 
matter discussed and conclusions reached, and a copy of any report 
received, issued, or approved by the committee. The accuracy of all 
minutes must be certified by a full-time, salaried officer or employee 
of the Government who was present during the meeting to which the 
minutes pertain.
    (d) The Secretary or his designee may waive any requirement of this 
section in any case in which he determines that:

[[Page 667]]

    (1) Compliance with that requirement would interfere with the proper 
functioning of the committee or would be impracticable;
    (2) Adequate provisions are made to assure otherwise that the 
operation of the committee is subject to Government control and purpose; 
and
    (3) The waiver is in the public interest.



Sec. 95.11  Meetings; industry advisory committees.

    (a) Meetings of an industry advisory committee may be held only at 
the call of a full-time, salaried officer or employee of the Department, 
with an agenda formulated by that officer or employee.
    (b) Each meeting shall be chaired by a full-time, salaried officer 
or employee of the Government who is required to adjourn the meeting 
whenever he considers it to be in the public interest. The Secretary or 
his designee may waive the requirements of this paragraph in any case in 
which he determines that:
    (1) Compliance with that requirement would interfere with the proper 
functioning of the committee or would be impracticable;
    (2) Adequate provisions are made to assure otherwise that the 
operation of the committee is subject to Government control and purpose;
    (3) The waiver is in the public interest; and
    (4) The meeting will be conducted in the presence of a full-time, 
salaried officer or employee of the Government who is required to 
adjourn the meeting whenever he considers it to be in the public 
interest.
    (c) A verbatim transcript shall be kept of the proceedings at each 
meeting, including the name of each person present, his affiliation, and 
the capacity in which he attended, except in any case in which the 
Secretary or his designee determines that a verbatim transcript would 
interfere with the proper functioning of the committee or would be 
impracticable and therefore waives the requirement as being in the 
public interest. In such a case the procedure prescribed in Sec. 
95.9(c) applies.
    (d) No industry advisory committee may receive, compile, or discuss 
data or reports showing the current or projected commercial operations 
of any identified business enterprise.

[33 FR 467, Jan. 12, 1968, as amended by Amdt. 95-1, 33 FR 6913, May 3, 
1968]



Sec. 95.13  Antitrust laws.

    The activities of advisory committees are subject to the antitrust 
laws and committee members are not immune from prosecution under those 
laws. The Department of Justice takes the position that it retains 
complete freedom to institute proceedings, either civil or criminal, or 
both, in the event that any particular plan or course of action is used 
to accomplish unlawful private ends, and to institute civil actions to 
enjoin continuance of any act or practices found not to be in the public 
interest and persisted in after notice to desist. This part is intended 
to minimize the possibility of violating the antitrust laws. Industry 
representatives and Government personnel officially connected with 
advisory committees should be advised of the antitrust aspects of the 
committee activity.



Sec. 95.15  Conflicts of interest statutes, orders, and regulations.

    There is a body of statutes, orders, and regulations prescribed by 
the President, the Secretary, and other authorities, dealing with 
conflicts of interest and designed to prevent any conflict between the 
official duties and status of Government officers and employees and 
their private interest. Government officers and employees are required 
to comply with all applicable laws, orders, and regulations. Part 99 of 
this chapter sets forth a comprehensive list of the conflicts of 
interest statutes and guidelines for the employees of the Department to 
follow in the application of these statutes to part-time advisers and 
consultants to the Government. Any officer or employee appointed to 
serve on an advisory committee who has any doubt or question respecting 
a possible conflict of interest shall seek specific legal advice on his 
individual situation.

[[Page 668]]



PART 98_ENFORCEMENT OF RESTRICTIONS ON POST-EMPLOYMENT ACTIVITIES--
Table of Contents




           Subpart A_Administration of Enforcement Proceedings

Sec.
98.1 Purpose.
98.2 Definitions.
98.3 Reports of apparent violations.
98.4 Initiation of administrative disciplinary proceeding.
98.5 Former employee response to notice.
98.6 Examiner.
98.7 Hearing.
98.8 Decision by examiner.
98.9 Decision if hearing waived.
98.10 Appeal.
98.11 Final administrative decision.

                   Subpart B_Administrative Sanctions

98.12 Administrative sanctions.

                        Subpart C_Judicial Review

98.13 Judicial review.

    Authority: 18 U.S.C. 207; Pub. L. 96-28.

    Source: 48 FR 12383, Mar. 24, 1983, unless otherwise noted.



           Subpart A_Administration of Enforcement Proceedings



Sec. 98.1  Purpose.

    The purpose of this part is to set forth the administrative 
enforcement procedures that the Department of Transportation will follow 
when there is an allegation that a former employee of the Department has 
violated 18 U.S.C. 207.



Sec. 98.2  Definitions.

    For the purposes of this part, the following definitions apply:
    (a) Administration means each of the following:
    (1) The United States Coast Guard.
    (2) The Federal Aviation Administration.
    (3) The Federal Highway Administration.
    (4) The Federal Railroad Administration.
    (5) The National Highway Traffic Safety Administration.
    (6) The Urban Mass Transportation Administration.
    (7) The Saint Lawrence Seaway Development Corporation.
    (8) The Research and Special Programs Administration.
    (9) The Maritime Administration.
    (b) Department means the Department of Transportation.
    (c) 18 U.S.C. 207 means 18 U.S.C. 207 (a), (b), or (c) or any 
regulations issued under 18 U.S.C. 207.
    (d) Secretary means the Secretary of Transportation.



Sec. 98.3  Reports of apparent violations.

    Any person may report, to the Assistant General Counsel for 
Environmental, Civil Rights and General Law, an apparent violation by a 
former employee of the Department of 18 U.S.C. 207.



Sec. 98.4  Initiation of administrative disciplinary proceeding.

    (a) Whenever the Assistant General Counsel for Environmental, Civil 
Rights and General Law has determined that there is reasonable cause to 
believe that a former Departmental employee has violated 18 U.S.C. 207, 
the Assistant General Counsel for Environmental, Civil Rights, and 
General Law:
    (1) Shall expeditiously provide that information to the Director, 
Office of Government Ethics, and to the Criminal Division, Department of 
Justice; and
    (2) After coordinating any proceeding with the Criminal Division, 
Department of Justice, to avoid prejudicing criminal proceedings, may 
institute an administrative disciplinary proceeding in accordance with 
this part.
    (b) The person who shall provide for the prosecution of the alleged 
violation in an administrative disciplinary proceeding under this part 
(hereinafter referred to as the ``Departmental counsel'') is:
    (1) In a case where the last Departmental employer of the alleged 
violator is the Office of the Secretary, the Assistant General Counsel 
for Environmental, Civil Rights and General Law, or his or her designee; 
or
    (2) In a case where the last Departmental employer of the alleged 
violator is an administration, the Chief Counsel, or his or her 
designee, for that administration.

[[Page 669]]

    (c) Before beginning an administrative disciplinary proceeding, the 
Departmental counsel shall provide the former employee with actual 
notice of the institution of a proceeding. This notice must include:
    (1) A statement of allegations and the basis for those allegations, 
which statement must be sufficiently detailed to enable the former 
employee to prepare an adequate defense;
    (2) Notification of the right to a hearing;
    (3) An explanation of the method by which a hearing may be 
requested; and
    (4) A statement of the possible sanctions that may be imposed if a 
violation by the former employee is found to have occurred.



Sec. 98.5  Former employee response to notice.

    (a) Within 30 working days after service of a notice pursuant to 
Sec. 98.4(c), the former employee may submit to the Departmental 
counsel in writing:
    (1) A request for a hearing, which, if not all issues are disputed 
by the former employee, should specify those issues that are;
    (2) Any evidence and arguments in lieu of a hearing or
    (3) A statement that the allegations are true and set forth any 
factors that should be considered in determining the administrative 
sanction to be imposed.
    (b) The Department shall deem the right to a hearing to have been 
waived by the former employee if the former employee does not submit a 
request under paragraph (b)(1) of this section within 30 working days 
after service of notice pursuant to Sec. 98.4(c).



Sec. 98.6  Examiner.

    (a) The presiding official at a hearing held under this part and the 
deciding official under Sec. 98.9 of this part (hereinafter referred to 
as the ``examiner'') shall be designated by the Secretary.
    (b) The examiner shall not have been involved in any of the events 
specified in the allegations, shall not have been involved in the 
investigation of the allegations and the institution of the proceedings 
under this part, and shall not be or have been employed by the 
administration, or the Office of the Secretary if applicable, in which 
the alleged violation occurred.



Sec. 98.7  Hearing.

    (a) The examiner shall, within 30 working days of a request for a 
hearing under Sec. 98.5(b), schedule the hearing for a reasonable time, 
date, and place. The examiner shall grant any delays or continuances 
that the examiner determines to be necessary and appropriate for fair 
resolution of the case, with due regard to the former employee's need 
for adequate time to prepare a defense and for expeditious resolution of 
allegations that may be damaging to that former employee's reputation.
    (b) The following rights shall be granted to a former employee who 
requests a hearing under Sec. 98.5(b):
    (1) To represent oneself or to be represented by counsel.
    (2) To introduce and examine witnesses and to submit physical 
evidence.
    (3) To confront and cross-examine adverse witnesses.
    (4) To present oral argument.
    (5) To obtain a transcript or recording of the hearing on request 
from the official reporter upon payment of the fees fixed therefor.
    (c) In a hearing under this part, the Federal Rules of Civil 
Procedure and Evidence do not apply. However, the examiner may make such 
orders and determinations regarding discovery, admissibility of 
evidence, conduct of examination and cross-examination, and similar 
matters the examiner deems necessary or appropriate to ensure 
orderliness in the proceedings and fundamental fairness to the parties.



Sec. 98.8  Decision by examiner.

    (a) In a hearing under Sec. 98.7 of this part, the Departmental 
counsel must establish a violation by a preponderance of the evidence.
    (b) The examiner shall make a decision exclusively on matters of 
record in the proceeding and shall set forth in the decision:
    (1) All findings of fact relevant to the matters at issue;
    (2) All conclusions of law relevant to the matters at issue; and
    (3) The sanction to be imposed, if any.

[[Page 670]]



Sec. 98.9  Decision if hearing waived.

    (a) If the former employee waives or, in accordance with Sec. 
98.5(b) of this part, is deemed to have waived a hearing under this 
part, the examiner shall, after review of the record as it exists, make 
a decision as to whether the former employee is in violation of 18 
U.S.C. 207.
    (b) In a decision under paragraph (a) of this section, the 
requirements of Sec. 98.8 of this part apply.



Sec. 98.10  Appeal.

    (a) Within 30 working days after receipt of a decision issued under 
Sec. 98.8 or Sec. 98.9 of this part, either the Departmental counsel 
or the former employee may appeal the decision to the Secretary.
    (b) In making a decision on an appeal, the Secretary shall consider 
only the evidence admitted during the prior proceeding and contained in 
the record of that proceeding.
    (c) If the Secretary modifies or reverses the initial decision, the 
Secretary shall specify the findings of fact and conclusions of law that 
are different from those of the examiner.



Sec. 98.11  Final administrative decision.

    The final administrative decision under this part shall be:
    (a) The decision of the examiner under Sec. 98.8(b), if there is no 
appeal under Sec. 98.10;
    (b) The decision by the examiner under Sec. 98.9, if a hearing is 
waived or is deemed to have been waived and there is no appeal under 
Sec. 98.10; or
    (c) The decision of the Secretary on an appeal under Sec. 98.10.



                   Subpart B_Administrative Sanctions



Sec. 98.12  Administrative sanctions.

    (a) The Secretary, in decisions under Sec. 98.10 of this part, and 
the examiner, in decisions under Sec. 98.8 and Sec. 98.9 of this part, 
may impose an administrative sanction against a former employee who, 
after a final administrative decision under this part, is found to be in 
violation of 18 U.S.C. 207.
    (b) The administrative sanctions that may be imposed under 
subsection (a) of this section are:
    (1) Prohibiting the former employee from making, on behalf of any 
other person except the United States, any formal or informal appearance 
before, or, with the intent to influence, any oral or written 
communication to, the Department of any of its administrations on any 
matter of business for a period not to exceed five years; or
    (2) Taking other appropriate disciplinary action, such as a 
reprimand or suspension from participation in a particular matter or 
matters before the Department.



                        Subpart C_Judicial Review



Sec. 98.13  Judicial review.

    Any former employee found to have violated 18 U.S.C. 207 by a final 
administrative decision under this part may seek judicial review of 
disciplinary action imposed under this part.



PART 99_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




                            Subpart A_General

Sec.
99.735-1 Cross-reference to ethical conduct standards and financial 
          disclosure regulations.

Subparts B-E [Reserved]

   Subpart F_Responsibilities of the Government Employee and Special 
     Government Employee Following Departure From Government Service

99.735-80 Applicability.
99.735-81 Post-employment duties and responsibilities.

Appendix A to Part 99--Categories of Financial Interests Exempted From 
          the Prohibitions of Section 208(a) of Title 18, United States 
          Code
Appendixes B-D to Part 99 [Reserved]
Appendix E to Part 99--Statutes Regulating Post-Employment 
          Responsibilities of Government and Special Government 
          Employees

    Authority: 49 U.S.C. 322; E.O. 12674, 54 FR 15159, 3 CFR, 1989 
Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 
Comp., p. 306.

[[Page 671]]


    Source: Amdt. 99-10, 42 FR 3119, Jan. 14, 1977, unless otherwise 
noted.



                            Subpart A_General



Sec. 99.735-1  Cross-reference to ethical conduct standards and 
financial disclosure regulations.

    Employees of the Department of Transportation are subject to the 
executive branch-wide Standards of Ethical Conduct at 5 CFR part 2635, 
the Department of Transportation regulations at 5 CFR part 6001 which 
supplement the executive branch-wide standards and the executive branch-
wide financial disclosure regulations at 5 CFR part 2634.

[61 FR 39904, July 31, 1996]

Subparts B-E [Reserved]



   Subpart F_Responsibilities of the Government Employee and Special 
     Government Employee Following Departure From Government Service



Sec. 99.735-80  Applicability.

    The provisions of this subpart apply only to employees who 
terminated government service before January 1, 1991.

[58 FR 7995, Feb. 11, 1993]



Sec. 99.735-81  Post-employment duties and responsibilities.

    The duties and obligations of a Government employee (or a special 
Government employee) do not end when government service terminates by 
retirement, resignation, or for any other reason. In fact the U.S. Code 
sets forth specific criminal penalties for certain activities by former 
Government employees. To summarize broadly, section 207 of title 18, 
U.S. Code, prohibits a former Government employee from acting as agent 
or attorney in various types of proceedings and matters on behalf of a 
non-Government party when the employee was involved in the subject 
matter while working for the Government. The duration and nature of the 
prohibitions depend in part on the depth of the employee's involvement 
in the matter while in Government service. Section 208 of the same title 
relates to activities performed while a Government employee that benefit 
an employee's prospective private employer. All Government employees and 
special Government employees should become familiar with the provisions 
of the two statutory sections cited, which have been made a part of this 
regulation as appendix E, so that they will be aware of the restrictions 
which might affect them upon their termination from the Government 
service.



 Sec. Appendix A to Part 99--Categories of Financial Interests Exempted 
 From the Prohibitions of Section 208(a) of Title 18, United States Code

    I. (a) Pursuant to the authority of section 208(b) of title 18, 
United States Code, the following are exempted from the prohibitions of 
section 208(a) of title 18, United States Code, because they are too 
remote or too inconsequential to affect the integrity of an employee's 
services in any matter in which he may act in his governmental capacity.
    (1) Any holding in a widely held mutual fund, or regulated 
investment company, which does not specialize in an industry in which 
the possibility of conflict arise.
    (2) Continued participation in a bona fide pension, retirement, 
group life, health, or accident insurance plan or other employee welfare 
or benefit plan that is maintained by a business or nonprofit 
organization by which the employee was formerly employed, to the extent 
that the employee's rights in the plans are vested and require no 
additional services by him or further payments to the plans by the 
organization with respect to the services of the employee. In addition, 
to the extent that the welfare or benefit plan is a profit sharing or 
stock bonus plan, this exemption does not apply and the procedures 
prescribed in Sec. 99.735-15c (c) through (e) will apply to the 
interest of that employee in the plan.
    (3) Participation in an air carrier frequent flyers or substantially 
similar program that is available to the general public on the same 
terms and conditions and involves no direct financial interest in the 
carrier, such as stockholdings or similar types of investment interests.

[Amdt.99-10, 42 FR 3119, Jan. 14, 1977, as amended by Amdt. 99-14, 53 FR 
16414, May 9, 1988]

[[Page 672]]



                Sec. Appendixes B-D to Part 99 [Reserved]



    Sec. Appendix E to Part 99--Statutes Regulating Post-Employment 
     Responsibilities of Government and Special Government Employees

    Note: This appendix applies only to employees who terminated 
government service before January 1, 1991.

Sec. 207 Disqualification of former officers and employees in matters 
          connected with former duties or offical responsibilities; 
          disqualification of partners.

    (a) Whoever, having been an officer or employee of the executive 
branch of the United States Government, of any independent agency of the 
United States, or of the District of Columbia, including a special 
Government employee, after his employment has ceased, knowingly acts as 
agent or attorney for anyone other than the United States in connection 
with any judicial or other proceeding, application, request for a ruling 
or other determination, contract, claim, controversy, charge, 
accusation, arrest, or other particular matter involving a specific 
party or parties in which the United States is a party or has a direct 
and substantial interest and in which he participated personally and 
substantially as an officer or employee, through decision, approval, 
disapproval, recommendation, the rendering of advice, investigation, or 
otherwise, while so employed, or
    (b) Whoever, having been so employed, within one year after his 
employment has ceased, appears personally before any court or department 
or agency of the Government as agent, or attorney for, anyone other than 
the United States in connection with any proceeding, application, 
request for a ruling or other determination, contract, claim, 
controversy, charge, accusation, arrest, or other particular matter 
involving a specific party or parties in which the United States is a 
party or directly and substantially interested, and which was under his 
official responsibility as an officer or employee of the Government at 
any time within a period of one year prior to the termination of such 
responsibility:
    Shall be fined not more than $10,000 or imprisoned for not more than 
two years, or both: Provided, That nothing in subsection (a) or (b) 
prevents a former officer or employee, including a former special 
Government employee, with outstanding scientific or technological 
qualifications from acting as attorney or agent or appearing personally 
in connection with a particular matter in a scientific or technological 
field if the head of the department or agency concerned with the matter 
shall make a certification in writing, published in the Federal 
Register, that the national interest would be served by such action or 
appearance by the former officer or employee.
    (c) Whoever, being a partner of an officer or employee of the 
executive branch of the United States Government, of any independent 
agency of the United States, or of the District of Columbia, including a 
special Government employee, acts as agent or attorney for anyone other 
than the United States, in connection with any judicial or other 
proceeding, application, request for a ruling or other determination, 
contract, claim, controversy, charge, accusation, arrest, or other 
particular matter in which the United States is a party or has a direct 
and substantial interest and in which such officer or employee of the 
Government or special Government employee participates or has 
participated personally and substantially as a Government employee 
through decision, approval, disapproval, recommendation, the rendering 
of advice, investigation or otherwise, or which is the subject of his 
official responsibility:
    Shall be fined not more than $5,000, or imprisoned not more than one 
year, or both.
    A partner of a present or former officer or employee of the 
executive branch of the United States Government, of any independent 
agency of the United States, or of the District of Columbia or of a 
present or former special Government employee shall as such be subject 
to the provisions of sections 203, 205, and 207 of this title only as 
expressly provided in subsection (c) of this section. (Added Pub. L. 87-
349, section 1(a), Oct. 23, 1962, 76 Stat. 1123.)

Sec. 203 Acts affecting a personal financial interest.

    (a) Except as permitted by subsection (b) hereof, whoever, being an 
officer or employee of the executive branch of the United States 
Government, of any independent agency of the United States, or of the 
District of Columbia, including a special Government employee, 
participates personally and substantially as a Government officer or 
employee, through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation, or otherwise, in a judicial or other 
proceeding, application, request for a ruling or other determination, 
contract, claim, controversy, charge, accusation, arrest, or other 
particular matter in which, to his knowledge, he, his spouse, minor 
child, partner, organization in which he is serving as officer, 
director, trustee, partner or employee, or any person or organization 
with whom he is negotiating or has any arrangement concerning 
prospective employment, has a financial interest:
    Shall be fined not more than $10,000, or imprisoned not more than 
two years, or both.
    (b) Subsection (a) hereof shall not apply (1) if the officer or 
employee first advises the

[[Page 673]]

Government official responsible for appointment to his position of the 
nature and circumstances of the judicial or other proceeding, 
application, request for a ruling or other determination, contract, 
claim, controversy, charge, accusation, arrest, or other particular 
matter and makes full disclosure of the financial interest and receives 
in advance a written determination made by such official that the 
interest is not so substantial as to be deemed likely to affect the 
integrity of the services which the Government may expect from such 
officer or employee, or (2) if, by general rule or regulation published 
in the Federal Register, the financial interest has been exempted from 
the requirements of clause (1) hereof as being too remote or too 
inconsequential to affect the integrity of Government officers' or 
employees' services. (Added Pub. L. 87-849, section 1(a), Oct. 23, 1962, 
76 Stat. 1124.)
    New 18 U.S.C. 208. This section forbids certain actions by an 
officer or employee of the Government in his role as a servant or 
representative of the Government. Its thrust is therefore to be 
distinguished from that of sections 203 and 205 which forbid certain 
actions in his capacity as a representative of persons outside the 
Government.
    Subsection (a) in substance requires an officer or employee of the 
executive branch, an independent agency or the District of Columbia, 
including a special Government employee, to refrain from participating 
as such in any matter in which, to his knowledge, he, his spouse, minor 
child or partner has a financial interest. He must also remove himself 
from a matter in which a business or nonprofit organization with which 
he is connected or is seeking employment has a financial interest.
    Subsection (b) permits the agency of an officer or employee to grant 
him an ad hoc exemption from subsection (a) if the outside financial 
interest in a matter is deemed not substantial enough to have an effect 
on the integrity of his services. Financial interests of this kind may 
also be made nondisqualifying by a general regulation published in the 
Federal Register.
    Section 208 is similar in purpose to the former 18 U.S.C. 434 but 
prohibits a greater variety of conduct than the ``transaction of 
business with * * * [a] business entity'' to which the prohibition of 
section 434 was limited. In addition, the provision in section 208 
including the interests of a spouse and others is new, as is the 
provision authorizing exemptions for insignificant interest.

[Amdt. 99-10, 42 FR 3119, Jan. 14, 1977, as amended by 58 FR 7995, Feb. 
11, 1993]



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

                           Subpart A--General

Sec.
1 Purpose and policy.
3 Definitions.
5 Applicability.

 Subpart B--Ethical and Other Conduct and Responsibilities of Employees

7 General.
9 Gifts, entertainment, and favors.
11 Outside employment and other activities.
13 Financial interests.
15 Conflicts of interest.
17 Disqualification arising from personal financial interests.
19 Use of Association property or official title.
21 Misuse of information.
23 Indebtedness.
25 Miscellaneous provisions.

       Subpart C--Statements of Employment and Financial Interest

31 Employees required to submit statement.
33 Time and place for submission of employee statements.
35 Supplementary statements.
37 Committee on Commerce, Information not known by employee.
39 Information not required.
41 Confidentiality of employee's statement.
43 Interpretation and advisory service.

  Subpart D--Disqualification of Former Employees in Matters Connected 
  with Former Duties or Official Responsibilities; Disqualification of 
                                Partners

51 Matters in which employee participated personally and substantially.
53 Matters under employee's official responsibility.
55 Employee with outstanding scientific or technological qualifications.
57 Partner of employee.
Appendix 1--Categories of Financial Interests Exempted From the 
          Prohibitions of Sections 13(a), 15, and 17(a)
Appendix 2--List of Employees Required to Submit Statements of 
          Employment and Financial Interests Under Section 31 [Reserved]

    Authority: Sec. 202(a)(5)(2) of the Regional Rail Reorganization Act 
of 1973 (Pub. L. 93-236).

    Source: 39 FR 3825, Jan. 30, 1974.

                           Subpart A--General

    Section 1. Purpose and policy. (a) These regulations implement Pub. 
L. 93-236, The

[[Page 674]]

Regional Rail Reorganization Act of 1973. They prescribe standards of 
ethical and other conduct, and reporting requirements, for employees of 
the United States Railway Association (the Association). The standards 
and requirements are appropriate to the particular functions and 
activities of the Association.
    (b) The absence of a specific published standard of conduct covering 
an act tending to discredit an employee of the Association does not mean 
that the act is condoned, is permissible, or would not call for and 
result in corrective or disciplinary action.
    (c) Personnel of the Association shall observe standards of conduct 
that will reflect credit on the Association.
    Sec. 3. Definitions. Unless the context requires otherwise, the 
following definitions apply in these regulations:
    ``Association'' means the United States Railway Association 
established by Pub. L. 93-236.
    ``Chairman'' means the Chairman of the Board of Directors of the 
Association.
    ``Employee'' means an officer or employee of the Association.
    ``General Counsel'' means the General Counsel of the Association, or 
his designee.
    ``Includes'' means ``includes but is not limited to.''
    ``May'' is used in a permissive sense to state authority or 
permission to do the act prescribed, and the words ``a person may not * 
* *'' mean that a person is not required, authorized, or permitted to do 
the act prescribed.
    ``Shall'' is used in an imperative sense.
    Sec. 5. Applicability. These regulations apply to each employee of 
the Association.

 Subpart B--Ethical and Other Conduct and Responsibilities of Employees

    Sec. 7. General. (a) Each employee shall avoid any action, whether 
or not specifically prohibited by these regulations, which might result 
in or create the appearance of:
    (1) Using his Association office for private gain;
    (2) Giving preferential treatment to any person;
    (3) Impeding the efficiency or economy of the Association;
    (4) Losing complete independence or impartiality;
    (5) Making an Association decision outside of official channels; or
    (6) Affecting adversely the confidence of the public in the 
integrity of the Association.
    (b) An employee may not engage in criminal, infamous, dishonest, 
immoral, or notoriously disgraceful conduct, or any conduct prejudicial 
to the integrity of the Association.
    Sec. 9. Gifts, entertainment, and favors. (a) Except as provided in 
paragraphs (b) and (c) of this section, an employee may not solicit or 
accept, directly or indirectly, any gift, gratuity, favor, 
entertainment, food, lodging, loan, or other thing of monetary value, 
from a person or employer of a person who:
    (1) Has, or is seeking to obtain, contractual or other business or 
financial relationships with the Association.
    (2) Has interests which may be substantially affected by the 
performance or nonperformance of that employee's official duties.
    (b) Notwithstanding paragraph (a) of this section, an employee may:
    (1) Accept a gift, gratuity, favor, entertainment, loan, or other 
thing of value when the circumstances make it clear that an obvious 
family relationship rather than the business of the persons concerned is 
the motivating factor;
    (2) Accept food or refreshment of nominal value on infrequent 
occasions in the ordinary course of a luncheon or dinner meeting or 
other meeting or on an inspection tour if the employee is properly in 
attendance;
    (3) Accept unsolicited advertising or promotional material such as 
pens, pencils, note pads, calendars, or other items of nominal intrinsic 
value; or
    (4) Accept an invitation addressed to the Association, when approved 
by the General Counsel, to participate in an inaugural trip or similar 
ceremonial event related to transportation, and accept food, lodging, 
and entertainment incident thereto.
    (c) An employee may not solicit a contribution from another employee 
for a gift to an official superior, make a donation as a gift to an 
official superior, or accept a gift from an employee receiving less pay 
than himself. However, this paragraph does not prohibit a voluntary gift 
of nominal value or a donation in a nominal amount made on a special 
occasion such as marriage, illness, retirement, or transfer.
    Sec. 11. Outside employment and other activities. (a) An employee 
may not engage in any outside employment or other outside activity which 
is not compatible with the full and proper discharge of the duties and 
responsibilities of his employment with the Association. Incompatible 
activities include:
    (1) Acceptance of a fee, compensation, gift, payment of expenses, or 
any other thing of monetary value in circumstances in which acceptance 
may result in, or create the appearance of, a conflict of interest; and
    (2) Outside employment which tends to impair his mental or physical 
capacity to perform his duties and responsibilities of his employment 
with the Association in an acceptable manner.
    (b) An employee may not receive any salary or anything of monetary 
value from a private source as compensation for his services to the 
Association.

[[Page 675]]

    (c) This section does not preclude an employee from participating in 
the affairs of, or accepting an award for a meritorious public 
contribution or achievement given by a charitable, religious, 
professional, social, or fraternal organization, a nonprofit educational 
or recreational organization, or a public service or civic organization.
    Sec. 13. Financial interests. (a) Except where authorized by statute 
or these regulations, an employee may not have a direct or indirect 
financial interest that conflicts substantially, or appears to conflict 
substantially, with his Association duties and responsibilities. In any 
case in which such a question of financial interest arises the 
procedures set forth in section 17 apply.
    (b) The fact that an employee is on leave of absence from employment 
with or has served as an attorney or consultant to, a railroad, or a 
company engaged in the manufacture, construction, or supply of railroad 
facilities and equipment, or a creditor of a railroad, shall not, of 
itself, be deemed to be a financial interest conflicting with his 
Association duties or responsibilities. This provision does not affect 
the obligation of such an employee to submit a statement of employment 
and financial interest as required by section 31(a)(1).
    (c) The fact that an employee owns shares of stock, corporate bonds, 
or other corporate securities in any single railroad, or a company 
engaged in the manufacture, construction or supply of railroad 
facilities and equipment, or a creditor of a railroad, having a current 
aggregate market value of $10,000 or more, or an option to purchase such 
securities, shall not, in itself, be deemed to be a financial interest 
conflicting with his Association duties or responsibilities. Such 
ownership must, however, be reported in a special statement of financial 
interest, in a manner specified by the General Counsel, which shall be 
available for public inspection.
    Sec. 15. Conflicts of interest. (a) Except where specifically 
exempted by statute or these regulations, a conflict of interest exists 
whenever the performance of the duties of an employee has or appears to 
have a direct and predictable effect upon a financial interest of such 
employee or of his spouse, minor child, partner, or person or 
organization with which he is associated or is negotiating for future 
employment.
    (b) A conflict of interest exists even though there is no reason to 
suppose that the employee will, in fact, resolve the conflict to his own 
personal advantage rather than to that of the Association.
    Sec. 17. Disqualification arising from personal financial interests. 
(a) Except as stated in paragraph (e) of this section, or except as 
permitted by statute, an employee may not participate personally and 
substantially as an employee, through decision, approval, disapproval, 
recommendation, the rendering of advice, investigation or otherwise, in 
a judicial or other proceeding, application, request for a ruling or 
other determination, contract, claim controversy, charge, accusation, or 
other particular matter in which, to his knowledge, he, his spouse, 
minor child, a blood relative who is a resident of the employee's 
household, partner, organization in which he is serving as officer, 
director, trustee, partner or employee, or any person or organization 
with whom he is negotiating or has any arrangement concerning 
prospective employment, has a financial interest, unless he shall cause 
the financial interest involved to be divested, or request a 
determination of the propriety of his participation in any matter by 
informing the General Counsel of the nature and circumstances of the 
matter and financial interest involved.
    (b) After examining the information submitted the General Counsel 
may:
    (1) Relieve the employee from participation in the matter and, if 
possible, reassign it to another employee who is not subordinate to the 
relieved employee;
    (2) Approve the employee's participation upon determining in writing 
that the interest involved is not so substantial as to be likely to 
affect the integrity of the services the Association may expect from the 
employee;
    (3) Recommend the reassignment of the employee; or
    (4) If none of these alternatives is feasible, direct the employee 
to cause the financial interest to be divested so that it no longer 
comes within the scope of this section.
    (c) In any case in which the General Counsel has reason to believe 
that an employee may have an interest that would be disqualifying under 
this section, he shall discuss the matter with the employee. If he finds 
that the interest exists, he may take any of the actions stated in 
paragraph (b) of this section.
    (d) In any case in which the employee is dissatisfied with the 
General Counsel's decision, the employee may appeal the matter to the 
Chairman of the Association for reconsideration and final determination 
of the appropriate action.
    (e) Information concerning categories of financial interests which 
are exempted from the prohibitions of Sec. Sec. 13(a), 15, and 
paragraph (a) of this section as being too remote or too inconsequential 
to affect the integrity of an employee's interest in a matter, are set 
forth in Appendix 1.
    Sec. 19. Use of Association property or official title. (a) An 
employee may not, directly or indirectly, use or allow the use of 
Association property of any kind, including property leased to the 
Association, for other than an officially approved activity. Each 
employee has a positive duty to protect and conserve Association 
property, including equipment,

[[Page 676]]

supplies, and other property entrusted or issued to him.
    (b) An employee may not, directly or indirectly, use or allow the 
use of his title or position in connection with any commercial 
enterprise or in endorsing any commercial product or service.
    Sec. 21. Misuse of information. An employee may not, for the purpose 
of furthering a private interest, directly or indirectly, use or allow 
the use of official information obtained through or in connection with 
his Association employment, if that information has not been made 
available by the Association to the general public.
    Sec. 23. Indebtedness. Each employee shall pay his just financial 
obligations in a proper and timely manner, especially those imposed by 
law such as Federal, State, or local taxes. For the purposes of this 
section ``just financial obligations'' means those that are recognized 
as such by the employee or reduced to a judgment by a court, and ``in a 
proper and timely manner'' means in a manner which the Association 
determines does not, under the circumstances, reflect adversely on the 
Association as his employer. The Association will not determine the 
validity or amount of a disputed debt and will not initiate action to 
collect such debts.
    Sec. 25. Miscellaneous provisions. (a) Each employee shall acquaint 
himself with these regulations which relate to his ethical and other 
conduct as an employee of the Association.
    (b) In the appointment of personnel and in assignment of their 
duties, the President of the Association shall take steps to avoid, to 
as great an extent as possible, any conflict between the Association 
duties and the private interests of such personnel.

       Subpart C--Statements of Employment and Financial Interest

    Sec. 31. Employees required to submit statement. (a) Each of the 
following employees shall submit a statement of employment and financial 
interest on a form provided by the Association:
    (1) Each employee who within the preceding two years was employed by 
or served as an attorney or consultant to, a railroad or a company 
significantly engaged in the manufacture, construction or supply of 
railroad facilities and equipment, including, but not limited to, 
rolling stock, terminal facilities, signal equipment, track and road 
bed, and electrical and communication transmission equipment. The 
General Counsel shall decide, in a doubtful case, whether the 
relationship to the railroad industry is sufficiently significant as to 
require submission of a statement of employment and financial interest.
    (2) Each employee who is in a position identified in Appendix 2.
    (b) Any employee who believes that his position has been improperly 
included as one requiring the submission of a statement of employment 
and financial interest is entitled to have that inclusion reviewed by 
the General Counsel.
    (c) Any employee in a position which meets the criteria in paragraph 
(a) of this section may be excluded from the reporting requirements of 
this section if the General Counsel determines that the duties of the 
position are at such a level of responsibility that the submission of a 
statement is not necessary because of the degree of supervision and 
review and the remote or inconsequential effect on the integrity of the 
Association.
    Sec. 33. Time and place for submission of employee statements. Each 
employee who is subject to the reporting requirements of sec. 31 shall 
submit his employment and financial interest statement to the General 
Counsel within 30 days after entering the employ of the Association.
    Sec. 35. Supplementary statements. (a) Each employee shall, not 
later than July 31 of each year, file a supplementary statement, 
showing, as of June 30 of that year, any change in, or addition to, the 
information contained in his statement of employment and financial 
interest. If changes or additions have not occurred, a negative report 
is required.
    (b) Compliance with the reporting requirements of this subpart is 
not an alternative to observance of the conflict-of-interest provisions 
of subpart B of these regulations, but is to facilitate uniform 
compliance with, and the orderly administration of subpart B.
    Sec. 37. Committee on Commerce, Information not known by employee. 
If any information required to be included on a statement of employment 
and financial interest or a supplementary statement, including any 
holding placed in trust, is not known to the employee but is known to 
another person, the employee shall request that other person to submit 
the information on his behalf, and the employee shall so notify the 
General Counsel.
    Sec. 39. Information not required. An employee is not required to 
submit on a statement of employment and financial interest or 
supplementary statement any information relating to his connection with, 
or interest in, a professional society, or a charitable, religious, 
social, fraternal, recreational, public service, civic, or political 
organization, or a similar organization not conducted as a business 
enterprise. For the purposes of this section, educational and other 
institutions doing research and development or related work involving 
grants of money from or contracts with the Association are considered to 
be ``business enterprises'' and are required to be included in the

[[Page 677]]

employee's statement of employment and financial interest.
    Sec. 41. Confidentiality of employee's statement. (a) Except for 
special statements of financial interest required by sec. 13(c) each 
statement of employment and financial interest and each supplementary 
statement shall be held in confidence. The reviewing officials and 
others who receive statements are responsible for maintaining them in 
confidence and shall not allow access to, or allow information to be 
disclosed from, a statement except to carry out the purposes of these 
regulations. Information may not be disclosed to any person outside the 
Association, except as the General Counsel may determine for good cause 
shown. No disclosure permitted by this paragraph may be made unless the 
affected employee has been notified that disclosure is contemplated, and 
the employee is given an opportunity to present reasons and arguments to 
maintain the confidentiality of the statement.
    (b) Each statement of employment and financial interest and each 
supplementary statement shall be maintained in the records of the 
Association.
    Sec. 43. Interpretation and advisory service. The General Counsel 
shall provide authoritative counseling and interpretations to employees 
who require advice and guidance on questions of conflicts of interest or 
any other matters of legal import covered by these regulations.

  Subpart D--Disqualification of Former Employees in Matters Connected 
  with Former Duties or Official Responsibilities; Disqualification of 
                                Partners

    Sec. 51. Matters in which employee participated personally and 
substantially. Except as permitted by sec. 55 hereof, an employee of the 
Association, after his employment has ceased, may not act as agent or 
attorney for anyone other than the Association in connection with any 
judicial or other proceeding, application, request for a ruling or other 
determination, contract claim, controversy, charge, accusation, arrest, 
or other particular matter involving a specific party or parties, in 
which the Association is a party or has a direct and substantial 
interest and in which he participated personally and substantially as an 
employee, through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation, or otherwise, while so employed.
    Sec. 53. Matters under employee's official responsibility. Except as 
permitted by sec. 55 hereof, an employee of the Association may not, 
within one year after his employment has ceased, appear personally 
before the Association or any court or department or agency of the 
Government as agent, or attorney, for anyone other than the Association 
in connection with any proceeding, application, request for a ruling or 
other determination, contract, claim, controversy, charge, accusation, 
arrest, or other particular matter involving a specific party or 
parties, in which the Association is a party or directly and 
substantially interested, and which was under his official 
responsibility as an officer or employee of the Association at any time 
within a period of one year prior to the termination of such 
responsibility.
    Sec. 55. Employee with outstanding scientific or technological 
qualifications. A former employee with outstanding scientific or 
technological qualifications may act as attorney or agent or appear 
personally in connection with a particular matter in a scientific or 
technological field if the General Counsel certifies in writing, in 
advance, that the public interest would be served by such action or 
appearance.
    Sec. 57. Partner of employee. A partner of an employee of the 
Association may not act as agent or attorney for anyone other than the 
Association, in connection with any judicial or other proceeding, 
application, request for a ruling or other determination, contract, 
claim, controversy, charge, accusation, arrest, or other particular 
matter in which the Association is a party or has a direct and 
substantial interest and in which such employee of the Association 
participates personally and substantially as an employee through 
decision, approval, disapproval, recommendation, the rendering of 
advice, investigation or otherwise, or which is the subject of his 
official responsibility.

    Appendix 1--Categories of Financial Interests Exempted From the 
              Prohibitions of Sections 13(a), 15, and 17(a)

    I. (a) The following are exempted from the prohibitions of sections 
13(a), 15, and 17(a), because they are too remote or too inconsequential 
to affect the integrity of an employee's services in any matter in which 
he may act in his official capacity.
    (1) Any holding in a widely held mutual fund, or regulated 
investment company, which does not specialize in the transportation 
industry.
    (2) Ownership of shares of stock and of corporate bonds or other 
corporate securities, if the current aggregate market value of the 
stocks and other securities so owned in any single corporation is less 
than $10,000 and is less than one percent of the outstanding stock of 
the organization concerned, and if the employee, his spouse, or minor 
children are not active in the management of the organization and have 
no other connection with or interest in it.
    (3) Continued participation in a bona fide pension, retirement, 
deferred compensation, group life, health, or accident insurance plan or 
other employee welfare or benefit plan that is maintained by a business 
or nonprofit

[[Page 678]]

organization by which the employee was formerly employed, to the extent 
that the employee's rights in the plans are vested and require no 
additional services by him. To the extent the welfare or benefit plan is 
a profit sharing or stock bonus plan, this exemption does not apply.
    (b) Notwithstanding paragraph 1(a)(2), the interest of an employee, 
whose position is listed in section II of this appendix, shall not be 
exempt from the prohibitions of sections 13(a), 15, and 17(a), with 
respect to any stock or other security holding in an organization to 
which he is assigned, or for which he has specific responsibility as a 
part of his regular duties, for conducting inspections or issuing 
certificates, waivers, exemptions, or approvals.
    II. The following is a list of positions to which the exemption in 
paragraph 1(a)(2) of this appendix does not apply. This list may be 
amended at any time by the Association.
    [To be supplied]

     Appendix 2--List of Employees Required To Submit Statements of 
      Employment and Financial Interest Under Section 31 [Reserved]

[39 FR 3825, Jan. 30, 1974]







[[Page 679]]





                              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 681]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 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)
       XXX  Department of Homeland Security (Parts 3000--3099)
      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 682]]

      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)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         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)

[[Page 683]]

       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       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)

[[Page 684]]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      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)

[[Page 685]]

      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         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)

[[Page 686]]

     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      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)

[[Page 687]]

         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

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

             Title 17--Commodity and Securities Exchanges

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

[[Page 688]]

          Title 18--Conservation of Power and Water Resources

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

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training 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)

[[Page 689]]

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

[[Page 690]]

        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           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)

[[Page 691]]

        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        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)

[[Page 692]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      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)

[[Page 693]]

    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        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)

[[Page 694]]

        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       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)

[[Page 695]]

            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)
       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)

[[Page 696]]

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [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)

[[Page 697]]

       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           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)

[[Page 698]]

        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         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)

[[Page 699]]

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 701]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 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 702]]

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 703]]

  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 704]]

  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 705]]

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                  2, XXX; 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 706]]

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 707]]

  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 708]]

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
Recovery Accountability and Transparency Board    4, II
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 709]]

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 710]]

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 711]]



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 
seven separate volumes.

                                  2001

49 CFR
                                                                   66 FR
                                                                    Page
1 Authority citation revised................................38380, 67118
1.2 Amended........................................................67118
1.3 (b)(12) added..................................................67118
1.4 (n) added......................................................67118
1.46 (ttt) added...................................................23181
    (n)(1), (6), (ss), (zz), (ccc), (ddd), (eee), (fff), (ggg) and 
(mmm) removed; (uu) and (vv) revised...............................38380
1.48 (nn) added.....................................................2828
1.56a (j) added....................................................55599
10 Appendix amended................................................20407
27.72 Revised......................................................22115
    Regulation at 66 FR 22115 eff. date corrected to 11-9-01.......51556
37 Technical correction............................................10968
37.199 Removed; interim.............................................9053
37.213 Revised; interim.............................................9053
37.181--37.215 (Subpart H) Appendix A revised.......................9054
40 Meetings.........................................................7590
    Policy statement.........................................9673, 41955
    Compliance date notification............................28400, 32248
40.3 Amended.......................................................41950
40.27 Redesignated as 40.29; new 40.27 added.......................41950
40.29 Redesignated from 40.27......................................41950
40.33 (f)(i), (ii) and (iii) correctly designated as (f)(1), (2) 
        and (3).....................................................3885
    (c)(2) introductory text amended...............................41950
40.45 (b), (c) and (d) redesignated as (c), (d) and (e); (a) and 
        new (c)(2) amended; new (b) added..........................41950
40.47 Heading, (a) and (b)(2) amended..............................41950
40.65 (c)(3) revised...............................................41950
40.67 (c)(1) and (d)(2) revised; (m) added.........................41950
40.69 (b) and (c) revised..........................................41951
40.71 (b)(8) added.................................................41951
40.83 (e) and (f) revised; (g) and (h) redesignated as (h) and 
        (i); new (g) added.........................................41951
40.89 (b) amended..................................................41951
40.97 (a) introductory text, (b)(1)(i) and (ii) revised............41951
40.121 (d)(3) added................................................41951
40.127 (g) introductory text revised...............................41051
40.129 (d), (e) and (f) redesignated as (e), (f) and (g); new (d) 
        added......................................................41952
40.131 (d) introductory text revised...............................41952
40.135 (e) revised.................................................41952
40.149 (c) revised.................................................41952
40.151 (b) revised.................................................41952
40.155 (c) removed; (d) redesignated as new (c)....................41952
40.163 Revised.....................................................41952
40.167 Heading and (c) revised; (e) added..........................41953
40.187 (e) and (f) redesignated as (g) and (h); new (e) and (f) 
        added......................................................41953
40.191 (a)(1), (2), (3), (7) and (d) introductory text revised.....41953

[[Page 712]]

40.193 (b)(2) and (3) revised; (c) introductory text amended; 
        (c)(2) added...............................................41953
40.195 Heading and (a) introductory text amended...................41953
40.203 (b) and (d)(3) revised......................................41954
40.205 (b)(2) revised..............................................41954
40.208 Added.......................................................41954
40.209 Heading revised; (c) amended................................41954
40.213 (c) introductory text and (e) amended.......................41954
40.225 (a) amended; (b)(4) revised.................................41954
40.227 Correctly added..............................................3885
40.229 Amended.....................................................41954
40.253 (c) amended.................................................41954
40.261 (a)(1), (2) and (3) revised; (a)(6) amended.................41954
40.329 (c) revised.................................................41954
40.331 (b)(2) and (c)(2) revised; (b)(3) and (c)(3) added..........41955
40.333 (a)(1)(i), (ii) and (d) amended; (e) added..................41955
40.349 (e) amended.................................................41955
40.355 (a) and (j)(1) amended......................................41955
40.403 (a) amended.................................................41955
40 Appendix F amended..............................................41955

                                  2002

49 CFR
                                                                   67 FR
                                                                    Page
Subtitle A
Chapter I Policy statement.........................................31974
1 Authority citation revised................................11582, 47467
1.2 (l) correctly added..............................................629
1.26 (a)(3) through (12) revised...................................47467
1.46 (uuu) added...................................................15126
    (rr) revised; (vvv) added......................................54745
1.48 (oo) added....................................................52419
1.66 (ee) added....................................................72384
1.73 (d)(2) revised................................................11582
7.2 Introductory text amended......................................54746
7.15 (f), (g) and (h) redesignated as (g), (h) and (i); new (f) 
        added......................................................54746
10.5 Amended; (k) added............................................54746
40.45 (a) correctly revised; CFR correction.........................4677
40.245 Revised.....................................................61522
40.267 Introductory text and paragraph (a) revised.................61522

                                  2003

49 CFR
                                                                   68 FR
                                                                    Page
Subtitle A
1 Authority citation revised..................10989, 34549, 35184, 36497
1.2 (a) and (l) removed; (b) through (k) redesignated as (a) 
        through (j); new (e) revised...............................34549
1.3 (b)(1) and (12) removed; (b)(2) through (11) redesignated as 
        new (b)(1) through (10); new (b)(5) revised................34549
1.4 (b) and (n) removed; (c) through (m) redesignated as new (b) 
        through (l); new (f) introductory text revised.............34549
1.22 (d) revised...................................................34549
1.23 (c) revised...................................................34549
1.26 (a)(2) through (12) removed; new (a)(2) through (11) added....35184
1.44 (e)(8) revised; (m) removed; (n) through (r) redesignated as 
        new (m) through (q)........................................34549
    (o) revised....................................................36497
1.45 (c)(1)(i) removed; (c)(1)(ii) through (ix) redesignated as 
        new (c)(1)(i) through (viii); new (c)(1)(iv) revised.......34549
1.46 Removed.......................................................34549
1.48 (c)(19)(i) revised............................................34549
1.51 Heading and introductory text revised.........................34550
1.57 (e) and (f) removed; (g) through (s) redesignated as (e) 
        through (q)................................................34550
1.58 (i) added.....................................................12834
1.59 (b)(8) revised................................................34550
1.65 (b)(2) and (c)(2) removed; (b)(3), (4), (c)(3) and (4) 
        redesignated as new (b)(2), (3), (c)(2) and (3)............34550
1.66 (ff) added....................................................16216
    (aa)(1) revised; (bb) and (cc) removed; (dd) through (ff) 
redesignated as new (bb) through (dd)..............................34550
    (aa)(1) through (6) redesignated as (aa)(2) through (7); new 
(aa)(1) added; new (aa)(2) revised.................................36497
1.68 Added.........................................................10989
1.70 (k) removed; (l) through (v) redesignated as new (k) through 
        (u)........................................................34550
1.73 (d)(2) and (e) revised........................................10989
1 Appendix A amended...............................................34550

[[Page 713]]

21 Authority citation revised......................................51389
21.3 (a) introductory text, (2), (3) and concluding text amended 
                                                                   51389
21.5 (b)(1) introductory text, (6) and (c)(1) amended..............51389
21.7 (a)(1), (2) and (b) amended; (b) heading revised..............51389
21.9 (b) and (d) amended...........................................51389
21.15 (e) amended..................................................51389
21.17 (f) amended..................................................51389
21.21 (a) amended..................................................51389
21.23 (d) and (f) amended; (e) revised.............................51389
26 Nomenclature change.............................................35553
26.5 Amended.......................................................35553
26.29 Revised......................................................35553
26.37 (b) revised..................................................35554
26.55 (d)(5) and (h) revised.......................................35554
26.61 (c) revised..................................................35554
26.63 (a) revised..................................................35554
26.67 (a)(2) revised; (c) removed..................................35554
26.73 (h) revised; new (i) added...................................35555
26.83 (c)(7) introductory text and (i) revised.....................35555
26.84 Added........................................................35555
26.85 Redesignated as 26.86; new 26.85 added.......................35555
26.86 Redesignated from 26.85; (b) and (c) redesignated as (c) and 
        (d); new (b) added.........................................35555
26.87 (h), (i) and (j) redesignated as (i), (j), and (k); new (h) 
        added......................................................35556
26.89 (a)(1) and (f)(7) revised....................................35556
26.109 (a)(2) revised..............................................35556
26 Appendices B and E amended; Appendix F added....................35556
27 Heading revised.................................................51390
27.3 (a) amended...................................................51390
27.5 Amended.......................................................51390
27.7 (a), (b)(1)(v), (3), (4)(ii), (5)(i), (6) and (d) amended; 
        (d) heading revised........................................51390
27.9 (a) and (b)(4) amended........................................51390
27.11 (a)(3)(i) and (ii) amended...................................51390
27.71--27.77 (Subpart B) Heading revised...........................51391
27.71 (b) amended..................................................51391
27.77 Amended......................................................51391
27.121 (b) and (d) amended.........................................51391
27.125 (b)(2) amended..............................................51391
27.127 (f) amended.................................................51391
27.129 (e) amended.................................................51391
29 Revised..................................................66544, 66644
29.120 (c) added...................................................66645
29.440 Added.......................................................66645
29.520 (c)(4) amended; (d) added...................................66645
29.935 (b) added...................................................66645
29.1010 (b) added..................................................66645
32 Added....................................................66557, 66645
32.510 (c) amended.................................................66646
32.605 (a)(2) amended..............................................66646
40.26 Added........................................................43952
40.67 (a) revised; interim.........................................31626
40.97 (a)(7) and (e) revised; interim..............................31626
40.131 (a) amended; interim........................................31626
40.145 (a) and (e)(2) revised; interim.............................31626
40.155 (a) amended; interim........................................31626
40.187 (a)(3) added; interim.......................................31626
40.191 (a)(6) revised; interim.....................................31626
40.197 Revised; interim............................................31626
40 Appendix H added................................................43952
71 Authority citation revised......................................49712
71.5 (a) revised; eff. 10-26-03....................................43339
    Regulation at 68 FR 43339 withdrawn............................49373
71.7 (a) revised; eff. 10-26-03....................................43336
    (a) correctly revised..........................................49373
    (b) revised....................................................61372
71.14 Added........................................................49712

                                  2004

49 CFR
                                                                   69 FR
                                                                    Page
Title 49 Nomenclature change.......................................18803
Subtitle A
1 Authority citation revised.......................................60563
1.23 (o) revised...................................................44972
1.24 (a) revised...................................................60563
1.53 (e) revised...................................................44972
1.59 (a)(5) and (6) added..........................................60563
1.59a (a) revised..................................................60563
1.66 (ee), (ff) and (gg) added.....................................12805
1.69 (b) added.....................................................44972
1.71 (b) removed; (c) redesignated as new (b)......................51010
1.73 (p) added.....................................................51010
5.1 (a) revised.....................................................4457
5.21 (d) added......................................................4458
5.35 Added..........................................................4458
15 Added; interim..................................................28078
19.36 Regulation at 65 FR 14407 and 14419 confirmed; eff. 11-1-04 
                                                                   58354
37.213 (a)(2) and (b)(2) revised...................................40796
40 Authority citation revised......................................64867
40.67 (a)(3) revised; interim......................................64867

[[Page 714]]

40.91 (a) through (e) revised; (f) removed; interim................64867
40.93 Revised; interim.............................................64867
40.97 (a)(2), (6), (7), (e)(1) and (2) revised; (e)(3) added; 
        interim....................................................64867
40.131 (a) amended; interim........................................64867
40.145 (a) and (e)(2) revised; interim.............................64867
40.155 (a) and (c) revised; interim................................64867
40.197 (b)(1) amended; interim.....................................64868
40.281 (a)(5) revised...............................................3022

                                  2005

49 CFR
                                                                   70 FR
                                                                    Page
Subtitle A
1--99 (Subtitle A) Advisory committee terminated...................30378
1 Authority citation revised..................................7670, 8300
1.2 (g) and (i) revised.............................................8300
1.3 (b)(7) and (9) revised..........................................8300
1.4 (h) and (k) revised.............................................8300
1.22 (a) revised....................................................8300
1.23 (o) revised....................................................7670
    (b) revised.....................................................8300
1.45 (a)(19) added..................................................2819
1.46 Added..........................................................8300
1.53 (e) removed....................................................7670
    Revised.........................................................8301
1.57 (t) added......................................................2819
1.69 (c) added......................................................2819
    Revised.........................................................7670
1.71 Removed........................................................8302
1.74 Heading and introductory text revised..........................8302
10 Policy statement................................................70548
11.101 (i) and footnote 1 amended..................................36328
11.103 (a) and (b)(3) amended; OMB number..........................36328
11.109 OMB number..................................................36328
11.110 (a) amended.................................................36328
11.113 OMB number..................................................36328
11.115 OMB number..................................................36328
11.116 OMB number..................................................36328
11.117 OMB number..................................................36328
15.11 (a) amended...................................................1381
23 Revised.........................................................14508
24 Revised...........................................................611
24.102 (d) and (j) correctly amended...............................22611
24.103 (b) correctly amended.......................................22611
24.105 (c) correctly amended.......................................22611
24.301 (g)(14)(i) correctly amended................................22611
24.401 (c)(2)(iii) correctly amended...............................22611
24.403 (a)(3) and (c)(6) correctly amended.........................22611
24 Appendix A corrected............................................22611

                                  2006

49 CFR
                                                                   71 FR
                                                                    Page
Subtitle A
1 Authority citation revised................................11541, 30830
1.4 (f) revised....................................................30830
1.23 (h) through (q) redesignated as (i) through (r); new (h) 
        added......................................................30830
1.45 (b) revised...................................................30830
1.46 (c), (d), (e), (i), (l) and (m) revised.......................30830
    (l) and (m) correctly added....................................35558
    (n) added......................................................52753
1.47 (j)(1) revised; (k) removed...................................52753
1.48 Revised.......................................................30830
1.49 (ee) revised; (mm) and (nn) added.............................30832
    (s) revised....................................................52753
1.50 (o) added.....................................................11541
    (p) added......................................................30832
1.51 (a) and (b) revised; (f), (g), (h) and (j) through (n) 
        removed; (i) redesignated as (f); new (g), (h) and (i) 
        added......................................................30832
1.53 (b) introductory text and (1) revised; (d) removed; (e) 
        redesignated as (d)........................................30833
    (b)(1) correctly revised.......................................35558
    (b) revised....................................................52753
1.73 (a)(7), (8), (9), (g) and (h) revised; (q) through (y) added 
                                                                   30833
    (a)(7), (9), (d)(1), (e) and (q) revised; (r) through (y) 
removed............................................................52753
1.74 Revised.......................................................30833
    Introductory text and (a) amended..............................52754
29.220 (c) added...................................................62396
29.520 (d) amended.................................................62396
37.9 Revised.......................................................63265
37.41 Existing text designated as (a); (b) added...................63266
37.131 (b)(4) amended..............................................63266
37 Appendix A revised..............................................63266
    Appendix D amended.............................................63266
40 Authority citation revised; nomenclature change.................49384
40.3 Amended.......................................................49384

[[Page 715]]

    Correctly amended..............................................55347
40.23 (c) amended..................................................49384
40.73 (a)(2) amended...............................................49384
40.83 (c)(2) and (4) amended.......................................49384
40.191 (a)(7) revised..............................................49384
40.267 (c)(5) amended..............................................49384
40.269 (b) amended.................................................49384
40.281 (a)(4) amended; (a)(5) redesignated as (a)(6); new (a)(5) 
        added......................................................49384
    Introductory text correctly amended............................55347
40.283 (a) revised.................................................49384
71.5 (b) and (c) revised............................................3245

                                  2007

49 CFR
                                                                   72 FR
                                                                    Page
Subtitle A
1 Authority citation revised.......................................41638
1.66 (hh) added....................................................41639
23.3 Amended.......................................................15616
23.11 Amended......................................................15616
23.13 (a) and (b) revised..........................................15616
23.33 Revised......................................................15617
26.9 Revised.......................................................15617
26.65 Revised......................................................15617
37.9 (c)(1) corrected..............................................11089
40.209 Heading corrected; CFR correction...........................54600
40.245 (b)(1), (2), (3), (6), (8), (9) and (10) revised; interim 
                                                                    1299
40.267 (a)(4) added; interim........................................1299
71.5 (b) revised....................................................6177
    (b) revised; eff. 11-4-07......................................54377

                                  2008

49 CFR
                                                                   73 FR
                                                                    Page
Subtitle A
1 Authority citation revised................................20001, 59538
1.23 (f) revised...................................................57269
1.26 (a) revised...................................................14728
1.50 (q) added.....................................................20001
1.57b Heading revised..............................................33328
1.58 (j) added.....................................................57269
1.59 (c)(6) revised................................................57269
1.66 (ii) added....................................................59538
7.2 Amended........................................................33328
7.10 Revised.......................................................33328
7.15 (a) revised...................................................33328
7.41 (b) and (c) revised...........................................33328
7.44 (g) and (h) revised...........................................33328
10.5 Amended.......................................................33329
10.11 Amended......................................................33329
10.13 Revised......................................................33329
10.61 (a) introductory text revised................................33329
10.63 Introductory text revised....................................33329
10.77 (c) amended..................................................33329
10 Appendix amended................................................33329
24.602 Amended.....................................................33329
24 Appendix B amended..............................................33329
26.89 (a)(3) amended...............................................33329
29 Removed.........................................................24141
31.26 (a) amended..................................................33329
37.213 (e) amended.................................................33329
40.3 Amended.......................................................35969
40.7 (a) amended...................................................33329
40.23 (f) introductory text revised; (f)(5) added..................35970
40.33 (a) amended..................................................33329
40.67 (b) revised; (i) through (m) redesignated as (j) through 
        (n); new (i) added.........................................35970
    Regulation at 73 FR 35970 eff. date changed in part to 11-1-08
                                                                   50222
    Regulation at 73 FR 35970 confirmed in part....................62910
    (b) revised....................................................70284
40.83 (g)(2) revised...............................................35970
40.89 (b) revised..................................................35970
40.95 Revised......................................................35970
40.96 Added........................................................35970
40.97 (a) revised; (b)(2) amended..................................35970
40.103 (c) introductory text amended; (c)(1) through (5) revised; 
        (c)(6) removed.............................................35971
40.105 (c) revised.................................................35971
40.111 (d) added...................................................35971
40.121 (b)(3) amended..............................................33329
40.129 Heading and (a)(5) revised..................................35971
40.131 Heading revised.............................................35971
40.133 (b) and (c) redesignated as (c) and (d); heading, new (c) 
        and new (d) added; new (b) added...........................35971
40.149 (a) introductory text and (1) revised.......................35971
40.155 (d) added...................................................35971
40.159 (a)(1), (2) and (3) added; (a)(4)(iii) and (d) through (g) 
        added......................................................35972
40.160 Added.......................................................35972
40.162 Added.......................................................35972
40.171 (a) revised.................................................35973
40.177 (d) revised.................................................35973

[[Page 716]]

40.179 Revised.....................................................35973
40.181 Revised.....................................................35973
40.183 (a) revised; (b) removed; (c) redesignated as new (b).......35973
40.187 Revised.....................................................35973
40.191 (a)(8) revised; (a)(9), (10) and (11) added.................35974
40.197 (c)(3) revised; (c)(4) redesignated as (c)(5); new (c)(4) 
        added......................................................35974
40.201 (c), (d) and (e) revised....................................35974
40.207 (a)(3) amended..............................................35975
40.213 (b)(1) amended..............................................33329
40.281 (b)(3) amended..............................................33329
40.331 (g) added; interim..........................................33737
40 Appendix D amended..............................................33329
    Appendices B and D revised; Appendix C added; Appendix F 
amended............................................................35975
89.5 (a) revised; (b) redesignated as (c); new (b) added...........57269
89.15 Heading and (b) introductory text revised; (b)(2) removed; 
        (b)(3) redesignated as new (b)(2)..........................57269

                                  2009

  (Regulations published from January 1, 2009, through October 1, 2009)

49 CFR
                                                                   74 FR
                                                                    Page
Subtitle A
1 Authority citation revised.......................................26982
1.1 Revised........................................................26982
1.49 (oo) and (pp) added...........................................26982
1.51 (j) added.....................................................26982
23.33 Revised......................................................15224
26.65 Revised......................................................15224
40.67 (b) revised..................................................37952
89.21--89.33 (Subpart B) Authority citation revised................40523
89.35 Added........................................................40523


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