[Title 22 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2014 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]


          Title 22

Foreign Relations


________________________

Part 300 to End

                         Revised as of April 1, 2014

          Containing a codification of documents of general
          applicability and future effect

          As of April 1, 2014
                    Published by the Office of the Federal Register
                    National Archives and Records Administration as a
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 22:
          Chapter III--Peace Corps                                   3
          Chapter IV--International Joint Commission, United
          States and Canada                                         57
          Chapter V--Broadcasting Board of Governors                67
          Chapter VII--Overseas Private Investment Corporation     199
          Chapter IX--Foreign Service Grievance Board              249
          Chapter X--Inter-American Foundation                     265
          Chapter XI--International Boundary and Water
          Commission, United States and Mexico, United States
          Section                                                  317
          Chapter XII--United States International Development
          Cooperation Agency                                       355
          Chapter XIII--Millennium Challenge Corporation           375
          Chapter 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                   387
          Chapter XV--African Development Foundation               441
          Chapter XVI--Japan-United States Friendship
          Commission                                               495
          Chapter XVII--United States Institute of Peace           505

[[Page iv]]

  Finding Aids:
      Table of CFR Titles and Chapters........................     517
      Alphabetical List of Agencies Appearing in the CFR......     537
      List of CFR Sections Affected...........................     547

[[Page v]]





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

                     Cite this Code: CFR
                     To cite the regulations in
                       this volume use title,
                       part and section number.
                       Thus, 22 CFR 301.1 refers
                       to title 22, part 301,
                       section 1.

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

[[Page vi]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its
revision date (in this case, April 1, 2014), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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

OMB CONTROL NUMBERS

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

[[Page vii]]

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

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.

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, 8601 Adelphi Road, College Park, MD 20740-6001,
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.

[[Page viii]]

    An index to the text of ``Title 3--The President'' is carried within
that volume.
    The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this
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the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
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ELECTRONIC SERVICES

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CFR Sections Affected), The United States Government Manual, the Federal
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    The Office of the Federal Register also offers a free service on the
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site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal-
register.
    The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Printing Office. It is
available at www.ecfr.gov.

    Charles A. Barth,
    Director,
    Office of the Federal Register.
    April 1, 2014.







[[Page ix]]



                               THIS TITLE

    Title 22--Foreign Relations is composed of two volumes. The first
volume, parts 1--299 contains Chapter I--Department of State regulations
and Chapter II--Agency for International Development regulations. The
second volume, part 300 to End is composed of Chapter III--Peace Corps;
Chapter IV--International Joint Commission, United States and Canada;
Chapter V--Broadcasting Board of Governors; Chapter VII--Overseas
Private Investment Corporation; Chapter IX--Foreign Service Grievance
Board; Chapter X--Inter-American Foundation; Chapter XI--International
Boundary and Water Commission, United States and Mexico, United States
Section; Chapter XII--United States International Development
Cooperation Agency; Chapter XIII--Millennium Challenge Board; Chapter
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; Chapter XV--African
Development Foundation; Chapter XVI--Japan-United States Friendship
Commission; and Chapter XVII--United States Institute of Peace. The
contents of these volumes represent all current regulations codified
under this title of the CFR as of April 1, 2014.

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

[[Page 1]]



                       TITLE 22--FOREIGN RELATIONS




                  (This book contains part 300 to End)

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

chapter iii--Peace Corps....................................         301

chapter iv--International Joint Commission, United States
  and Canada................................................         401

chapter v--Broadcasting Board of Governors..................         501

chapter vii--Overseas Private Investment Corporation........         705

chapter ix--Foreign Service Grievance Board.................         901

chapter x--Inter-American Foundation........................        1001

chapter xi--International Boundary and Water Commission,
  United States and Mexico, United States Section...........        1100

chapter xii--United States International Development
  Cooperation Agency........................................        1201

chapter xiii--Millennium Challenge Corporation..............        1301

chapter 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............................................        1411

chapter xv--African Development Foundation..................        1500

chapter xvi--Japan-United States Friendship Commission......        1600

chapter xvii--United States Institute of Peace..............        1701

[[Page 3]]



                        CHAPTER III--PEACE CORPS




  --------------------------------------------------------------------
Part                                                                Page
300

[Reserved]

301             Public access to classified material........           5
303             Procedures for disclosure of information
                    under the Freedom of Information Act....           5
304             Claims against Government under Federal Tort
                    Claims Act..............................          16
305             Eligibility and standards for Peace Corps
                    volunteer service.......................          20
306             Volunteer discrimination complaint procedure          22
308             Implementation of the Privacy Act of 1974...          22
309             Debt collection.............................          32
311             New restrictions on lobbying................          40
312             Governmentwide requirements for drug-free
                    workplace (financial assistance)........          51
313-399

[Reserved]

[[Page 5]]

                           PART 300 [RESERVED]



PART 301_PUBLIC ACCESS TO CLASSIFIED MATERIAL--Table of Contents



Sec.
301.1 Introduction.
301.2 Requests for mandatory declassification review.
301.3 Action on requests for declassification review.

    Authority: E.O. 12356, 43 FR 14874 dated April 2, 1982.

    Source: 49 FR 13692, Apr. 6, 1984, unless otherwise noted.



Sec. 301.1  Introduction.

    The following regulations implement Executive Order 12356 and
provide guidance for members of the public desiring a review for
declassification of a document of the Peace Corps.



Sec. 301.2  Requests for mandatory declassification review.

    (a) All information originally classified by the Peace Corps shall
be subject to review for declassification.
    (b) Requests for review of such information for declassification
shall be in writing, addressed to the Peace Corps Director of Security,
Peace Corps, Washington, DC 20526, and reasonably describe the
information sought with sufficient specificity to enable its location
with a reasonable amount of effort. Only requests made by a United
States citizen or a permanent resident alien, a Federal agency or a
State or local government will be considered.
    (c) Requests relating to information, either derivatively classified
by the Peace Corps or originally classified by another agency but in the
possession of the Peace Corps, shall be forwarded, together with a copy
of the record, to the originating agency. The transmittal may contain in
Peace Corps recommendation for action.



Sec. 301.3  Action on requests for declassification review.

    (a) The Director of Security shall present each request for
declassification to the Peace Corps Classification Review Committee,
which shall consist of the Associate Director for International
Operations, the Associate Director for Management and the General
Counsel, or their designees, together with his or her recommendation for
action.
    (b) Every effort will be made to complete action on each request
within 60 days of receipt thereof.
    (c) Information shall be declassified or downgraded as soon as
national security considerations permit. If the Classification Review
Committee determines that the material for which review is requested no
longer requires this protection, it shall be declassified and made
available to the requester unless withholding is otherwise authorized by
law.
    (d) If the Peace Corps Classification Review Committee determines
that requested information must remain classified, the requester shall
be given prompt notice of the decision and, if possible, a brief
explanation of why the information cannot be declassified.
    (e) The Peace Corps may refuse to confirm or deny the existence or
non-existence of requested information whenever the fact of its
existence or non-existence is itself classified under E.O. 12356.
    (f) A requester may appeal a refusal to declassify information to
the Director of the Peace Corps, or the Director's designee. Appeals
shall be in writing, addressed to the Director of the Peace Corps,
Washington, DC 20526, and shall briefly state the reasons why the
requester believes that the Peace Corps Classification Review Committee
decision is in error. Appeals must be submitted within 30 days after
receipt of notice of the Classification Review Committee decision. The
decision of the Peace Corps Director, or designee, will be based on the
entire record, and will be rendered in writing within 60 days after
receipt of an appeal. The decision of the Director or Director's
designee is the final Peace Corps action on a request.



PART 303_PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE FREEDOM OF
INFORMATION ACT--Table of Contents



Sec.
303.1 Purpose.
303.2 Definitions.
303.3 Policy.

[[Page 6]]

303.4 Records published in the Federal Register.
303.5 Public reading room.
303.6 Procedures for use of public reading room.
303.7 Index of records.
303.8 Requests for records.
303.9 Exemptions for withholding records.
303.10 Responsibilities and authorities.
303.11 Denials.
303.12 Appeals.
303.13 Fees.
303.14 Procedures for responding to a subpoena.

    Authority: 5 U.S.C. 552; 22 U.S.C. 2501, et. seq.; E.O. 12137, 44 FR
29023, 3 CFR, 1979 Comp., p. 389; E.O. 12600, 52 FR 23781, 3 CFR, 1987
Comp., p. 235.

    Source: 68 FR 66008, Nov. 25, 2003, unless otherwise noted.



Sec. 303.1  Purpose.

    This part sets out the rules and procedures the Peace Corps follows
in making records available to the public under the Freedom of
Information Act (FOIA).



Sec. 303.2  Definitions.

    As used in this part--
    (a) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers the commercial,
trade, or profit interests of the requester or the person on whose
behalf the request is made. In determining whether a requester has made
a commercial use request, the Peace Corps will look to the use to which
a requester will put the documents requested. When the Peace Corps has
reasonable cause to doubt the requester's stated use of the records
sought, or where the use is not clear from the request itself, it will
seek additional clarification before assigning the request to a
category.
    (b) Duplication means the process of making a copy of a record
requested pursuant to this part. Such copies can take the form of paper
copy, microform, audio-visual materials, or machine readable electronic
documents, among others.
    (c) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, or an institution of professional or
vocational education which operates a program or programs of scholarly
research.
    (d) Non-commercial scientific institution means an institution that
is not operated on a ``commercial'' basis and which is operated solely
for the purpose of conducting scientific research, the results of which
are not intended to promote any particular product or industry.
    (e) OIG records means those records as defined generally in this
section which originated with or are in the possession and control of
the Office of Inspector General (OIG) of the Peace Corps which have been
compiled for law enforcement, audit, and investigative functions and/or
any other purpose authorized under the IG Act of 1978, as amended.
    (f) Records means books, papers, maps, photographs, or other
documentary materials, regardless of whether the format is physical or
electronic, made or received by the Peace Corps in connection with the
transaction of Peace Corps' business and preserved by the Peace Corps as
evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the Peace Corps, or
because of the informational value of data in them. The term does not
include, inter alia, books, magazines, or other materials acquired
solely for library purpose, or that are otherwise publicly available.
    (g) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to the
public. Examples of news media entities include television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only in those instances when they can qualify as
disseminators of ``news'') who make their products available for
purchase or subscription by the general public. These examples are not
intended to be all-inclusive. Moreover, as traditional methods of news
delivery evolve (e.g., electronic dissemination of newspapers through
telecommunications services), such alternative media would be included
in

[[Page 7]]

this category. In the case of ``freelance'' journalists, they will be
regarded as working for a news organization if they can demonstrate a
solid basis for expecting publication through that organization, even
though not actually employed by it.
    (h) Review means the process of examining a document located in
response to a request to determine whether any portion of such document
is exempt from disclosure. It also includes processing any such document
for disclosure. Review does not include time spent resolving general
legal or policy issues regarding the application of exemptions.
    (i) Search means the process of looking for and retrieving records
that are responsive to a request for records. It includes page-by-page
or line-by-line identification of material within documents and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Searches may be
conducted manually or by automated means and will be conducted in the
most efficient and least expensive manner. If the Agency cannot identify
the requested records after a 2 hour search, it can determine that the
records were not adequately described and ask the requester to provide a
more specific request.



Sec. 303.3  Policy.

    The Peace Corps will make its records concerning its operations,
activities, and business available to the public consistent with the
requirements of the FOIA. Records exempt from disclosure under the FOIA
may be made available at the discretion of the Peace Corps.



Sec. 303.4  Records published in the Federal Register.

    The Peace Corps publishes its notices and substantive regulations in
the Federal Register. It also publishes information on its basic
structure and operations necessary to inform the public how to deal
effectively with the Peace Corps in the United States Government Manual,
a special publication of the Federal Register. The Peace Corps will make
reasonable efforts to currently update such information, which includes
information on Peace Corps' location and functions, and how the public
may obtain information or forms, or make submittals or requests. The
Peace Corps' published regulations are at 22 CFR Chapter III.



Sec. 303.5  Public reading room.

    (a) The Peace Corps will maintain a public reading room at its
headquarters at 1111 20th Street, NW., Washington, DC 20526. This room
will be supervised and will be open to the public during Peace Corps'
regular business hours for inspecting and copying records described in
paragraph (b) of this section.
    (b) Subject to the limitation stated in paragraph (c) of this
section, the following records will be made available in the public
reading room:
    (1) All final public opinions, including concurring and dissenting
opinions, and orders issued in the adjudication of cases that involve
the Peace Corps;
    (2) Statements of policy and interpretations adopted by the Peace
Corps that are not published in the Federal Register;
    (3) Administrative staff manuals and instructions to the staff that
affect the public;
    (4) Copies of records, regardless of form or format, released to any
person in response to a public request for records which the Peace Corps
determines are likely to become subject to subsequent requests for
substantially the same records, and a general index of such records;
    (5) The index required by Sec. 303.7; and
    (6) Other records the Peace Corps has determined are of general
interest to members of the public in understanding activities of the
Peace Corps or in dealing with the Peace Corps in connection with those
activities.
    (c) Certain records otherwise required by FOIA to be available in
the public reading room may be exempt from mandatory disclosure pursuant
to Sec. 552(b) of the FOIA. Such record will not be made available in
the public reading room. Other records maintained in the public reading
room may be edited by the deletion of identifying details concerning
individuals to prevent a clearly unwarranted invasion of personal
privacy. In such cases, the

[[Page 8]]

record shall have attached to it an explanation of the deletion. The
extent of the deletion shall be indicated, unless doing so would harm an
interest protected by the exemption under which the deletion is made. It
technically feasible, the extent of the deletion shall be indicated at
the place in the record where the deletion was made.
    (d) Electronic reading room. Records required by the FOIA to be
maintain and made available in the public reading room created by the
Peace Corps on or after November 1, 1996, shall be made available
electronically.
    (e) Most electronic public reading room records will also be made
available to the public on the Peace Corps Web site at http://
www.peacecorps.gov.



Sec. 303.6  Procedures for use of public reading room.

    Any member of the public may inspect or copy records described in
Sec. 303.5(b) in the public reading room during regular business hours.
Because it will sometimes be impossible to produce records or copies of
records on short notice, a person who wishes to inspect or copy records
shall arrange a time in advance, by telephone or letter request made to
the Peace Corps FOIA Officer. Persons submitting request by telephone
will be notified whether a written request would be advisable to aid in
the identification and expeditious processing or the records sought.
Written request should identify the records sought in the manner
described in Sec. 303.8(b) and should request a specific date for
inspecting the records. The requester will be advised as promptly as
possible if, for any reason, it may not be possible to make the records
sought available on the date requested.



Sec. 303.7  Index of records.

    The Peace Corps will maintain a current index identifying any matter
within the scope of Sec. 303.4 or Sec. 303.5(b)(1) through (5). The
index will be maintained and made available for public inspection and
copying at the Peace Corps' headquarters in Washington, DC. The cost of
a copy of the index will not exceed the standard charge for duplication
set out in Sec. 303.13(e). The Peace Corps will also make the index
available on its public Web site.



Sec. 303.8  Requests for records.

    (a) Except for records required by the FOIA to be published in the
Federal Register or to be made available in the public reading room,
Peace Corps records will be made promptly available, upon request, to
any person in accordance with this section, unless it is determined that
such records should be withheld and are exempt form mandatory disclosure
under the FOIA.
    (b) Requests. Requests for records under this section shall be made
in writing via regular mail, e-mail, or facsimile and, as applicable,
the envelope, letter or subject line shall be clearly marked ``Freedom
of Information Request.'' All requests shall be addressed to the FOIA
Officer. Requests by letter shall use the address given in Sec.
303.5(a) and requests by e-mail must be sent to the FOIA electronic
mailbox address [email protected]. Any request not marked and
addressed as specified in this paragraph will be so marked by Peace
Corps personnel as soon as the request is properly identified. The
request will then be forwarded immediately to the FOIA Officer. A
request improperly addressed will not be deemed to have been received
for purposes of the time period set out in paragraph (h) of this section
until it has been received by the FOIA Officer. Upon receipt of an
improperly addressed request, the FOIA Officer shall notify the
requester of the date on which the time period began. The request shall
be stamped ``received'' on the date it is received by the FOIA Office.
Any request received by e-mail shall be printed on paper and stamped on
the date it is received by the FOIA Office.
    (c) A request must reasonably describe the records requested so that
employees of the Peace Corps who are familiar with the subject area of
the request are able, with a reasonable amount of effort, to determine
which particular records are within the scope of the request. If it is
determined that a request does not reasonably describe the records
sought, the requester shall

[[Page 9]]

be so informed and provided an opportunity to confer with Peace Corps
personnel in order to attempt to reformulate the request in a manner
that will meet the needs of the requester and the requirements of this
paragraph. If the Agency cannot identify the requested records after a 2
hour search, it can determine that the records were not adequately
described and ask the requester to provide a more specific request.
    (d) To facilitate the location of records by the Peace Corps, a
requester should try to provide the following kinds of information, if
known;
    (1) The specific event or action to which the record refers;
    (2) The unit or program of the Peace Corps which may be responsible
for or may have produced the record;
    (3) The date of the record or the date or period to which it refers
or relates;
    (4) The type of record, such as an application, a particular form, a
contract, or a report;
    (5) Personnel of the Peace Corps who may have prepared or have
knowledge of the record; or
    (6) Citations to newspapers or publications which have referred to
the record.
    (e) The Peace Corps is not required to create a record or to perform
research to satisfy a request.
    (f) Any request for a waiver or reduction of fees should be included
in the FOIA request, and any such request should indicate the grounds
for a waiver or reduction of fees, as set out in Sec. 303.13(f). The
Peace Corps shall respond to such request as promptly as possible.
    (g) Format. The Peace Corps will provide records in the form or
format indicated by the requester to the extent such records are readily
reproducible in the requested form or format.
    (h) Initial response/delays. (1) The FOIA Officer, upon request for
any records made in accordance with this section, except in the case of
a request for OIG records, shall make an initial determination of
whether to comply with or deny such request and dispatch such
determination to the requester within 20 business days after receipt of
such request, except for unusual circumstances, in which case the time
limit may be extended for up to 10 business days by written notice to
the requester setting forth the reasons for such extension and the date
on which a determination is expected to be dispatched.
    (2) If the FOIA Officer determines that a request or portion thereof
is for OIG records, the FOIA Officer shall promptly refer the request or
portion thereof to the OIG and send notice of such referral to the
requester. In such case, the OIG FOIA Officer shall make an initial
determination of whether to comply with or deny such request and
dispatch such determination to the requester within 20 business days
after receipt of such request, except for unusual circumstances, in
which case the time limit may be extended for up to 10 business days by
written notice to the requester setting forth the reasons for such
extension and the date on which a determination is expected to be
dispatched. If for any reason, a request for Agency information goes
directly to the OIG rather than through the FOIA Officer, the OIG shall
provide notice to the FOIA Officer of its receipt of the request. The
FOIA Office and the OIG should normally consult with each other whenever
they receive requests for the same or similar records.
    (3) Unusual circumstances. As used in this part, ``unusual
circumstances'' are limited to the following, but only to the extent
reasonably necessary for the proper processing of the particular
request:
    (i) The need to search for and collect the requested records from
components or locations that are separate from the office processing the
request;
    (ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
    (iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency or organization having a
substantial interest in the determination of the request or among two or
more components of the Peace Corps having a substantial subject matter
interest therin.
    (i) If a request is particularly broad or complex so that it cannot
be completed within the time periods stated

[[Page 10]]

in paragraph (h) of this section, the Peace Corps may ask the requester
to narrow the request or agree to an additional delay.
    (j) When no determination can be dispatched within the applicable
time limit, the FOIA Officer or the OIG FOIA Officer shall inform the
requester of the reason for the delay, the date on which a determination
may be expected to be dispatched, and the requester's right to treat the
delay as a denial and to appeal to the Associate Director for the Office
of Management or the Inspector General, in accordance with Sec. 303.12.
If no determination has been dispatched by the end of the 20-day period,
or the last extension thereof, the requester may deem the request
denied, and exercise a right of appeal in accordance with Sec. 303.12.
The FOIA Officer or the OIG FOIA Officer may ask the requester to forego
an appeal until a determination is made.
    (k) After it has been determined that a request will be granted, the
responsible official will act with due diligence in providing a prompt
response.
    (l) Expedited treatment. (1) Requests and appeals will be taken out
of order and given expedited treatment whenever the requester
demonstrates a compelling need. A compelling need means:
    (i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged
Peace Corps or Federal government activity and the request is made by a
person primarily engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) a matter of widespread and exceptional media interest in which
there exist possible questions about the Peace Corps' or the Federal
government's integrity which affect public confidence.
    (2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, a request for expedited processing must be properly
addressed and marked and received by the Peace Corps pursuant to
paragraph (b) of this section.
    (3) A requester who seeks expedited processing must submit a
statement demonstrating a compelling need that is certified by the
requester to be true and correct to the best of that person's knowledge
and belief, explaining in detail the basis for requesting expedited
processing.
    (4) Within ten business days of its receipt of a request for
expedited processing, the FOIA Officer or the OIG FOIA Officer shall
decide whether to grant the request and shall notify the requester of
the decision. If a request for expedited treatment is granted, the
request shall be given priority and shall be processed as soon as
practicable. If a request for expedited processing is denied, any appeal
of that decision shall be acted on expeditiously by the Peace Corps.
    (5) Appeals shall be made to the Associate Director for the Office
of Management, who shall respond within 10 business days of receipt of
the appeal.

[68 FR 66008, Nov. 25, 2003, as amended at 72 FR 27055, May 14, 2007]



Sec. 303.9  Exemptions for withholding records.

    (a) The Peace Corps may withhold a requested record from public
disclosure only if the record fits within one or more of the following
FOIA exemptions:
    (1) Matter specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy and is in fact properly classified pursuant to such
Executive Order;
    (2) Matter which is related solely to the internal personnel rules
and practices of the Peace Corps;
    (3) Matter which is specifically exempted from disclosure by statute
(other than exemptions under FOIA at 5 U.S.C. 552(b)), provided that
such statute requires that the matter be withheld from the public in
such a manner as to leave no discretion on the issue, or establishes
particular criteria for withholding, or refers to particular types of
matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memoranda or letters which would
not

[[Page 11]]

be available by law to a party other than an agency in litigation with
the Peace Corps;
    (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
including enforcing the Peace Corps Act or any other law, 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 or a recipient of a right to a fair
trial or an impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis; and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
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.
    (b) In the event that one or more of the above exemptions in
paragraph (a) of this section apply, any reasonably segregable portion
of a record shall be provided to the requester after deletion of the
portions that are exempt. The amount of information deleted shall be
indicated on the released portion of the record, unless doing so would
harm the interest protected by the exemption under which the deletion is
made. If technically feasible, the amount of information deleted shall
be indicated at the place in the record where the deletion is made. At
the discretion of the Peace Corps officials authorized to grant or deny
a request for records, it may be possible to provide a requester with:
    (1) A summary of information in the exempt portion of a record; or
    (2) An oral description of the exempt portion of a record.
    (c) No requester shall have a right to insist that any or all of the
techniques in paragraph (b) of this section should be employed in order
to satisfy a request.
    (d) Records that may be exempt from disclosure pursuant to paragraph
(a) of this section may be made available at the discretion of the Peace
Corps.
    (e) Proprietary information. (1) It is the policy of the Peace Corps
to withhold proprietary information that falls within the protection of
paragraph (a)(4) of this section. Proprietary information includes trade
secrets, or commercial or financial information obtained from a person,
the disclosure of which could reasonably be expected to cause
substantial competitive harm.
    (2) It is also the policy of the Peace Corps to give submitters of
arguably proprietary information an adequate opportunity to provide
information to the Peace Corps to establish that the information
constitutes protected proprietary information.
    (3) A person submitting arguably proprietary information to the
Peace Corps will be notified in writing by the Peace Corps if there is a
FOIA request for the information, unless:
    (i) The Peace Corps has already decided that the information should
be withheld;
    (ii) The information has been lawfully published or has been
officially made available to the public; or
    (iii) Disclosure of the information is required by law.
    (4) The notice shall afford the submitter at least ten business days
in which to object to the disclosure of any requested information.
Whenever the Peace Corps provides such notice to the submitter, it shall
also notify the requester that notice and an opportunity to comment are
being provided to the submitter.
    (5) A submitter's request for protection for information under
paragraph (a)(4) of this section shall:

[[Page 12]]

    (i) Specifically identify the exact material claimed to be
confidential proprietary information;
    (ii) State whether the information identified has ever been released
to a person who is not in a confidential relationship with the
submitter;
    (iii) State the basis for the submitter's belief that the
information is not commonly known or readily ascertainable by outside
persons; and
    (iv) State how release of the information would cause harm to the
submitter's competitive position.
    (6) The Peace Corps shall consider the submitter's objections and
specific grounds for non-disclosure when deciding whether to disclose
the information. If the Peace Corps decides to disclose the information,
it shall, to the extent permitted by law, provide the submitter at least
ten business days notice of its decision before the information is
disclosed and a statement of its reasons for not sustaining the
objection to disclosure. Whenever the Peace Corps notifies the submitter
of its final decision, it shall also notify the requester.
    (7) Whenever a FOIA requester brings suit seeking to compel
disclosure of proprietary information, the Peace Corps shall promptly
notify the submitter.

[68 FR 66008, Nov. 25, 2003; 69 FR 68695, Dec. 9, 2003]



Sec. 303.10  Responsibilities and authorities.

    (a) Legal counsel. The General Counsel shall furnish legal advice to
Peace Corps officials and staff as to their obligations under this part
and shall take such other actions as may be necessary or appropriate to
assure a consistent and equitable application of the provisions of this
part by and within the Peace Corps.
    (b) Authority to grant or deny requests. The FOIA Officer is
authorized to grant or deny requests for records, except for OIG
records, under this part. The OIG FOIA Officer is authorized to grant or
deny requests for OIG records under this part. The FOIA Officer and the
OIG FOIA Officer shall consult with each other when a request includes
both Peace Corps and OIG records in order to ensure consistency and lack
of duplication in processing the request.
    (c)(1) Records received from other agencies. When the Peace Corps
receives a request for a record in its possession that it has received
from another agency, it shall determine whether the other agency is
better qualified to decide whether the record is exempt from disclosure
and, if so, whether it should be disclosed as a matter of discretion. If
the Peace Corps determines it is better qualified to process the record
in response to the request, then it shall do so. If the Peace Corps
determines it is not better qualified to process the request, it shall
either:
    (i) Consult with the other agency before responding to the request;
or
    (ii) Refer the responsibility for responding to the request for the
record to the other agency (but only if the agency is subject to FOIA).
Ordinarily, the agency that originated a record will be presumed to be
best able to determine whether to disclose it.
    (2) Law enforcement and classified information. Notwithstanding
paragraph (c)(1) of this section:
    (i) Whenever the Peace Corps receives a request for a record
containing information that relates to an investigation of a possible
violation of law that was originated by another agency, the Peace Corps
will either consult with the other agency before responding or refer the
responsibility for responding to the request to the other agency; and
    (ii) Whenever a request is made for a record containing information
that has been classified by another agency or may be appropriate for
classification under Executive Order 12958 or any other executive order
concerning the classification of records, the Peace Corps shall refer
the responsibility for responding to the request regarding that
information to the agency that classified the information, should
consider the information for classification, or has the primary interest
in the information, as appropriate.
    (3) Notice of referral. Whenever the Peace Corps refers all or any
part of the responsibility for responding to a request to another
agency, it ordinarily shall notify the requester of the referral and
inform the requester of the

[[Page 13]]

name of the agency to which the request has been referred and the part
of the request that has been referred.
    (4) Effect of consultations and referrals on timing of response. All
consultations and referrals will be handled according to the date the
FOIA request was initially received by the Peace Corps.
    (5) Agreements with other agencies. The Peace Corps may make
agreements with other agencies to eliminate the need for consultations
or referrals for particular types of records.



Sec. 303.11  Denials.

    (a) A denial of a written request for a record that complies with
the requirements of Sec. 303.8 shall be in writing and shall include,
as applicable:
    (1) A reference to the applicable exemption or exemptions in Sec.
303.9(a) upon which the denial is based;
    (2) An explanation of how the exemption applies to the requested
records;
    (3) A statement explaining why it is deemed unreasonable to provide
segregable portions of the record after deleting the exempt portions;
    (4) An estimate of the volume of requested matter denied unless
providing such estimate would harm the interest protected by the
exemption under which the denial is made, if other than the FOIA
Officer;
    (5) The name and title of the person or persons responsible for
denying the request, if other than the FOIA Officer; and
    (6) An explanation of the right to appeal the denial and the
procedures for submitting an appeal, including the address of the
official to whom appeals should be submitted.
    (b) A partial deletion of a record made available to a requester
shall be deemed a denial of a record for purposes of paragraph (a) of
this section. All denials shall be treated as final opinions under Sec.
303.5(b).



Sec. 303.12  Appeals.

    (a) Any person whose written request has been denied is entitled to
appeal the denial within 20 business days by writing to the Associate
Director of the Office of Management or, in the case of a denial of a
request for OIG Records, the Inspector General, at the address given in
Sec. 303.5(a). The envelope and letter should be clearly marked
``Freedom of Information Act Appeal.'' An appeal need not be in any
particular form, but should adequately identify the denial, if possible,
by describing the requested record, identifying the official who issued
the denial, and providing the date on which the denial was issued.
    (b) The decision of the Associate Director for the Office of
Management or the Inspector General on an appeal shall be in writing
and, in the event the denial is in whole or in part upheld, shall
contain an explanation responsive to the arguments advanced by the
requester, the matters described in Sec. 303.11(a)(1) through (4), and
the provisions for judicial review of such decision under section
552(a)(4) of the FOIA. The decision shall be dispatched to the requester
within 20 business days after receipt of the appeal, unless an
additional period is justified pursuant to Sec. 303.8(i) and such
period taken together with any earlier extension does not exceed 10
business days. The decision by the Associate Director for the Office of
Management or the Inspector General shall constitute the final action of
the Peace Corps. All such decisions shall be treated as final opinions
under Sec. 303.5(b).



Sec. 303.13  Fees.

    (a) For information routinely provided by the Peace Corps to the
public in the normal course of doing business, such as informational or
recruiting brochures, no fees will be charged.
    (b) For each a commercial use request, fees will be limited to
reasonable standard charges for document search, review, and
duplication.
    (c) For each request for records sought by a representative of the
news media or by an educational or non-commercial scientific
institution, fees shall be limited to reasonable standard charges for
document duplication after the first 100 pages.
    (d) For all other requests, fees shall be limited to reasonable
standard charges for search time after the first 2 hours and duplication
after the first 100 pages.
    (e) The schedule of reasonable standard charges for services
regarding the

[[Page 14]]

production or disclosure of the Peace Corps records is as follows:
    (1) Manual search and review of records: Salary rate of employee[s]
performing the search and review plus 16%. Charges for search and review
time less than a full hour will be billed by quarter-hour segments;
    (2) Computer time: Actual costs as incurred;
    (3) Duplication by paper copy: 15 cents per page;
    (4) Duplication by other methods: Actual costs as incurred;
    (5) Certification of true copies: $1.00 each;
    (6) Packing and mailing records: Actual costs as incurred; and
    (7) Special delivery or express mail: Actual charges as incurred.
    (f) Fee waivers: Fees will be waived or reduced below the fees
established under paragraph (e) of this section if disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the Peace Corps or Federal government and is not primarily in the
commercial interest of the requester.
    (1) In order to determine whether the 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 Federal government, the Peace Corps shall consider the following
four criteria:
    (i) The subject of the request: Whether the subject of the requested
records concerns the operations or activities of the Peace Corps or
Federal government;
    (ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of Peace Corps or Federal government operations or activities;
    (iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ``public understanding;''
and
    (iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of Peace Corps or Federal government operations or
activities.
    (2) In order to determine whether disclosure of the information is
not primarily in the commercial interest of the requester, the Peace
Corps shall consider the following two factors:
    (i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and if so,
    (ii) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the requester.''
    (3) These fee waiver/reduction provisions will be subject to appeal
in the same manner as appeals from denial under Sec. 303.12.
    (g) No fee will be charged under this section unless the cost of
routine collection and processing of the fee payment is likely to exceed
the average cost of processing a payment.
    (h) Requesters must agree to pay all fees charged for services
associated with their requests. The Peace Corps will assume that
requesters agree to pay all charges for services associated with their
requests up to $25 unless otherwise indicated by the requester.
    (i) No requester will be required to make an advance payment of any
fee unless:
    (1) The requester has previously failed to pay a required fee to
another federal agency or to Peace Corps within 30 days of the date of
billing, in which case an advance deposit of the full amount of the
anticipated fee together with the fee then due plus interest accrued may
be required. (The request will not be deemed to have been received by
the Peace Corps until such payment is made.); or
    (2) The Peace Corps determines that an estimated fee will exceed
$250, in which case the requester shall be notified of the amount of the
anticipated fee or such portion thereof as can readily be estimated.
Such notification shall be transmitted as soon as possible, but in any
event within 5 business days of receipt of the request by

[[Page 15]]

the Peace Corps. The notification shall offer the requester the
opportunity to confer with appropriate representatives of the Peace
Corps for the purpose of reformulating the request so as to meet the
needs of the requester at a reduced cost. The request will not be deemed
to have been received by the Peace Corps for purposes of the initial 20-
day response period until the requester makes a deposit on the fee in an
amount determined by the Peace Corps.
    (j) Interest may be charged to those requesters who fail to pay the
fees charged. Interest will be assessed on the amount billed, starting
on the 31st day following the day on which the billing was sent. The
rate charged will be as prescribed in 31 U.S.C. 3717.
    (k) The Agency is not required to process a request for a requester
who has not paid FOIA fees owed to another Federal agency.
    (l) If the Peace Corps reasonably believes that a requester or group
of requesters is attempting to break a request into a series of requests
for the purpose of evading the assessment of fees, the Peace Corps shall
aggregate such requests and charge accordingly. Likewise, the Peace
Corps will aggregate multiple requests for documents received from the
same requester within 45 business days.
    (m) The Peace Corps reserves the right to limit the number of copies
of any document that will be provided to any one requester or to require
that special arrangements for duplication be made in the case of bound
volumes or other records representing unusual problems of handling or
reproduction.

[68 FR 66008, Nov. 25, 2003, as amended at 72 FR 27056, May 14, 2007]



Sec. 303.14  Procedures for responding to a subpoena.

    (a) Purpose and scope. (1) This part sets forth the procedures to be
followed in proceedings in which the Peace Corps is not a party,
whenever a subpoena, order or other demand (collectively referred to as
a ``demand'') of a court or other authority is issued for:
    (i) The production or disclosure of any material contained in the
files of the Agency;
    (ii) The production or disclosure of any information relating to
material contained in the files of the Agency;
    (iii) The production or disclosure of any information or material
acquired by any person while such person was an employee of the Agency
as a part of the performance of his official duties or because of his
official status, or
    (iv) The production of an employee of the Agency for the deposition
or an appearance as a witness in a legal action or proceeding.
    (2) For purposes of this part, the term ``employee of the Agency''
includes all officers and employees of the Agency appointed by, or
subject to the supervision, jurisdiction or control of, the director of
the Agency, including personal services contractors. Also for purposes
of this part, records of the Agency do not include records of the Office
of Inspector General.
    (3) This part is intended to provide instructions regarding the
internal operations of the Agency, and is not intended, and does not and
may not be relied upon, to create any right or benefit, substantive or
procedural, enforceable at law by a party against the Agency.
    (4) This part applies to:
    (i) State and local court, administrative and legislative
proceedings; and
    (ii) Federal court and administrative proceedings.
    (5) This part does not apply to:
    (i) Congressional requests or subpoenas for testimony or documents:
    (ii) Employees or former employees making appearances solely in
their private capacity in legal or administrative proceedings that do
not relate to the Agency (such as cases arising out of traffic accidents
or domestic relations); Any questions whether the appearance relates
solely to the employee's or former employee's private capacity should be
referred to the Office of the General Counsel.
    (6) Nothing in this part otherwise permits disclosure of information
by the Agency except as is provided by statute or other applicable law.
    (b) Procedure in the event of a demand for production or disclosure.
(1) No employee or former employee of the Agency shall, in response to a
demand of a court or other authority set forth in

[[Page 16]]

Sec. 303.14(a) produce any material, disclose any information or appear
in any proceeding, described in Sec. 303.14(a) without the approval of
the General Counsel or designee.
    (2) Whenever an employee or former employee of the Peace Corps
receives a demand for the production of material or the disclosure of
information described in Sec. 303.14(a) he shall immediately notify and
provide a copy of the demand to the General Counsel or designee. The
General Counsel, or designee, shall be furnished by the party causing
the demand to be issued or served a written summary of the information
sought, its relevance to the proceeding in connection with which it was
served and why the information sought is unavailable by any other means
or from any other sources.
    (3) The General Counsel, or designee, in consultation with
appropriate Agency officials, including the Agency's FOIA Officer, or
designee, and in light of the considerations listed in Sec. 303.14(d),
will determine whether the person on whom the demand was served should
respond to the demand.
    (4) To the extent he deems it necessary or appropriate, the General
Counsel or designee, may also require from the party causing such demand
to be issued or served a plan of all reasonably foreseeable demands,
including but not limited to names of all employees and former employees
from whom discovery will be sought, areas of inquiry, length of time of
proceedings requiring oral testimony and identification of documents to
be used or whose production is sought.
    (c) Considerations in determining whether production or disclosure
should be made pursuant to a demand. (1) In deciding whether to make
disclosures pursuant to a demand, the General Counsel or designee, may
consider, among things:
    (i) Whether such disclosure is appropriate under the rules of
procedure governing the case or matter in which the demand arose; and
    (ii) Whether disclosure is appropriate under the relevant
substantive law concerning privilege.
    (2) Among the demands in response to which disclosure will not be
made are those demands with respect to which any of the following
factors exist:
    (i) Disclosure would violate a statute or a rule of procedure;
    (ii) Disclosure would violate the privacy rights of an individual;
    (iii) Disclosure would violate a specific regulation;
    (iv) Disclosure would reveal classified information, unless
appropriately declassified by the originating agency;
    (v) Disclosure would reveal trade secrets or proprietary information
without the owner's consent;
    (vi) Disclosure would otherwise adversely affect the interests of
the United States or the Peace Corps; or
    (vii) Disclosure would impair an ongoing Inspector General or
Department of Justice investigation.



PART 304_CLAIMS AGAINST GOVERNMENT UNDER FEDERAL TORT CLAIMS ACT--Table
of Contents



                           General Provisions

Sec.
304.1 Scope; definitions.

                               Procedures

304.2 Administrative claim; when presented; appropriate Peace Corps
          Office.
304.3 Administrative claim; who may file.
304.4 Administrative claim; evidence and information to be submitted.
304.5 Investigations.
304.6 Claims investigation.
304.7 Authority to adjust, determine, compromise, and settle claims.
304.8 Limitations on authority.
304.9 Referral to the Department of Justice.
304.10 Review of claim.
304.11 Final denial of claim.
304.12 Action on approved claim.

    Authority: 28 U.S.C. 2672; 22 U.S.C. 2503(b); E.O. 12137, as
amended.

    Source: 34 FR 5840, Mar. 28, 1969, unless otherwise noted.

                           General Provisions



Sec. 304.1  Scope; definitions.

    (a) This subpart applies to claims asserted under the Federal Tort
Claims Act, as amended, accruing on or after January 18, 1967, for money
damages against the United States for injury to or loss of property or
personal injury or death caused by the negligent or wrongful act or
omission of an officer

[[Page 17]]

or employee of the Peace Corps, a person serving the Peace Corps under
invitational travel orders, or a Peace Corps Volunteer or trainee while
acting within the scope of his office or employment.
    (b) This subpart is not applicable to claims arising in a foreign
country; it is applicable to claims arising in Puerto Rico and the
Virgin Islands.
    (c) This subpart is issued subject to and consistent with applicable
regulations on administrative claims under the Federal Tort Claims Act
issued by the Attorney General (28 CFR part 14).
    (d) For the purposes of this subpart, the term ``General Counsel''
means the General Counsel of the Peace Corps or his designee.

[34 FR 5840, Mar. 28, 1969, as amended at 72 FR 4205, Jan. 30, 2007]

                               Procedures



Sec. 304.2  Administrative claim; when presented; appropriate Peace
Corps Office.

    (a) For purposes of this subpart, a claim shall be deemed to have
been presented when the Peace Corps receives, at a place designated in
paragraph (b) of this section, an executed ``Claim for Damages or
Injury,'' Standard Form 95, or other written notification of an
incident, accompanied by a claim for money damages in a sum certain for
injury to or loss of property, for personal injury, or for death alleged
to have occurred by reason of the incident. A claim which should have
been presented to the Peace Crops, but which was mistakenly addressed to
or filed with another Federal agency, is deemed to have been presented
to the Peace Corps as of the date that the claim is received by the
Peace Corps. If a claim is mistakenly addressed to or filed with the
Peace Corps, the Peace Corps shall forthwith transfer it to the
appropriate Federal agency, if ascertainable, or return it to the
claimant.
    (b) A claimant shall mail or deliver his claim to the General
Counsel, Peace Corps, 1111 20th Street, NW., Washington, DC 20526.

[34 FR 5840, Mar. 28, 1969, as amended at 72 FR 4206, Jan. 30, 2007]



Sec. 304.3  Administrative claim; who may file.

    (a) A claim for injury to or loss of property may be presented by
the owner of the property, his duly authorized agent, or his legal
representative.
    (b) A claim for personal injury may be presented by the injured
person, his duly authorized agent, or his legal representative.
    (c) A claim based on death may be presented by the executor or
administrator of the decedent's estate, or by any other person legally
entitled to assert such a claim in accordance with applicable State law.
    (d) A claim for loss wholly compensated by an insurer with the
rights of a subrogee may be presented by the insurer. Claim for loss
partially compensated by an insurer with the rights of a subrogee may be
presented by the insurer or the insured individually, as their
respective interests appear, or jointly. Whenever an insurer presents a
claim asserting the rights of a subrogee, he shall present with his
claim appropriate evidence that he has the rights of a subrogee.
    (e) A claim presented by an agent or legal representative shall be
presented in the name of the claimant, be signed by the agent or legal
representative, show the title or legal capacity of the person signing,
and be accompanied by evidence of his authority to present a claim on
behalf of the claimant.



Sec. 304.4  Administrative claim; evidence and information to be
submitted.

    (a) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant may be required to submit the
following evidence or information:
    (1) A written report by his attending physician or dentist setting
forth the nature and extent of the injury, nature and extent of
treatment, any degree of temporary or permanent disability, the
prognosis, period of hospitalization, and any diminished earning
capacity. In addition, the claimant may be required to submit to a
physical or mental examination by a physician employed or designated by
the Peace Corps or another Federal agency. A copy of the report of the
examining physician shall be made available to

[[Page 18]]

the claimant upon the claimant's written request provided that he has,
upon request, furnished the report referred to in the first sentence of
this paragraph and has made or agrees to make available to the Peace
Corps any other physician's report previously or thereafter made of the
physical or mental condition which is the subject matter of his claim.
    (2) Itemized bills for medical, dental, and hospital expenses
incurred, or itemized receipts of payment for such expenses.
    (3) If the prognosis reveals the necessity for future treatment, a
statement of expected expenses for such treatment.
    (4) If a claim is made for loss of time from employment, a written
statement from his employer showing actual time lost from employment,
whether he is a full-or part-time employee, and wages or salary actually
lost;
    (5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually
lost.
    (6) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the personal injury
or the damages claimed.
    (b) Death. In support of a claim based on death, the claimant may be
required to submit the following evidence or information:
    (1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
    (2) Decedent's employment or occupation at the time of death,
including his monthly or yearly salary or earnings (if any), and the
duration of his last employment or occupation.
    (3) Full names, addresses, birth dates, kinship, and marital status
of decedent's survivors, including identification of those survivors who
were dependent for support upon decedent at the time of his death.
    (4) Degree of support afforded by decedent to each survivor
dependent upon him for support at the time of his death.
    (5) Decedent's general physical and mental condition before death.
    (6) Itemized bills for medical and burial expenses incurred by
reason of the incident causing death, or itemized receipts of payment
for such expenses.
    (7) If damages for pain and suffering prior to death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and
decedent's physical condition in the interval between injury and death.
    (8) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
damages claimed.
    (c) Property damage. In support of a claim for injury to or loss of
property, real or personal, the claimant may be required to submit the
following evidence or information.
    (1) Proof of ownership.
    (2) A detailed statement of the amount claimed with respect to each
item of property.
    (3) Two or more itemized written estimates of the cost of such
repairs and any itemized receipt of payment for necessary repairs.
    (4) A statement listing date of purchase, purchase price, and
salvage value where repair is not economical.
    (5) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the injury to or loss
of property or the damages claimed.



Sec. 304.5  Investigations.

    The Peace Corps may investigate, or the General Counsel may request
any other Federal agency to investigate, a claim filed under this
subpart.



Sec. 304.6  Claims investigation.

    (a) When a claim has been filed with the Peace Corps, the General
Counsel will send a copy of the claim to the head of the office
concerned and ask him to designate one employee of that office who shall
act as, and who shall be referred to herein as, the Claims Investigating
Officer for that particular claim. The Claims Investigating Officer
shall, with the advice of the General Counsel, where necessary:
    (1) Investigate as completely as is practicable the nature and
circumstances of the occurrence causing

[[Page 19]]

the loss or damage of the claimant's property.
    (2) Ascertain the extent of loss or damage to the claimant's
property.
    (3) Assemble the necessary forms with required data contained
therein.
    (4) Prepare a brief statement setting forth the facts relative to
the claim (in the case of motor vehicle accidents, facts should be
recorded on Standard Form 91-A), a statement whether the claim satisfies
the requirements of this subpart, and a recommendation as to the amount
to be paid in settlement of the claim.
    (5) The head of the office concerned will be responsible for
assuring that all necessary forms, statements, and all supporting papers
have been procured for the file and will transmit the entire file to the
General Counsel.



Sec. 304.7  Authority to adjust, determine, compromise, and settle claims.

    The authority to consider, ascertain, adjust, determine, compromise
and settle claims of less than $5,000 under 28 U.S.C. 2672, and this
subpart, rests with the Chief Financial Officer, as the designee of the
head of the agency. For claims under 28 U.S.C. 2672 and this subpart,
subject to Sec. 304.8, the Director of the Peace Corps retains
authority to consider, ascertain, adjust, determine, compromise and
settle claims of $5,000 or more.

[72 FR 4206, Jan. 30, 2007]



Sec. 304.8  Limitations on authority.

    (a) An award, compromise, or settlement of a claim under section
2672 of title 28, United States Code, and this subpart in excess of
$25,000 may be effected only with the prior written approval of the
Attorney General or his designee. For the purpose of this paragraph, a
principal claim and any derivative or subrogated claim shall be treated
as a single claim.
    (b) An administrative claim may be adjusted, determined,
compromised, or settled only after consultation with the Department of
Justice when, in the opinion of the General Counsel:
    (1) A new precedent or a new point of law is involved; or
    (2) A question of policy is or may be involved; or
    (3) The United States is or may be entitled to indemnity or
contribution from a third party, and the Peace Corps is unable to adjust
the third party claim; or
    (4) The compromise of a particular claim, as a practical matter,
will or may control the disposition of a related claim in which the
amount to be paid may exceed $25,000.
    (c) An administrative claim may be adjusted, determined,
compromised, or settled only after consultation with the Department of
Justice when the Peace Corps is informed or is otherwise aware that the
United States or an officer, employee, agent, or cost-type contractor of
the United States is involved in litigation based on a claim arising out
of the same incident or transaction.



Sec. 304.9  Referral to the Department of Justice.

    When Department of Justice approval or consultation is required
under Sec. 304.8, the referral or request shall be transmitted to the
Department of Justice by the General Counsel.

[72 FR 4206, Jan. 30, 2007]



Sec. 304.10  Review of claim.

    (a) Upon receipt of the claim file from the head of the office
concerned, the General Counsel will ascertain that all supporting papers
are contained in the file.
    (b) After legal review and recommendation by the General Counsel,
the Director of the Peace Corps will make a written determination on the
claim, unless the claim is worth less than $5,000, in which case the
Chief Financial Officer will make the written determination.

[34 FR 5840, Mar. 28, 1969, as amended at 73 FR 21528, Apr. 22, 2008; 73
FR 49943, Aug. 25, 2008]



Sec. 304.11  Final denial of claim.

    The General Counsel will send notification of the final denial of an
administrative claim to the claimant, his attorney, or legal
representative by certified or registered mail. The notification of
final denial may include a statement of the reasons for the denial and
shall include a statement that, if

[[Page 20]]

the claimant is dissatisfied with the Peace Corps action, he may file
suit in an appropriate U.S. District Court not later than 6 months after
the date of mailing of the notification.



Sec. 304.12  Action on approved claim.

    (a) Payment of a claim approved under this subpart is contingent on
claimant's execution of (1) a ``Claim for Damage or Injury,'' Standard
From 95; and (2) a ``Voucher for Payment,'' Standard Form 1145, as
appropriate. When a claimant is represented by an attorney, the voucher
for payment shall designate the claimant and his attorney as copayees,
and the check shall be delivered to the attorney, whose address shall
appear on the voucher.
    (b) Acceptance by the claimant, his agent, or legal representative
of an award, compromise, or settlement made under section 2672 or 2677
of title 28, United States Code, is final and conclusive on the
claimant, his agent or legal representative, and any other person on
whose behalf or for whose benefit the claim has been presented, and
constitutes a complete release of any claim against the United States
and against any officer or employee of the Government whose act or
omission gave rise to the claim, by reason of the same subject matter.



PART 305_ELIGIBILITY AND STANDARDS FOR PEACE CORPS VOLUNTEER
SERVICE--Table of Contents



Sec.
305.1 Purpose and general guideline.
305.2 Eligibility.
305.3 Background investigations.
305.4 Selection standards.
305.5 Procedures.

    Authority: Sec. 4(b), 5(a) and 22, 75 Stat. 612, 22 U.S.C. 2504;
E.O. 12137, May 16, 1979, sec. 601, International Security and
Development Cooperation Act of 1981; 95 Stat. 1519 at 1540, sec.
417(c)(1), Domestic Volunteer Service Act (42 U.S.C. 5057(c)(1)).

    Source: 49 FR 38939, Oct. 2, 1984, unless otherwise noted.



Sec. 305.1  Purpose and general guideline.

    This subpart states the requirements for eligibility for Peace Corps
Volunteer service and the factors considered in the assessment and
selection of eligible applicants for training and service. In selecting
individuals for Peace Corps Volunteer service under this subpart, as
required by section 5(a) of the Peace Corps Act, as amended, ``no
political test shall be required to be taken into consideration, nor
shall there be any discrimination against any person on account of race,
sex, creed, or color.'' Further, in accordance with section 417(c)(1) of
the Domestic Volunteer Service Act, as amended (42 U.S.C. 5057 (c)(1))
the nondiscrimination policies and authorities set forth in section 717
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), title V of the
Rehabilitation Act of 1973 (29 U.S.C. 791 et seq.) and the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), are also applicable
to the selection, placement, service and termination of Peace Corps
Volunteers.



Sec. 305.2  Eligibility.

    In addition to those skills, personal attributes and aptitudes
required for available Volunteer assignments, the following are the
basic requirements that an applicant must satisfy in order to receive an
invitation to train for Peace Corps Volunteer service.
    (a) Citizenship. The applicant must be a citizen of the United
States or have made arrangements satisfactory to the Office of
Marketing, Recruitment, Placement and Staging (MRPS) and the Office of
General Counsel (D/GC) to be naturalized prior to taking the oath
prescribed for enrollment as a Peace Corps Volunteer. (See section 5[a]
of the Peace Corps Act, as amended).
    (b) Age. The applicant must be at least 18 years old.
    (c) Medical status. The applicant must, with reasonable
accommodation, have the physical and mental capacity required of a
Volunteer to perform the essential functions of the Peace Corps
Volunteer assignment for which he or she is otherwise eligible, and be
able to complete an agreed upon tour of service, ordinarily two years,
without unreasonable disruption due to health problems. In determining
what is a reasonable accommodation, the Peace Corps may take into
account the adequacy of local medical facilities. In determining whether
an accommodation

[[Page 21]]

would impose an undue hardship on the operation of the Peace Corps,
factors to be considered include: (1) The overall size of the Peace
Corps program with respect to the number of employees and/or Volunteers,
size of budget, and size and composition of staff at post of assignment,
(2) the nature and cost of the accommodation, and (3) the capacity of
the host country agency to which the applicant would be assigned to
provide any special accommodation necessary for the applicant to carry
out the assignment.
    (d) Legal status. The applicant must not be on parole or probation
to any court or have any court established or acknowledged financial or
other legal obligation which, in the opinion of D/GC and MRPS, cannot be
satisfied or postponed during the period of Peace Corps service.
    (e) Intelligence background. In accordance with longstanding Peace
Corps policy, prior employment by any agency of the United States
Government, civilian or military, or division of such an agency, whose
exclusive or principle function is the performance of intelligence
activities; or engaging in intelligence activities or related work may
disqualify a person from eligibility for Peace Corps service. See
section 611 of the Peace Corps Manual.
    (f) Marital status. (1) Ordinarily, if an applicant is married or
intends to marry prior to Peace Corps service, both husband and wife
must apply and qualify for assignment at the same location. Exceptions
to this rule will be considered by the Office of Volunteer Placement
(MRPS/P) under the following conditions:
    (2)(i) Unaccompanied married applicant. In order to qualify for
consideration for Peace Corps service, a married applicant whose spouse
does not wish to accompany him/her overseas must provide the Office of
Placement (MRPS/P) with a notarized letter from the spouse acknowledging
that he or she is aware of the applicant spouse's intention to serve as
a Peace Corps Volunteer for two years or more and that any financial and
legal obligations of the applicant to his or her spouse can be met
during the period of Peace Corps service. In determining eligibility in
such cases, MRPS/P will also consider whether the service of one spouse
without the accompaniment of the other can reasonably be anticipated to
disrupt the applicant spouse's service overseas.
    (ii) In addition to satisfying the above requirements, a married
applicant who is legally, or in fact, separated from his or her spouse,
must provide MRPS/P with copies of any agreements or other documentation
setting forth any legal and financial responsibilities which the parties
have to one another during any period of separation.
    (3) Divorced applicants. Applicants who have been divorced must
provide MRPS/P with copies of all legal documents related to the
divorce.
    (g) Dependents. Peace Corps has authority to provide benefits and
allowances for the dependent children of Peace Corps Volunteers who are
under the age of 18. However, applicants with dependent children under
the age of 18 will not be considered eligible for Peace Corps service
unless MRPS/P determines that the skills of the applicants are essential
to meet the requirements of a Volunteer project, and that qualified
applicants without minor dependents are not available to fill the
assignment.
    (1) Procedures for placing volunteers with children. The placement
of any couple with dependent children must have the concurrence of the
appropriate Country and Regional Director.
    (2) If the applicant has any dependents who will not accompany him
or her overseas, the applicant must satisfy MRPS/P and the General
Counsel that adequate arrangements have been made for the care and
support of the dependent during any period of training and Peace Corps
service; that such service will not adversely affect the relationship
between the applicant and dependent in such a way as to disrupt his or
her service; and that he or she is not using Peace Corps service to
escape responsibility for the welfare of any dependents under the age of
18.
    (3) Married couples with more than two children or with children who
are below two years of age are not eligible for Peace Corps service
except in extraordinary circumstances as approved

[[Page 22]]

by the Director of the Peace Corps or designee.
    (h) Military service. Applicants with military or national guard
obligation must provide MRPS/P with a written statement from their
commanding officer that their presence will not be required by their
military unit for the duration of their Peace Corps service, except in
case of national emergency.
    (i) Failure to disclose requested information. Failure to disclose,
and/or the misrepresentation of material information requested by the
Peace Corps regarding any of the above described standards of
eligibility may be grounds for disqualification or separation from Peace
Corps Volunteer service. (See section 284 of the Peace Corps Manual.)



Sec. 305.3  Background investigations.

    Section 22 of the Peace Corps Act states that to ensure enrollment
of a Volunteer is consistent with the national interest, no applicant is
eligible for Peace Corps Volunteer service without a background
investigation. The Peace Corps requires that all applicants accepted for
training have as a minimum a National Agency Check. Information revealed
by the investigation may be grounds for disqualification from Peace
Corps service.



Sec. 305.4  Selection standards.

    To qualify for selection for overseas service as a Peace Corps
Volunteer, applicants must demonstrate that they possess the following
personal attributes:
    (a) Motivation. A sincere desire to carry out the goals of Peace
Corps service, and a commitment to serve a full term as a Volunteer.
    (b) Productive competence. The intelligence and educational
background to meet the needs of the individual's assignment.
    (c) Emotional maturity/adaptability. The maturity, flexibility, and
self-sufficiency to adapt successfully to life in another culture, and
to interact and communicate with other people regardless of cultural,
social, and economic differences.
    (d) Skills. By the end of training, in addition to the attributes
mentioned above, a Trainee must demonstrate competence in the following
areas:
    (1) Language. The ability to communicate in the language of the
country of service with the fluency required to meet the needs of the
overseas assignment.
    (2) Technical competence. Proficiency in the technical skills needed
to carry out the assignment.
    (3) Knowledge. Adequate knowledge of the culture and history of the
country of assignment to ensure a successful adjustment to, and
acceptance by, the host country society. The Trainee must also have an
awareness of the history and government of the United States which
qualifies the individual to represent the United States abroad.
    (e) Failure to meet standards. Failure to meet any of the selection
standards by the completion of training may be grounds for deselection
and disqualification from Peace Corps service.



Sec. 305.5  Procedures.

    Procedures for filing, investigating, and determining allegations of
discrimination on the basis of race, color, national origin, religion,
age, sex, handicap or political affiliation in the application of any
provision of this part are contained in MS 293 (45 CFR part 1225).



PART 306_VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE--Table of Contents



    Cross Reference: ACTION regulations concerning the volunteer
discrimination complaint procedure, appearing in 45 CFR part 1225, are
applicable to Peace Corps volunteers. Part 1225 appears at 46 FR 1609,
Jan. 6, 1981.



PART 308_IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents



Sec.
308.1 Purpose.
308.2 Policy.
308.3 Definitions.
308.4 Disclosure of records.
308.5 New uses of information.
308.6 Reports regarding changes in systems.
308.7 Use of social security account number in records systems.
          [Reserved]
308.8 Rules of conduct.
308.9 Records systems--management and control.

[[Page 23]]

308.10 Security of records systems--manual and automated.
308.11 Accounting for disclosure of records.
308.12 Contents of records systems.
308.13 Access to records.
308.14 Specific exemptions.
308.15 Identification of requesters.
308.16 Amendment of records and appeals with respect thereto.
308.17 Denial of access and appeals with respect thereto.
308.18 Fees.

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

    Source: 50 FR 1844, Jan. 14, 1985, unless otherwise noted.



Sec. 308.1  Purpose.

    The purpose of this part is to set forth the basic policies of the
Peace Corps governing the maintenance of systems of records containing
personal information as defined in the Privacy Act of 1974 (5 U.S.C.
552a). Records included in this part are those described in the
aforesaid Act and maintained by the Peace Corps and/or any component
thereof.



Sec. 308.2  Policy.

    It is the policy of the Peace Corps to protect, preserve and defend
the right of privacy of any individual as to whom the agency maintains
personal information in any records system and to provide appropriate
and complete access to such records including adequate opportunity to
correct any errors in said records. It is further the policy of the
agency to maintain its records in such a fashion that the information
contained therein is and remains material and relevant to the purposes
for which it is collected in order to maintain its records with fairness
to the individuals who are the subject of such records.



Sec. 308.3  Definitions.

    (a) Record means any document, collection, or grouping of
information about an individual maintained by the agency, including but
not limited to information regarding education, financial transactions,
medical history, criminal or employment history, or any other personal
information which contains the name or personal identification number,
symbol, photograph, or other identifying particular assigned to such
individual, such as a finger or voiceprint.
    (b) System of Records means a group of any records under the control
of the agency from which information is retrieved by use of the name of
an individual or by some identifying number, symbol, or other
identifying particular assigned to the individual.
    (c) Routine Use means, with respect to the disclosure of a record,
the use of such record for a purpose which is compatible with the
purpose for which it was collected.
    (d) The term agency means the Peace Corps or any component thereof.
    (e) The term individual means any citizen of the United States or an
alien lawfully admitted to permanent residence.
    (f) The term maintain includes the maintenance, collection, use or
dissemination of any record.
    (g) The term Act means the Privacy Act of 1974 (5 U.S.C. 552a) as
amended from time to time.



Sec. 308.4  Disclosure of records.

    The agency will not disclose any personal information from systems
of records it maintains to any individual other than the individual to
whom the record pertains, or to another agency, without the express
written consent of the individual to whom the record pertains, or his or
her agent or attorney, except in the following instances:
    (a) To officers or employees of the Peace Corps having a need for
such record in the official performance of their duties.
    (b) When required under the provisions of the Freedom of Information
Act (5 U.S.C. 552).
    (c) For routine uses as published in the Federal Register.
    (d) To the Bureau of the Census for uses pursuant to title 13.
    (e) To an individual or agency having a proper need for such record
for statistical research provided that such record is transmitted in a
form which is not individually identifiable and that an appropriate
written statement is obtained from the person to whom the record is
transmitted stating the purpose for the request and a certification
under oath that the records will be used only for statistical purposes.

[[Page 24]]

    (f) To the National Archives of the United States as a record of
historical value under rules and regulations of the Archives or to the
Administrator of General Services or his designee to determine if it has
such value.
    (g) To an agency or instrumentality of any governmental jurisdiction
within the control of the United States for civil or criminal law
enforcement activities, if the activity is authorized by law, and the
head of any such agency or instrumentality has made a written request
for such records specifying the particular portion desired and the law
enforcement activity for which the record is sought. Such a record may
also be disclosed by the agency to the law enforcement agency on its own
initiative in situations in which criminal conduct is suspected:
Provided, That such disclosure has been established as a routine use or
in situations in which the misconduct is directly related to the purpose
for which the record is maintained.
    (h) In emergency situations upon a showing of compelling
circumstances affecting the health or safety of any individual provided
that after such disclosure, notification of such disclosure must be
promptly sent to the last known address of the individual to whom the
record pertains.
    (i) To either House of Congress or to a subcommittee or committee
(joint or of either house) to the extent the subject matter falls within
their jurisdiction.
    (j) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office.
    (k) Pursuant to an order by the presiding judge of a court of
competent jurisdiction. If any record is disclosed under such compulsory
legal process and subsequently made public by the court which issued it,
the agency must make a reasonable effort to notify the individual to
whom the record pertains of such disclosure.
    (l) To consumer reporting agencies as defined in 31 U.S.C.
3701(a)(3) in accordance with 31 U.S.C. 3711, and under contracts for
collection services as authorized in 31 U.S.C. 3718.



Sec. 308.5  New uses of information.

    The agency shall publish in the Federal Register a notice of its
intention to establish a new or revised routine use of any system of
records maintained by it with an opportunity for public comments on such
use. Such notice shall contain the following:
    (a) The name of the system of records for which the new or revised
routine use is to be established.
    (b) The authority for maintaining the system of records.
    (c) The categories of records maintained in the system.
    (d) The purpose for which the record is to be maintained.
    (e) The proposed routine use(s).
    (f) The purpose of the routine use(s).
    (g) The categories of recipients of such use.


In the event of any request for an addition to the routine uses of the
systems which the agency maintains, such request may be sent to the
following officer: Director, Office of Administrative Services, Peace
Corps, 806 Connecticut Avenue, NW., Washington, DC 20526.



Sec. 308.6  Reports regarding changes in systems.

    The agency shall provide to Congress and the Office of Management
and Budget advance notice of any proposal to establish or alter any
system of records as defined herein. This report will be submitted in
accord with guidelines provided by the Office of Management and Budget.



Sec. 308.7  Use of social security account number in records systems.
[Reserved]



Sec. 308.8  Rules of conduct.

    (a) The head of the agency shall assure that all persons involved in
the design, development, operation or maintenance of any systems of
records as defined herein are informed of all requirements necessary to
protect the privacy of individuals who are the subject of such records.
All employees shall be informed of all implications of the Act in this
area including the criminal penalties provided under the Act, and the
fact the agency may be

[[Page 25]]

subject to civil suit for failure to comply with the provisions of the
Privacy Act and these regulations.
    (b) The head of the agency shall also ensure that all personnel
having access to records receive adequate training in the protection of
the security of personal records and that adequate and proper storage is
provided for all such records with sufficient security to assure the
privacy of such records.



Sec. 308.9  Records systems--management and control.

    (a) The Director, Office of Administrative Services, shall have
overall control and supervision of the security of all records keeping
systems and shall be responsible for monitoring the security standards
set forth in these regulations.
    (b) A designated official (System Manager) shall be named who shall
have management responsibility for each record system maintained by the
agency and who shall be responsible for providing protection and
accountability for such records at all times and for insuring that such
records are secured in appropriate containers wherever not in use or in
the direct control of authorized personnel.



Sec. 308.10  Security of records systems--manual and automated.

    The head of the agency has the responsibility of maintaining
adequate technical, physical, and security safeguards to prevent
unauthorized disclosure or destruction of manual and automatic record
systems. These security safeguards shall apply to all systems in which
identifiable personal data are processed or maintained including all
reports and outputs from such systems which contain identifiable
personal information. Such safeguards must be sufficient to prevent
negligent, accidental, or unintentional disclosure, modification or
destruction of any personal records or data and must furthermore
minimize the extent technicians or knowledgeable persons could
improperly obtain access to modify or destroy such records or data and
shall further insure against such casual entry by unskilled persons
without official reasons for access to such records or data.
    (a) Manual systems. (1) Records contained in records systems as
defined herein may be used, held or stored only where facilities are
adequate to prevent unauthorized access by persons within or without the
agency.
    (2) All records systems when not under the personal control of the
employees authorized to use same must be stored in an appropriate metal
filing cabinet. Where appropriate, such cabinet shall have a three
position dial-type combination lock, and/or be equipped with a steel
lock bar secured by a GSA approved changeable combination padlock or in
some such other securely locked cabinet as may be approved by GSA for
the storage of such records. Certain systems are not of such
confidential nature that their disclosure would harm an individual who
is the subject of such record. Records in this category shall be
maintained in steel cabinets without the necessity of combination locks.
    (3) Access to and use of systems of records shall be permitted only
to persons whose official duties require such access within the agency,
for routine use as defined in Sec. 308.4 and in the Peace Corps'
published systems of records notices, or for such other uses as may be
provided herein.
    (4) Other than for access within the agency to persons needing such
records in the performance of their official duties or routine uses as
defined herein and in the Peace Corps' systems of records notices or
such other uses as provided herein, access to records within systems of
records shall be permitted only to the individual to whom the record
pertains or upon his or her written request to a designated personal
representative.
    (5) Access to areas where records systems are stored will be limited
to those persons whose official duties require work in such areas and
proper accounting of removal of any records from storage areas shall be
maintained at all times in the form directed by the Director,
Administrative Services.
    (6) The agency shall assure that all persons whose official duties
require access to and use of records contained in records systems are
adequately trained to protect the security and privacy of such records.

[[Page 26]]

    (7) The disposal and destruction of records within records systems
shall be in accord with rules promulgated by the General Services
Administration.
    (b) Automated systems. (1) Identifiable personal information may be
processed, stored or maintained by automatic data systems only where
facilities or conditions are adequate to prevent unauthorized access to
such systems in any form. Whenever such data contained in punch cards,
magnetic tapes or discs are not under the personal control of an
authorized person such information must be stored in a metal filing
cabinet having a built-in three position combination lock, a metal
filing cabinet equipped with a steel lock, a metal filing cabinet
equipped with a steel lock bar secured with a General Services
Administration (GSA) approved combination padlock, or in adequate
containers or in a secured room or in such other facility having greater
safeguards than those provided for herein.
    (2) Access to and use of identifiable personal data associated with
automated data systems shall be limited to those persons whose official
duties require such access. Proper control of personal data in any form
associated with automated data systems shall be maintained at all times
including maintenance of accountability records showing disposition of
input and output documents.
    (3) All persons whose official duties require access to processing
and maintenance of identifiable personal data and automated systems
shall be adequately trained in the security and privacy of personal
data.
    (4) The disposal and disposition of identifiable personal data and
automated systems shall be carried on by shredding, burning or in the
case of tapes of discs, degaussing, in accord with any regulations now
or hereafter proposed by the GSA or other appropriate authority.



Sec. 308.11  Accounting for disclosure of records.

    Each office maintaining a system of records shall keep a written
account of routine disclosures (see paragraphs (a) through (e) of this
section) for all records within such system in the form prescribed by
the Director, Office of Administrative Services. Disclosure made to
employees of the agency in the normal course of their official duties or
pursuant to the provisions of the Freedom of Information Act need not be
accounted for. Such written account shall contain the following:
    (a) The date, nature, and purpose of each disclosure of a record to
any person or to another agency.
    (b) The name and address of the person or agency to whom the
disclosure was made.
    (c) Sufficient information to permit the construction of a listing
of all disclosures at appropriate periodic intervals.
    (d) The justification or basis upon which any release was made
including any written documentation required when records are released
for statistical or law enforcement purposes under the provisions of
subsection (b) of the Act.
    (e) For the purpose of this part, the system of accounting for
disclosure is not a system of records under the definitions hereof and
no accounting need be maintained for the disclosure of accounting of
disclosures.



Sec. 308.12  Contents of records systems.

    (a) The agency shall maintain in any records contained in any
records system hereunder only such information about an individual as is
accurate, relevant, and necessary to accomplish the purpose for which
the agency acquired the information as authorized by statute or
executive order.
    (b) In situations in which the information may result in adverse
determinations about such individual's rights, benefits and privileges
under any Federal program, all information placed in records systems
shall, to the greatest extent practicable, be collected from the
individual to whom the record pertains.
    (c) Each form or other document which an individual is expected to
complete in order to provide information for any records system shall
have appended thereto, or in the body of the document:
    (1) An indication of the authority authorizing the solicitation of
the information and whether the provision of

[[Page 27]]

the information is mandatory or voluntary.
    (2) The purpose or purposes for which the information is intended to
be used.
    (3) Routine uses which may be made of the information and published
pursuant to Sec. 308.7 of this regulation.
    (4) The effect on the individual, if any, of not providing all or
part of the required or requested information.
    (d) Records maintained in any system of records used by the agency
to make any determinatioin about any individual shall be maintained with
such accuracy, relevancy, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the making of any
determination about such individual: Provided, however, That the agency
shall not be required to update or keep current retired records.
    (e) Before disseminating any record about an individual to any
person other than an agency as defined in 5 U.S.C. 552(e) or pursuant to
the provsions of the Freedom of Information Act (5 U.S.C. 552), the
agency shall make reasonable efforts to assure that such records are
accurate, complete, timely and relevant for agency purposes.
    (f) Under no circumstances shall the agency maintain any record
about an individual with respect to or describing how such individual
exercises rights guaranteed by the first amendment of the Constitution
of the United States unless expressly authorized by statute or by the
individual about whom the record is maintained or unless pertinent to
and within the scope of an authorized law enforcement activity.
    (g) In the event any record is disclosed as a result of the order of
a presiding judge of a court of competent jurisdiction, the agency shall
make reasonable efforts to notify the individual whose record was so
disclosed after the process becomes a matter of public record.



Sec. 308.13  Access to records.

    (a) The Director, Administrative Services, shall keep a current list
of systems of records maintained by the agency and published in
accordance with the provisions of these regulations.
    (b) Individuals requesting access to any record the agency maintains
about him or her in a system of records shall be provided access to such
records. Such requests shall be submitted in writing by mail, or in
person during regular business hours, to the System Managers identified
in the specific system notices. Systems maintained at overseas and
dometic field offices may be addressed to the Country Director or
Regional Service Center Manager. If assistance is needed, the Director,
Office of Administrative Services, will provide agency addresses.
    (c) Requests for records from more than one system of records shall
be directed to the Director, Office of Administrative Services, Peace
Crops, 806 Connecticut Avenue, NW., Washington, DC 20526.
    (d) Requests for access to or copies of records should contain, at a
minimum, identifying information needed to locate any given record and a
brief description of the item or items of information required. If the
individual wishes access to specific documents the request should
identify or describe as nearly as possible such documents.
    (e) A record may be disclosed to a representative of the person to
whom a record relates who is authorized in writing to have access to the
record by the person to whom it relates.
    (f) A request made in person will be promptly complied with if the
records sought are in the immediate custody of the Peace Corps. Mailed
or personal request for documents in storage which must be complied from
more than one location, or which are otherwise not immediately
available, will be acknowledge within ten working days, and the records
requested will be provided as promptly thereafter as possible.
    (g) Medical or psychological records shall be disclosed to an
individual unless in the judgment of the agency, access to such records
might have an adverse effect upon such individual. When such
determination has been made, the agency may require that the information
be disclosed only to a physician chosen by the requesting individual.
Such physician shall have full authority to disclose all or any portion
of

[[Page 28]]

such record to the requesting individual in the exercise of his or her
professional judgment.



Sec. 308.14  Specific exemptions.

    Records or portions of records in certain record systems specified
in paragraphs (a) through (c) of this section shall be exempt from
disclosure: Provided, however, That no such exemption shall apply to the
provisions of Sec. 308.12(a) (maintaining records with accuracy,
completeness, etc. as reasonably necessary for agency purposes); Sec.
308.12(b) (collecting information directly from the individual to whom
it pertains); Sec. 308.12(c) (informing individuals asked to supply
information of the purposes for which it is collected and whether it is
mandatory); Sec. 308.12(g) (notifying the subjects of records disclosed
under compulsory court process); Sec. 308.16(d)(3) (informing prior
recipient of corrected or disputed records); Sec. 308.16(g) (civil
remedies). With the above exceptions the following material shall be
exempt from disclosure to the extent indicated:
    (a) Material in any system of records considered classified and
exempt from disclosure under provisions of section 552(b)(1) of the
Freedom of Information Act. Agency systems of records now containing
such material are: Legal Files--Staff, Volunteers and Applicants;
Security Records Peace Corps Staff/Volunteers and ACTION staff.
    (1) Authority: 5 U.S.C. 552a (k)(1)
    (2) Reasons: To protect information classified in the interest of
national defense or foreign policy.
    (b) Investigatory material compiled for the purposes of law
enforcement: Provided, however, That if any individual is denied any
right, privilege, or benefit that he or she would otherwise be entitled
to by Federal law, or for which he or she would otherwise be eligible,
as a result of the maintenance of such material, such material shall be
provided to such individual except to the extent necessary to protect
the identity of a source who furnished information to the government
under an express promise that his or her identity would be held in
confidence, or prior to the effective date of the Privacy Act of 1974,
under an implied promise of such confidentiality of the identity of such
source. Agency systems of records containing such investigatory material
are: Discrimination Complaint Files; Employee Occupational Injury and
Illness Reports; Legal Files--Staff, Volunteers and Applicants; Security
Records--Peace Corps Staff/Volunteers and ACTION Staff.
    (1) Authority: 5 U.S.C. 552a(k)(2)
    (2) Reasons: To protect the identity of sources to whom proper
promises of confidentiality have been made during investigations.
Without these promises, sources will often be unwilling to provide
information essential in adjudicating access in a fair and impartial
manner.
    (c) Investigatory material compiled solely for the purpose of
determining suitability, eligibility or qualification for service as an
employee or volunteer or for the obtaining of a Federal contract or for
access to classified information: Provided, however, That such material
shall be disclosed to the extent possible without revealing the identity
of a source who furnished information to the government under an express
promise of the confidentiality of his or her identity or, prior to the
effective date of the Privacy Act of 1974, under an implied promise of
such confidentiality of identity. Agency systems of records containing
such material are: Contractors and Consultant Files; Discrimination
Complaint Files; Legal Files--Staff, Volunteers and Applicants; Personal
Service Contract Records--Peace Corps Staff/Volunteers and ACTION Staff;
Staff Applicant and Personnel Records; Talent Bank; Volunteer Applicant
and Service Record Systems.
    (1) Authority: 5 U.S.C. 552a(k)(5)
    (2) Reasons: To ensure the frankness of information used to
determine whether Peace Corps Volunteers applicants and Peace Corps
Staff applicants are qualified for service with the agency.
    (d) Records in the Office of Inspector General Investigative Files
and Records system of records are exempt from certain provisions to the
extent provided hereinafter.
    (1) To the extent that the system of records pertains to the
enforcement of criminal laws, the Office of Inspector General
Investigative Files and

[[Page 29]]

Records system of records is exempt from all sections of the Privacy Act
(5 U.S.C. 552a) except the following sections: (b) relating to
conditions of disclosure; (c)(1) and (2) relating to keeping and
maintaining a disclosure accounting; (e)(4)(A) through (F) relating to
publishing a system notice setting the name, location, categories of
individuals and records, routine uses, and policies regarding storage,
retrievability, access controls, retention and disposal of the records;
(e)(6), (7), (9), (10), and (11) relating to dissemination and
maintenance of records and (i) relating to criminal penalties. This
system of records is also exempt from the provisions of Sec. 308.11
through Sec. 308.17 to the extent that the provisions of these sections
conflict with this paragraph.
    (i) Authority: 5 U.S.C. 552a(j)(2).
    (ii) Reasons:
    (A) To prevent interference with law enforcement proceedings.
    (B) To avoid unwarranted invasion of personal privacy, by disclosure
of information about third parties, including other subjects of
investigations, investigators, and witnesses.
    (C) To protect the identity of Federal employees who furnish a
complaint or information to OIG, consistent with section 7(b) of the
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
    (D) To protect the confidentiality of non-Federal employee sources
of information.
    (E) To assure access to sources of confidential information,
including those contained in Federal, State, and local criminal law
enforcement information systems.
    (F) To prevent disclosure of law enforcement techniques and
procedures.
    (G) To avoid endangering the life or physical safety of confidential
sources.
    (2) To the extent that there may exist within this system of records
investigative files compiled for law enforcement purposes, other than
material within the scope of subsection (j)(2) of the Privacy Act, the
OIG Investigative Files and Records system of records is exempt from the
following sections of the Privacy Act: (c)(3) relating to access to the
disclosure accounting; (d) relating to access to records; (e)(1)
relating to the type of information maintained in the records; (e)(4)
(G), (H), and (I) relating to publishing the system notice information
as to agency procedures for access and amendment, and information as to
the categories of sources or records; and (f) relating to developing
agency rules for gaining access and making corrections. Provided,
however, That if any individual is denied any right, privilege, or
benefit that they would otherwise be entitled by Federal law, or for
which they would otherwise be eligible, as a result of the maintenance
of such material, such material shall be provided to such individual
except to the extent that the disclosure of such material would reveal
the 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 January 1, 1975, under an implied promise
that the identity of the source would be held in confidence. This system
of records is also exempt from the provisions of Sec. 308.11 through
Sec. 308.17 to the extent that the provisions of these sections
conflict with this paragraph.
    (i) Authority: 5 U.S.C. 552a(k)(2)
    (ii) Reasons:
    (A) To prevent interference with law enforcement proceedings.
    (B) To protect investigatory material compiled for law enforcement
purposes.
    (C) To avoid unwarranted invasion of personal privacy, by disclosure
of information about third parties, including other subjects of
investigation, law enforcement personnel, and sources of information.
    (D) To fulfill commitments made to protect the confidentiality of
sources.
    (E) To protect the identity of Federal employees who furnish a
complaint or information to the OIG, consistent with Section 7(b) of the
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
    (F) To assure access to sources of confidential information,
including those contained in Federal, State, and local criminal law
enforcement systems.
    (G) [Reserved]
    (H) To prevent disclosure of law enforcement techniques and
procedures.

[[Page 30]]

    (I) To avoid endangering the life or physical safety of confidential
sources and law enforcement personnel.

[50 FR 1844, Jan. 14, 1985, as amended at 58 FR 39657, July 26, 1993]



Sec. 308.15  Identification of requesters.

    The agency shall require reasonable identification of all
individuals who request access to records to assure that records are not
disclosed to persons not entitled to such access.
    (a) In the event an individual requests disclosure in person, such
individual shall be required to show an identification card such as a
driver's license, etc., containing a photo and a sample signature of
such individual. Such individual may also be required to sign a
statement under oath as to his or her identity acknowledging that he or
she is aware of the penalties for improper disclosure under the
provisions of the Privacy Act of 1974.
    (b) In the event that disclosure is requested by mail, the agency
may request such information as may be necessary to reasonably assure
that the individual making such request is properly identified. In
certain cases, the agency may require that a mail request be notarized
with an indication that the notary received an acknowledgment of
identity from the individual making such request.
    (c) In the event an individual is unable to provide suitable
documentation or identification, the agency may require a signed
notarized statement asserting the identity of the individual and
stipulating that the individual understands that knowingly or willfully
seeking or obtaining access to records about another person under false
pretenses is punishable by a fine of up to $5,000.
    (d) In the event a requester wishes to be accompanied by another
person while reviewing his or her records, the agency may require a
written statement authorizing discussion of his or her records in the
presence of the accompanying representative or other persons.



Sec. 308.16  Amendment of records and appeals with respect thereto.

    (a) In the event an individual desires to request an amendment of
his or her record, he or she may do so by submitting such written
request to the Director, Administrative Services, Peace Corps, 806
Connecticut Avenue, NW., Washington, DC 20526. The Director,
Administrative Services, shall provide assistance in preparing any
amendment upon request and a written acknowledgment of receipt of such
request within 10 working days after the receipt thereof from the
individual who requested the amendment. Such acknowledgment may, if
necessary, request any additional information needed to make a
determination with respect to such request. If the agency decides to
comply with the request within the 10 day period, no written
acknowledgment is necessary: Provided, however, That a certification of
the change shall be provided to such individual within such period.
    (b) Promptly after acknowledgment of the receipt of a request for an
amendment the agency shall take one of the following actions:
    (1) Make any corrections of any portion of the record which the
individual believes is not accurate, relevant, timely or complete.
    (2) Inform the individual of its refusal to amend the record in
accord with the request together with the reason for such refusal and
the procedures established for requesting review of such refusal by the
head of the agency or his or her designee. Such notice shall include the
name and business address of the reviewing official.
    (3) Refer the request to the agency that has control of and
maintains the record in those instances where the record requested
remains the property of the controlling agency and not of the Peace
Corps.
    (c) In reviewing a request to amend the record the agency shall
assess the accuracy, relevance, timeliness and completeness of the
record with due and appropriate regard for fairness to the individual
about whom the record is maintained. In making such determination, the
agency shall consult criteria for determining record quality published
in pertinent chapters of the Federal Personnel Manual and to the extent
possible shall accord therewith.

[[Page 31]]

    (d) In the event the agency agrees with the individual's request to
amend such record it shall:
    (1) Advise the individual in writing,
    (2) Correct the record accordingly, and
    (3) Advise all previous recipients of a record which was corrected
of the correction and its substance.
    (e) In the event the agency, after an initial review of the request
to amend a record, disagrees with all or a portion of it, the agency
shall:
    (1) Advise the individual of its refusal and the reasons therefore,
    (2) Inform the individual that he or she may request further review
in accord with the provisions of these regulations, and
    (3) Specify The name and address of the person to whom the request
should be directed.
    (f) In the event an individual requester disagrees with the initial
agency determination, he or she may appeal such determination to the
Director of the Peace Corps or his or her designee. Such request for
review must be made within 30 days after receipt by the requester of the
initial refusal to amend.
    (g) If after review the Director or designee refuses to amend the
record as requested he or she shall advise the individual requester of
such refusal and the reasons for same; of his or her right to file a
concise statement in the record of the reasons for disagreeing with the
decision of the agency; of the procedures for filing a statement of
disagreement and of the fact that such statement so filed will be made
available to anyone to whom the record is subsequently disclosed
together with a brief statement of the agency summarizing its reasons
for refusal, if the agency decides to place such brief statement in the
record. The agency shall have the authority to limit the length of any
statement to be filed, such limit to depend upon the record involved.
The agency shall also inform such individual that prior recipients of
the disputed record will be provided a copy of both statements of the
dispute to the extent that the accounting of disclosures has been
maintained and of the individual's right to seek judicial review of the
agency's refusal to amend the record.
    (h) If after review the official determines that the record should
be amended in accordance with the individual's request, the agency shall
proceed as provided above in the event a request is granted upon initial
demand.
    (i) Final agency determination of an individual's request for a
review shall be concluded with 30 working days from the date of receipt
of the review request: Provided, however, That the Director or designee
may determine that fair and equitable review cannot be made within that
time. If such circumstances occur, the individual shall be notified in
writing of the additional time required and of the approximate date on
which determination of the review is expected to be completed.



Sec. 308.17  Denial of access and appeals with respect thereto.

    In the event that the agency finds it necessary to deny any
individual access to a record about such individual pursuant to
provisions of the Privacy Act or of these regulations, a response to the
original request shall be made in writing within ten working days after
the date of such initial request. The denial shall specify the reasons
for such refusal or denial and advise the individual of the reasons
therefore, and of his or her right to an appeal within the agency and/or
judicial review under the provisions of the Act.
    (a) In the event an individual desires to appeal any denial of
access, he or she may do so in writing by addressing such appeal to the
attention of the Director, Peace Corps, or designee identified in such
denial. Such appeal should be addressed to Director, Peace Corps, c/o
Office of Administrative Services, Room P-314, 806 Connecticut Avenue,
NW., Washington, DC 20526.
    (b) The Director, or designee, shall review a request from a denial
of access and shall make a determination with respect to such appeal
within 30 days after receipt thereof. Notice of such determination shall
be provided to the individual making the request in writing. If such
appeal is denied in whole or in part, such notice shall include
notification of the right of the person making such request to have
judicial review of the denial as provided in the Act.

[[Page 32]]



Sec. 308.18  Fees.

    No fees shall be charged for search time or for any other time
expended by the agency to produce a record. Copies of records may be
charged for at the rate of 10 cents per page provided that one copy of
any record shall be provided free of charge.



PART 309_DEBT COLLECTION--Table of Contents



                      Subpart A_General Provisions

Sec.
309.1 General purpose.
309.2 Scope.
309.3 Definitions.
309.4 Other procedures or actions.
309.5 Interest, penalties, and administrative costs.
309.6 Collection in installments.
309.7 Designation.

                      Subpart B_Collection Actions

309.8 Application.
309.9 Notice--written demand for payment.
309.10 Review requirements.
309.11 Collection.

                         Subpart C_Salary Offset

309.12 Purpose.
309.13 Scope.
309.14 Coordinating offset with another Federal agency.
309.15 Notice requirements before offset.
309.16 Review.
309.17 Procedures for salary offset.
309.18 Voluntary repayment agreements as an alternative to salary
          offset.
309.19 Waiver.
309.20 Compromise.
309.21 Suspension of collection.
309.22 Termination of collection.
309.23 Discharge.
309.24 Bankruptcy.

    Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 22 U.S.C. 2503(b); 31
U.S.C. 3720A; 31 CFR part 285; 5 CFR 550, subpart K.

    Source: 73 FR 18155, Apr. 3, 2008, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 309.1  General purpose.

    This part prescribes the procedures to be used by the United States
Peace Corps (Peace Corps) in the collection and/or disposal of non-tax
debts owed to Peace Corps and to the United States.



Sec. 309.2  Scope.

    (a) Applicability of Federal Claims Collection Standards (FCCS).
Peace Corps hereby adopts the provisions of the Federal Claims
Collections Standards (31 CFR parts 900-904) and, except as set forth in
this part or otherwise provided by law, Peace Corps will conduct
administrative actions to collect claims (including offset, compromise,
suspension, termination, disclosure and referral) in accordance with the
FCCS.
    (b) This part is not applicable to:
    (1) Peace Corps claims against another Federal agency, any foreign
country or any political subdivision thereof, or any public
international organization.
    (2) Debts arising out of acquisitions contracts subject to the
Federal Acquisition Regulation (FAR) shall be determined, collected,
compromised, terminated, or settled in accordance with those regulations
(see 49 CFR part 32).
    (3) Claims where the Peace Corps Director (or designee) determines
that the achievement of the purposes of the Peace Corps Act, as amended,
22 U.S.C. 2501 et seq., or any other provision of law administered by
the Peace Corps require a different course of action.



Sec. 309.3  Definitions.

    As used in this part (except where the context clearly indicates, or
where the term is otherwise defined elsewhere in this part) the
following definitions shall apply:
    (a) Administrative offset means withholding funds payable by the
United States to, or held by the United States for, a person to satisfy
a debt owed by the person to the United States.
    (b) Administrative wage garnishment means the process by which a
Federal agency orders a non-Federal employer to withhold amounts from an
employee's wages to satisfy a debt the employee owes to the United
States.
    (c) Compromise means that the creditor agency accepts less than the
full amount of an outstanding debt in full satisfaction of the entire
amount of the debt.
    (d) Debt or claim means an amount of money which has been determined
by an appropriate agency official to be owed to the United States from
any

[[Page 33]]

person. As used in this part, the terms debt and claim are synonymous.
    (e) Debtor means a person who owes the Federal Government money.
    (f) Delinquent debt means any debt, which has not been paid by the
date specified in an agency's initial written notification or in an
applicable agreement, unless other satisfactory payment arrangements
have been made.
    (g) Discharge means the release of a debtor from personal liability
for a debt. Further collection action is prohibited.
    (h) Disposable pay has the same meaning as that term is defined in 5
CFR Sec. 550.1103.
    (i) Employee means a current employee of the Peace Corps or other
Federal agency, including a member of the Armed Forces or Reserve of the
Armed Forces of the United States.
    (j) FCCS means the Federal Claims Collection Standards jointly
published by the Department of the Treasury and the Department of
Justice at 31 CFR parts 900-904.
    (k) Person means an individual, corporation, partnership,
association, organization, State or local government, or any other type
of entity other than a Federal agency, foreign government, or public
international organization.
    (l) Salary offset means the withholding of amounts from the current
pay account of a Federal employee to satisfy a debt owed by that
employee to the United States.
    (m) Suspension means the temporary cessation of an active debt
collection pending the occurrence of an anticipated event.
    (n) Termination means the cessation of all active debt collection
action for the foreseeable future.
    (o) Waiver means the decision to forgo collection of a debt owed to
the United States as permitted or required by law.



Sec. 309.4  Other procedures or actions.

    (a) Nothing contained in this regulation is intended to require
Peace Corps to duplicate administrative proceedings required by contract
or other laws or regulations.
    (b) Nothing in this regulation is intended to preclude utilization
of informal administrative actions or remedies which may be available.
    (c) Nothing contained in this regulation is intended to deter Peace
Corps from demanding the return of specific property or from demanding
the return of the property or the payment of its value.
    (d) The failure of Peace Corps to comply with any provision in this
regulation shall not serve as a defense to the debt.



Sec. 309.5  Interest, penalties, and administrative costs.

    (a) Except as otherwise provided by statute, contract or excluded in
accordance with FCCS, Peace Corps will assess:
    (1) Interest on unpaid debts in accordance with 31 CFR 901.9.
    (2) Penalty charges at a rate of 6 percent a year or such other rate
as authorized by law on any portion of a claim that is delinquent for
more than 90 days.
    (3) Administrative charges to cover the costs of processing and
handling delinquent debts.
    (4) Late payment charges that shall be computed from the date of
mailing or hand delivery of the notice of the claim and interest
requirements.
    (b) When a debt is paid in partial or installment payments, amounts
received shall be applied first to outstanding penalty and
administrative cost charges, second to accrued interest, and then to
outstanding principal.
    (c) Waiver. Peace Corps will consider waiver of interest, penalties
and/or administrative costs in accordance with the FCCS, 31 CFR
901.9(g).



Sec. 309.6  Collection in installments.

    Whenever feasible, and except as required otherwise by law, debts
owed to the United States, together with interest, penalties, and
administrative costs as required by this regulation, should be collected
in one lump sum. This is true whether the debt is being collected under
administrative offset, including salary offset, or by another method,
including voluntary payment. However, if the debtor is financially
unable to pay the indebtedness in one lump sum, payment may be accepted
in regular installments. If Peace Corps

[[Page 34]]

agrees to accept payment in installments, it may require a legally
enforceable written agreement from the debtor that specifies all of the
terms of the arrangement and which contains a provision accelerating the
debt in the event the debtor defaults. The size and frequency of the
payments should bear a reasonable relation to the size of the debt and
ability of the debtor to pay. If possible, the installment payments
should be sufficient in size and frequency to liquidate the Government's
claim within three years.



Sec. 309.7  Designation.

    The Chief Financial Officer is delegated authority and designated to
perform all the duties for which the Director is responsible under the
forgoing statutes and joint regulations.



                      Subpart B_Collection Actions



Sec. 309.8  Application.

    (a) Peace Corps shall aggressively collect claims and debts in
accordance with these regulations and applicable law.
    (b) Peace Corps will transfer to the Department of the Treasury,
Financial Management Service (FMS) any past due, legally enforceable
non-tax debt that has been delinquent for 180 days or more so that FMS
may take appropriate action to collect the debt or take other
appropriate action in accordance with applicable law and regulation.
    (c) Peace Corps may transfer any past due, legally enforceable debt
that has been delinquent for fewer than 180 days to FMS for collection
in accordance with applicable law and regulation. (See 31 CFR part 285.)



Sec. 309.9  Notice--written demand for payment.

    (a) Upon determination that a debt is owed to Peace Corps or the
United States, Peace Corps shall promptly hand deliver or send by first-
class mail (to the debtor's most current address in the records of Peace
Corps) at least one written notice (e.g. Bill of Collection or demand
letter) informing the debtor of the consequences of failing to pay or
otherwise resolve a Peace Corps debt, subject to paragraph (c) of this
section. Written demand under this subpart may be preceded by other
appropriate actions under this part and or the FCCS, including but not
limited to actions taken under the procedures applicable to
administrative offset, including salary offset.
    (b) The written notice shall inform the debtor of:
    (1) The nature and amount of the debt, and the facts giving rise to
the debt;
    (2) The date by which payment should be made to avoid the imposition
of interest, penalties, and administrative costs, and the enforced
collection actions described in Sec. 309.5 of this part;
    (3) The applicable standards for imposing interest, penalties and
administrative costs to delinquent debts;
    (4) Peace Corps' willingness to discuss alternative payment
arrangements and how the debtor may enter into a written agreement to
repay the debt under terms acceptable to Peace Corps;
    (5) The name, address, and telephone number of a contact person or
office within Peace Corps;
    (6) Peace Corps' intention to enforce collection if the debtor fails
to pay or otherwise resolve the debt, by taking one or more of the
following actions:
    (i) Offset from Federal payments otherwise due to the debtor,
including income tax refunds, salary, certain benefit payments,
retirement, vendor payments, travel reimbursement and advances, and
other Federal payments;
    (ii) Referral to private collection agency;
    (iii) Report to credit bureaus;
    (iv) Administrative wage garnishment;
    (v) Referral to Department of Justice for litigation action;
    (vi) Referral to Financial Management Service of the Department of
the Treasury for collection;
    (vii) Other actions as permitted by the FCCS and applicable law.
    (7) How the debtor may inspect and copy records related to the debt;
    (8) The debtor's opportunity for an internal review of Peace Corps'
determination that the debtor owes a debt or the amount of the debt;

[[Page 35]]

    (9) The debtor's right, if any, to request waiver of collection of
certain debts, as applicable;
    (10) Requirement that the debtor advise Peace Corps of any
bankruptcy proceeding of the debtor.
    (c) Peace Corps may omit from a notice to a debtor one or more of
the provisions contained in paragraphs (b) (6) through (10) of this
section if Peace Corps determines that any provision is not legally
required given the collection remedies to be applied to a particular
debt, or which have already been provided by prior notice, applicable
agreement, or contract.



Sec. 309.10  Review requirements.

    (a) For purposes of this section, whenever Peace Corps is required
to afford a debtor a review within the agency, Peace Corps shall provide
the debtor with an opportunity for an internal review of the existence
or the amount of the debt. For offset of current Federal salary under 5
U.S.C. 5514 for certain debts, debtors may also request an outside
hearing. (See subpart C of this part)
    (b) Any request for a review must be in writing to the contact
office by the payment due date stated in the initial notice sent under
Sec. 309.9(b) or other applicable provision. The debtor's request shall
state the basis for the dispute and include any relevant documentation
in support.
    (1) Peace Corps will provide for an internal review of the debt by
an appropriate agency official. The review may include examination of
documents, internal discussions with relevant officials and discussion
by letter or orally with the debtor, at Peace Corps' discretion.
    (2) An oral hearing is not required when, in Peace Corps'
determination, the matter can be decided on the documentary record.
Peace Corps will provide a ``paper hearing'', that is, a determination
based upon a review of the written record unless Peace Corps makes a
determination that a debt involves issues of credibility or veracity, at
which point an oral hearing may be required. Unless otherwise required
by law, such oral hearing shall not be a formal evidentiary hearing.



Sec. 309.11  Collection.

    Upon final determination of the existence and amount of a debt,
unless other acceptable payment arrangement have been made or procedures
under a specific statute apply, Peace Corps shall collect the debt by
one or more of the methods described in Sec. 309.9(b) (6) (i-vii) or as
otherwise authorized by law and regulation.
    (a) Administrative offset--(1) Payments otherwise due the debtor
from the United States shall be offset from the debt in accordance with
31 CFR 901.3. These may be funds under the control of Peace Corps or
other Federal agencies. Collection may be through centralized offset by
the Financial Management Service (FMS) of the Department of the
Treasury.
    (2) Such payments include but are not limited to vendor payments,
salary, retirement, lump sum payments due upon Federal employment
separation, travel reimbursements, tax refunds, loans or other
assistance. Offset of Federal salary payments will be in accordance with
5 U.S.C. 5514.
    (3) Before administrative offset is instituted by another Federal
agency or the FMS, Peace Corps shall certify in writing to that entity
that the debt is past due and legally enforceable and that Peace Corps
has complied with all applicable due process and other requirements as
described in this part and other Federal law and regulations.
    (b) Any other method authorized by law or regulation.



                         Subpart C_Salary Offset



Sec. 309.12  Purpose.

    This subpart provides Peace Corps' policies and procedures for the
collection by salary offset of a Federal employee's pay to satisfy
certain past due debts owed the United States Government.



Sec. 309.13  Scope.

    (a) The provisions of this section apply to collection by salary
offset under 5 U.S.C. 5514 of debts owed to Peace Corps and debts owed
to other

[[Page 36]]

Federal agencies by Peace Corps' employees. Peace Corps will make
reasonable and lawful efforts to administratively collect amounts owed
by employees prior to initiating salary offset action. This section does
not apply to debts where collection by salary offset is explicitly
provided for or prohibited by another statute (e.g. travel advances).
    (b) References. The following statutes and regulations apply to
Peace Corps' recovery of debts due the United States by salary offset:
    (1) 5 U.S.C. 5514, as amended, governing the installment collection
of debts;
    (2) 31 U.S.C. 3716, governing the liquidation of debts by
administrative offset;
    (3) 5 CFR part 550, subpart K, setting forth the minimum
requirements for executive agency regulations on salary offset; and
    (4) 31 CFR parts 900 through 904, the Federal Claims Collections
Standards.
    (c) Nothing in this subpart precludes the compromise, suspension, or
termination of collection actions where appropriate under the standards
implementing the Federal Claims Collection Standards.



Sec. 309.14  Coordinating offset with another Federal agency.

    (a) When Peace Corps is owed a debt by an employee of another
agency, the other agency shall not initiate the requested offset until
Peace Corps provides the agency with a written certification that the
debtor owes Peace Corps a debt (including the amount and basis of the
debt and the due date of payment) and that Peace Corps has complied with
these regulations.
    (b) When another agency is owed the debt, Peace Corps may use salary
offset against one of its employees who is indebted to another agency,
if requested to do so by that agency. Such request must be accompanied
by a certification that the person owes the debt (including the amount
and basis of the debt and the due date of payment) and that the agency
has complied with its regulations as required by 5 U.S.C. 5514 and 5 CFR
part 550, subpart K.



Sec. 309.15  Notice requirements before offset.

    (a) Deductions under the authority of 5 U.S.C. 5514 shall not be
made unless the creditor agency first provides the employee with written
notice that he/she owes a debt to the Federal Government at least 30
calendar days before salary offset is to be initiated. When Peace Corps
is the creditor agency this notice of intent to offset an employee's
salary shall be hand-delivered or sent by certified mail to the most
current address that is available. The written notice will state:
    (1) That Peace Corps has reviewed the records relating to the claim
and has determined that a debt is owed, its origin and nature, and the
amount of the debt;
    (2) The intention of Peace Corps to collect the debt by means of
deduction from the employee's current disposable pay account until the
debt and all accumulated interest is paid in full;
    (3) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
    (4) An explanation of the Peace Corps' policy concerning interest,
penalties and administrative costs, including a statement that such
assessments must be made unless excused in accordance with the FCCS (See
Sec. 309.5);
    (5) The employee's right to inspect and copy all records of the
Peace Corps pertaining to the debt claimed or to receive copies of such
records if personal inspection is impractical;
    (6) The right to a hearing conducted by a hearing official (an
administrative law judge, or alternatively, an individual not under the
supervision or control of the Peace Corps) with respect to the existence
and amount of the debt claimed, or the repayment schedule, so long as a
petition is filed by the employee as prescribed;
    (7) If not previously provided, the opportunity (under terms
agreeable to the Peace Corps) to establish a schedule for the voluntary
repayment of the debt or to enter into a written agreement to establish
a schedule for repayment of the debt in lieu of offset. The agreement
must be in writing, signed by both the employee and the creditor agency,
and documented in the creditor agency's files;

[[Page 37]]

    (8) The name, address and telephone number of an officer or employee
of the Peace Corps who may be contacted concerning procedures for
requesting a hearing;
    (9) The method and time period for requesting a hearing;
    (10) That the timely filing of a petition for a hearing as
prescribed will stay the commencement of collection proceedings;
    (11) The name and address of the office to which the petition should
be sent;
    (12) That the Peace Corps will initiate certification procedures to
implement a salary offset, as appropriate, (which may not exceed 15
percent of the employee's disposable pay) not less than 30 calendar days
from the date of delivery of the notice of debt, unless the employee
files a timely petition for a hearing;
    (13) That a final decision on the hearing (if one is requested) will
be issued at the earliest practical date, but not later than 60 calendar
days after the filing of the petition requesting the hearing, unless the
employee requests and the hearing official grants a delay in the
proceedings;
    (14) That any knowingly false or frivolous statements,
representations or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under the Peace Corps Act or
the Foreign Service Act, Peace Corps regulations, or any other
applicable statutes or regulations;
    (ii) Penalties under the False Claims Act, Sec. Sec. 3729-3731 of
title 31, United States Code, or any other applicable statutory
authority; and
    (iii) Criminal penalties under 18 U.S.C. sections 286, 287, 1001,
and 1002 or any other applicable authority;
    (15) Any other rights and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made;
    (16) That unless there are applicable contractual or statutory
provisions to the contrary, amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee; and
    (17) That proceedings with respect to such debt are governed by 5
U.S.C. 5514.
    (b) Peace Corps is not required to provide prior notice to an
employee when the following adjustments are made by Peace Corps to a
Peace Corps employee's pay:
    (1) Any adjustment to pay arising out of an employee's election of
coverage or a change in coverage under a Federal benefits program
requiring periodic deductions from pay if the amount to be recovered was
accumulated over four pay periods or less;
    (2) A routine adjustment of pay that is made to correct an
overpayment of pay attributable to clerical or administrative errors or
delays in processing pay documents, if the overpayment occurred within
the four pay periods preceding the adjustment, and, at the time of such
adjustment, or as soon thereafter as practical, the individual is
provided written notice of the nature and the amount of the adjustment
and point of contact for contesting the adjustment; or
    (3) Any adjustment to collect a debt of $50 or less, if, at the time
of such adjustment, or as soon thereafter as practical, the individual
is provided written notice of the nature of the amount of the adjustment
and a point of contact for contesting the adjustment.



Sec. 309.16  Review.

    (a) Request for outside hearing. Except as provided in paragraph (b)
of this section, an employee who desires an outside hearing concerning
the existence or amount of the debt or the proposed offset schedule must
send a request to the office designated in the notice of intent. See
Sec. 309.15(a)(8). The request must be received by the designated
office not later than 20 calendar days after the date of delivery of the
notice as provided in Sec. 309.15(a). The request must be signed by the
employee and should identify and explain with reasonable specificity and
brevity the facts, evidence and witnesses which the employee believes
support his or her position. If the employee objects to the percentage
of disposable pay to be deducted from each check, the request should
state the objection and the reasons for it. The employee must also

[[Page 38]]

specify whether an oral hearing or a review of the documentary evidence
is requested. If an oral hearing is desired, the request should explain
why the matter cannot be resolved by review of the documentary evidence
alone.
    (b) Failure to submit timely. (1) If the employee files a petition
for a review after the expiration of the 20 calendar day period provided
for in paragraph (a) of this section, the designated office may accept
the request if the employee can show that the delay was the result of
circumstances beyond his or her control, or because of a failure to
receive the notice of the filing deadline (unless the employee has
actual knowledge of the filing deadline).
    (2) An employee waives the right to a review, and will have his or
her disposable pay offset in accordance with Peace Corps' offset
schedule, if the employee fails to file a request for a hearing unless
such failure is excused as provided in paragraph (b)(1) of this section.
    (3) If the employee fails to appear at an oral hearing of which he
or she was notified, unless the hearing official determines failure to
appear was due to circumstances beyond the employee's control, his or
her appeal will be decided on the basis of the documents then available
to the hearing official.
    (c) Representation at the hearing. The creditor agency may be
represented by a representative of its choice. The employee may
represent himself or herself or may be represented by an individual of
his or her choice and at his or her expense.
    (d) Review of Peace Corps records related to the debt. (1) An
employee who intends to inspect or copy creditor agency records related
to the debt in accordance with Sec. 309.15(a)(5), must send a letter to
the official designated in the notice of intent to offset stating his or
her intention. The letter must be sent within 20 calendar days after
receipt of the notice.
    (2) In response to a timely request submitted by the debtor, the
designated official will notify the employee of the location and time
when the employee may inspect and copy records related to the debt.
    (3) If personal inspection is impractical, copies of such records
shall be sent to the employee.
    (e) Oral Hearing. (1) If an employee timely files a request for an
oral hearing under Sec. 309.16(a), the matter will be conducted by a
hearing official not under the supervision or control of Peace Corps.
    (2) Procedure. (i) After the employee requests a hearing, the
hearing official shall notify the employee of the form of the hearing to
be provided. If the hearing will be oral, notice shall set forth the
date, time and location of the hearing. If the hearing will be paper,
the employee shall be notified that he or she should submit arguments in
writing to the hearing official by a specified date after which the
record shall be closed. This date shall give the employee reasonable
time to submit documentation.
    (ii) An employee who requests an oral hearing shall be provided an
oral hearing if the hearing official determines that the matter cannot
be resolved by review of documentary evidence alone (e.g. when an issue
of credibility or veracity is involved). The hearing is not an
adversarial adjudication, and need not take the form of an evidentiary
hearing.
    (iii) If the hearing official determines that an oral hearing is not
necessary, he or she will make a decision based upon a review of the
available written record.
    (iv) The hearing official must maintain a summary record of any
hearing provided by this subpart. Witnesses who provide testimony will
do so under oath or affirmation.
    (3) Decision. The written decision shall include:
    (i) A statement of the facts presented to support the origin,
nature, and amount of the debt;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, or the date salary
offset will commence, if applicable.
    (4) Failure to appear. In the absence of good cause shown (e.g.
excused illness), an employee who fails to appear at a

[[Page 39]]

hearing shall be deemed, for the purpose of this subpart, to admit the
existence and amount of the debt as described in the notice of intent.
The hearing official shall schedule a new hearing upon the request of
the creditor agency representative when good cause is shown.
    (5) A hearing official's decision is considered to be an official
certification regarding the existence and amount of the debt for
purposes of executing salary offset under 5 U.S.C. 5514 only. It does
not supersede the finding by Peace Corps that a debt is owed and does
not affect the Government's ability to recoup the debt through
alternative collection methods under other appropriate methods.



Sec. 309.17  Procedures for salary offset.

    Unless otherwise provided by statute or contract, the following
procedures apply to salary offset:
    (a) Method. Salary offset will be made by deduction at one or more
officially established pay intervals from the current pay account of the
employee without his or her consent.
    (b) Source. The source of salary offset is current disposable pay.
    (c) Types of collection--(1) Lump sum payment. Ordinarily debts will
be collected by salary offset in one lump sum if possible. However, if
the amount of the debt exceeds 15 percent of disposable pay for an
officially established pay interval, the collection by salary offset
must be made in installment deductions.
    (2) Installment deductions. (i) The size of installment deductions
must bear a reasonable relation to the size of the debt and the
employee's ability to pay. If possible, the size of the deduction will
be that necessary to liquidate the debt in no more than 1 year. However,
the amount deducted for any period must not exceed 15 percent of the
disposable pay from which the deduction is made, except as provided by
other regulations or unless the employee has agreed in writing to
greater amount.
    (ii) Installment payments of less than $25 per pay period will be
accepted only in the most unusual circumstances.
    (iii) Installment deductions will be made over a period of not
greater than the anticipated period of employment.



Sec. 309.18  Voluntary repayment agreements as an alternative to
salary offset.

    (a) In response to a notice of intent, an employee may propose a
written agreement to repay the debt as an alternative to salary offset.
Any employee who wishes to repay a debt without salary offset shall
submit in writing a proposed agreement to repay the debt. The proposal
shall admit the existence of the debt and set forth a proposed repayment
schedule. Any proposal under this paragraph must be received by the
official designated in that notice within 20 calendar days after receipt
of the notice of intent.
    (b) When the Peace Corps is the creditor agency, in response to a
timely proposal by the debtor the agency will notify the employee
whether the employee's proposed written agreement for repayment is
acceptable. It is within the agency's discretion to accept a repayment
agreement instead of proceeding by offset.
    (c) If the Peace Corps decides that the proposed repayment agreement
is unacceptable, the employee will have 15 calendar days from the date
he or she received notice of the decision to file a petition for a
review.
    (d) If the Peace Corps decides that the proposed repayment agreement
is acceptable, the alternative arrangement must be in writing and signed
by both the employee and a designated agency official.



Sec. 309.19  Waiver.

    (a) Under certain circumstances, employees may have a statutory
right to request a waiver of indebtedness. When an employee makes a
request under a statutory right, further collection will be stayed
pending an administrative determination on the request.
    (b) Waiver of indebtedness is an equitable remedy and as such must
be based on an assessment of the facts involved in the individual case
under consideration. The burden is on the employee to demonstrate that
the applicable waiver standard has been met.

[[Page 40]]



Sec. 309.20  Compromise.

    Peace Corps may attempt to effect compromise in accordance with the
standards set forth in the FCCS (31 CFR part 902).



Sec. 309.21  Suspension of collection.

    Suspension of collection action shall be made in accordance with the
standards set forth in the FCCS (31 CFR 903.1-903.2).



Sec. 309.22  Termination of collection.

    Termination of collection action shall be made in accordance with
the standards set forth in the FCCS (31 CFR 903.1 and 903.3-903.4).



Sec. 309.23  Discharge.

    Once a debt has been closed out for accounting purposes and
collection has been terminated, the debt is discharged. Peace Corps will
report discharged debt as income to the debtor to the Internal Revenue
Service per 26 U.S.C. 6050P and 26 CFR 1.6050P-1.



Sec. 309.24  Bankruptcy.

    Peace Corps generally terminates collection activity on debts that
have been discharged in bankruptcy unless otherwise provided for by
bankruptcy law. The CFO will seek legal advice by the General Counsel's
office if there is the belief that any claims or offset may have
survived the discharge of a debtor.



PART 311_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
311.100 Conditions on use of funds.
311.105 Definitions.
311.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

311.200 Agency and legislative liaison.
311.205 Professional and technical services.
311.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

311.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

311.400 Penalties.
311.405 Penalty procedures.
311.410 Enforcement.

                          Subpart E_Exemptions

311.500 Secretary of Defense.

                        Subpart F_Agency Reports

311.600 Semi-annual compilation.
311.605 Inspector General report.

Appendix A to Part 311--Certification Regarding Lobbying
Appendix B to Part 311--Disclosure Form To Report Lobbying

    Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 22
U.S.C. 2503.

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

    Source: 55 FR 6737, 6749, Feb. 26, 1990, unless otherwise noted.



                            Subpart A_General



Sec. 311.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
    (c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in appendix B, if such person has
made or has

[[Page 41]]

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. 311.105  Definitions.

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


Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
    (c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.

[[Page 42]]

    (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. 311.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
    (2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000, unless such person
previously filed a certification, and a disclosure form, if required,
under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event

[[Page 43]]

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. 311.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.
311.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement if
the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
    (c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
    (1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
    (d) For purposes of paragraph (a) of this section, the following
agencies and

[[Page 44]]

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. 311.205  Professional and technical services.

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



Sec. 311.210  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. 311.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.
311.100 (a), does not apply in the case of any reasonable

[[Page 45]]

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. 311.110 (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. 311.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see
appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
    (c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to

[[Page 46]]

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. 311.405  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. 311.410  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. 311.500  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. 311.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure
reports (see appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
    (c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
    (d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no

[[Page 47]]

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. 311.605  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 311--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

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

            Statement for Loan Guarantees and Loan Insurance

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

[[Page 48]]



     Sec. Appendix B to Part 311--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC13OC91.000


[[Page 49]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.001


[[Page 50]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.002


[[Page 51]]





PART 312_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL
ASSISTANCE)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
312.100 What does this part do?
312.105 Does this part apply to me?
312.110 Are any of my federal assistance awards exempt from this part?
312.115 Does this part affect the federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

312.200 What must I do to comply with this part?
312.205 What must I include in my drug-free workplace statement?
312.210 To whom must I distribute my drug-free workplace statement?
312.215 What must I include in my drug-free awareness program?
312.220 By when must I publish my drug-free workplace statement and
          establish my drug-free awareness program?
312.225 What actions must I take concerning employees who are convicted
          of drug violations in the workplace?
312.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

312.300 What must I do to comply with this part if I am an individual
          recipient?
312.301 [Reserved]

      Subpart D_Responsibilities of Peace Corps Awarding Officials

312.400 What are my responsibilities as a Peace Corps awarding official?

           Subpart E_Violations of This Part and Consequences

312.500 How are violations of this part determined for recipients other
          than individuals?
312.505 How are violations of this part determined for recipients who
          are individuals?
312.510 What actions will the Federal Government take against a
          recipient determined to have violated this part?
312.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

312.605 Award.
312.610 Controlled substance.
312.615 Conviction.
312.620 Cooperative agreement.
312.625 Criminal drug statute.
312.630 Debarment.
312.635 Drug-free workplace.
312.640 Employee.
312.645 Federal agency or agency.
312.650 Grant.
312.655 Individual.
312.660 Recipient.
312.665 State.
312.670 Suspension.

    Authority: 22 U.S.C. 2503 (b); 41 U.S.C. 701 et seq.

    Source: 68 FR 66588, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 312.100  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. 312.105  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 Peace Corps; or
    (2) A(n) Peace Corps awarding official. (See definitions of award
and recipient in Sec. Sec. 312.605 and 312.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
            If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an            A, B and E.
 individual.
(2) A recipient who is an individual...  A, C and E.
(3) A(n) Peace Corps awarding official.  A, D and E.
------------------------------------------------------------------------


[[Page 52]]



Sec. 312.110  Are any of my Federal assistance awards exempt from this
part?

    This part does not apply to any award that the Peace Corps Director
or designee determines that the application of this part would be
inconsistent with the international obligations of the United States or
the laws or regulations of a foreign government.



Sec. 312.115  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. 312. 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. 312.200  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. 312.205
through 312.220); and
    (2) Take actions concerning employees who are convicted of violating
drug statutes in the workplace (see Sec. 312.225).
    (b) Second, you must identify all known workplaces under your
Federal awards (see Sec. 312.230).



Sec. 312.205  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. 312.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec.
312.205 be given to each employee who will be engaged in the performance
of any Federal award.



Sec. 312.215  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. 312.220  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. 312.205 and an ongoing awareness program
as described in Sec. 312.215, you must publish the statement and
establish the program by the time given in the following table:

[[Page 53]]



------------------------------------------------------------------------
                If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award  must have the policy statement
 is less than 30 days.                    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  must have the policy statement
 is 30 days or more.                      and program in place within 30
                                          days after award.
(c) You believe there are extraordinary  may ask the Peace Corps
 circumstances that will require more     awarding official to give you
 than 30 days for you to publish the      more time to do so. The amount
 policy statement and establish the       of additional time, if any, to
 awareness program.                       be given is at the discretion
                                          of the awarding official.
------------------------------------------------------------------------



Sec. 312.225  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. 312.205(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. 312.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each Peace Corps
award. A failure to do so is a violation of your drug-free workplace
requirements. You may identify the workplaces--
    (1) To the Peace Corps 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 Peace Corps 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 Peace Corps 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 Peace Corps
awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 312.300  What must I do to comply with this part if I am an
individual recipient?

    As a condition of receiving a(n) Peace Corps 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

[[Page 54]]

award activity, you will report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the Peace Corps awarding official or other designee for each
award that you currently have, unless Sec. 312.301 or the award
document designates a central point for the receipt of the notices. When
notice is made to a central point, it must include the identification
number(s) of each affected award.



Sec. 312.301  [Reserved]



      Subpart D_Responsibilities of Peace Corps Awarding Officials



Sec. 312.400  What are my responsibilities as a(n) Peace Corps
awarding official?

    As a(n) Peace Corps 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. 312.500  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 Peace Corps Director or designee
determines, in writing, that--
    (a) The recipient has violated the requirements of subpart B of this
part; or
    (b) The number of convictions of the recipient's employees for
violating criminal drug statutes in the workplace is large enough to
indicate that the recipient has failed to make a good faith effort to
provide a drug-free workplace.



Sec. 312.505  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 Peace Corps Director or designee determines, in writing,
that--
    (a) The recipient has violated the requirements of subpart C of this
part; or
    (b) The recipient is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any award activity.



Sec. 312.510  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. 312.500 or Sec. 312.505, the Peace Corps 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 22 CFR part 310,
for a period not to exceed five years.



Sec. 312.515  Are there any exceptions to those actions?

    The Peace Corps Director 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 Peace Corps Director 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. 312.605  Award.

    Award means an award of financial assistance by the Peace Corps 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
[Agency-specific CFR citation] 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.

[[Page 55]]

    (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).
    (c) Notwithstanding paragraph (a)(2) of this section, this paragraph
is not applicable for the Peace Corps.



Sec. 312.610  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. 312.615  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. 312.620  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. 312.650),
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. 312.625  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. 312.630  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. 312.635  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. 312.640  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. 312.645  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. 312.650  Grant.

    Grant means an award of financial assistance that, consistent with
31 U.S.C. 6304, is used to enter into a relationship--

[[Page 56]]

    (a) The principal purpose of which is to transfer a thing of value
to the recipient to carry out a public purpose of support or stimulation
authorized by a law of the United States, rather than to acquire
property or services for the Federal Government's direct benefit or use;
and
    (b) In which substantial involvement is not expected between the
Federal agency and the recipient when carrying out the activity
contemplated by the award.



Sec. 312.655  Individual.

    Individual means a natural person.



Sec. 312.660  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. 312.665  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. 312.670  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.

                        PARTS 313	399 [RESERVED]

[[Page 57]]



  CHAPTER IV--INTERNATIONAL JOINT COMMISSION, UNITED STATES AND CANADA




  --------------------------------------------------------------------
Part                                                                Page
400

[Reserved]

401             Rules of procedure..........................          59
402-499

[Reserved]

[[Page 59]]

                           PART 400 [RESERVED]



PART 401_RULES OF PROCEDURE--Table of Contents



                            Subpart A_General

Sec.
401.1 Definitions.
401.2 Chairmen.
401.3 Permanent offices.
401.4 Duties of secretaries.
401.5 Meetings.
401.6 Service of documents.
401.7 Conduct of hearings.
401.8 Decision by the whole Commission.
401.9 Suspension or amendment of rules.
401.10 General rule.
401.11 Availability of records.

                         Subpart B_Applications

401.12 Presentation to Commission.
401.13 Copies required.
401.14 Authorization by Government.
401.15 Notice of publication.
401.16 Statement in response
401.17 Statement in reply.
401.18 Supplemental or amended applications and statements.
401.19 Reducing or extending time and dispensing with statements.
401.20 Interested persons and counsel.
401.21 Consultation.
401.22 Attendance of witnesses and production of documents.
401.23 Hearings.
401.24 Expenses of proceedings.
401.25 Government brief regarding navigable waters.

                          Subpart C_References

401.26 Presentation to Commission.
401.27 Notice and publication.
401.28 Advisory boards.
401.29 Hearings.
401.30 Proceedings under Article X.

    Authority: Art. XII, 36 Stat. 2453.

    Source: 30 FR 3379, Mar. 13, 1965, unless otherwise noted.



                            Subpart A_General



Sec. 401.1  Definitions.

    (a) In the construction of the regulations in this part, unless the
context otherwise requires, words importing the singular number shall
include the plural and words importing the plural number shall include
the singular; and,
    (b) Applicant means the Government or person on whose behalf on
application is presented to the Commission in accordance with Sec.
401.12;
    (c) Government means the Government of Canada or the Government of
the United States of America;
    (d) Person includes Province, State, department or agency of a
Province or State, municipality, individual, partnership, corporation
and association, but does not include the Government of Canada or the
Government of the United States of America;
    (e) Oath includes affirmation;
    (f) Reference means the document by which a question or matter of
difference is referred to the Commission pursuant to Article IX of the
Treaty;
    (g) The Treaty means the Treaty between the United States of America
and His Majesty the King, dated the 11th day of January 1909;
    (h) Canadian section consists of the commissioners appointed by Her
Majesty on the recommendation of the Governor in Council of Canada;
    (i) United States section consists of the Commissioners appointed by
the President of the United States.



Sec. 401.2  Chairmen.

    (a) The commissioners of the United States section of the Commission
shall appoint one of their number as chairman, to be known as the
Chairman of the United States Section of the International Joint
Commission, and he shall act as chairman at all meetings of the
Commission held in the United States and in respect to all matters
required to be done in the United States by the chairman of the
Commission.
    (b) The commissioners of the Canadian section of the Commission
shall appoint one of their number as chairman, to be known as the
Chairman of the Canadian Section of the International Joint Commission,
and he shall act as chairman at all meetings of the Commission held in
Canada and in respect to all matters required to be done in Canada by
the chairman of the Commission.
    (c) In case it shall be impracticable for the chairman of either
section to act in any matter, the commissioner of such section who is
senior in order of appointment shall act in his stead.



Sec. 401.3  Permanent offices.

    The permanent offices of the Commission shall be at Washington, in
the

[[Page 60]]

District of Columbia, and at Ottawa, in the Province of Ontario, and,
subject to the directions of the respective chairmen acting for their
respective sections, the secretaries of the United States and Canadian
sections of the Commission shall have full charge and control of said
offices, respectively.



Sec. 401.4  Duties of secretaries.

    (a) The secretaries shall act as joint secretaries at all meetings
and hearings of the Commission. The secretary of the section of the
Commission of the country in which a meeting or hearing is held shall
prepare a record thereof and each secretary shall preserve an authentic
copy of the same in the permanent offices of the Commission.
    (b) Each secretary shall receive and file all applications,
references and other papers properly presented to the Commission in any
proceeding instituted before it and shall number in numerical order all
such applications and references; the number given to an application or
reference shall be the primary file number for all papers relating to
such application or reference.
    (c) Each secretary shall forward to the other for filing in the
office of the other copies of all official letters, documents, records
or other papers received by him or filed in his office, pertaining to
any proceeding before the Commission, to the end that there shall be on
file in each office either the original or a copy of all official
letters and other papers, relating to the said proceeding.
    (d) Each secretary shall also forward to the other for filing in the
office of the other copies of any letters, documents or other papers
received by him or filed in his office which are deemed by him to be of
interest to the Commission.



Sec. 401.5  Meetings.

    (a) Subject at all times to special call or direction by the two
Governments, meetings of the Commission shall be held at such times and
places in the United States and Canada as the Commission or the Chairman
may determine and in any event shall be held each year at Washington in
April and at Ottawa in October, beginning ordinarily on the first
Tuesday of the said months.
    (b) If the Commission determines that a meeting shall be open to the
public, it shall give such advance notice to this effect as it considers
appropriate in the circumstances.



Sec. 401.6  Service of documents.

    (a) Where the secretary is required by the regulations in this part
to give notice to any person, this shall be done by delivering or
mailing such notice to the person at the address for service that the
said person has furnished to the Commission, or if no such address has
been furnished, at the dwelling house or usual place of abode or usual
place of business of such person.
    (b) Where the secretary is required by the regulations in this part
to give notice to a Government, this shall be done by delivering or
mailing such notice to the Secretary of State for External Affairs of
Canada or to the Secretary of State of the United States of America, as
the case may be.
    (c) Service of any document pursuant to Sec. 401.22 shall be by
delivering a copy thereof to the person named therein, or by leaving the
same at the dwelling house or usual place of abode or usual place of
business of such person. The person serving the notice or request shall
furnish an affidavit to the secretary stating the time and place of such
service.



Sec. 401.7  Conduct of hearings.

    Hearings may be conducted, testimony received and arguments thereon
heard by the whole Commission or by one or more Commissioners from each
section of the Commission, designated for that purpose by the respective
sections or the Chairman thereof.



Sec. 401.8  Decision by the whole Commission.

    The whole Commission shall consider and determine any matter or
question which the Treaty or any other treaty or international
agreement, either in terms or by implication, requires or makes it the
duty of the Commission to determine. For the purposes of this section
and Sec. 401.7, ``the whole Commission'' means all of the commissioners
appointed pursuant to Article VII of the Treaty whose terms of office
have not expired and who are not prevented

[[Page 61]]

by serious illness or other circumstances beyond their control from
carrying out their functions as commissioners. In no event shall a
decision be made without the concurrence of at least four commissioners.



Sec. 401.9  Suspension or amendment of rules.

    The commission may suspend, repeal, or amend all or any of the rules
of procedure at any time, with the concurrence of at least four
commissioners. Both Governments shall be informed forthwith of any such
action.



Sec. 401.10  General rule.

    The Commission may, at any time, adopt any procedure which it deems
expedient and necessary to carry out the true intent and meaning of the
Treaty.



Sec. 401.11  Availability of records.

    (a) The following items in the official records of the Commission
shall be available for public information at the permanent offices of
the Commission.

Applications.
References.
Public Notices.
Press Releases.
Statements in Response.
Statements in Reply.
Records of hearings, including exhibits filed.
Brief and formal Statements submitted at hearings or at other times.

    (b) Decisions rendered and orders issued by the Commission and
formal opinions of any of the Commissioners with relation thereto, shall
be available similarly for public information after duplicate originals
of the decisions or orders have been transmitted to and filed with the
Governments pursuant to Article XI of the Treaty.
    (c) Copies of reports submitted to one or both of the Governments
pursuant to the Treaty shall be available similarly for public
information only with the consent of the Government or Governments to
whom the reports are addressed.
    (d) Reports, letters, memoranda and other communications addressed
to the Commissions, by boards or committees created by or at the request
of the Commission, are privileged and shall become available for public
information only in accordance with a decision of the Commission to that
effect.
    (e) Except as provided in the preceding paragraphs of this section,
records of deliberations, and documents, letters, memoranda and
communications of every nature and kind in the official records of the
Commission, whether addressed to or by the Commission, commissioners,
secretaries, advisers or any of them, are privileged and shall become
available for public information only in accordance with a decision of
the Commission to that effect.
    (f) A copy of any document, report, record or other paper which
under this section is available for public information may be furnished
to any person upon payment of any cost involved in its reproduction.



                         Subpart B_Applications



Sec. 401.12  Presentation to Commission.

    (a) Where one or the other of the Governments on its own initiative
seeks the approval of the commission for the use, obstruction or
diversion of waters with respect to which under Articles III or IV of
the Treaty the approval of the Commission is required, it shall present
to the Commission an application setting forth as fully as may be
necessary for the information of the Commission the facts upon which the
application is based and the nature of the order of approval desired.
    (b) Where a person seeks the approval of the Commission for the use,
obstruction or diversion of waters with respect to which under Articles
III or IV of the Treaty the approval of the Commission is required, he
shall prepare an application to the Commission and forward it to the
Government within whose jurisdiction such use, obstruction or diversion
is to be made, with the request that the said application be transmitted
to the Commission. If such Government transmits the application to the
Commission with a request that it take appropriate action thereon, the
same shall be filed by the Commission in the same manner as an
application presented in accordance with paragraph (a) of this section.
Transmittal of the application to the Commission shall not be construed
as authorization

[[Page 62]]

by the Government of the use, obstruction or diversion proposed by the
applicant. All applications by persons shall conform, as to their
contents, to the requirements of paragraph (a) of this section.
    (c) Where the Commission has issued an Order approving a particular
use, obstruction or diversion, in which it has specifically retained
jurisdiction over the subject matter of an application and has reserved
the right to make further orders relating thereto, any Government or
person entitled to request the issuance of such further order may
present to the Commission a request, setting forth the facts upon which
it is based and the nature of the further order desired. On receipt of
the request, the Commission shall proceed in accordance with the terms
of the Order in which the Commission specifically retained jurisdiction.
In each case the secretaries shall notify both Governments and invite
their comments before the request is complied with.



Sec. 401.13  Copies required.

    (a) Subject to paragraph (c) of this section, two duplicate
originals and fifty copies of the application and of any supplemental
application, statement in response, supplemental statement in response,
statement in reply and supplemental statement in reply shall be
delivered to either secretary. On receipt of such documents, the
secretary shall forthwith send one duplicate original and twenty-five
copies to the other secretary.
    (b) Subject to paragraph (c) of this section, two copies of such
drawings, profiles, plans or survey, maps and specifications as may be
necessary to illustrate clearly the matter of the application shall be
delivered to either secretary and he shall send one copy forthwith to
the other secretary.
    (c) Notwithstanding paragraphs (a) and (b) of this section, such
additional copies of the documents mentioned therein as may be requested
by the Commission shall be provided forthwith.



Sec. 401.14  Authorization by Government.

    (a) Where the use, obstruction or diversion of waters for which the
Commission's approval is sought has been authorized by or on behalf of a
Government or by or on behalf of a State or Province or other competent
authority, two copies of such authorization and of any plans approved
incidental thereto shall accompany the application when it is presented
to the Commission in accordance with Sec. 401.12.
    (b) Where such a use, obstruction or diversion of waters is
authorized by or on behalf of a Government or by or on behalf of a State
or Province or other competent authority after an application has been
presented to the Commission in accordance with Sec. 401.12, the
applicant shall deliver forthwith to the Commission two copies of such
authorization and of any plans approved incidental thereto.



Sec. 401.15  Notice of publication.

    (a) As soon as practicable after an application is presented or
transmitted in accordance with Sec. 401.12, the secretary of the
section of the Commission appointed by the other Government shall send a
copy of the application to such Government.
    (b) Except as otherwise provided pursuant to Sec. 401.19, the
secretaries, as soon as practicable after the application is received,
shall cause a notice to be published in the Canada Gazette and the
Federal Register and once each week for three successive weeks in two
newspapers, published one in each country and circulated in or near the
localities which, in the opinion of the Commission, are most likely to
be affected by the proposed use, obstruction or diversion. Subject to
paragraph (c) of this section, the notice shall state that the
application has been received, the nature and locality of the proposed
use, obstruction or diversion, the time within which any person
interested may present a statement in response to the Commission and
that the Commission will hold a hearing or hearings at which all persons
interested are entitled to be heard with respect thereto.
    (c) If the Commission so directs, the notice referred to in
paragraph (b) of this section, appropriately modified, may be combined
with the notice of hearing referred to in Sec. 401.24 and published
accordingly.

[[Page 63]]



Sec. 401.16  Statement in response.

    (a) Except as otherwise provided pursuant to Sec. 410.19, a
Government and any interested person, other than the applicant, may
present a statement in response to the Commission within thirty days
after the filing of an application. A statement in response shall set
forth facts and arguments bearing on the subject matter of the
application and tending to oppose or support the application, in whole
or in part. If it is desired that conditional approval be granted, the
statement in response should set forth the particular condition or
conditions desired. An address for service of documents should be
included in the statement in response.
    (b) When a statement in response has been filed, the secretaries
shall send a copy forthwith to the applicant and to each Government
except the Government which presented the said statement in response. If
so directed by the Commission, the secretaries shall inform those who
have presented statements in response, of the nature of the total
response.



Sec. 401.17  Statement in reply.

    (a) Except as otherwise provided pursuant to Sec. 410.19, the
applicant and, if he is a person, the Government which transmitted the
application on his behalf, one or both may present a statement or
statements in reply to the Commission within thirty days after the time
provided for presenting statements in response. A statement in reply
shall set forth facts and arguments bearing upon the allegations and
arguments contained in the statements in response.
    (b) When a statement in reply has been filed, the secretary shall
send a copy forthwith to each Government except the Government which
presented the said statement in reply, and to all persons who presented
statements in response.



Sec. 401.18  Supplemental or amended applications and statements.

    (a) If it appears to the Commission that either an application, a
statement in response or a statement in reply is not sufficiently
definite and complete, the Commission may require a more definite and
complete application, statement in response or statement in reply, as
the case may be, to be presented.
    (b) Where substantial justice requires it, the Commission with the
concurrence of at least four Commissioners may allow the amendment of
any application, statement in response, statement in reply and any
document or exhibit which has been presented to the Commission.



Sec. 401.19  Reducing or extending time and dispensing with statements.

    In any case where the Commission considers that such action would be
in the public interest and not prejudicial to the right of interested
persons to be heard in accordance with Article XII of the Treaty, the
Commission may reduce or extend the time for the presentation of any
paper or the doing of any act required by these rules or may dispense
with the presentation of statements in response and statements in reply.



Sec. 401.20  Interested persons and counsel.

    Governments and persons interested in the subject matter of an
application, whether in favor of or opposed to is, are entitled to be
heard in person or by counsel at any hearing thereof held by the
Commission.



Sec. 401.21  Consultation.

    The Commission may meet or consult with the applicant, the
Governments and other persons or their counsel at any time regarding the
plan of hearing, the mode of conducting the inquiry, the admitting or
proof of certain facts or for any other purpose.



Sec. 401.22  Attendance of witnesses and production of documents.

    (a) Requests for the attendance and examination of witnesses and for
the production and inspection of books, papers and documents may be
issued over the signature of the secretary of the section of the
Commission of the country in which the witnesses reside or the books,
papers or documents may be, when so authorized by the Chairman of that
section.
    (b) All applications for subpoena or other process to compel the
attendance

[[Page 64]]

of witnesses or the production of books, papers and documents before the
Commission shall be made to the proper courts of either country, as the
case may be, upon the order of the Commission.



Sec. 401.23  Hearings.

    (a) The time and place of the hearing or hearings of an application
shall be fixed by the Chairmen of the two sections.
    (b) The secretaries shall forthwith give written notice of the time
and place of the hearing or hearings to the applicant, the Governments
and all persons who have presented statements in response to the
Commission. Except as otherwise provided by the Commission, the
secretaries shall also cause such notice to be published in the Canada
Gazette and the Federal Register and once each week for three successive
weeks in two newspapers, published one in each country and circulated in
or near the localities which, in the opinion of the Commission, are most
likely to be affected by the proposed use, obstruction or diversion of
water.
    (c) All hearings shall be open to the public.
    (d) The applicant, the Governments and persons interested are
entitled to present oral and documentary evidence and argument that is
relevant and material to any issue that is before the Commission in
connection with the application.
    (e) The presiding chairman may require that evidence to be under
oath.
    (f) Witnesses may be examined and cross-examined by the
Commissioners and by counsel for the applicant, the Governments and the
Commission. With the consent of the presiding chairman, cousel for a
person other than the applicant may also examine or cross-examine
witnesses.
    (g) The Commission may require further evidence to be given and may
require printed briefs to be submitted at or subsequent to the hearing.
    (h) The Commissioners shall be free to determine the probative value
of the evidence submitted to it.
    (i) A verbatim transcript of the proceedings at the hearing shall be
prepared.
    (j) The hearing of the application, when once begun, shall proceed
at the times and places determined by the Chairmen of the two sections
to ensure the greatest practicable continuity and dispatch of
proceedings.



Sec. 401.24  Expenses of proceedings.

    (a) The expenses of those participating in any proceeding under this
subpart B shall be borne by the participants.
    (b) The Commission, after due notice to the participant or
participants concerned, may require that any unusual cost or expense to
the Commission shall be paid by the person on whose behalf or at whose
request such unusual cost or expense has been or will be incurred.



Sec. 401.25  Government brief regarding navigable waters.

    When in the opinion of the Commission it is desirable that a
decision should be rendered which affects navigable waters in a manner
or to an extent different from that contemplated by the application and
plans presented to the Commission, the Commission will, before making a
final decision, submit to the Government presenting or transmitting the
application a draft of the decision, and such Government may transmit to
the Commission a brief or memorandum thereon which will receive due
consideration by the Commission before its decision is made final.



                          Subpart C_References



Sec. 401.26  Presentation to Commission.

    (a) Where a question or matter of difference arising between the two
Governments involving the rights, obligations, or interests of either in
relation to the other or to the inhabitants of the other along the
common frontier between the United States of America and Canada is to be
referred to the Commission under Article IX of the Treaty, the method of
brining such question or matter to the attention of the Commission and
invoking its action ordinarily will be as set forth in this section.

[[Page 65]]

    (b) Where both Governments have agreed to refer such a question or
matter to the Commission, each Government will present to the
Commission, at the permanent office in its country, a reference in
similar or identical terms setting forth as fully as may be necessary
for the information of the Commission the question or matter which it is
to examine into the report upon and any restrictions or exceptions which
may be imposed upon the Commission with respect thereto.
    (c) Where one of the Governments, on its own initiative, has decided
to refer such a question or matter to the Commission, it will present a
reference to the Commission at the permanent office in its country. All
such references should conform, as to their contents, to the
requirements of paragraph (b) of this section.
    (d) Such drawings, plans of survey and maps as may be necessary to
illustrate clearly the question or matter referred should accompany the
reference when it is presented to the Commission.



Sec. 401.27  Notice and publication.

    (a) The secretary to whom a reference is presented shall receive and
file the same and shall send a copy forthwith to the other secretary for
filing in the office of the latter. If the reference is presented by one
Government only, the other secretary shall send a copy forthwith to his
Government.
    (b) Subject to any restrictions or exceptions which may be imposed
upon the Commission by the terms of the reference, and unless otherwise
provided by the Commission, the secretaries, as soon as practicable
after the reference is received, shall cause a notice to be published in
the Canada Gazette, the Federal Register and in two newspapers,
published one in each country and circulated in or near the localities
which, in the opinion of the Commission, are most likely to be
interested in the subject matter of the reference. The notice shall
describe the subject matter of reference in general terms invite
interested persons to inform the Commission of the nature of their
interest and state that the Commission will provide convenient
opportunity for interested persons to be heard with respect thereto.



Sec. 401.28  Advisory boards.

    (a) The Commission may appoint a board or boards, composed of
qualified persons, to conduct on its behalf investigations and studies
that may be necessary or desirable and to report to the Commission
regarding any questions or matters involved in the subject matter of the
reference.
    (b) Such board ordinarily will have an equal number of members from
each country.
    (c) The Commission ordinarily will make copies of the main or final
report of such board or a digest thereof available for examination by
the Governments and interested persons prior to holding the final
hearing or hearings referred to in Sec. 401.29.



Sec. 401.29  Hearings.

    (a) A hearing or hearings may be held whenever in the opinion of the
Commission such action would be helpful to the Commission in complying
with the terms of a reference. Subject to any restrictions or exceptions
which may be imposed by the terms of the reference, a final hearing or
hearings shall be held before the Commission reports to Government in
accordance with the terms of the reference.
    (b) The time, place and purpose of the hearing or hearings on a
reference shall be fixed by the chairmen of the two sections.
    (c) The secretaries shall forthwith give written notice of the time,
place and purpose of the hearing or hearings to each Government and to
persons who have advised the Commission of their interest. Unless
otherwise directed by the Commission, the secretaries shall also cause
such notice to be published in the Canada Gazette, the Federal Register
and once each week for three successive weeks in two newspapers,
published one in each country and circulated in or near the localities
which, in the opinion of the Commission, are most likely to be
interested in the subject matter of the reference.
    (d) All hearings shall be open to the public, unless otherwise
determined by the Commission.

[[Page 66]]

    (e) At a hearing, the Governments and persons interested are
entitled to present, in person or by counsel, oral and documentary
evidence and argument that is relevant and material to any matter that
is within the published purpose of the hearing.
    (f) The presiding chairman may require that evidence be under oath.
    (g) Witnesses may be examined and cross-examined by the
Commissioners and by counsel for the Governments and the Commission.
With the consent of presiding chairman, counsel for any interested
person may also examine or cross-examine witnesses.
    (h) The Commission may require further evidence to be given and may
require printed briefs to be submitted at or subsequent to the hearing.
    (i) A verbatim transcript of the proceedings at the hearing shall be
prepared.



Sec. 401.30  Proceedings under Article X.

    When a question or matter of difference arising between the two
Governments involving the rights, obligations or interests of either in
relation to the other or to their respective inhabitants has been or is
to be referred to the Commission for decision under Article X of the
Treaty, the Commission, after consultation with the said Governments,
will adopt such rules of procedure as may be appropriate to the question
or matter referred or to be referred.

                        PARTS 402	499 [RESERVED]

[[Page 67]]



               CHAPTER V--BROADCASTING BOARD OF GOVERNORS




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


  Editorial Note: Nomenclature changes to chapter V appear at 64 FR
54539, Oct. 7, 1999.
Part                                                                Page
500

[Reserved]

501             Appointment of Foreign Service officers.....          69
502             Domestic requests for Broadcasting Board of
                    Governors Program materials.............          76
503             Freedom of Information Act regulation.......          79
504             Testimony by BBG employees, production of
                    official records, and disclosure of
                    official information in legal
                    proceedings.............................          92
505             Privacy Act regulation......................          97
506             Part-time career employment program.........         103
507             Rules for implementing open meetings under
                    the Sunshine Act for the Broadcasting
                    Board of Governors......................         104
510             Service of process..........................         107
511             Federal tort claims procedure...............         107
512             Collection of debts under the Debt
                    Collection Act of 1982..................         109
513             Government debarment and suspension
                    (nonprocurement) and governmentwide
                    requirements for drug-free workplace
                    (grants)................................         120
518             Uniform administrative requirements for
                    grants and agreements with institutions
                    of higher education, hospitals, and
                    other non-profit organizations..........         139
519             New restrictions on lobbying................         165
521             Implementation of the Program Fraud Civil
                    Remedies Act............................         176
530             Enforcement of nondiscrimination on the
                    basis of handicap in programs or
                    activities conducted by the Broadcasting
                    Board of Governors......................         192
531-599

[Reserved]

[[Page 69]]

                           PART 500 [RESERVED]



PART 501_APPOINTMENT OF FOREIGN SERVICE OFFICERS--Table of Contents



Sec.
501.1 Policy.
501.2 Eligibility for appointment as Foreign Service Officer.
501.3 Noncompetitive interchange between Civil Service and Foreign
          Service.
501.4 Junior Level Career Candidate Program (Class 6, 5, or 4).
501.5 Mid-Level FSO Candidate Program (Class 3, 2, or 1).
501.6 Appointment of Overseas Specialists.
501.7 Appointment as Chief of Mission.
501.8 Reappointment of Foreign Service Officers and Career Overseas
          Specialists.
501.9 Interchange of FSOs between Broadcasting Board of Governors and
          other Foreign Affairs Agencies.

    Authority: Foreign Service Act of 1980 (22 U.S.C. 3901 et seq.).

    Source: 50 FR 27423, July 3, 1985, unless otherwise noted.



Sec. 501.1  Policy.

    It is the policy of the Broadcasting Board of Governors that Foreign
Service Officers occupy positions in which there is a need and
reasonable opportunity for interchangeability of personnel between the
Board and posts abroad, and which are concerned with (a) the conduct,
observation, or analysis of information and cultural activities, or (b)
the executive management of, or administrative responsibility for, the
overseas operations of the Board's program.



Sec. 501.2  Eligibility for appointment as Foreign Service Officer.

    Cross-reference: The regulations governing eligibility for
appointment as a Foreign Service Officer are codified in part 11 of this
title.



Sec. 501.3  Noncompetitive interchange between Civil Service and
Foreign Service.

    (a) An agreement between the Office of Personnel Management and the
Board under the provisions of Executive Order 11219 (3 CFR 1964-65 Comp.
p. 303) provides for the noncompetitive appointment of present or former
Foreign Service employees as career or career conditional Civil Service
employees.
    (b) Under this agreement former career personnel of the Board's
Foreign Service (FSCR, FSRU, FSIO, FSS, FSO, or FP) and such present
personnel desiring to transfer, are eligible, under certain conditions,
for noncompetitive career or career-conditional appointment in any
Federal agency that desires to appoint them. The President has
authorized the Office of Personnel Management by executive order to
waive the requirements for competitive examination and appointment for
such Board career Foreign Service personnel.
    (c) A present or former Civil Service employee may be appointed on a
competitive basis in any Foreign Service class for which the employee
has qualified under the provisions of section 3947 of title 22, United
States Code.



Sec. 501.4  Junior Level Career Candidate Program (Class 6, 5, or 4).

    Cross-reference: The regulations governing the junior level Career
Candidate program are codified in part 11 of this title.



Sec. 501.5  Mid-level FSO Candidate Program (Class 3, 2, or 1).

    (a) General. The mid-level FSO Candidate program, under the
provisions of section 306 of the Foreign Service Act of 1980,
supplements the junior-level Career Candidate program to meet total
requirements for Foreign Service Officers at the mid-level in the
Foreign Service. Foreign Service limited appointments of FSO Candidates
are made to Class 3, 2, or 1 for a period not to exceed five years.
Occasionally, appointments may be offered at the Class 4 level. The FSO
Commissioning Board will determine whether FSO Candidates have performed
at a satisfactory level and demonstrated the required level of growth
potential and competence, and will make a recommendation on
commissioning as Foreign Service Officers. FSO Candidates who are not
recommended for commissioning prior to the expiration of their limited
appointment will be separated from the mid-level program.
    (b) Sources of applicants. (1) The Broadcasting Board of Governors
draws

[[Page 70]]

a significant number of FSO Candidates from Board employees who apply,
and are found qualified by the Board of Examiners for the Foreign
Service (BEX).
    (2) The Board also draws Candidates from outside applicants who
possess skills and abilities in short supply in the Foreign Service and
who have capabilities, insights, techniques, experiences, and
differences of outlook which would serve to enrich the Foreign Service
and enable them to perform effectively in assignments both abroad and in
the United States. Minority applicants are recruited for mid-level entry
under the COMRAT program. Appointment from sources outside the Board is
limited and based on intake levels established in accordance with total
Broadcasting Board of Governors FSO workforce and functional
requirements. Such appointments are based on successful completion of
the examination process, and existing assignment vacancies.
    (c) Eligibility requirement--(1) Broadcasting Board of Governors
Employees. On the date of application, employees must have at least
three years of Federal Government service in a position of
responsibility in the Board. A position of responsibility is defined as
service as an Overseas Specialist at Class 4 or above or as a Domestic
Specialist at GS-11 or above within the Board. The duties and
responsibilities of the position occupied by the applicant must have
been similar or closely related to those of a Foreign Service Officer in
terms of knowledge, skills, abilities, and overseas experience. Board
Domestic and Overseas Specialists must be no more than 58 years of age
on the date of redesignation or appointment as an FSO Candidate.
    (2) Applicants Under Special Recruitment Programs. Minority and
women applicants must be no more than 58 years of age, must have
approximately nine years of education or experience relevant to work
performed in Broadcasting Board of Governors, must be knowledgeable in
the social, political and cultural history of the U.S. and be able to
analyze and interpret this in relation to U.S. Government policy and
American life.
    (3) Outside Applicants. On the date of appointment, applicants must
be no more than 58 years of age, with nine years of relevant work
experience and/or education, or proficiency in a language for which the
Board has a need, or substantial management expertise. Relevant work
experience is defined as public relations work, supervisory or
managerial positions in communications media, program director for a
museum or university-level teacher of political science, history,
English or other relevant disciplines. Appointments from these sources
for the limited vacancies available are made on a competitive basis to
fill specific Service needs after ensuring that the vacancies cannot be
filled by Foreign Service Officers already in the Foreign Service
Officer Corps.
    (d) Application Procedures. (1) Applicants must complete Standard
Form 171, Application for Federal Employment; Form DSP-34, Supplement to
Application for Federal Employment; a 1,000 word autobiography; a
statement affirming willingness and capacity to serve at any post
worldwide; and transcripts of all graduate and undergraduate course work
and forward them to the Special Recruitment Branch, Office of Personnel
(M/PDSE).
    (2) The filing of an application for the Foreign Service does not in
itself entitle an applicant to examination. The decision to proceed with
an oral examination is made by a Qualifications Evaluation Panel after
determining the applicant's eligibility for appointment and reviewing
the applicant's qualifications including his/her performance, and
administrative files (or equivalents), claimed language proficiency and
other background or factors which may be related to the work performed
by FSOs. An oral examination is given only in those cases where the
applicant is found to possess superior qualifications, proven ability,
and high potential for success in the Foreign Service.
    (e) Examination process--(1) Written Examination. A written
examination will not normally be required of applicants for FSO
Candidate appointments. However, if the volume of applications for a
given class or classes is such as to make it infeasible to examine
applicants orally within a reasonable time,

[[Page 71]]

such applicants may be required to take an appropriate written
examination prescribed by the Board of Examiners. Those who meet or
exceed the passing level set by the Board of Examiners on the written
examination will be eligible for selection for the oral examination.
    (2) Oral examination. (i) Applicants approved by the Qualifications
Evaluation Panel for examination will be given an oral examination by a
panel of Deputy Examiners approved by the Board of Examiners. The oral
examination is designed to enable the Board of Examiners to determine
whether applicants are functionally qualified for work in the Foreign
Service at the mid-level, whether they would be suitable representatives
abroad of the United States, whether they have the potential to advance
in the Foreign Service, and whether they have the background and
experience to make a contribution to the Foreign Service. The oral
examination is individually scheduled throughout the year and is
normally given in Washington, D.C. At the discretion of the Board of
Examiners, it may be given in other American cities, or at Foreign
Service posts, selected by the Board.
    (ii) The panel will orally examine each applicant through
questioning and discussion. There will also be a writing exercise and an
in-basket test. Applicants taking the oral examination will be graded
according to the standards established by the Board of Examiners. The
application of anyone whose score is at or above the passing level set
by the Board will be continued. The application of anyone whose score is
below the passing level will be terminated. The applicant may, however,
reapply in 12 months by submitting a new application.
    (3) Foreign language requirement. All applicants who pass the oral
examination will be required to take a subsequent test to measure their
fluency in foreign languages, or their aptitude for learning them (MLAT)
for which a score of 50 points (on a scale of zero to eighty) is
necessary to qualify for further processing. No applicant will be
recommended for career appointment who has not demonstrated such a
proficiency or aptitude. An applicant may be selected, appointed and
assigned without first having demonstrated required proficiency in a
foreign language, but the appointment will be subject to the condition
that the employee may not receive more than one promotion and may not be
commissioned as an FSO until proficiency in one foreign language is
achieved.
    (4) Medical examination. Those applicants recommended by the Board
of Examiners for an FSO candidacy, and their dependents who will reside
with them overseas, are required to pass a physical examination at the
Department of State Medical Division.
    (5) Security and suitability considerations. A background
investigation or appropriate security clearance update will be conducted
on each applicant, and no application may be continued until a security
clearance has been granted.
    (6) Class of appointment. The Board of Examiners fixes the entry
level for appointment as an FSO candidate.
    (7) Certification for appointment. After completion of all aspects
of the examination, the Board of Examiners certifies to the Board
successful candidates for appointment as FSO Candidates. Determinations
of duly constituted panels of examiners and deputy examiners are final,
unless modified by specific action of the Board of Examiners for the
Foreign Service.
    (8) FSO Candidate registers. (i) After approval by the Board of
Examiners, and certification as to suitability and security clearance by
the Board's Director of Security, successful applicants will have their
names placed on a register for the class for which they have been found
qualified. Appointments to available openings will be made from the
applicants entered on the register for the class of the position to be
filled. Inclusion on the register does not guarantee eventual assignment
and appointment as an FSO Candidate. Applicants who have qualified but
have not been appointed because of lack of openings will be dropped from
the register 18 months after the date of placement on it (or the
completion of an inside applicant's current overseas tour, whichever is
longer). Such applicants may reapply for the program, but will be
required to

[[Page 72]]

repeat the entire application process, including BEX testing.
    (ii) Any applicant on the register who refuses an assignment offer
will be removed from the Register and will not be eligible to reapply
for the program for seven years.
    (iii) The Board of Examiners may extend the eligibility period when
such extension is in its judgment justified in the interest of the
Foreign Service.
    (f) Appointment as an FSO Candidate. (1) An FSO Candidate will be
given a four-year Foreign Service limited appointment. Board Career
Overseas Specialists will be redesignated as FSO Candidates for a period
of four years. The appointment or redesignation may be extended for one
year, but must be terminated at the end of the fifth year. The purpose
of the FSO Candidacy is to permit on-the-job evaluation of an
individual's suitability and capacity for effective service as a Foreign
Service Officer.
    (2) FSO Candidates will be assigned to Generalist positions
overseas, and will compete for promotion with other Generalist officers
under the Annual Generalist Selection Boards. FSO Candidates at the
Class 1 level may not compete for promotion into the Senior Foreign
Service prior to commissioning as an FSO.
    (3) The FSO Candidacy may be terminated during the four-year period
for unsatisfactory performance (22 U.S.C. 4011) or for such other cause
as will promote the efficiency of the Service (22 U.S.C. 4010).
    (g) Commissioning as a Foreign Service Officer. (1) Upon completion
of three years' service (most of which will have been overseas), the FSO
Candidate will be eligible for commissioning as a Foreign Service
Officer. The FSO Commissioning Board will review all FSO Candidates
appointed on or after March 1, 1980 and will recommend on tenure.
    (2) The criterion used for deciding whether to recommend
commissioning of FSO Candidates is the Candidate's demonstrated
potential to perform effectively as a Foreign Service Officer in a
normal range of generalist assignments up through the Class 1 level. No
quota or numerical limit is placed on the number of affirmative
decisions.
    (3) If recommended for commissioning, and having satisfied the
language proficiency requirements, the name of the FSO Candidate will be
forwarded to the President and the Senate and, upon approval, the FSO
Candidate will be commissioned as an FSO.
    (4) If the FSO Commissioning Board does not recommend commissioning
of the FSO Candidate during its review, it may recommend extension of
the FSO Candidacy to allow for a future review. Under no circumstances
will an FSO Candidacy be extended to a total of more than five years.
    (5) Candidates not recommended for commissioning or who have not
satisfied the language proficiency requirement will be separated from
the Service at the expiration of their appointment. However, FSO
Candidates who were appointed from within the Board with career status
as a Domestic or Overseas Specialist may exercise reappointment rights
to their previous category in lieu of separation.



Sec. 501.6  Appointment of Overseas Specialists.

    (a) General. Members of the Board's Foreign Service appointed as
Overseas Specialists serve on rotational U.S.-overseas assignments in
the following types of positions: General Administration; Publication
Writers and Editors; Exhibit Managers; Printing Specialists; English
Teaching Specialists; Correspondents; Engineers for the Voice of
America; Regional Librarian Consultants; and Secretaries. Appointees
serve a trial period of service as Specialist Candidates under Foreign
Service limited appointments (or redesignation) for a period not to
exceed five years. Appointments are made to F.S. classes 8 through 1.
Specialist Candidates are given career appointments as Overseas
Specialists based on the recommendations of Specialist Selection Boards.
Specialist candidates not recommended for tenuring will be separated
from the Foreign Service, or reinstated in the Civil Service.
    (b) Sources of applicants. Qualified Broadcasting Board of Governors
domestic employees comprise a significant recruitment source for
Overseas Specialist appointments. Such employees will be given priority
consideration

[[Page 73]]

over outside applicants when applying for Overseas Specialist positions,
when qualifications are otherwise equal.
    (c) Eligibility requirements. All applicant must be citizens of the
United States, and must be at least 21 years of age and no more than 58
years of age at the time of appointment. The 21-year age requirement may
be waived by the Director, Office of Personnel (M/P or VOA/P) when she
or he determines that the applicant's services are urgently needed.
Broadcasting Board of Governors employee applicants must also have at
least three years of Federal government experience and occupy a position
at the GS-11 level (or equivalent) or above (GS-10 for Electronic
Technicians in the Voice of America). All applicants must be available
for worldwide assignment to positions in their occupational category.
    (d) Application procedures. (1) Applications for all specialties
except secretarial should include a current SF-171, Application for
Federal Employment; a DSP-34, Supplement to Application for Federal
Employment; university transcripts; a 1,000 word autobiographical
statement which should include mention of the qualifications the
applicant would bring to the job and reason for desiring to work for the
Board; and a statement affirming willingness and capacity to serve at
any post worldwide.
    (2) Special requirements for Foreign Service Secretaries.
Secretarial applicants must submit a current SF-171, Application for
Federal Employment, and a 250 word essay on a commonly understood
subject to demonstrate grammatical competence. The following specific
requirements must be met by applicants: Ability to type accurately at 60
words per minute; four years of secretarial or administrative experience
(business school or college training may be substituted for up to two
years of required work experience); and attainment of an acceptable
score in verbal ability and spelling tests. Applicants will subsequently
be given a written examination to measure administrative aptitude.
    (e) Examination process--(1) Application review. All applications
are to be sent to the Special Recruitment Staff, Office of Personnel (M/
PDSE), or to the Foreign Personnel Advisor (VOA/PF) for Voice of America
positions.
    (2) Qualifications Evaluation Panel. A Qualifications Evaluation
Panel will evaluate the applicant's qualifications including his/her
performance and administrative files (or equivalent), claimed language
proficiency and other background or factors which may be related to the
work performed by an Overseas Specialist Officer in the relevant
specialty.
    (3) Oral examination. (i) Applicants who are passed on by the
Qualifications Evaluation Panel to the Board of Examiners will be given
an oral examination to evaluate the applicant's total qualifications for
service as an Overseas Specialist in the desired functional specialty.
    (ii) The Board panel examining all candidates except those of the
Voice of America will consist of one Broadcasting Board of Governors
Overseas Specialist and two BEX Deputy Examiners. For VOA candidates,
the panel will consist of the Foreign Personnel Advisor, a BEX Deputy
Examiner assigned to the Voice of America, and a Deputy Examiner
assigned to the Board of Examiners.
    (iii) The panel will examine each applicant through questioning and
discussion. Hypothetical problem-solving exercises, a writing exercise
and an in-basket test may also be required. The panel will also
recommend the F.S. entry level for appointment. If the panel's
recommendation is unfavorable, the application process will be
discontinued. An unsuccessful applicant may apply again in 12 months.
    (4) The same medical and security requirements applicable to FSO
Candidates pertain to Specialist Candidates.
    (5) Overseas Specialist Candidate register. If an applicant is
successful in the examination, and medical and security clearances have
been successfuly completed, his/her name will be added to the
appropriate Overseas Specialist register for a period of 18 months, or
completion of an inside candidate's current tour of duty overseas,
whichever is longer, at the Foreign Service class determined in the
examination process and based on previous experience. Inclusion on the
register does not

[[Page 74]]

guarantee eventual assignment and appointment as an Overseas Specialist
Candidate.
    (f) Appointment as a Specialist Candidate. (1) When the Office of
Personnel identifies an overseas vacancy which cannot be filled from the
existing ranks of Overseas Specialists, applicants on the Overseas
Specialist register will be considered for the assignment. An applicant
will not be appointed unless an overseas position has been identified
and a need for the individual in the Foreign Service has been certified
by the Director, Office of Personnel (M/P or VOA/P). Any applicant
selected from the register who refuses an assignment offer will be
dropped from the register and precluded from reapplying for a period of
seven years.
    (2) Applicants will be given a Foreign Service limited appointment
(or redesignation) for a period of four years at the Foreign Service
Class determined in the examination process. The purpose of this
untenured appointment is to allow the Board to evaluate and assess the
Specialist Candidate's abilities and future potential prior to offering
career appointment as an Overseas Specialist. The limited appointment
may be extended for one additional year, but must be terminated at the
end of the fifth year if the Candidate does not obtain career tenure.
    (3) The Candidate will receive the orientation and training
necessary to serve overseas and will be assigned overseas in a position
in his or her specialty. Broadcasting Board of Governors Civil Service
employees selected as Overseas Specialist Candidates will be appointed
only if the Board element to which they are currently assigned is
willing to affirm in writing that a position at the appropriate level
will be made available for the employee should the candidacy end
unsuccessfully. Broadcasting Board of Governors Civil Service applicants
will be appointed as Overseas Specialist Candidates on or about the date
of their departure for post of assignment or upon assumption of an
assignment (which has been identified and will follow a period of
orientation in Washington). The Board may also assign a Candidate to a
U.S.-based position for an initial assignment of up to 24 months when
the Candidate will spend the majority of his/her time traveling overseas
and will, except for the U.S. basing, be fully functioning as an
Overseas Specialist. Specialist Candidates will compete for promotion by
the Annual Overseas Specialist Selection Board with other officers in
the same specialty and at the same class level. Specialist Candidates at
the Class 1 level are ineligible for promotion into the Senior Foreign
Service.
    (4) The Specialist candidacy may be terminated at any time for
unsatisfactory performance (22 U.S.C. 4011) or for such cause as will
promote the efficiency of the Service (22 U.S.C. 4010).
    (g) Career appointment as an Overseas Specialist. In accordance with
section 3946 of title 22 United States Code, the decision to offer a
Specialist Candidate a career appointment will be based on the
recommendation made by the Annual Overseas Specialist Selection Board
which reviews all employees in the Candidate's occupational category and
class level.
    (1) Eligibility. Specialist Candidates who have performed at least
two years of overseas service will be eligible for review for career
status at the time of the Candidate's third Board review. Candidates
serving an initial tour in the U.S. but spending the majority of time
working overseas will be credited with up to one year's overseas
service, but no more than half of the time based in the U.S. If a
Specialist Candidate is not recommended for career status during the
initial review, the Candidate may be reviewed again when the next Annual
Overseas Specialist Selection Board convenes if the initial Board so
recommends.
    (2) Selection Board Review. The Selection Board(s) will review the
official performance file of the eligible Specialist Candidates and in
accordance with established precepts, will determine whether the
Candidates should be recommended for career appointment as Overseas
Specialists. Recommendations by the Board will be based on the
Candidate's demonstrated aptitude and fitness for a career in the
Foreign Service in their occupational specialties. No quota or numerical
limit is placed on the number of positive career status

[[Page 75]]

decisions that can be made by Selection Boards. The Specialist candidacy
will be terminated if the Candidate fails to be recommended for career
status after a second Board review for tenuring. Candidates may be
terminated earlier than the expiration of their limited appointment if
so recommended by the Board and approved by the Director, Office of
Personnel (M/P or VOA/P). Specialist Candidates recommended for career
status by the Selection Board will be given Foreign Service career
appointments (or redesignation) as Overseas Specialist, to take effect
within one month of the Board's recommendation.



Sec. 501.7  Appointment as Chief of Mission.

    (a) Appointment by President. Chiefs of mission are appointed by the
President, by and with the advice and consent of the Senate. They may be
career members of the Foreign Service or they may be appointed from
outside the Service.
    (b) Recommendation of Foreign Service career members. On the basis
of recommendations made by the Director of Broadcasting Board of
Governors, the Secretary of State from time to time furnishes the
President with the names of Foreign Service career members qualified for
appointment as chiefs of mission. The names of these officers, together
with pertinent information concerning them, are given to the President
to assist him in selecting qualified candidates for appointment as
chiefs of mission.
    (c) Status of Foreign Service career members appointed as Chiefs of
Mission. Foreign Service career members who are appointed as chiefs of
mission retain their career status as Foreign Service career members.



Sec. 501.8  Reappointment of Foreign Service Officers and Career
Overseas Specialists.

    The President may, by and with the advice and consent of the Senate,
reappoint to the Service a former Foreign Service Officer who is
separated from the Service. The Director (Broadcasting Board of
Governors) may reappoint to the Service a former career Overseas
Specialist.
    (a) Requirements for reappointment. (1) On the date of application,
each applicant must be a citizen of the United States.
    (2) No applicant will be considered who has previously been
separated from the Foreign Service pursuant to section 608 or 610 of the
Foreign Service Act of 1980 (or predecessor section 633, 635, or 637 of
the Foreign Service Act of 1946, as amended); or who resigned or retired
in lieu of selection out or separation for cause.

    Note: This requirement will not apply where it has been determined
by the Foreign Service Grievance Board under 3 FAM 660 or by the
Director, Office of Personnel, that the separation or the resignation or
retirement in lieu of selection out or separation for cause was
wrongful; where reappointment is determined by the Director, Office of
Personnel, as an appropriate means to settle a grievance or complaint of
a former Foreign Service career member on a mutually satisfactory basis;
or where reappointment is the indicated redress in a proceeding under 3
FAM 130 ``Equal Employment Opportunity.''

    (b) Application. Apply by letter addressed to the Director, Office
of Personnel. Include the standard application forms, SF-171,
Application for Federal Employment; and DSP-34, Supplement to
Application for Federal Employment; and a brief resume of work and other
experience since resignation from the Foreign Service. Whenever the
Director, Office of Personnel, finds that the reappointment of one or
more former Foreign Service Career Members may be in the best interest
of the Service, all application forms, along with the available
personnel files, will be referred as appropriate to the Board of
Examiners for the Foreign Service which will conduct an advisory
evaluation of the qualifications of each applicant.
    (c) Nature of evaluation. (1) The Board of Examiners' advisory
qualifications evaluation of FSO applicants (i) will be based on a
review of all pertinent information relating to the applicant's record
of employment in the Foreign Service and to subsequent experience, as
well, and (ii) will take into consideration among other factors, the
rank of the applicant's contemporaries in the Service in recommending
the class in which the applicant will be reappointed

[[Page 76]]

under section 308 of the Foreign Service Act of 1980.
    (2) In consultation with the Foreign Service Personnel Division (M/
PF or VOA/PF) and officials from the pertinent Board elements, the
Overseas Specialist applicant's total qualifications and experience will
be evaluated based on the application and an interview. On the basis of
this review and the recommendations of the appropriate officials, the
personnel office will determine whether the application should be
continued and, if so, will recommend the appointment class.
    (d) Medical examination and security investigation. Qualified
applicants and their dependents who will accompany them overseas will be
given a physical examination. A security investigation will also be
conducted. The reappointment action is subject to completion of a
satisfactory security investigation and satisfactory medical examination
of the applicant and his/her dependents.
    (e) Selection for reappointment. The Director, Office or Personnel
(M/P or VOA/P), taking into consideration (1) the qualifications and
experience of each applicant as outlined in the qualifications
evaluation performed by the Board of Examiners for the Foreign Service
or the personnel office, (2) future placement and growth potential, and
(3) the needs of the Service for the applicant's skills determines which
applicant, or applicants, are qualified for reappointment and the
appointment class that is considered to be appropriate. An Overseas
Specialist may not be reappointed until and unless an overseas
assignment has been identified. The Director, Office of Personnel (M/P
or VOA/P) is responsible for initiating appointment action. Any
voluntary applicant who refuses an offer of reappointment will not be
considered for reappointment again.



Sec. 501.9  Interchange of FSOs between Broadcasting Board of
Governors and other Foreign Affairs Agencies.

    Foreign Service Officers (FSOs) desiring transfer from one agency to
another may apply under the following provisions:
    (a) Applications. Applications for interchange appointments should
be sent to the Board of Examiners for the Foreign Service, Department of
State, Washington, DC 20520.
    (b) Certification and approval. (1) When a Foreign Service Officer
of another Foreign Affairs Agency wishes to transfer to the Broadcasting
Board of Governors, a certification of need is required from the
Director, Office of Personnel, Broadcasting Board of Governors, and
approval is required by the Director of Personnel for the other agency
for the officer's release to Broadcasting Board of Governors.
    (2) When a Broadcasting Board of Governors FSO wishes to transfer to
another Foreign Affairs Agency, a certification of need is required from
the Director of Personnel of the other Agency, and approval is required
by the Director, Office of Personnel, Broadcasting Board of Governors,
for the officer's release to that Agency.
    (3) A review by the Board of Examiners for the Foreign Service will
certify the eligibility of candidates for exchange. BEX will notify the
Office of Personnel, Broadcasting Board of Governors when a Foreign
Service Officer of another Agency has been approved for transfer and
Broadcasting Board of Governors will process the necessary employment
papers.
    (4) A new FSO appointment for officers transferring between another
Foreign Affairs Agency and Broadcasting Board of Governors is not
required.



PART 502_DOMESTIC REQUESTS FOR BROADCASTING BOARD OF GOVERNORS PROGRAM
MATERIALS--Table of Contents



Sec.
502.1 Authority and scope.
502.2 Definitions.
502.3 Availability of program materials on public Web sites.
502.4 Media or organization one-time requests for broadcast quality
          agency program materials.
502.5 Media or organization requests for ongoing subscriptions to
          broadcast quality agency program materials
502.6 Terms of use for accessing program materials available on agency
          Web sites.
502.7 Denial of requests.
502.8 Fees.

    Authority: 22 U.S.C. 1461, 1461-1a.

[[Page 77]]


    Source: 78 FR 39585, July 2, 2013, unless otherwise noted.



Sec. 502.1  Authority and scope.

    (a) Authority for this part. This part is pursuant to Section 1078
of the National Defense Authorization Act for Fiscal Year 2013, Public
Law 112-239, as codified in 22 U.S.C. 1461, 1461-1a and the U.S.
International Broadcasting Act, 22 U.S.C. 6201 et seq.
    (b) Scope. This part applies to the public and all divisions of the
Federal Government supervised by the Broadcasting Board of Governors
under the U.S. International Broadcasting Act of 1994 (collectively
``the Agency''). These regulations only cover the procedures for
responding to domestic requests for Agency program materials.
    (c) Summary.
    (1) The Broadcasting Board of Governors supervises all U.S. non-
military international broadcasting activities in accordance with the
broadcasting principles and standards in the U.S. International
Broadcasting Act of 1994, 22 U.S.C. 6201 et seq., including consistency
with the broad foreign policy objectives of the United States.
    (2) As stated in the U.S. International Broadcasting Act of 1994, it
is the policy of the United States to promote freedom of opinion and
expression and to open communication of information and ideas among the
people of the world. The Agency has adopted as its mission statement
``to inform, engage, and connect people around the world in support of
freedom and democracy.''
    (3) It is the Agency's policy to make its program materials
available, upon request, whenever doing so is consistent with all
statutory authorities, prohibitions, principles, and standards. However,
the Agency reserves the right to deny requests for program materials
under circumstances described in Section 502.7 of this regulation.
    (4) Pursuant to section 501 of the U.S. Information and Educational
Exchange Act, as amended, as codified in 22 U.S.C. 1461, the Agency may,
upon request, provide members of the public, organizations, and media
with program materials which the Agency disseminated abroad, in
accordance with these regulations.
    (5) Pursuant to Section 208 of Foreign Relations Authorization Act,
Fiscal Years 1986 and 1987, as amended, as codified at 22 U.S.C. 1461-
1a, the Agency is prohibited from using appropriated funds to influence
public opinion in the United States, however, the statute clarifies that
the Agency may:
    (i) Provide information about its operations, programs, or program
materials to the media, the public, or Congress in accordance with
applicable law;
    (ii) Make program materials available in the Unites States, when
appropriate, and in accordance with other applicable law.



Sec. 502.2  Definitions.

    As used in this part:
    (a) Media entity means any person or entity, that actively gathers
information of potential interest to a segment of the public, turns
gathered information into a distinct work, or distributes that work to
an audience within the United States, and otherwise serves the purposes
described in Sec. 502.4.
    (b) Organization means any corporation, trust, association,
cooperative, or other group organized primarily for scientific,
educational, service, charitable, or similar purpose, including but not
limited to institutions of higher education, and otherwise serves the
purposes described in Sec. 502.4.
    (c) Program materials means radio broadcasts, television broadcasts,
and Internet content that the Agency disseminates to audiences outside
of the United States, pursuant to: The U.S. Information and Educational
Exchange Act of 1948 (22 U.S.C. 1461 et seq.); The U.S. International
Broadcasting Act of 1994 (22 U.S.C. 6201 et seq.); The Radio
Broadcasting to Cuba Act (22 U.S.C. 1465 et seq.); or The Television
Broadcasting to Cuba Act (22 U.S.C. 1465aa et seq.).
    (d) Requestor means any private person or entity within the United
States that requests program materials from the Agency.



Sec. 502.3  Availability of program materials on public Web sites.

    (a) The Agency makes program materials available to Requestors
through the Agency's news and information

[[Page 78]]

Web sites designed for foreign audiences. To access currently-available
Agency program materials, please visit www.voanews.com and
www.martinoticias.com. The homepages of these Web sites display a
portion of the Agency's most recent news reporting. Additional program
materials are available through the Web sites' search functions.
    (b) Program materials are available on Agency Web sites, and may be
removed from Agency Web sites solely at the Agency's discretion. The
Agency will remove program materials from Agency Web sites when a
National Archives and Records Administration (NARA) records schedule
goes into effect, or when required by licensing agreements with third-
party copyright holders. Once these program materials have been removed
from Agency Web sites, they are no longer available from the Agency.
    (1) When full programs are removed from the Agency's Web sites in
accordance with a NARA records schedule, programs designated as
permanent will be transferred to NARA. For information on how to request
Agency program materials that have been transferred to NARA, see the
Agency's records schedules and NARA's regulations at www.nara.gov.
    (2) Programs designated as temporary under a NARA records schedule
will not be retained by the Agency once they are removed from the
Agency's Web sites and are no longer needed for the Agency's use.
    (c) Segments incorporated into final programs, including music,
interviews, reports, and other program elements, will not be transferred
to NARA independently of full program recordings, and will not be
available after they have been removed from Agency Web sites.
    (d) Draft program materials, and any other program materials not
selected for dissemination abroad, are not available.
    (e) The Agency shall determine the method of making program
materials available, as well as the file type, file format, resolution,
and storage medium(s) that are available. Program materials are only
available in the same form (i.e. radio or television file-type and file
format) and language in which the Agency disseminated them abroad.

[78 FR 39585, July 2, 2013, as amended at 78 FR 67026, Nov. 8, 2013]



Sec. 502.4  Media or organization one-time requests for broadcast
quality agency program materials.

    Upon request, the Agency may provide a broadcast-quality copy of
Agency program materials to media entities, educational organizations,
not-for-profit corporations, or other requestors. Requestors will be
informed if materials are subject to third party content holders'
restrictions. One-time requests for broadcast quality copies of Agency
program materials should be directed to:
    (a) The Voice of America Office of Public Relations for broadcast-
quality copies of Voice of America program materials; and
    (b) The TV Marti Division of the Office of Cuba Broadcasting for
broadcast-quality copies of TV or Radio Marti program materials.

[78 FR 67026, Nov. 8, 2013]



Sec. 502.5  Media or organization requests for ongoing subscriptions
to broadcast quality agency program materials

    (a) Upon request, the Agency may make program materials available on
an ongoing basis to Media entities, or other organizations, through a
subscription agreement, provided that the Agency determines that
entering into a subscription agreement to make program materials
available on an ongoing basis would be consistent with the Agency's
mission and authorities. Requested, ongoing subscription agreements must
be consistent with the Agency's Policy for domestic distribution which
incorporates the Broadcasting principles and standards and other
requirements, found in 22 U.S.C. 1461, 1461-1a, 1462, 6201, 6202, 6203,
6204, 6205, 6206; Pub. L. 112-239, section 1078(b), 126 Stat. 1632,
1958; agreements with third-parties that hold a copyright in Agency
program materials; and Terms of Use on Agency Web sites. Requestors
shall secure all necessary

[[Page 79]]

licenses from all persons or organizations that hold a copyright in any
portion of program materials before making any use of those program
materials, except uses of program materials permitted by the Copyright
Act of 1976, as amended.
    (b) Media entities or other organizations may request ongoing
subscriptions by filling out an application form found on the Web site
for the Direct System, the Agency's professional distribution system.

[78 FR 67026, Nov. 8, 2013]



Sec. 502.6  Terms of use for accessing program materials available on
agency Web sites.

    (a) By accessing Agency Web sites, Requestors agree to all the Terms
of Use available on those Web sites.
    (b) All Requestors are advised that Agency program materials may
contain third-party copyrighted material, unless the Agency specifically
informs the Requestor otherwise. Accordingly, and as further explained
in the Terms of Use mentioned above, by using Agency Web sites to access
program materials:
    (1) The Requestor agrees that he or she is solely responsible for
his or her use of program materials provided by the Agency and any
copyrighted portion(s) of those materials;
    (2) The Requestor agrees that he or she shall secure all necessary
licenses from all persons or organizations that hold a copyright in any
portion of requested program materials before making any use of those
program materials, except uses of program materials permitted by the
Copyright Act of 1976, as amended.

[78 FR 39585, July 2, 2013, as amended at 78 FR 67026, Nov. 8, 2013]



Sec. 502.7  Denial of requests.

    (a) The Agency reserves the right to deny any request for program
materials made pursuant to these regulations for cause, including but
not limited to the following circumstances:
    (1) For a Requestor's failure to comply with the Terms of Use on
Agency Web sites;
    (2) For a Requestor's failure to secure necessary rights and
licenses to use third-party copyrighted materials when the Requestor
uses Agency program materials in any way not explicitly permitted by the
Copyright Act of 1976, as amended;
    (3) When the Agency's distribution of program materials is
restricted by an agreement with a third-party that holds a copyright in
a portion of Agency program materials;
    (4) If providing the requested materials would be inconsistent with
the Agency's statutory authorities, the broadcasting element's charter,
or any applicable law or regulation.
    (b) For more information on the criteria for accepting or denying
requests, please see the Agency's policy for domestic distribution,
available at www.bbg.gov.



Sec. 502.8  Fees.

    (a) The Agency makes program material available at no cost on
www.voanews.com and www.martinoticias.com.
    (b) The Agency may collect a fee for reimbursement of the reasonable
costs incurred to fulfill a request for Agency program materials,
including ongoing subscriptions for Media entities and one-time requests
for broadcast-quality copies of Agency program materials. Fees charged
for ongoing subscriptions, if any, will be outlined in an agreement
between the Media entity and the Agency.
    (c) The Agency reserves the right to establish and change fees in
accordance with applicable law and regulation.



PART 503_FREEDOM OF INFORMATION ACT REGULATION--Table of Contents



Sec.
503.1 Introduction and definitions.
503.2 Making a request.
503.3 Availability of agency records.
503.4 Time limits.
503.5 Records available for public inspection.
503.6 Restrictions on some agency records.
503.7 Fees.
503.8 Exemptions.
503.9 Electronic records.

    Authority: 5 U.S.C. 552 Reform Act of 1986 as amended by Pub. L. 99-
570; sec. 1801-1804; U.S.C. 2658; 5 U.S.C. 301; 13 U.S.C. 8, E.O. 10477,
as amended; 47 FR 9320, Apr. 2, 1982, E.O. 12356. 5 U.S.C. 552 (1988 &
Supp. III 1991)

[[Page 80]]

as amended by Freedom of Information Reform Act of 1986, Pub. L. 99-570,
Title I, sections 1801-1804, 100 Stat. 3207, 3207-48-50 (1986)(codified
at 5 U.S.C. 552 (1988)); 22 U.S.C. 2658 (1988); 5 U.S.C. 301 (1988); 13
U.S.C. 8 (2988); E.O. 10477, 3 CFR 958 (1949-1953) as amended by E.O.
10822, 3 CFR 355 (1959-1963), E.O. 12292, 3 FR 134 (1982), E.O. 12356, 3
CFR 166 (1983), E.O. 12958 (1995).

    Source: 67 FR 8867, Feb. 27, 2002, unless otherwise noted.



Sec. 503.1  Introduction and definitions.

    (a) Introduction. The Freedom of Information Act (FOIA) and this
part apply to all records of The Broadcasting Board of Governors (BBG).
As a general policy BBG follows a balanced approach in administering the
FOIA. We recognize the right of public access to information in the
Agency's possession, but we also seek to protect the integrity of the
Agency's internal processes. This policy calls for the fullest possible
disclosure of records consistent with those requirements of
administrative necessity and confidentiality which are recognized by the
FOIA.
    (b) Definitions:
    Access Appeal Committee or Committee means the Committee delegated
by the Agency Head for making final agency determinations regarding
appeals from the initial denial of records under the FOIA.
    Agency or BBG means the Broadcasting Board of Governors. It includes
all parts of the BBG in the U.S. and its worldwide operations.
    Commercial use, when referring to a request, means that the request
is from, or on behalf of, one who seeks information for a use or purpose
that furthers the commercial, trade, or profit interests of the
requester or of a person on whose behalf the request is made. Whether a
request is for a commercial use depends on the purpose of the request
and how the records will be used. The identity of the requester
(individual, non-profit corporation, for-profit corporation), or the
nature of the records, while in some cases indicative of that purpose or
use, is not necessarily determinative. When a request is made by a
representative of the news media, the request shall be deemed to be for
a non-commercial use.
    Department means any executive department, military department,
government corporation, government controlled corporation, any
independent regulatory agency, or other establishment in the executive
branch of the Federal Government. A private organization is not a
department even if it is performing work under contract with the
Government or is receiving Federal financial assistance. Grantee and
contractor records are not subject to the FOIA unless they are in the
possession and control of the BBG.
    Duplication means the process of making a copy of a record and
sending it to the requester, to the extent necessary to respond to the
request. Such copies include paper copy, microform, audiovisual
materials, and magnetic tapes, cards and discs.
    Educational institution means a preschool, elementary or secondary
school, institution of undergraduate or graduate higher education, or
institution of professional or vocational education.
    FOIA means the Freedom of Information Act, section 552 of title 5,
United States Code, as amended.
    Freedom of Information Officer means the BBG official who has been
delegated the authority to release or withhold records and assess,
waive, or reduce fees in response to FOIA requests.
    Non-commercial scientific institution means an institution that is
not operated substantially for the purposes of furthering its own or
someone else's business, trade, or profit interests, and that is
operated for purposes of conducting scientific research whose results
are not intended to promote any particular product or industry.
    Records (and any other term used in this section in reference to
information) include any information that would be an agency record
subject to the requirements of this section when maintained by the
Agency in any format, including an electronic format. Records also
include any handwritten, typed or printed documents (such as memoranda,
books, brochures, studies, writings, drafts, letters, transcripts, and
minutes) and documentary material in other forms (such as punchcards,
magnetic tapes, cards, or discs; paper tapes; audio or video recordings,

[[Page 81]]

maps, photographs, slides, microfilm, and motion pictures). It does not
include objects or articles such as exhibits, models, equipment, and
duplication machines or audiovisual processing materials. Reports does
not include books, magazines, pamphlets, or other reference material in
formally organized and officially designated BBG libraries, where such
materials are available under the rules of the particular library.
    Representative of the news media means a person actively gathering
news for an entity organized and operated to publish or broadcast news
to the public. News means information that is about current events or
that would be of current interest to the public. News media entities
include television and radio broadcasters, publishers of periodicals (to
the extent they publish ``news'') who make their products available for
purchase or subscription by the general public, and entities that may
disseminate news through other media (e.g., electronic dissemination of
text). Freelance journalists shall be considered representatives of a
news media entity if they can show a solid basis for expecting
publication through such an entity. A publication contract or a
requester's past publication record may show such a basis.
    Request means asking in writing for records whether or not the
request refers specifically to the FOIA.
    Review means examining the records to determine which portions, if
any, may be released, and any other processing that is necessary to
prepare the records for release. It includes only the first examination
and processing of the requested documents for purposes of determining
whether a specific exemption applies to a particular record or portion
of a record.
    Search means looking for records or portions of records responsive
to a request. It includes reading and interpreting a request, and also
page-by-page and line-by-line examination to identify responsive
portions of a document. However, it does not include line-by-line
examination where merely duplicating the entire page would be a less
expensive and quicker way to comply with the request.



Sec. 503.2  Making a request.

    (a) How to request records. All requests for documents shall be made
in writing. Requests should be addressed to The Broadcasting Board of
Governors (BBG), FOIA/Privacy Act Officer, Office of the General
Counsel, 330 Independence Avenue, SW, Suite 3349, Washington, DC 20237;
telephone (202) 260-4404; or fax (202) 260-4394. Write the words
``Freedom of Information Act Request'' on the envelope and letter.
    (b) Details in your letter. Your request for documents should
provide as many details as possible that will help us find the records
you are requesting. If there is insufficient information, we will ask
you to provide greater details. Include your telephone number(s) to help
us reach you if we have questions. If you are not sure how to write your
request or what details to include, you may call the FOIA Office to
request a copy of the Agency's booklet ``Guide and Index of Records,''
or access the same information via the Internet on BBG's World Wide Web
site (http://www.ibb.gov). The more specific the request for documents,
the sooner the Agency will be able to respond to your request(s).
    (c) Requests not handled under FOIA. We will not provide documents
requested under the FOIA and this part if the records are currently
available in the National Archives, subject to release through the
Archives, or commonly sold to the public by it or another agency in
accordance with statutory authority (for example, records currently
available from the Government Printing Office or the National Technical
Information Service). Agency records that are normally freely available
to the general public, such as BBG press releases, are not covered by
the FOIA. Requests for documents from Federal departments, Chairmen of
Congressional committees or subcommittees and court orders are not FOIA
requests.
    (d) Referral of requests outside the agency. If you request records
that were created by or provided to us by another Federal department, we
may refer your request to or consult with that department. We may also
refer requests for classified records to the department that classified
them. In cases

[[Page 82]]

of referral, the other department is responsible for processing and
responding to your request under that department's regulation. When
possible, we will notify you when we refer your request to another
department.
    (e) Responding to your request--(1) Retrieving records. The Agency
is required to furnish copies of records only when they are in our
possession and control. If we have stored the records you want in a
record retention center, we will retrieve and review them for possible
disclosure. However, the Federal Government destroys many old records,
so sometimes it is impossible to fill requests. The Agency's record
retention policies are set forth in the General Records Schedules of the
National Archives and Records Administration and in BBG's Records
Disposition Schedule, which establish time periods for keeping records
before they may be destroyed.
    (2) Furnishing records. (i) The Agency is only required to furnish
copies of records that we have or can retrieve. We are not compelled to
create new records. The Agency will aid requesters by providing records
and information in the form requested, including electronic format, if
we can readily reproduce them in that form or format.
    (ii) We may decide to conserve government resources and at the same
time supply the records you need by consolidating information from
various records, in paper form or electronically, rather than copying
them all. If the effort to produce records in electronic format would
significantly interfere with the operations of the Agency, we will
consider the effort to be an unreasonable search.
    (iii) The Agency is required to furnish only one copy of a record.
If we are unable to make a legible copy of a record to be released, we
will not attempt to reconstruct it. Rather we will furnish the best copy
possible and note its poor quality in our reply or on the copy.
    (iv) If we cannot accommodate your request for form or format, we
will provide responsive, nonexempt information in a reasonably
accessible form.



Sec. 503.3  Availability of agency records.

    (a) Release of records. If we have released a record or part of a
record to others in the past, we will ordinarily release it to you also.
This principle does not apply if the previous release was an
unauthorized disclosure. However, we will not release it to you if a
statute forbids this disclosure and we will not necessarily release it
to you if an exemption applies in your situation and did not apply or
applied differently in the previous situation.
    (b) Denial of requests. All denials are in writing and describe in
general terms the material withheld and state the reasons for the
denial, including a reference to the specific exemption of the FOIA
authorizing the withholding or deletion. The denial also explains your
right to appeal the decision and it will identify the official to whom
you should send the appeal. Denial letters are signed by the person who
made the decision to deny all or part of the request, unless otherwise
noted.
    (c) Unproductive searches. We will make a diligent search for
records to satisfy your request. Nevertheless, we may not be able always
to find the records you want using the information you provided, or they
may not exist. If we advise you that we have been unable to find the
records despite a diligent search, you will nevertheless be provided the
opportunity to appeal the adequacy of the Agency's search. However, if
your request is for records that are obviously not connected with this
Agency or your request has been provided to us in error, a ``no
records'' response will not be considered an adverse action and you will
not be provided an opportunity to appeal.
    (d) Appeal of denials. You have the right to appeal a partial or
full denial of your FOIA request. To do so, you must put your appeal in
writing and address it to the official identified in the denial letter.
Your appeal letter must be dated and postmarked within 30 calendar days
from the date of the Agency's denial letter. Because we have some
discretionary authority in deciding whether to release or withhold
records, you may strengthen your appeal by explaining your reasons for
wanting the records. However, you are not required to give any
explanation.

[[Page 83]]

Your appeal will be reviewed by the Agency's Access Appeal Committee
that consists of senior Agency officials. When the Committee responds to
your appeal, that constitutes the Agency's final action on the request.
If the Access Appeal Committee grants your appeal in part or in full, we
will send the records to you promptly or set up an appointment for you
to inspect them. If the decision is to deny your appeal in part or in
full, the final letter will state the reasons for the decision, name the
officials responsible for the decision, and inform you of the FOIA
provisions for judicial review.



Sec. 503.4  Time limits.

    (a) General. The FOIA sets certain time limits for us to decide
whether to disclose the records you requested, and to decide appeals. If
we fail to meet the deadlines, you may proceed as if we had denied your
request or your appeal. Since requests may be misaddressed or misrouted,
you should call or write to confirm that we have the request and to
learn its status if you have not heard from us in a reasonable time.
    (b) Time allowed. (1) We will decide whether to release records
within 20 working days after your request reaches the appropriate area
office that maintains the records you are requesting. When we decide to
release records, we will actually provide the records at that time, or
as soon as possible after that decision, or let you inspect them as soon
as possible thereafter.
    (2) We will decide an appeal within 20 working days after the appeal
reaches the appropriate reviewing official.
    (3)(i) The FOIA Officer or appeal official may extend the time
limits in unusual circumstances for initial requests or appeals, up to
10 working days. We will notify you in writing of any extensions.
``Unusual circumstances'' include situations where we: Search for and
collect records from field facilities, records centers or locations
other than the office processing the records; search for, collect, or
examine a great many records in response to a single request; consult
with another office or department that has substantial interest in the
determination of the request; and/or conduct negotiations with
submitters and requesters of information to determine the nature and
extent of non-disclosable proprietary materials.
    (ii) If an extra ten days still does not provide sufficient time for
the Agency to deal with your request, we will inform you that the
request cannot be processed within the statutory time limit and provide
you with the opportunity to limit the scope of your request and/or
arrange with us a negotiated deadline for processing your request.
    (iii) If you refuse to reasonably limit the scope of your request or
refuse to agree upon a time frame, the Agency will process your case, as
it would have, had no modification been sought. We will make a diligent,
good faith effort to complete our review within the statutory time
frame.



Sec. 503.5  Records available for public inspection.

    (a) To the extent that they exist, we will make the following
records of general interest available for you in paper form or
electronically for inspection or copying:
    (1) Orders and final opinions, including concurring and dissenting
opinions in adjudications. (See Sec. 503.8(e) of this part for
availability of internal memoranda, including attorney opinions and
advice.)
    (2) Statements of policy and interpretations that we have adopted
but which have not been published in the Federal Register.
    (3) Administrative staff manuals and instructions to staff that
affect the public. (We will not make available, however, manuals or
instructions that reveal investigative or audit procedures as described
in Sec. 503.8(b) and (g) of this part.)
    (4) In addition to such records as those described in this paragraph
(a), we will make available to any person a copy of all other Agency
records, in the format requested, if available, unless we determine that
such records should be withheld from disclosure under subsection (b) of
the Act and Sec. Sec. 503.8 and 503.9 of this part.
    (b) Before releasing these records, however, we may delete the names
of people, or information that would identify them, if release would
invade their

[[Page 84]]

personal privacy to a clearly unwarranted degree (See Sec. 503.8(f)).
    (c) The Agency's FOIA Guide and Index is available electronically
via the Internet, or you may request a copy of it by mail.



Sec. 503.6  Restrictions on some agency records.

    Under the U.S. Information and Educational Exchange Act of 1948 (22
U.S.C. 1461, as amended), the BBG is prohibited from disseminating
within the United States information about the U.S., its people, and its
policies when such materials have been prepared by the Agency for
audiences abroad. This includes films, radio scripts and tapes,
videotapes, books, and similar materials produced by the Agency.
However, this law does provide that upon request, such information shall
be made available at BBG, for examination only, by representatives of
the press, magazines, radio systems and stations, research students or
scholars and available, for examination only, to Members of Congress.



Sec. 503.7  Fees.

    (a) Fees to be charged--categories of requests. Paragraphs (a)(1)
though (3) and (b) through (e) of this section explain each category of
request and the type of fees that we will generally charge. However, for
each of these categories, the fees may be limited, waived, or reduced
for the reasons given in paragraph (e) of this section. ``Request''
means asking for records, whether or not you refer specifically to the
Freedom of Information Act (FOIA). Requests from Federal agencies and
court orders for documents are not included within this definition.
``Review'' means, when used in connection with processing records for a
commercial use request, examining the records to determine what
portions, if any, may be withheld, and any other processing that is
necessary to prepare the records for release. It includes only the
examining and processing that are done the first time we analyze whether
a specific exemption applies to a particular record or portion of a
record. It does not include the process of researching or resolving
general legal, or policy issues regarding exemptions. ``Search'' means
looking for records or portions of records responsive to a request. It
includes reading and interpreting a request, and also and line-by-line
examination to identify responsive portions of a document.
    (1) Commercial use request. If your request is for a commercial use,
BBG will charge you the costs of search, review and duplication.
``Commercial use'' means that the request is from or on behalf of one
whom seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or of a person
on whose behalf the request is made. Whether a request is for a
commercial use depends on the purpose of the request and how the records
will be used; the identity of the requester (individual, non-profit
corporation, for-profit corporation), or the nature of the records,
while in some cases may indicate the purpose or use is not necessarily
determinative. When a request is made by a representative of the news
media, a purpose of use which supports the requester's news
dissemination function is deemed to be a non-commercial use.
    (2) Educational and scientific institutions and news media. If you
are an educational institution or a non-commercial scientific
institution, operated primarily for scholarly or scientific research, or
a representative of the news media, and your request is not for a
commercial use, BBG will charge you only for the duplication of
documents. Also BBG will not charge you the copying costs for the first
100 pages of duplication. ``Educational institution'' means a preschool,
elementary or secondary school, institution of undergraduate or graduate
higher education, or institution of professional or vocational
education. ``Non-commercial scientific institution'' means an
institution that is not operated substantially for purposes of
furthering its own or someone else's business, trade, or profit
interests, and that is operated for purposes of conducting scientific
research whose results are not intended to promote any particular
product or industry. ``Representative of the news media'' means a person
actively gathering news for an entity organized and operated to publish
or broadcast news

[[Page 85]]

to the public. ``News'' means information that is about current events
or that would be of current interest to the public. News media entities
include television and radio broadcasters, publishers of periodicals (to
the extent they publish ``news'') who make their products available for
purchase or subscription by the general public, and entities that may
disseminate news through other media (e.g., electronic dissemination of
text). We will treat freelance journalists as representatives of a news
media entity if they can show a solid basis for expecting publication
through such an entity. A publication contract is such a basis and the
requester's past publication record may show such a basis.
    (3) Other requesters. If your request is not the kind described by
paragraph (a)(1) or (a)(2) of this section, then the BBG will charge you
only for search and duplication. Also, we will not charge you for the
first two hours of search time or for the copying costs of the first 100
pages of duplication.
    (b) Fees to be charged--general provisions. (1) We may charge search
fees even if the records we find are exempt from disclosure, or even if
we do not find any records at all.
    (2) We will not charge you any fee at all if the costs of routine
collection and processing of the fee are likely to equal or exceed the
amount of the fee. We have estimated that cost to be $5.00.
    (3) If we determine that you are acting alone or with others to
break down a single request into a series of requests in order to avoid
or reduce the fees charged, we may aggregate all these requests for
purposes of calculating the fees charged.
    (4) We will charge interest on unpaid bills beginning on the 31st
day following the day the bill was sent. The accrual of interest will
stop upon receipt of the fee, rather than upon its processing by BBG.
Interest will be at the rate prescribed in section 3717 of Title 32
U.S.C.
    (c) Fee schedule--BBG will charge the following fees: (1) Manual
searching for or reviewing of records:
    (i) When performed by employees at salary grade GS-1 through GS-8 or
FS-9 through FS-5--an hourly rate of $10.00 will be charged;
    (ii) When performed by employees at salary grade GS-9 through GS-13
or FS-5 through FS-2--an hourly rate of $20.00 will be charged;
    (iii) When performed by employees at salary grade GS-14 or above or
FS-2 or above--an hourly rate of $36.00 will be charged.
    (iv) When a search involves employees at more than one of these
levels, we will charge the appropriate rate for each.
    (2) Computer searching and printing. Except in unusual cases, the
cost of computer time will not be a factor in calculating the two free
hours of search time. In those unusual cases, where the cost of
conducting a computerized search significantly detracts from the
Agency's ordinary operations, no more than the dollar cost of two hours
of manual search time shall be allowed. For searches conducted beyond
the first two hours, the Agency shall only charge the direct costs of
conducting such searches.
    (3) Photocopying standard size pages--$0.15 per page.
    (4) Photocopying odd-size documents (such as punchcards or
blueprints) or reproducing other records (such as tapes)--the actual
cost of operating the machine, plus the actual cost of the materials
used, plus charges for the time spent by the operator, at the rates
given in paragraph (c)(1) of this section.
    (5) Certifying that records are true copies--this service is not
required by the FOIA. If we agree to provide it, we will charge $10.00
per certification.
    (6) Sending records by express mail, certified mail, or other
special methods. This service is not required by the FOIA. If we agree
to provide it, we will charge our actual cost.
    (7) Performing any other special service that you request and to
which we agree--actual cost of operating any machinery, plus actual cost
of any materials used, plus charges for the time of our employees, at
the rates given in paragraph (c)(1) of this section.
    (d) Procedures for assessing and collecting fees--(1) Agreement to
pay. We generally assume that when you request records you are willing
to pay

[[Page 86]]

the fees we charge for services associated with your request. You may
specify a limit on the amount you are willing to spend. We will notify
you if it appears that the fees will exceed the limit and ask whether
you nevertheless want us to proceed with the search.
    (2) Advance payment. If you have failed to pay previous bills in a
timely manner, or if our initial review of your request indicates that
we will charge you fees exceeding $250.00, we will require you to pay
your past due fees and/or the estimated fees, or a deposit, before we
start searching for the records you want, or before we send them to you.
In such cases, the administrative time limits as described in Sec.
503.4(b), will begin only after we come to an agreement with you over
payment of fees, or decide that a fee waiver or reduction is
appropriate.
    (e) Waiver or reduction of fees. We will waive or reduce the fees we
would otherwise charge if disclosure of the information meets both of
the following tests (paragraphs (e)(1) and (e)(2) of this section):
    (1) It is in the public interest because it is likely to contribute
significantly to public understanding of government operations or
activities, regardless of any other public interest it may further. In
making this determination, we may consider:
    (i) Whether the requester is in a position to contribute to public
understanding;
    (ii) Whether the requester has such knowledge or expertise as may be
necessary to understand the information; and
    (iii) Whether the requester's intended use of the information would
be likely to disseminate the information among the public.
    (2) It is not primarily in the commercial interest of the requester.
Commercial interests include interests relating to business, trade, and
profit. Not only profit-making corporations have commercial interests;
so do nonprofit corporations, individuals, unions, and other
associations.
    (3) You must make your request for a waiver or reduction at the same
time you make your request for records. Only the FOIA Officer may make
the decision whether to waive or reduce the fees. If we do not
completely grant your request for a waiver or reduction, the denial
letter will designate the appeal official.



Sec. 503.8  Exemptions.

    Section 552(b) of the Freedom of Information Act contains nine
exemptions to the mandatory disclosure of records. These exemptions and
their application by the Agency are described below. In some cases, more
than one exemption may apply to the same document. This section does not
itself authorize the giving of any pledge of confidentiality by any
officer or employee of the Agency.
    (a) Exemption one--National defense and foreign policy. We are not
required to release records that are specifically authorized under
criteria established by an Executive Order to be kept secret in the
interest of national defense or foreign policy and are in fact properly
classified according to such Executive Order. Executive Order No. 12958
(1995) provides for such classification. When the release of certain
records may adversely affect U.S. relations with foreign countries, we
usually consult with officials with knowledge of those countries and/or
with officials of the Department of State. We may also have in our
possession records classified by another agency. If we do, we may
consult with that agency or may refer your request to that agency for
their direct response to you. If possible, we will notify you that we
have made such a referral.
    (b) Exemption two--Internal personnel rules and practices. We are
not required to release records that are related solely to the internal
personnel rules and practices of an agency. We may withhold routine
internal agency procedures such as guard schedules and luncheon periods.
We may also withhold internal records the release of which would help
some persons circumvent the law or Agency regulations.
    (c) Exemption three--Records exempted by other statutes. We are not
required to release records if another statute specifically allows us to
withhold them. Another statute may be used only if it absolutely
prohibits disclosure or if it

[[Page 87]]

sets forth criteria identifying particular types of material to be
withheld (for example, the statute discussed in Sec. 503.6).
    (d) Exemption four--Trade secrets and confidential commercial or
financial information. We will withhold trade secrets and commercial or
financial information that is obtained from a person and is privileged
or confidential.
    (1) Trade secrets: A trade secret is a secret, commercially valuable
plan, formula, process, or device that is used for the making,
preparing, compounding, or processing of trade commodities and that can
be said to be the end product of either innovation or substantial
effort. A direct relationship is necessary between the trade secret and
the productive process.
    (2) Commercial or financial information, obtained from a person, and
is privileged or confidential.
    (i) Information is ``commercial or financial'' if it relates to
businesses, commerce, trade, employment, profits, or finances (including
personal finances).
    (ii) Information is obtained from someone outside the Federal
Government or from someone within the Government who has a commercial or
financial interest in the information. ``Person'' includes an
individual, partnership, corporation, association, state or foreign
government, or other organization. Information is not ``obtained from a
person'' if it is generated by BBG or another Federal agency.
    (iii) Information is ``privileged'' if it would ordinarily be
protected from disclosure in civil discovery by a recognized evidentiary
privilege, such as the attorney-client privilege, or the work-product
privilege. Information may be privileged for this purpose under a
privilege belonging to a person outside the Government, unless the
providing of the information to the Government rendered the information
no longer protectible in civil discovery.
    (iv) Information is ``confidential'' if it meets one of the
following tests:
    (A) Disclosure may impair the Government's ability to obtain
necessary information in the future;
    (B) Disclosure would substantially harm the competitive position of
the person who submitted the information;
    (C) Disclosure would impair other Government interests, such as
program effectiveness and compliance; or
    (D) Disclosure would impair other private interests, such as an
interest in controlling availability of intrinsically valuable records,
which are sold in the market by their owner.
    (3) Designation of certain confidential information. A person who
submits records to the Government may designate part or all of the
information in such records as exempt from disclosure under Exemption
four. The person may make this designation either at the time the
records are submitted to the Government or within a reasonable time
thereafter. The designation must be in writing. The legend prescribed by
a request for proposal or request for quotations according to any agency
regulation establishing a substitute for the language is sufficient but
not necessary for this purpose. Any such designation will expire ten
years after the records were submitted to the Government.
    (4) Predisclosure notification. The procedures in this paragraph
apply to records that were submitted to the Government and where we have
substantial reason to believe that information in the records could
reasonably be considered exempt under Exemption four. Certain exceptions
to these procedures are stated in paragraph (d)(5) of this section.
    (i) When we receive a request for such records and we determine that
we may be required to disclose them, we will make reasonable efforts to
notify the submitter about these facts. The notice will inform the
submitter about the procedures and time limits for submission and
consideration of objections to disclosure. If we must notify a large
number of submitters, we may do this by posting or publishing a notice
in a place where the submitters are reasonably likely to become aware of
it.
    (ii) The submitter has ten (10) working days from receipt of the
notice to object to disclosure of any part of the records and to state
all bases for its objections.
    (iii) We will give consideration to all bases that have been timely
stated by the submitter. If we decide to disclose the records and the
submitter still does

[[Page 88]]

not agree, we will send a written notice to the submitter stating
briefly why we did not sustain its objections and we will provide a copy
of the records as we intend to release them. The notice will state that
we will disclose the records five (5) working days after the submitter
receives the notice unless we are ordered by a United States District
Court not to release them.
    (iv) When a requester files suit under the FOIA to obtain records
covered by this paragraph, we will promptly notify the submitter.
    (v) Whenever we send a notice to a submitter under paragraph
(d)(4)(i) of this section, we will notify you that we are giving the
submitter a notice and an opportunity to object.
    (5) Exceptions to predisclosure notification. The notice
requirements in paragraph (d)(4) of this section do not apply in the
following situations:
    (i) We decide not to disclose the records;
    (ii) The information has previously been published or made generally
available;
    (iii) We have already notified the submitter of previous requests
for the same records and have come to an understanding with that
submitter about the records;
    (iv) Disclosure is required by a statute other than the FOIA;
    (v) Disclosure is required by a regulation, issued after notice and
opportunity for public comment that specifies narrow categories of
records that are to be disclosed under the FOIA. In this case a
submitter may still designate records as described in paragraph (d)(3)
of this section and in exceptional cases, at our discretion, may follow
the notice procedures in paragraph (d)(4) of this section;
    (vi) The designation appears to be obviously frivolous, but in this
case we will still give the submitter the written notice required by
paragraph (d)(4)(iii) of this section (although this notice need not
explain our decision or include a copy of the records); and
    (vii) We withhold the information because another statute requires
its withholding.
    (e) Exemption five--Internal memoranda. This exemption covers
internal Government communications and notes that fall within a
generally recognized evidentiary privilege. Internal Government
communications include an agency's communications with an outside
consultant or other outside person, with a court, or with Congress, when
those communications are for a purpose similar to the purpose of
privileged intra-agency communications. Some of the most common
applicable privileges are:
    (1) The deliberative process privilege. This privilege protects
predecisional deliberative communications. A communication is protected
under this privilege if it was made before a final decision was reached
on some question of policy and if it expressed recommendations or
opinions on that question. The purpose of this privilege is to prevent
injury to the quality of the agency decision making process by
encouraging open and frank internal policy discussions, by avoiding
premature disclosure of policies not yet adopted, and by avoiding the
public confusion that might result from disclosing reasons that were not
in fact the ultimate grounds for an agency's decision. This privilege
continues to protect pre-decisional documents even after a decision is
made. We will release purely factual material in a deliberative document
unless that material is otherwise exempt. However, purely factual
material in a deliberative document is within this privilege if:
    (i) It is inextricably intertwined with the deliberative portions so
that it cannot reasonably be segregated; or
    (ii) It would reveal the nature of the deliberative portions, or
    (iii) Its disclosure would in some other way make possible an
intrusion into the decision making process.
    (2) Attorney-client privilege. This privilege protects confidential
communications between a lawyer and an employee or agent of the
Government where an attorney-client relationship exists (for example,
where the lawyer is acting as attorney for the agency and the employee
is communicating on behalf of the agency) and where the employee has
communicated information to the attorney in confidence in order to
obtain legal advice or assistance,

[[Page 89]]

and/or when the attorney has given advice to the client.
    (3) Attorney work product privilege. This privilege protects
documents prepared by or for an agency, or by or for its representative
(usually BBG attorneys) in anticipation of litigation or for trial. It
includes documents prepared for purposes of administrative adjudications
as well as court litigation. It includes factual material in such
documents as well as material revealing opinions and tactics. The
privilege continues to protect the documents even after the litigation
is closed.
    (f) Exemption six--Clearly unwarranted invasion of personal privacy.
We may withhold personnel, medical, and similar files, and personal
information about individuals if disclosure would constitute a clearly
unwarranted invasion of personal privacy.
    (1) Balancing test. In deciding whether to release records that
contain personal or private information about someone else to a
requester, we weigh the foreseeable harm of invading that individual's
privacy against the public benefit that would result from the release of
the information. In our evaluation of requests for records, we attempt
to guard against the release of information that might involve a
violation of personal privacy by a requester being able to ``piece
together items'' or ``read between the lines'' information that would
normally be exempt from mandatory disclosure.
    (2) Information frequently withheld. We frequently withhold such
information as home addresses, home telephone numbers, ages, minority
group status, social security numbers, individual's benefits, earning
records, leave records, etc.
    (g) Exemption seven--Law enforcement. We are not required to release
information or records that the Government has compiled for law
enforcement purposes. The records may apply to actual or potential
violations of either criminal or civil laws or regulations. We can
withhold these records only to the extent that releasing them would
cause harm in at least one of the following situations:
    (1) Enforcement proceedings. We may withhold information when
release could reasonably be expected to interfere with prospective or
ongoing law enforcement proceedings, investigations of fraud and
mismanagement, employee misconduct, and civil rights violations may fall
into this category. In certain cases, we may refuse to confirm or deny
the existence of records that relate to violations in order not to
disclose that an investigation is in progress or may be conducted.
    (2) Fair trial or impartial adjudication. We may withhold records
when release would deprive a person of a fair trial or an impartial
adjudication because of prejudicial publicity.
    (3) Personal privacy. We are careful not to disclose information
that could reasonably be expected to constitute an unwarranted invasion
of personal privacy. When a name surfaces in an investigation, that
person is likely to be vulnerable to innuendo, rumor, harassment, or
retaliation.
    (4) Confidential sources and information. We may withhold records
whose release could reasonably be expected to disclose the identity of a
confidential source of information. A confidential source may be an
individual; a state, local or foreign Government agency; or any private
organization. The exemption applies whether the source provides
information under an express promise of confidentiality or under
circumstances from which such an assurance could be reasonably inferred.
Also, where the record or information in it has been compiled by a
criminal law enforcement authority conducting a criminal investigation
or by an agency conducting a lawful national security investigation, the
exemption also protects all information supplied by a confidential
source. Also protected from mandatory disclosure is any information
which, if disclosed, could reasonably be expected to jeopardize the
system of confidentiality that assures a flow of information from
sources to investigatory agencies.
    (5) Techniques and procedures. We may withhold records reflecting
special techniques or procedures of investigation or prosecution not
otherwise generally known to the public. In some cases, it is not
possible to describe even in general terms those techniques without
disclosing the very material to

[[Page 90]]

be withheld. We may also withhold records whose release would disclose
guidelines for law enforcement investigations or prosecutions if this
disclosure could reasonably be expected to create a risk that someone
could circumvent requirements of law or of regulation.
    (6) Life and physical safety. We may withhold records whose
disclosure could reasonably be expected to endanger the life or physical
safety of any individual. This protection extends to threats and
harassment as well as to physical violence.
    (h) Exemptions eight and nine--Records on financial institutions and
records on wells. (1) Exemption eight permits us to withhold records
about regulation or supervision of financial institutions.
    (2) Exemption nine permits the withholding of geological and
geophysical information and data, including maps concerning wells.



Sec. 503.9  Electronic records.

    (a) Introduction. This section applies to all records of the BBG,
including all of its worldwide operations. Congress enacted the FOIA to
require Federal agencies to make records available to the public through
public inspections and at the request of any person for any public or
private use. The increase in the Government's use of computers enhances
the public's access to Government information. This section addresses
and explains how records will be reviewed and released when the records
are maintained in electronic format. Documentation not previously
subject to the FOIA when maintained in a non-electronic format is not
made subject to FOIA by this law.
    (b) Definitions--(1) Compelling need. Obtaining records on an
expedited basis because of an imminent threat to the life or physical
safety of an individual, or urgently needed by an individual primarily
engaged in disseminating information to the public concerning actual or
alleged Federal Government activities.
    (2) Discretionary disclosure. Records or information normally exempt
from disclosure will be released whenever it is possible to do so
without reasonably foreseeable harm to any interest protected by an FOIA
exemption.
    (3) Electronic reading room. The room provided which makes
electronic records available.
    (c) Electronic format of records. (1) Materials such as agency
opinions and policy statements (available for public inspection and
copying) will be available electronically by accessing the BBG's Home
Page via the Internet at http://www.ibb.gov. To set up an appointment to
view such records in hard copy or to access the Internet via the BBG's
computer, please contact the FOIA/Privacy Act Officer at (202) 260-4404.
    (2) We will make available for public inspection and copying, both
electronically via the Internet and in hard copy, those records that
have been previously released in response to FOIA requests, when we
determine the records have been or are likely to be the subject of
future requests.
    (3) We will provide both electronically through our Internet address
and in hard copy a ``Guide'' on how to make an FOIA request, and an
Index of all Agency information systems and records that may be
requested under the FOIA.
    (4) We may delete identifying details when we publish or make
available the index and copies of previously-released records to prevent
a clearly unwarranted invasion of personal privacy.
    (i) We will indicate the extent of any deletions made from the place
the deletion was made, if possible.
    (ii) We will not reveal information about deletions if such
disclosure would harm an interest protected by an exemption.
    (d) Honoring form or format requests. We will aid requesters by
providing records and information in the form requested, including
electronic format, if we can readily reproduce them in that form or
format. However, if we cannot accommodate you, we will provide
responsive, nonexempt information in a reasonably accessible form.
    (1) We will make a reasonable effort to search for records kept in
an electronic format. However, if the effort would significantly
interfere with the operations of the agency or the agency's use of its
computers, we will consider the effort to be unreasonable.

[[Page 91]]

    (2) We need not create documents that do not exist, but computer
records found in a database rather than in a file cabinet may require
the application of codes or some form of programming to retrieve the
information. This application of codes or programming of records will
not amount to the creation of records.
    (3) Except in unusual cases, the cost of computer time will not be a
factor in calculating the two free hours of search time available under
Sec. 503.7. In those unusual cases, where the cost of conducting a
computerized search significantly detracts from the agency's ordinary
operations, no more than the dollar cost of two hours of manual search
time shall be allowed. For searches conducted beyond the first two
hours, the agency shall only charge the direct costs of conducting such
searches.
    (e) Technical feasibility of redacting non-releasable material. We
will make every effort to indicate the place on the record where a
redaction of non-releasable material is made, and an FOIA citation
noting the applicable exemption for the deletion will also be placed at
the site. If unable to do so, we will notify you of that fact.
    (f) Ensuring timely response to request. We will make every attempt
to respond to FOIA requests within the prescribed 20 working-day time
limit. However, processing some requests may require additional time in
order to properly screen material against the inadvertent disclosure of
material covered by the exemptions.
    (1) Multitrack first-in first-out processing. (i) Because the agency
expects to be able to process its requests without a backlog of cases,
BBG will not institute a multitract system. Those cases that may be
handled easily, because they require only a few documents or a simple
answer, will be handled immediately by an FOIA specialist.
    (ii) If you wish to qualify for faster processing, you may limit the
scope of your request so that we may respond more quickly.
    (2) Unusual circumstances. (i) The agency may extend for a maximum
of ten working days the statutory time limit for responding to an FOIA
request by giving notice in writing as to the reason for such an
extension. The reasons for such an extension may include: the need to
search for and collect requested records from multiple offices; the
volume of records requested; and, the need for consultation with other
components within the agency.
    (ii) If an extra ten days still does not provide sufficient time for
the Agency to deal with your request, we will inform you that the
request cannot be processed within the statutory time limit and provide
you with the opportunity to limit the scope of your request and/or
arrange with us a negotiated deadline for processing your request.
    (iii) If you refuse to reasonably limit the scope of your request or
refuse to agree upon a time frame, the agency will process your case, as
it would have, had no modification been sought. We will make a diligent,
good-faith effort to complete our review within the statutory time
frame.
    (3) Grouping of requests. We will group together requests that
clearly involve related material that should be considered as a single
request.
    (i) If you make multiple or related requests for similar material
for the purpose of avoiding costs, we will notify you that we are
grouping together your requests, and the reasons why.
    (ii) Multiple or related requests may also be grouped, such as those
involving requests and schedules but you will be notified in advance if
we intend to do so.
    (g) Time periods for agency consideration of requests--(1) Expedited
access. We will authorize expedited access to requesters who show a
compelling need for access, but the burden is on the requester to prove
that expedition is appropriate. We will determine within ten days
whether or not to grant a request for expedited access and we will
notify the requester of our decision.
    (2) Compelling need for expedited access. Failure to obtain the
records within an expedited deadline must pose an imminent threat to an
individual's life or physical safety; or the request must be made by
someone primarily engaged in disseminating information, and who has an
urgency to inform the

[[Page 92]]

public about actual or alleged Federal Government activity.
    (3) How to request expedited access. We will be required to make
factual and subjective judgments about the circumstances cited by
requesters to qualify them for expedited processing. To request
expedited access, your request must be in writing and it must explain in
detail your basis for seeking expedited access. The categories for
compelling need are intended to be narrowly applied:
    (i) A threat to an individual's life or physical safety. A threat to
an individual's life or physical safety should be imminent to qualify
for expedited access to the records. You must include the reason why a
delay in obtaining the information could reasonably be foreseen to cause
significant adverse consequences to a recognized interest.
    (ii) Urgency to inform. The information requested should pertain to
a matter of a current exigency to the American public, where delay in
response would compromise a significant recognized interest. The person
requesting expedited access under an ``urgency to inform,'' must be
primarily engaged in the dissemination of information. This does not
include individuals who are engaged only incidentally in the
dissemination of information. ``Primarily engaged'' requires that
information dissemination be the main activity of the requester. A
requester only incidentally engaged in information dissemination,
besides other activities, would not satisfy this requirement. The
public's right to know, although a significant and important value,
would not by itself be sufficient to satisfy this standard.
    (4) Estimation of matter denied. The agency will try to estimate the
volume of any denied material and provide the estimate to the requester,
unless doing so would harm an interest protected by an exemption.
    (h) Computer redaction. The agency will identify the location of
deletions in the released portion of the records, and where
technologically possible, will show the deletion at the place on the
record where the deletion was made, unless including that indication
would harm an interest protected by an exemption.
    (i) Annual report on FOIA activities. Reports on FOIA activities are
submitted each fiscal year to the Department of Justice, and are due by
February 1 of every year. The BBG's report will be available both in
hard copy and through the Internet. The Department of Justice will also
report all Federal agency FOIA activity through electronic means.
    (j) Reference materials and guides. The agency has available in hard
copy, and electronically through the Internet, a guide for requesting
records under the FOIA, and an index and description of all major
information systems of the agency. The guide is a simple explanation of
what the FOIA is intended to do, and how you can use it to access BBG
records. The Index explains the types of records that may be requested
from the Agency through FOIA requests and why some records cannot, by
law, be made available by the BBG.



PART 504_TESTIMONY BY BBG EMPLOYEES, PRODUCTION OF OFFICIAL RECORDS,
AND DISCLOSURE OF OFFICIAL INFORMATION IN LEGAL PROCEEDINGS--Table of

Contents



                      Subpart A_General Provisions

Sec.
504.1 Scope and purpose.
504.2 Applicability.
504.3 Definitions.

 Subpart B_Demands or Requests for Testimony and Production of Documents

504.4 General prohibition.
504.5 Factors the BBG will consider.
504.6 Filing requirements for litigants seeking documents or testimony.
504.7 Service of requests or demands.
504.8 Processing requests or demands.
504.9 Final determinations.
504.10 Restrictions that apply to testimony.
504.11 Restrictions that apply to released records.
504.12 Procedure when a decision is not made prior to the time a
          response is required.
504.13 Procedure in the event of an adverse ruling.

                       Subpart C_Schedule of Fees

504.14 Fees.

[[Page 93]]

                           Subpart D_Penalties

504.15 Penalties

    Authority: 22 U.S.C. 6204.

    Source: 72 FR 19798, Apr. 20, 2007, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 504.1  Scope and purpose.

    (a) These regulations in this subpart establish policy, assign
responsibilities and prescribe procedures with respect to:
    (1) The production or disclosure of official information or records
by BBG employees, and
    (2) The testimony of current and former BBG employees, relating to
official information, official duties, or the BBG's records, in
connection with federal or state litigation in which the BBG is not a
party.
    (b) The BBG intends these provisions to:
    (1) Conserve the time of BBG employees for conducting official
business;
    (2) Minimize the involvement of BBG employees in issues unrelated to
BBG's mission;
    (3) Maintain the impartiality of BBG employees in disputes between
private litigants; and
    (4) Protect sensitive, confidential information and the deliberative
processes of the BBG.
    (c) In providing for these requirements, the BBG does not waive the
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of BBG.
It does not create any right or benefit, substantive or procedural, that
a party may rely upon in any legal proceeding against the United States.



Sec. 504.2  Applicability.

    This part applies to demands and requests to current and former
employees for factual or expert testimony relating to official
information or official duties or for production of official records or
information, in legal proceedings in which the BBG is not a named party.
This part does not apply to:
    (a) Demands upon or requests for a BBG employee to testify as to
facts or events that are unrelated to his or her official duties or that
are unrelated to the functions of the BBG;
    (b) Demands upon or requests for a former BBG employee to testify as
to matters in which the former employee was not directly or materially
involved while at the BBG;
    (c) Requests for the release of records under the Freedom of
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or
    (d) Congressional demands and requests for testimony, records or
information.



Sec. 504. 3  Definitions.

    The following definitions apply to this part:
    (a) Demand means an order, subpoena, or other command of a court or
other competent authority for the production, disclosure, or release of
records or for the appearance and testimony of a BBG employee in a legal
proceeding.
    (b) General Counsel means the General Counsel of the BBG or a person
to whom the General Counsel has delegated authority under this part.
    (c) Legal proceeding means any matter before a court of law,
administrative board or tribunal, commission, administrative law judge,
hearing officer or other body that conducts a legal or administrative
proceeding. Legal proceeding includes all phases of litigation.
    (d) BBG means the Broadcasting Board of Governors.
    (e) BBG employee means:
    (1) Any current or former employee of the BBG.
    (2) This definition does not include persons who are no longer
employed by the BBG and who agree to testify about general matters,
matters available to the public, or matters with which they had no
specific involvement or responsibility during their employment with the
BBG.
    (f) Records or official records and information means all
information in the custody and control of the BBG, relating to
information in the custody and control of the BBG, or acquired by a BBG
employee in the performance of his or her official duties or because of
his or her official status, while the individual was employed by the
BBG.

[[Page 94]]

    (g) Request means any informal request, by whatever method, for the
production of records and information or for testimony which has not
been ordered by a court or other competent authority.
    (h) Testimony means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations,
interviews, and statements made by an individual in connection with a
legal proceeding.



 Subpart B_Demands or Requests for Testimony and Production of Documents



Sec. 504.4  General prohibition.

    (a) In any United States federal, state, and local proceeding or
administrative action, or proceeding or administrative action conducted
in a foreign country, in which the BBG is not a party, no BBG employee
shall, in response to a demand or request for official records or
information, furnish or produce documents or testimony as to any
material contained in BBG files, any information relating to or based
upon material contained in BBG files, or any information or material
acquired as part of the performance of that person's official duties (or
because of that person's official status) without the prior written
approval of the General Counsel.
    (b) Whenever a request or demand for information is made upon a BBG
employee, the employee, wherever located, shall immediately prepare a
report that specifically describes the testimony or documents sought and
immediately notify the General Counsel. The BBG employee shall then
await instructions from the General Counsel concerning a response to the
request or demand. The failure of any BBG employee to follow the
procedures specified in this subpart neither creates nor confers any
rights, privileges, or benefits on any person or party.



Sec. 504.5  Factors the BBG will consider.

    The General Counsel, in his or her sole discretion, may grant an
employee permission to testify on matters relating to official
information, or produce official records and information, in response to
a demand or request. Among the relevant factors that the General Counsel
may consider in making this decision are whether:
    (a) The purposes of this part are met;
    (b) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;
    (c) Allowing such testimony or production of records would assist or
hinder the BBG in performing its statutory duties;
    (d) Allowing such testimony or production of records would be in the
best interest of the BBG or the United States;
    (e) The records or testimony can be obtained from other sources;
    (f) The demand or request is unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand or request
arose;
    (g) Disclosure would violate a statute, Executive Order or
regulation;
    (h) Disclosure would reveal confidential, sensitive, or privileged
information, trade secrets or similar, confidential or financial
information, otherwise protected information, or information which would
otherwise be inappropriate for release;
    (i) Disclosure would impede or interfere with an ongoing law
enforcement investigation or proceeding, or compromise constitutional
rights or national security interests;
    (j) Disclosure would result in the BBG appearing to favor one
litigant over another;
    (k) The request was served before the demand;
    (l) A substantial Government interest is implicated;
    (m) The demand or request is within the authority of the party
making it; and
    (n) The demand or request is sufficiently specific to be answered
and/or can be limited to information to that which would be consistent
with the factors specified herein.

[[Page 95]]



Sec. 504.6  Filing requirements for litigants seeking documents or
testimony.

    A litigant must comply with the following requirements when filing a
request for official records and information or testimony under this
subpart. A request should be filed before a demand.
    (a) The request must be in writing and must be submitted to the
General Counsel.
    (b) The written request must contain the following information:
    (1) The caption of the legal proceeding, docket number, and name and
address of the court or other authority involved;
    (2) A copy of the complaint or equivalent document setting forth the
assertions in the case and any other pleading or document necessary to
show relevance;
    (3) A list of categories of records sought, a detailed description
of how the information sought is relevant to the issues in the legal
proceeding, and a specific description of the substance of the testimony
or records sought;
    (4) A statement as to how the need for the information outweighs any
need to maintain the confidentiality of the information and outweighs
the burden on the BBG to produce the records or provide testimony;
    (5) A statement indicating that the information sought is not
available from another source, from other persons or entities, or from
the testimony of someone other than an BBG employee, such as a retained
expert;
    (6) If testimony is requested, the intended use of the testimony,
and a showing that no document could be provided and used in lieu of
testimony;
    (7) A description of all prior decisions, orders, or pending motions
in the case that bear upon the relevance of the requested records or
testimony;
    (8) The name, address, and telephone number of counsel to each party
in the case; and
    (9) An estimate of the amount of time that the requester and other
parties will require for each BBG employee for time spent by the
employee to prepare for testimony, in travel, and for attendance in the
legal proceeding.
    (c) The BBG reserves the right to require additional information to
complete the request where appropriate.
    (d) The request should be submitted at least 30 days before the date
that records or testimony is required. Requests submitted in less than
30 days before records or testimony is required must be accompanied by a
written explanation stating the reasons for the late request and the
reasons for expedited processing.
    (e) Failure to cooperate in good faith to enable the General Counsel
to make an informed decision may serve as the basis for a determination
not to comply with the request.
    (f) The request should state that the requester will provide a copy
of the BBG employee's statement free of charge and that the requester
will permit the BBG to have a representative present during the
employee's testimony.



Sec. 504.7  Service of requests or demands.

    Requests or demands for official records or information or testimony
under this Subpart must be served on the General Counsel, BBG, 330
Independence Ave., SW., Washington, DC 20237 by mail or fax at (202)
203-4585 and clearly marked ``Part 504--Request for Testimony or
Official Records in Legal Proceedings.''



Sec. 504.8  Processing requests or demands.

    (a) After receiving service of a request or demand for testimony,
the General Counsel will review the request and, in accordance with the
provisions of this Subpart, determine whether, or under what conditions,
to authorize the employee to testify on matters relating to official
information and/or produce official records and information.
    (b) Absent exigent circumstances, the BBG will issue a determination
within 30 days from the date the request is received.
    (c) The General Counsel may grant a waiver of any procedure
described by this Subpart where a waiver is considered necessary to
promote a significant interest of the BBG or the United States, or for
other good cause.

[[Page 96]]

    (d) Certification (authentication) of copies of records. The BBG may
certify that records are true copies in order to facilitate their use as
evidence. If a requester seeks certification, the requester must request
certified copies from the BBG at least 30 days before the date they will
be needed. The request should be sent to the BBG General Counsel.



Sec. 504.9  Final determinations.

    The General Counsel makes the final determination on demands or
requests to employees for production of official records and information
or testimony in litigation in which the BBG is not a party. All final
determinations are within the sole discretion of the General Counsel.
The General Counsel will notify the requester and, when appropriate, the
court or other competent authority of the final determination, the
reasons for the grant or denial of the request, and any conditions that
the General Counsel may impose on the release of records or information,
or on the testimony of an BBG employee. The General Counsel's decision
exhausts administrative remedies for discovery of the information.



Sec. 504.10  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on the
testimony of BBG employees including, for example:
    (1) Limiting the areas of testimony;
    (2) Requiring the requester and other parties to the legal
proceeding to agree that the transcript of the testimony will be kept
under seal;
    (3) Requiring that the transcript will be used or made available
only in the particular legal proceeding for which testimony was
requested. The General Counsel may also require a copy of the transcript
of testimony at the requester's expense.
    (b) The BBG may offer the employee's written declaration in lieu of
testimony.
    (c) If authorized to testify pursuant to this part, an employee may
testify as to facts within his or her personal knowledge, but, unless
specifically authorized to do so by the General Counsel, the employee
shall not:
    (1) Disclose confidential or privileged information; or
    (2) For a current BBG employee, testify as an expert or opinion
witness with regard to any matter arising out of the employee's official
duties or the functions of the BBG unless testimony is being given on
behalf of the United States (see also 5 CFR 2635.805).
    (d) The scheduling of an employee's testimony, including the amount
of time that the employee will be made available for testimony, will be
subject to the BBG's approval.



Sec. 504.11  Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on the
release of official records and information, including the requirement
that parties to the proceeding obtain a protective order or execute a
confidentiality agreement to limit access and any further disclosure.
The terms of the protective order or of a confidentiality agreement must
be acceptable to the General Counsel. In cases where protective orders
or confidentiality agreements have already been executed, the BBG may
condition the release of official records and information on an
amendment to the existing protective order or confidentiality agreement.
    (b) If the General Counsel so determines, original BBG records may
be presented for examination in response to a request, but they may not
be presented as evidence or otherwise used in a manner by which they
could lose their identity as official BBG records, nor may they be
marked or altered. In lieu of the original records, certified copies may
be presented for evidentiary purposes.



Sec. 504.12  Procedure when a decision is not made prior to the time a
response is required.

    If a response to a demand or request is required before the General
Counsel can make the determination referred to in Sec. 504.9, the
General Counsel, when necessary, will provide the court or other
competent authority with a copy of this part, inform the court or other
competent authority that the request is being reviewed, provide an
estimate

[[Page 97]]

as to when a decision will be made, and seek a stay of the demand or
request pending a final determination.



Sec. 504.13  Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay a demand or
request, the employee upon whom the demand or request is made, unless
otherwise advised by the General Counsel, will appear, if necessary, at
the stated time and place, produce a copy of this part, state that the
employee has been advised by counsel not to provide the requested
testimony or produce documents, and respectfully decline to comply with
the demand or request, citing United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951).



                       Subpart C_Schedule of Fees



Sec. 504.14  Fees.

    (a) Generally. The General Counsel may condition the production of
records or appearance for testimony upon advance payment of a reasonable
estimate of the costs to the BBG.
    (b) Fees for records. Fees for producing records will include fees
for searching, reviewing, and duplicating records, costs of attorney
time spent in reviewing the request, and expenses generated by materials
and equipment used to search for, produce, and copy the responsive
information. Costs for employee time will be calculated on the basis of
the hourly pay of the employee (including all pay, allowances, and
benefits). Fees for duplication will be the same as those charged by the
BBG in its Freedom of Information Act regulations at 22 CFR Part 503.
    (c) Witness fees. Fees for attendance by a witness will include
fees, expenses, and allowances prescribed by the court's rules. If no
such fees are prescribed, witness fees will be determined based upon the
rule of the Federal district court closest to the location where the
witness will appear and on 28 U.S.C. 1821, as applicable. Such fees will
include cost of time spent by the witness to prepare for testimony, in
travel and for attendance in the legal proceeding, plus travel costs.
    (d) Payment of fees. A requester must pay witness fees for current
BBG employees and any record certification fees by submitting to the
General Counsel a check or money order for the appropriate amount made
payable to the Treasury of the United States. In the case of testimony
of former BBG employees, the requester must pay applicable fees directly
to the former BBG employee in accordance with 28 U.S.C. 1821 or other
applicable statutes.
    (e) Waiver or reduction of fees. The General Counsel, in his or her
sole discretion, may, upon a showing of reasonable cause, waive or
reduce any fees in connection with the testimony, production, or
certification of records.
    (f) De minimis fees. Fees will not be assessed if the total charge
would be $10.00 or less.



                           Subpart D_Penalties



Sec. 504.15  Penalties.

    (a) An employee who discloses official records or information or
gives testimony relating to official information, except as expressly
authorized by the BBG, or as ordered by a Federal court after the BBG
has had the opportunity to be heard, may face penalties as provided in
any applicable enforcement statute.
    (b) A current BBG employee who testifies or produces official
records and information in violation of this part shall be subject to
disciplinary action and, if done for a valuable consideration, may
subject that person to criminal prosecution.



PART 505_PRIVACY ACT REGULATION--Table of Contents



Sec.
505.1 Purpose and scope.
505.2 Definitions.
505.3 Procedures for requests.
505.4 Requirements and identification for making requests.
505.5 Disclosure of information.
505.6 Medical records.
505.7 Correction or amendment of record.
505.8 Agency review of requests for changes.
505.9 Review of adverse agency determination.
505.10 Disclosure to third parties.
505.11 Fees.
505.12 Civil remedies and criminal penalties.
505.13 General exemptions (Subsection (j)).
505.14 Specific exemptions (Subsection (k)).
505.15 Exempt systems of records used.


[[Page 98]]


    Authority: Pub. L. 93-579, 88 Stat. 1897; 5 U.S.C. 552a.

    Source: 67 FR 8875, Feb. 27, 2002, unless otherwise noted.



Sec. 505.1  Purpose and scope.

    The Broadcasting Board of Governors (BBG) will protect individuals'
privacy from misuses of their records, and grant individuals access to
records concerning them which are maintained by the Agency's domestic
and overseas offices, consistent with the provisions of Public Law 93-
579, 88 Stat. 1897; 5 U.S.C. 552a, the Privacy Act of 1974, as amended.
The Agency has also established procedures to permit individuals to
amend incorrect records, to limit the disclosure of personal information
to third parties, and to limit the number of sources of personal
information. The Agency has also established internal rules restricting
requirements of individuals to provide social security account numbers.



Sec. 505.2  Definitions.

    (a) Access Appeal Committee (AAC). The body established by and
responsible to the Broadcasting Board for reviewing appeals made by
individuals to amend records held by the Agency.
    (b) Agency, BBG, our, we or us. The BBG, its offices, divisions,
branches and its worldwide operations.
    (c) Amend. To make a correction to or expunge any portion of a
record about an individual which that individual believes is not
accurate, relevant, timely or complete.
    (d) Individual or you. A citizen of the United States or an alien
lawfully admitted for permanent residence.
    (e) Maintain. Collect, use, store, disseminate or any combination of
these record keeping functions; exercise of control over and hence
responsibility and accountability for systems of records.
    (f) Record. Any information maintained by the Agency about an
individual that can be reproduced, including finger or voice prints and
photographs, and which is retrieved by that particular individual's name
or personal identifier, such as a social security number.
    (g) Routine use. With respect to the disclosure of a record, the use
of such record for a purpose, which is compatible with the purpose for
which it was collected. The common ordinary purposes for which records
are used and all of the proper and necessary uses even if any such uses
occur infrequently.
    (h) Statistical record. A record in a system of records maintained
for statistical research or reporting purposes only and not used in
whole or in part in making any determination about an identifiable
individual, except as provided in 12 U.S.C.8.
    (i) System of records. A group of records under the maintenance and
control of the Agency from which information is retrieved by the name or
personal identifier of the individual.
    (j) Personnel record. Any information about an individual that is
maintained in a system of records by the Agency that is needed for
personnel management or processes such as staffing, employee
development, retirement, grievances and appeals.
    (k) Worldwide Operations. Any of the foreign service establishments
of the Agency.



Sec. 505.3  Procedures for requests.

    (a) The agency will consider all written requests received from an
individual for records pertaining to herself/himself as a request made
under the Privacy Act of 1974, as amended (5 U.S.C. 552a) whether or not
the individual specifically cites the Privacy Act when making the
request.
    (b) All requests under the Privacy Act should be directed to the
FOIA/Privacy Act Office, Office of the General Counsel, Broadcasting
Board of Governors, Suite 3349, 330 Independence Avenue, SW, Washington,
DC 20237, which will coordinate the search of all systems of records
specified in the request. Requests should state name, date of birth, and
social security number.
    (c) Requests directed to any of the Agency's worldwide
establishments which involve routine unclassified, administrative and
personnel records available only at those establishments may be released
to the individual by the establishment if it determines that such a
release is authorized by the Privacy Act. All other requests shall be
submitted by the establishment to the

[[Page 99]]

FOIA/Privacy Act Office, Office of the General Counsel, Broadcasting
Board of Governors, Suite 3349, 330 Independence Avenue, SW, Washington,
DC 20237, and the individual shall be so notified of this section in
writing, when possible.
    (d) In those instances where an individual requests records
pertaining to herself/himself, as well as records pertaining to another
individual, group or some other category of the Agency's records, only
that portion of the request which pertains to records concerning the
individual will be treated as a Privacy Act request. The remaining
portions of such a request will be processed as a Freedom of Information
Act request and sent to the office noted in paragraph (b) of this
section.



Sec. 505.4  Requirements and identification for making requests.

    (a) When you seek access to Agency records, you may present your
written request, fax it to (202) 260-4394 or mail it to the FOIA/Privacy
Act Office, Office of the General Counsel, Broadcasting Board of
Governors, Suite 3349, 330 Independence Avenue, SW, Washington, DC
20237. The FOIA/Privacy Act Office may be visited between the hours of 9
a.m. and 3 p.m., Monday through Friday, except for legal holidays.
    (b) When you seek access to Agency records, you will be requested to
present identification. You must state your full name, date of birth and
social security number. You must also include your present mailing
address and zip code, and if possible, a telephone number.
    (c) When signing a statement confirming your identity, you should
understand that knowingly and willfully seeking or obtaining access to
records about another person under false pretenses is punishable by a
fine of up to $5,000.



Sec. 505.5  Disclosure of information.

    (a) In order to locate the system of records that you believe may
contain information about you, you should first obtain a copy of the
Agency's Notice of Systems of Records. By identifying a particular
record system and by furnishing all the identifying information
requested by that record system, it would enable us to more easily
locate those records which pertain to you. At a minimum, any request
should include the information specified in Sec. 505.4(b).
    (b) In certain circumstances, it may be necessary for us to request
additional information from you to ensure that the retrieved record
does, in fact, pertain to you.
    (c) All requests for information on whether or not the Agency's
systems of records contain information about you will be acknowledged
within 20 working days of receipt of that request. The requested records
will be provided as soon as possible thereafter.
    (d) If the Agency determines that the substance of the requested
record is exceptionally sensitive, we will require you to furnish a
signed, notarized statement that you are in fact the person named in the
file before granting access to the records.
    (e) Original records will not be furnished subject to and in
accordance with fees established in Sec. 505.11.
    (f) Denial of access to records:
    (1) The requirements of this section do not entitle you access to
any information compiled in reasonable anticipation of a civil action or
proceeding.
    (2) Under the Privacy Act, we are not required to permit access to
records if the information is not retrievable by your name or other
personal identifier; those requests will be processed as Freedom of
Information Act requests.
    (3) We may deny you access to a record, or portion thereof, if
following a review it is determined that the record or portion falls
within a system of records that is exempt from disclosure according to 5
U.S.C. 552a(j) and 552a(k). See Sec. Sec. 505.13 and 505.14 for a
listing of general and specific exemptions.
    (4) The decision to deny access to a record or a portion of the
record is made by the Agency's Privacy Act Officer. The denial letter
will advise you of your right to appeal the denial (See Sec. 505.9 on
Access Appeal Committee's review).



Sec. 505.6  Medical records.

    If, in the judgment of the Agency, the release of medical
information to

[[Page 100]]

you could have an adverse effect, the Agency will arrange an acceptable
alternative to granting access of such records directly to you. This
normally involves the release of the information to a doctor named by
you. However, this special procedure provision does not in any way limit
your absolute right to receive a complete copy of your medical record.



Sec. 505.7  Correction or amendment of record.

    (a) You have the right to request that we amend a record pertaining
to you which you believe is not accurate, relevant, timely, or complete.
At the time we grant access to a record, we will furnish guidelines for
you to request amendment to the record.
    (b) Requests for amendments to records must be in writing and mailed
or delivered to the FOIA/Privacy Act Officer, FOIA/Privacy Act Office,
Office of the General Counsel, Broadcasting Board of Governors, Suite
3349, 330 Independence Avenue, SW, Washington, DC 20237, who will
coordinate the review of the request to amend the record with the
appropriate office(s). Such requests must contain, at a minimum,
identifying information needed to locate the record, a brief description
of the item or items of information to be amended, and the reason for
the requested change. The requester should submit as much documentation,
arguments or other data as seems warranted to support the request for
amendment.
    (c) We will review all requests for amendments to records within 20
working days of receipt of the request and either make the changes or
inform you of our refusal to do so and the reasons.



Sec. 505.8  Agency review of requests for changes.

    (a) In reviewing a record in response to a request to amend or
correct a file, we will incorporate the criteria of accuracy, relevance,
timeliness, and completeness of the record in the review.
    (b) If we agree with you to amend your records, we will:
    (1) Advise you in writing;
    (2) Correct the record accordingly;
    (3) And, to the extent that an accounting of disclosure was
maintained, advise all previous recipients of the record of the
corrections.
    (c) If we disagree with all or any portion of your request to amend
a record, we will:
    (1) Advise you of the reasons for the determination; and
    (2) Inform you of your right to further review (see Sec. 505.9).



Sec. 505.9  Review of adverse agency determination.

    (a) When we determine to deny a request to amend a record, or
portion of the record, you may request further review by the Agency's
Access Appeal Committee. The written request for review should be mailed
to the Chairperson, Access Appeal Committee, FOIA/Privacy Act Office,
Office of the General Counsel, Broadcasting Board of Governors, Suite
3349, 330 Independence Avenue, SW., Washington, DC 20237. The letter
should include any documentation, information or statement, which
substantiates your request for review.
    (b) The Agency's Access Appeal Committee will review the Agency's
initial denial to amend the record and your documentation supporting
amendment, within 30 working days. If additional time is required, you
will be notified in writing of the reasons for the delay and the
approximate date when the review is expected to be completed. Upon
completion of the review, the Chairperson will notify you of the
results.
    (c) If the Committee upholds the Agency's denial to amend the
record, the Chairperson will advise you of:
    (1) The reasons for our refusal to amend the record;
    (2) Your right and the procedure to add to the file a concise
statement supporting your disagreement with the decision of the Agency;
and
    (3) Your right to seek judicial review of the Agency's refusal to
amend the file.
    (d) When you file a statement disagreeing with our refusal to amend
a record, we will clearly annotate the record so that the fact that the
record is disputed is apparent to anyone who may subsequently have
access to, use of, or reason to disclose the file. If information is
disclosed regarding the area of dispute, we will provide a copy

[[Page 101]]

of your statement in the disclosure. Any statement, which may be
included by the Agency regarding the dispute, will be limited to the
reasons given to you for not amending the record. Copies of our
statement shall be treated as part of your record, but will not be
subject to amendment by you under these regulations.



Sec. 505.10  Disclosure to third parties.

    We will not disclose any information about you to any person or
another agency without your prior consent, except as provided for in the
following paragraphs:
    (a) Medical records. May be disclosed to a doctor or other medical
practitioner, named by you, as prescribed in Sec. 505.6.
    (b) Accompanying individual. When you are accompanied by any other
person, we will require that you sign a statement granting consent to
the disclosure of the contents of your record to that person.
    (c) Designees. If a person requests another person's file, he or she
must present a signed statement from the person of record that
authorizes and consents to the release of the file to the designated
individual.
    (d) Guardians. Parents or legal guardians) of dependent minors or of
an individual who has been declared by a court to be incompetent due to
physical, mental or age incapacity, may act for and on behalf of the
individual on whom the Agency maintains records.
    (e) Other disclosures. A record may be disclosed without a request
by or written consent of the individual to whom the record pertains if
such disclosure conditions are authorized in accordance, with 5 U.S.C.
552a(b). These conditions are:
    (1) Disclosure within the Agency. This condition is based upon a
``need-to-know'' concept, which recognizes that Agency personnel may
require access to discharge their duties.
    (2) Disclosure to the public. No consent by an individual is
necessary if the record is required to be released under the Freedom of
Information Act (FOIA), 5 U.S.C. 552. The record may be exempt, however,
under one of the nine exemptions of the FOIA.
    (3) Disclosure for a routine use. No consent by an individual is
necessary if the condition is necessary for a ``routine use'' as defined
in Sec. 505.2(g). Information may also be released to other government
agencies, that have statutory or other lawful authority to maintain such
information.
    (4) Disclosure to the Bureau of the Census. For purposes of planning
or carrying out a census or survey or related activity. Title 13 U.S.C.
Section 8 limits the uses of these records and also makes them immune
from compulsory disclosure.
    (5) Disclosure for statistical research and reporting. The Agency
will provide the statistical information requested only after all names
and personal identifiers have been deleted from the records.
    (6) Disclosure to the National Archives. For the preservation of
records of historical value, according to 44 U.S.C. 2103.
    (7) Disclosure for law enforcement purposes. Upon receipt of a
written request by another Federal agency or a state or local government
describing the law enforcement purpose for which a record is required,
and specifying the particular record. Blanket requests for all records
pertaining to an individual are not permitted under the Privacy Act.
    (8) Disclosure under emergency circumstances. For the safety or
health of an individual (e.g., medical records on a patient undergoing
emergency treatment).
    (9) Disclosure to the Congress. For matters within the jurisdiction
of any House or Senate committee or subcommittee, and/or joint committee
or subcommittee, but only when requested in writing from the Chairman of
the committee or subcommittee.
    (10) Disclosure to the General Accounting Office (GAO). For matters
within the jurisdiction of the duties of the GAO's Comptroller General.
    (11) Disclosure according to court order. According to the order of
a court of competent jurisdiction. This does not include a subpoena for
records requested by counsel and issued by a clerk of court.

[[Page 102]]



Sec. 505.11  Fees.

    (a) The first copy of any Agency record about you will be provided
free of charge. A fee of $0.15 per page will be charged for any
additional copies requested by you.
    (b) Checks or money orders should be made payable to the United
States Treasurer and mailed to the FOIA/Privacy Act Office, Office of
the General Counsel, Broadcasting Board of Governors, Suite 3349, 330
Independence Avenue, SW., Washington, DC 20237. The Agency will not
accept cash.



Sec. 505.12  Civil remedies and criminal penalties.

    (a) Grounds for court action. You will have a remedy in the Federal
District Court under the following circumstances:
    (1) Denial of access. You may challenge our decision to deny you
access to records to which you consider yourself entitled.
    (2) Refusal to amend a record. Under the conditions of 5 U.S.C.
552a(g), you may seek judicial review of the Agency's refusal to amend a
record.
    (3) Failure to maintain a record accurately. You may bring suit
against the Agency for any alleged intentional and willful failure to
maintain a record accurately, if it can be shown that you were subjected
to an adverse action resulting in the denial of aright, benefit,
entitlement or employment you could reasonably have been expected to be
granted if the record had not been deficient.
    (4) Other failures to comply with the Act. You may bring an action
for any alleged failure by the Agency to comply with the requirements of
the Act or failure to comply with any rule published by the Agency to
implement the Act provided it can be shown that:
    (i) The action was intentional or willful;
    (ii) The Agency's action adversely affected you; and
    (iii) The adverse action was caused by the Agency's actions.
    (b) Jurisdiction and time limits. (1) Action may be brought in the
district court for the jurisdiction in which you reside or have a place
of residence or business, or in which the Agency records are situated,
or in the District of Columbia.
    (2) The statute of limitations is two years from the date upon which
the cause of action arises, except for cases in which the Agency has
materially and willfully misrepresented any information requested to be
disclosed and when such misrepresentation is material to the liability
of the Agency. In such cases the statute of limitations is two years
from the date of discovery of the misrepresentation by you.
    (3) A suit may not be brought on the basis of injury, which may have
occurred as a result of the Agency's disclosure of a record prior to
September 27, 1975.
    (c) Criminal penalties--(1) Unauthorized disclosure. It is a
criminal violation of the provisions of the Act for any officer or
employee of the Agency to knowingly and willfully disclose a record in
any manner to any person or agency not entitled to receive it, for
failure to meet the conditions of disclosure listed in S U.S.C. 552a(b),
or without the written consent or at the request of the individual to
whom the record pertains. Any officer or employee of the Agency found
guilty of such misconduct shall be fined not more than $5,000.
    (2) Failure to publish a public notice. It is a criminal violation
of the Act to willfully maintain a system of records and not publish the
prescribed public notice. Any officer or employee of the Agency found
guilty of such misconduct shall be fined not more than $5,000.
    (3) Obtaining records under false pretenses. The Act makes it a
criminal offense to knowingly and willfully request or gain access to a
record about an individual under false pretenses. Any person found
guilty of such an offense may be fined not more than $5,000.



Sec. 505.13  General exemptions (Subsection (j)).

    (a) General exemptions are available for systems of records which
are maintained by the Central Intelligence Agency (Subsection (j)(1)),
or maintained by an agency which performs as

[[Page 103]]

its principal function any activity pertaining to the enforcement of the
criminal laws (Subsection (j)(2)).
    (b) The Act does not permit general one exemption of records
compiled primarily for a non-criminal purpose, even though there are
some quasi-criminal aspects to the investigation and even though the
records are in a system of records to which the general exemption
applies.



Sec. 505.14  Specific exemptions (Subsection (k)).

    The specific exemptions focus more on the nature of the records in
the system of records than on the agency. The following categories of
records may be exempt from disclosure:
    (a) Subsection (k)(1). Records which are specifically authorized
under criteria established under an Executive Order to be kept secret in
the interest of national defense or foreign policy, and which are in
fact properly classified according to such Executive Order;
    (b) Subsection (k)(2). Investigatory records compiled for law
enforcement purposes (other than material within the scope of subsection
(j)(2) as discussed in Sec. 505.13(a)). If any individual is denied any
right, privilege, or benefit for which she/he would otherwise be
eligible, as a result of the maintenance of such material, the material
shall be provided to the individual, unless disclosure of the material
would reveal the identity of a source who has been pledged
confidentiality;
    (c) Subsection (k)(3). Records maintained in connection with
protection of the President and other VIPs accorded special protection
by statute;
    (d) Subsection (k)(4). Records required by statute to be maintained
and used solely as statistical records.
    (e) Subsection (k)(5). Records 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 only if disclosure of the material would
reveal the identity of a confidential source that furnished information
to the Government.
    (f) Subsection (k)(6). Testing or examination records used solely to
determine individual qualifications for appointment or promotion in the
Federal service when the disclosure of such would compromise the
objectivity or fairness of the testing or examination process.
    (g) Subsection (k)(7). Evaluation records used to determine
potential for promotion in the armed services, but only if disclosure
would reveal the identity of a confidential source.



Sec. 505.15  Exempt systems of records used.

    The BBG is authorized to use exemptions (k)(1), (k)(2), (k)(4),
(k)(5) and (k)(6).



PART 506_PART-TIME CAREER EMPLOYMENT PROGRAM--Table of Contents



Sec.
506.1 Purpose of program.
506.2 Review of positions.
506.3 Establishing and coverting part-time positions.
506.4 Annual goals and timetables.
506.5 Review and evaluation.
506.6 Publicizing vacancies.
506.7 Exceptions.

    Authority: 5 U.S.C. 3401 (note and 3402).

    Source: 44 FR 63098, Nov. 2, 1979, unless otherwise noted.



Sec. 506.1  Purpose of program.

    Many individuals in society possess great productive potential which
goes unrealized because they cannot meet the requirements of a standard
workweek. Permanent part-time employment also provides benefits to other
individuals in a variety of ways, such as providing older individuals
with a gradual transition into retirement, providing employment
opportunities to handicapped individuals or others who require a reduced
workweek, providing parents opportunities to balance family
responsibilities with the need for additional income, providing
employment opportunities for women returning to the workforce and
assisting students who must finance their own education or vocational
training. In view of this, the Broadcasting Board of Governors will
operate a part-time career employment program, consistent with the needs
of its beneficiaries and its responsibilities.

[[Page 104]]



Sec. 506.2  Review of positions.

    Positions becoming vacant unless excepted as provided by Sec.
506.7, will be reviewed to determine the feasibility of converting them
to part-time. Among the criteria which may be used when conducting this
review are:
    (a) Mission requirements and occupational mix.
    (b) Workload fluctuations.
    (c) Employment ceilings and budgetary considerations.
    (d) Size of workforce, turnover rate and employment trends.
    (e) Affirmative action.



Sec. 506.3  Establishing and converting part-time positions.

    Position management and other internal reviews may indicate that
positions may be either converted from full-time or initially
established as part-time positions. Criteria listed above may be used
during these reviews. If a decision is made to convert to or to
establish a part-time position, regular position management and
classification procedures will be followed.



Sec. 506.4  Annual goals and timetables.

    A Board-wide plan for promoting part-time employment opportunities
will be developed annually by the Office of Personnel after consultation
with the operating elements. This plan will establish annual goals and
set deadlines for achieving these goals.

[44 FR 63098, Nov. 2, 1979, as amended at 51 FR 11015, Apr. 1, 1986]



Sec. 506.5  Review and evaluation.

    The part-time career employment program will be reviewed through
semiannual reports submitted by the Director, Office of Personnel to the
Associate Director for Management. Regular employment reports will be
used to determine levels of part-time employment.

[44 FR 63098, Nov. 2, 1979, as amended at 51 FR 11016, Apr. 1, 1986]



Sec. 506.6  Publicizing vacancies.

    When applicants from outside the Federal service are desired, part-
time vacancies may be publicized through various recruiting means, such
as:
    (a) Federal Job Information Centers.
    (b) State Employment Offices.
    (c) Broadcasting Board of Governors Vacancy Announcements.
    (d) College and University Placement Offices.



Sec. 506.7  Exceptions.

    The Director of the Board and the Associate Director for Management
may except positions from inclusion in this program as necessary to
carry out the mission of the Board.



PART 507_RULES FOR IMPLEMENTING OPEN MEETINGS UNDER THE SUNSHINE ACT
FOR THE BROADCASTING BOARD OF GOVERNORS--Table of Contents



Sec.
507.1 General policies.
507.2 Definitions.
507.3 Requirement for open meetings.
507.4 Grounds on which meetings may be closed.
507.5 Procedures for announcing meetings.
507.6 Procedures for closing meetings.
507.7 Reconsideration of opening or closing a meeting.
507.8 Recording keeping of closed meetings.

    Authority: Pub. L. 93-129, 87 Stat. 956, 5 U.S.C. 552b.

    Source: 67 FR 76112, Dec. 11, 2002, unless otherwise noted.



Sec. 507.1  General policies.

    The Broadcasting Board of Governors will provide the public with the
fullest practical information regarding its decision making process
while protecting the rights of individuals and its abilities to carry
out its responsibilities.



Sec. 507.2  Definitions.

    The following definitions apply:
    (a) The term agency includes any establishment in the executive
branch of the government headed by a collegial body composed of two or
more individual members, a majority of whom are appointed to such
position by the President with the advice and consent of the Senate, and
any subdivision thereof authorized to act on behalf of the agency. The
Broadcasting Board of Governors is a government agency headed by a nine-
member board, eight of whom are appointed by the President with the
advice and consent of the

[[Page 105]]

Senate, and the ninth being the Secretary of State. Therefore, the
Broadcasting Board of Governors is an ``agency'' under these terms.
    (b) The term meeting means the deliberation of this Board where such
deliberations determine or result in the joint conduct or disposition of
official Board business.
    (c) The term member means an individual who belongs to the Board who
has been appointed by the President and confirmed by the Senate or is
the Secretary of State.



Sec. 507.3  Requirement for open meetings.

    Members shall not jointly conduct or dispose of agency business
other than in accordance with this part. Except as provided in Sec.
507.4 every portion of every meeting of the agency shall be open to
public observation.



Sec. 507.4  Grounds on which meetings may be closed.

    The Board shall open every portion of every meeting of the agency
for public observation except where the agency determines that such
portion or portions of the meeting or the disclosure of such information
is likely to:
    (a) Disclose matters that are:
    (1) Specifically authorized under criteria established by an
Executive order to be kept secret in the interests of national defense
or foreign policy, and
    (2) In fact properly classified pursuant to such Executive order;
    (b) Relate solely to the internal personnel rules and practice of
the agency;
    (c) Disclose matters specifically exempted from disclosure by
statute: Provided, that such statute:
    (1) Requires that the matters be withheld from the public in such
manner as to leave no discretion on the issue, or
    (2) Established practical criteria for withholding or refers to
particular types of matters to be withheld;
    (d) Disclose trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime, or formally censuring
any person;
    (f) Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records or
information would:
    (1) Interfere with enforcement proceedings,
    (2) Deprive a person of a right to a fair trial on an impartial
adjudication,
    (3) Constitute an unwarranted invasion of personal privacy,
    (4) Disclose the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential source,
    (5) Disclose investigative techniques and procedures, or
    (6) Endanger the life or physical safety of law enforcement
personnel;
    (h) Disclose information, the premature disclosure of which would be
likely to significantly frustrate implementation of a proposed agency
action. This shall not apply in any instance where the Board has already
disclosed to the public the content or the nature of its proposed
action, or where the Board is required by law to make such disclosures
on its own initiative prior to taking final Board action on such
proposal; or
    (i) Specifically concern the Board's issuance of a subpoena, or the
Board's participation in a civil action or proceeding, an action in a
foreign court or international tribunal, or an arbitration, or the
initiation, conduct or disposition by the Board of a particular case of
formal agency adjudication, or otherwise involving a determination on
the record after opportunity for a hearing.



Sec. 507.5  Procedures for announcing meetings.

    (a) In the case of each meeting, the Board shall make public, at
least one week before the meeting, the time, place, and subject matter
of the meeting, whether it is to be open or closed

[[Page 106]]

to the public, and the name and phone number of the official designated
by the Board to respond to requests for information about the meeting.
Such announcement shall be made unless a majority of the members of the
Board determine by a recorded vote that such meeting must be called at
an earlier date, in which case the Board shall make public announcement
of the time, place, subject matter of such meeting and whether it is
open or closed to the public, at the earliest practical time.
    (b) Immediately following the public announcement, the Board will
publish it in the Federal Register.



Sec. 507.6  Procedures for closing meetings.

    (a) The closing of a meeting shall occur only when:
    (1) A majority of the membership of the Board votes to take such
action. A separate vote of the Board members shall be taken with respect
to each Board meeting, a portion or portions of which are proposed to be
closed to the public pursuant to Sec. 507.4, or with respect to any
information which is proposed to be withheld under Sec. 507.4. A single
vote may be taken with respect to a series of meetings, a portion or
portions of which are proposed to be closed to the public, or with
respect to any information concerning such series of meetings, so long
as each meeting in such series involves the same particular matters and
is scheduled to be held not more than thirty days after the initial
meeting in such series. The vote of each Board member participating in
such vote shall be recorded and no proxies shall be allowed.
    (2) Whenever any person whose interest may be directly affected by a
portion of the meeting requests that the Board close such a portion to
the public for any of the reasons referred to in Sec. 507.4 (e), (f) or
(g), the Board, upon request of any of its Board members, shall take a
recorded vote, whether to close such portion of the meeting.
    (b) Within one day of any vote taken, the Board shall make publicly
available a written copy of such vote reflecting the vote of each member
on the question and full written explanation of its action closing the
entire or portion of the meeting together with a list of all persons
expected to attend the meeting and their affiliation.
    (c) The Board shall announce the time, place and subject matter of
the meeting at least eight (8) days before the meeting.
    (d) For every closed meeting, the Board's Legal Counsel shall
publicly certify that, in his or her opinion, the meeting may be closed
to the public and shall state each relevant exemptive provision. A copy
of such certification, together with a statement from the presiding
officer of the meeting setting forth the time and place of the meeting,
and the persons present, shall be retained by the Board.



Sec. 507.7  Reconsideration of opening or closing a meeting.

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



Sec. 507.8  Recording keeping of closed meetings.

    (a) The Board shall maintain an electronic recording of the
proceedings of each meeting, or portion of a meeting, closed to the
public.
    (b) The Board, after review by the Chairman, shall make promptly
available to the public in a place easily accessible to the public, a
complete transcript or electronic record of the discussion of any item
on the agenda, or any item of testimony of any witness received at the
Board meeting, except for such item or items of such discussion or
testimony as the Board determines to contain information which may be
withheld under Sec. 507.4. Copies of such record, disclosing the
identity of

[[Page 107]]

each speaker, shall be furnished to any person at the actual cost of
duplication. The Board shall maintain a complete transcript or
electronic copy of each meeting, or portion of a meeting, closed to the
public, for a period of at least two years after such meeting, or until
one year after the conclusion of any Board proceeding with respect to
which the meeting or portion was held, whichever occurs later.



PART 510_SERVICE OF PROCESS--Table of Contents



    Authority: 5 U.S.C. 552(a)(1)(A).



Sec. 510.1  Service of process.

    (a) The General Counsel of the Broadcasting Board of Governors or
any of his/her designees shall act as agent for the receipt of legal
process against the Broadcasting Board of Governors, as well as against
employees of the Board to the extent that the process relates to the
official functions of the employees.
    (b) When accepting service of process for an employee in his/her
official capacity, the General Counsel or his/her designee shall endorse
on the server's return of process form, registered mail receipt,
certified mail receipt, or express mail receipt: ``Service accepted in
official capacity only.''
    (c) Process shall be delivered to:

Mailing address: Office of the General Counsel, Broadcasting Board of
Governors, 330 Independence Ave., SW., Cohen Building, Washington, DC
20237.
Location: Office of the General Counsel, Broadcasting Board of
Governors, 330 Independence Ave., SW., Cohen Building, Room 3349,
Washington, DC 20237.

[53 FR 50515, Dec. 16, 1988, as amended at 74 FR 7562, Feb. 18, 2009]



PART 511_FEDERAL TORT CLAIMS PROCEDURE--Table of Contents



Sec.
511.1 Definitions.
511.2 Scope of regulations.
511.3 Exceptions.
511.4 Administrative claim; when presented.
511.5 Who may file claim.
511.6 Board authority to adjust, determine, compromise and settle claims
          and limitations upon that authority.
511.7 Investigations.
511.8 Limitations.
511.9 Supporting evidence.
511.10 Settlement of claim.
511.11 Acceptance of award.
511.12 When litigation is involved in claim.

    Authority: 5 U.S.C. 301.

    Source: 34 FR 20430, Dec. 31, 1969, unless otherwise noted.



Sec. 511.1  Definitions.

    Board. Board means the Broadcasting Board of Governors.
    Act. Act means the Federal Tort Claims Act, as amended, and codified
in 28 U.S.C., sections 2671-2680.



Sec. 511.2  Scope of regulations.

    The regulations in this part shall apply only to claims asserted
under the Federal Tort Claims Act, as amended, or as incorporated by
reference in any appropriation Act or other statutes, for money damages
against the United States for injury, loss of property, personal injury,
or death caused by the negligent or wrongful act or omission of any
employee of the Board while acting within the scope of his/her office or
employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.

[43 FR 14301, Apr. 4, 1978]



Sec. 511.3  Exceptions.

    Claims not compensable hereunder are listed in 2680 of the Act with
the exception that 2680(k) (claims arising in a foreign country) has
been removed by 22 U.S.C. 1474(5).

[44 FR 16374, Mar. 19, 1979]



Sec. 511.4  Administrative claim; when presented.

    (a) For the purposes of the provisions of section 2672 of the Act
and of this part, a claim shall be deemed to have been presented when
the Board receives, in the office designated in paragraph (b) of this
section, an executed ``Claim for Damage or Injury'', Standard Form 95,
or other written notification of an incident, accompanied by a claim for
money damages in a sum certain, for injury to or loss of property,
personal injury or death, alleged to

[[Page 108]]

have occurred by reason of the incident. The claimant may, if he/she
desires, file a brief with his/her claim setting forth the law or other
arguments in support of his/her claim. In cases involving claims by more
than one person arising from a single accident or incident, individual
claim forms shall be used. A claim which should have been presented to
the Board, but which was mistakenly addressed to or filed with another
Federal Agency, shall be deemed to have been presented to the Board as
of the date the claim is received by the Board. If a claim is mistakenly
addressed to or filed with the Board, the Board shall transfer it
forthwith to the appropriate Agency.
    (b) A claimant shall mail, or deliver his/her claim to the Office of
the General Counsel and Congressional Liaison, Broadcasting Board of
Governors, 301 4th Street, SW., Washington, DC 20547.

[34 FR 20430, Dec. 31, 1969, as amended at 51 FR 11016, Apr. 1, 1986]



Sec. 511.5  Who may file claim.

    (a) Claims for loss or damage of property may be filed by the owner
of the property, or his/her legal representatives. Claims for personal
injury or death may be made by the injured person or a legal
representative of the injured or deceased person. The claim, if filed by
a legal representative, should show the capacity of the person signing
and be accompanied by evidence of this authority to act.
    (b) The claim and all other papers requiring the signature of the
claimant should be signed by him/her personally or by his/her
representative. Signatures should be identical throughout.



Sec. 511.6  Board authority to adjust, determine, compromise, and
settle claims and limitations upon that authority.

    (a) The General Counsel of the Board, or his/her designee, is
delegated authority to consider, ascertain, adjust, determine,
compromise, and settle claims asserted under the provisions of section
2672 of the Act and under this part.
    (b) Limitation on Board authority: An award, compromise, or
settlement of a claim by the Board under the provisions of section 2672
of the Act, in excess of $25,000, shall be effected only with the prior
written approval of the Attorney General or his/her designee.



Sec. 511.7  Investigations.

    The Board may request any other Federal agency to investigate a
claim filed under section 2672 of the Act, or to conduct a physical or
mental examination of the claimant and provide a report of such
examination.



Sec. 511.8  Limitations.

    (a) Pursuant to the provisions of section 2401(b) of title 28 of the
United States Code, a tort claim against the United States shall be
forever barred unless presented in writing to the Board within two (2)
years after such claim accrues.
    (b) A suit may not be filed until the claim shall have been finally
denied by the Board. Failure of the Board to make final disposition of
the claim within six (6) months after it has been presented shall, at
the option of the claimant any time thereafter, be deemed a final denial
of the claim for purposes of the Act and of this part.
    (c) A suit shall not be filed for a sum greater than the amount of
the claim presented to the Board, except where the increased amount is
based upon newly discovered evidence not reasonably discoverable at the
time for presenting the claim to the Board, or upon allegation and proof
of intervening facts, relating to amount of the claim.



Sec. 511.9  Supporting evidence.

    (a) In support of claims for personal injury or death, the claimant
should submit a written report by the attending physician. The report
should show the nature and extent of injury, the nature and extent of
treatment, the effect upon earning capacity, either temporarily or
permanently, the degree of permanent disability, if any, the prognosis,
and the period of hospitalization, or incapacitation. Itemized bills for
medical, hospital, or burial expenses actually incurred should be
attached to report.
    (b) In support of claims for damage to property which as been or can
be economically repaired, the claimant should submit at least two
itemized

[[Page 109]]

signed statements, or estimates by reliable, disinterested firms or
itemized signed receipts if payment has been made.
    (c) In support of claims for loss or damage to property which is not
economically repairable, the claimant should submit statements of the
original cost of the property, date of purchase, and the value of the
property before and after the accident together with a statement setting
forth the basis used in arriving at such value. Such statements should
be from at least two disinterested, competent persons, preferably
reputable dealers or other qualified persons familiar with the type of
property in question.



Sec. 511.10  Settlement of claim.

    The General Counsel will review the findings from the standpoint of
questions of law applicable to the claim and will determine disposition.
The General Counsel will make final review for settlement of the claim
and will sign SF-1145, Voucher for Payment Under Federal Tort Claims
Act, and forward it to the Financial Operations Division for payment of
claim. Payment of any award or settlement in the amount of $2,500 or
less will be authorized from the appropriation and allotment current for
obligation on the date of settlement irrespective of when the cause of
action arose. Payment of any award, compromise or settlement in an
amount in excess of $2,500, shall be paid in a manner similar to
judgments and compromises out of the appropriation provided by section
(c), Pub. L. 89-506 (28 U.S.C. 2672).



Sec. 511.11  Acceptance of award.

    The acceptance by the claimant of any award will be final and
conclusive on the claimant. The acceptance will constitute a complete
release of any claim by reason of the same subject matter against the
United States and against the employee whose act or omission resulted in
the claim. Adjudication and payment shall likewise be conclusive on all
officers of the United States, unless procured by fraud.



Sec. 511.12  When litigation is involved in claim.

    If a claimant does not agree to a settlement of a claim of which is
considered fair and equitable by the Board's responsible officials, the
claimant, upon the final disposition thereof by the Board, may elect to
file suit. Relief from claims which are disallowed may be sought by
filing suit in the U.S. District Court for the district where the
claimant resides or wherein the act of omission complained of occurred.
The failure of the Board to make final disposition of a claim within 6
months after it has been filed shall, pursuant to 28 U.S.C. 2672, and at
the option of the claimant at any time thereafter, is deemed a final
denial of the claim. If a suit is filed against the Government involving
the Board, the Department of Justice will request the Board to furnish
the complete file on the case. The Office of the General Counsel will
represent the Board in all negotiations with the Department of Justice.



PART 512_COLLECTION OF DEBTS UNDER THE DEBT COLLECTION ACT OF
1982--Table of Contents



                      Subpart A_General Provisions

Sec.
512.1 Definitions.
512.2 Exceptions.
512.3 Use of procedures.
512.4 Conformance to law and regulations.
512.5 Other procedures.
512.6 Informal action.
512.7 Return of property.
512.8 Omissions not a defense.

   Subpart B_Administrative Offset and Referral to Collection Agencies

512.9 Demand for payment.
512.10 Collection by administrative offset.
512.11 Administrative offset against amounts payable for Civil Service
          Retirement and Disability Fund.
512.12 Collection in installments.
512.13 Exploration of compromise.
512.14 Suspending or terminating collection action.
512.15 Referrals to the Department of Justice or the General Accounting
          Office.
512.16 Collection services.

                         Subpart C_Salary Offset

512.17 Purpose.
512.18 Scope.

[[Page 110]]

512.19 Definitions.
512.20 Notification.
512.21 Hearing.
512.22 Deduction from pay.
512.23 Liquidation from final check or recovery from other payment.
512.24 Non-waiver of rights by payments.
512.25 Refunds.
512.26 Interest, penalties, and administrative costs.
512.27 Recovery when paying agency is not creditor agency.

         Subpart D_Interest, Penalties, and Administrative Costs

512.28 Assessment.
512.29 Exemptions.

    Authority: 31 U.S.C. 3701; 31 U.S.C. 3711 et seq.; 5 U.S.C. 5514; 4
CFR Parts 101-105; 5 CFR Part 550.

    Source: 52 FR 43897, Nov. 17, 1987, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 512.1  Definitions.

    (a) The term Board means the Broadcasting Board of Governors.
    (b) The term Board head means the Director, Broadcasting Board of
Governors.
    (c) The term appropriate Board official or designee means the Chief,
Financial Operations Division or such other official as may be named in
the future by the Director, Broadcasting Board of Governors.
    (d) The terms debt or claim refer to an amount of money which has
been determined by an appropriate Board official to be owed to the
United States from any person, organization or entity, except another
Federal Agency.
    (e) A debt is considered delinquent if it has not been paid by the
date specified in the Board's written notification or applicable
contractual agreement, unless other satisfactory arrangements have been
made by that date, or at any time thereafter the debtor fails to satisfy
obligations under a payment agreement with the Board.
    (f) The term referral for litigation means referral to the
Department of Justice for appropriate legal proceedings.



Sec. 512.2  Exceptions.

    (a) Claims arising from the audit of transportation accounts
pursuant to 31 U.S.C. 3726 shall be determined, collected, compromised,
terminated, or settled in accordance with the regulations published
under 31 U.S.C. 3726 (refer to 41 CFR part 101-41).
    (b) Claims arising out of acquisition contracts subject to the
Federal Acquisition Regulation (FAR) shall be determined, collected,
compromised, terminated or settled in accordance with those regulations
(see 48 CFR part 32). If not otherwise provided for in the FAR system,
contract claims that have been the subject of a contracting officer's
final decision in accordance with section 6(a) of the Contracts Disputes
Act of 1978 (41 U.S.C. 605(a)), may be determined, collected,
compromised, terminated, or settled under the provisions of this
regulation, except no additional review of the debt shall be granted
beyond that provided by the contracting officer in accordance with the
provisions of section 6 of the Contract Disputes Act of 1978 (41 U.S.C.
605), and the amount of any interest, administrative charge, or penalty
charge shall be subject to the limitations, if any, contained in the
contract out of which the claim arose.
    (c) Claims based in whole or in part on conduct in violation of the
antitrust laws, or in regard to which there is an indication of fraud,
presentation of a false claim, or misrepresentation on the part of the
debtor or any other party having an interest in the claim, shall be
referred to the Department of Justice (DOJ) as only the DOJ has the
authority to compromise, suspend or terminate collection action on such
claims.
    (d) Tax claims are excluded from the coverage of this regulation.



Sec. 512.3  Use of procedures.

    Procedures authorized by this regulation (including but not limited
to referral to a debt collection agency, administrative offset, or
salary offset) may be used singly or in combination, providing the
requirements of the applicable law and regulation are satisfied.



Sec. 512.4  Conformance to law and regulations.

    (a) The requirements of applicable law (31 U.S.C. 3701-3719 as
amended by

[[Page 111]]

Pub. L. 97-365, (96 Stat. 1749) have been implemented in Government-wide
standards:
    (1) The regulations of the Office of Personnel Management (5 CFR
part 550).
    (2) The Federal Claims Collection Standards issued jointly by the
General Accounting Office and the Department of Justice (4 CFR parts
101-105), and
    (3) The procedures prescribed by the Office of Management and Budget
in Circular A-129 of May 9, 1985.
    (b) Not every item in the above described standards has been
incorporated or referenced in this regulation. To the extent, however,
that circumstances arise which are not covered by the terms stated in
this regulation, Broadcasting Board of Governors will proceed in any
actions taken in accordance with applicable requirements found in the
sources referred to in paragraphs (a)(1), (2), and (3) of this section.



Sec. 512.5  Other procedures.

    Nothing contained in this regulation is intended to require
Broadcasting Board of Governors to duplicate administrative proceedings
required by contract or other laws or regulations.



Sec. 512.6  Informal action.

    Nothing in this regulation is intended to preclude utilization of
informal administrative actions or remedies which may be available.



Sec. 512.7  Return of property.

    Nothing contained in this regulation is intended to deter
Broadcasting Board of Governors from demanding the return of specific
property or from demanding the return of the property or the payment of
its value.



Sec. 512.8  Omissions not a defense.

    The failure of Broadcasting Board of Governors to comply with any
provision in this regulation shall not serve as a defense to the debt.



   Subpart B_Administrative Offset and Referral to Collection Agencies



Sec. 512.9  Demand for payment.

    Prior to initiating administrative offset, demand for payment will
be made as follows:
    (a) Written demands will be made promptly upon the debtor in terms
which inform the debtor of the consequences of failure to cooperate. A
total of three progressively stronger written demands at not more than
30-day intervals will normally be made unless a response to the first or
second demand indicates that further demand would be futile and the
debtor's response does not require rebuttal. In determining the timing
of demand letters, Broadcasting Board of Governors will give due regard
to the need to act promptly so that, as a general rule, debt referrals
to the Department of Justice for litigation, where necessary, can be
made within one year of the Board's final determination of the fact and
the amount of the debt. When necessary to protect the Government's
interests (e.g., to prevent the statute of limitations, 28 U.S.C. 2415,
from expiring) written demand may be preceded by other appropriate
actions under this chapter, including immediate referral for litigation.
    (b) The initial demand letter will inform the debtor of: The basis
for the indebtedness and the right of the debtor to request review
within the Board; the applicable standards for assessing interest,
penalties, and administrative costs (Subpart D of this regulation) and;
the date by which payment is to be made, which normally will not be more
than 30 days from the date that the initial demand letter was mailed or
hand delivered. Broadcasting Board of Governors will exercise care to
insure that demand letters are mailed or hand-delivered on the same day
that they are actually dated.
    (c) As appropriate to the circumstances, Broadcasting Board of
Governors will include in the demand letters matters relating to
alternative methods of payment, the debtor's rights to representation by
his respective bargaining unit, policies relating to referral to
collection agencies, the

[[Page 112]]

Board's intentions relative to referral of the debt to the Department of
Justice for litigation, and, depending on the statutory authority, the
debtor's entitlement to consideration of waiver.
    (d) Broadcasting Board of Governors will respond promptly to
communications from the debtor and will advise debtors who dispute the
debt that they must furnish available evidence to support their
contention.



Sec. 512.10  Collection by administrative offset.

    (a) Collection by administrative offset will be undertaken in
accordance with these regulations on all claims which are liquidated and
certain in amount, in every instance where the appropriate Board
official determines such collection to be feasible and not otherwise
prohibited.
    (1) For purpose of this section, the term administrative offset has
the same meaning as provided in 31 U.S.C. 3716(a)(1).
    (2) Whether collection by administrative offset is feasible is a
determination to be made by the Board on a case-by-case basis, in the
exercise of sound discretion. Broadcasting Board of Governors will
consider not only the practicalities of administrative offset, but
whether such offset is best suited to protect and further all of the
Government's interests. Broadcasting Board of Governors will give
consideration to the debtor's financial condition, and is not required
to use offset in every instance where there is an available source of
funds. Broadcasting Board of Governors will also consider whether offset
would tend to substantially disrupt or defeat the purpose of the program
authorizing the payments against which offset is contemplated.
    (b) Before the offset is made, a debtor shall be provided with the
following: written notice of the nature and the amount of the debt and
the Board's intention to collect by offset; opportunity to inspect and
copy Board records pertaining to the debt; opportunity to obtain review
within the Board of the determination of indebtedness; and opportunity
to enter into written agreement with the Board to repay the debt.
Broadcasting Board of Governors may also make requests to other agencies
holding funds payable to the debtor, and process requests for offset
that are received from other agencies.
    (1) Broadcasting Board of Governors will exercise sound judgment in
determining whether to accept a repayment agreement in lieu of offset.
The determination will weigh the Government's interest in collecting the
debt against fairness to the debtor.
    (2) In cases where the procedural requirements specified in this
paragraph (b) have previously been provided to the debtor in connection
with the same debt under some other statutory or regulatory authority,
such as pursuant to an audit allowance, the Board is not required to
duplicate those requirements before taking administrative offset.
    (3) Broadcasting Board of Governors may not initiate administrative
offset to collect a debt more than 10 years after the Government's right
to collect the debt first accrued, unless facts material to the
Government's right were not known and could not reasonably have been
known by the official or officials of the Government who were charged
with the responsibility to discover and collect the debt. When the debt
first accrued is to be determined according to existent law regarding
the accrual of debts (e.g., 28 U.S.C. 2415).
    (4) Broadcasting Board of Governors is not authorized by 31 U.S.C.
3716 to use administrative offset with respect to: Debts owed by any
State or local Government; debts arising under or payments made under
the Social Security Act, the Internal Revenue Code of 1954 or the tariff
laws of the United States; or any case in which collection of the type
of debt involved by administrative offset is explicitly provided for or
prohibited by another statute. Unless otherwise provided by contract or
law, debts or payments which are not subject to administrative offset
under 31 U.S.C. 3716 may be collected by administrative offset under the
common law or other applicable statutory authority.
    (5) Broadcasting Board of Governors may effect administrative offset
against a payment to be made to a debtor prior to completion of the
procedures required by paragraph (b) of

[[Page 113]]

this section if failure to take offset would substantially prejudice the
Government's ability to collect the debt, and the time before the
payment is to be made does not reasonably permit the completion of those
procedures. Amounts recovered by offset but later determined not to be
owed to the Government shall be promptly refunded 30 days after the
Board has notified the debtor in writing that the debt is not owed. Such
written notification will be issued within 15 days after the Board has
confirmed through a review of its official records that the debt is not
owed.
    (c) Type of hearing or review: (1) For purposes of this section,
whenever Broadcasting Board of Governors is required to afford a hearing
or review within the Board, the Board will provide the debtor with a
reasonable opportunity for an oral hearing when: An applicable statute
authorizes or requires the Board to consider waiver of the indebtedness
involved, the debtor requests waiver of the indebtedness, and the waiver
determination turns on an issue of veracity; or the debtor requests
reconsideration of the debt and the Board determines that the question
of the indebtedness cannot be resolved by review of the documentary
evidence. Unless otherwise required by law, an oral hearing under this
section is not required to be a formal evidentiary type hearing.
    (2) This section does not require an oral hearing with respect to
debt collection systems in which determinations of indebtedness or
waiver rarely involve issues of veracity and the Board has determined
that the review of the written record is ordinarily enough to correct
prior mistakes.
    (3) In those cases where an oral hearing is not required by this
section, the Board will make its determination on the request for waiver
or reconsideration based upon a review of the written record.
    (d) Appropriate use will be made of the cooperative efforts of other
agencies in effecting collection by administrative offset. Broadcasting
Board of Governors will not refuse to initiate administrative offset to
collect debts owed the United States, unless the requesting agency has
not complied with the applicable provisions of these standards.
    (e) Collection by offset against a judgment obtained against the
United States shall be accomplished in accordance with 31 U.S.C. 3728.
    (f) Whenever the creditor agency is not the agency which is
responsible for making the payment against which offset is sought, the
latter agency shall not initiate the requested offset until it has been
provided by the creditor agency with an appropriate written
certification that the debtor owes the debt (including the amount) and
that full compliance with the provisions of this section has taken
place.
    (g) When collecting multiple debts by administrative offset,
Broadcasting Board of Governors will apply the recovered amounts to
those debts in accordance with the best interests of the United States,
as determined by the facts and circumstances of the particular case,
paying particular attention to the applicable statutes of limitations.



Sec. 512.11  Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund.

    (a) Unless otherwise prohibited by law, Broadcasting Board of
Governors may request that monies that are due and payable to a debtor
from the Civil Service Retirement and Disability Fund be
administratively offset in reasonable amounts in order to collect in one
full payments, or a minimal number of payment, debts owed the United
States by the debtor. Such requests shall be made to the appropriate
officials within the Office of Personnel Management in accordance with
such regulations as may be prescribed by the Director of that Office.
    (b) When making a request for administrative offset under paragraph
(a) of this section, Broadcasting Board of Governors shall include
written statements that:
    (1) The debtor owes the United States a debt, including the amount
of the debt;
    (2) The Broadcasting Board of Governors has complied with the
applicable statutes, regulations, and procedures of the Office of
Personnel Management; and

[[Page 114]]

    (3) The Broadcasting Board of Governors has complied with the
requirements of Sec. 512.10 of this part, including any required
hearing or review.
    (c) Once Broadcasting Board of Governors decides to request offset
under paragraph (a) of this section, it will make the request as soon as
practical after completion of the applicable procedures in order that
the Office of Personnel Management may identify the debtor's account in
anticipation of the time when the debtor requests or becomes eligible to
receive payments from the Fund. This will satisfy any requirement that
offset be initiated prior to expiration of the applicable statute of
limitations.
    (d) If Broadcasting Board of Governors collects part or all of the
debt by other means before deductions are made or completed pursuant to
paragraph (a) of this section, Broadcasting Board of Governors shall act
promptly to modify or terminate its request for offset under paragraph
(a) of this section.
    (e) This section does not require or authorize the Office of
Personnel Management to review the merits of the Broadcasting Board of
Governors determination relative to the amount and validity of the debt,
its determination on waiver under an applicable statute, or its
determination whether to provide an oral hearing.



Sec. 512.12  Collection in installments.

    (a) Whenever feasible, and except as required otherwise by law,
debts owed to the United States, together with interest, penalties, and
administrative costs as required by this regulation, should be collected
in one lump sum. This is true whether the debt is being collected under
administrative offset or by another method, including voluntary payment.
However, if the debtor is financially unable to pay the indebtedness in
one lump sum, payment may be accepted in regular installments. If
Broadcasting Board of Governors agrees to accept payment in
installments, it will obtain a legally enforceable written agreement
from the debtor that specifies all of the terms of the arrangement and
which contains a provision accelerating the debt in the event the debtor
defaults. The size and frequency of the payments should bear a
reasonable relation to the size of the debt and ability to the debtor to
pay. If possible the installment payments should be sufficient in size
and frequency to liquidate the Government's claim within 3 years.
    (b) If the debtor owes more than one debt and designates how a
voluntary installment plan is to be applied among those debts, the Board
will follow that designation. If no such designation is made, the Board
will apply payments to the various debts in accordance with the best
interest of the United States as as determined by the facts and
circumstances of each case, with particular attention to application
statutes of limitation.



Sec. 512.13  Exploration of compromise.

    Broadcasting Board of Governors may attempt to effect compromise in
accordance with the standards set forth in part 103 of the Federal
Claims Collection Standards (4 CFR part 103).



Sec. 512.14  Suspending or terminating collection action.

    The suspension or termination of collection action shall be made in
accordance with the standards set forth in part 104 of the Federal
Claims Collection Standard (4 CFR part 104).



Sec. 512.15  Referrals to the Department of Justice or the General
Accounting Office.

    Referrals to the Department of Justice or the General Accounting
Office shall be made in accordance with the standards set forth in part
105 of the Federal Claims Collection Standards (4 CFR part 105).



Sec. 512.16  Collection services.

    (a) Broadcasting Board of Governors has authority to contract for
collection services to recover delinquent debts in accordance with 31
U.S.C. 3718(c) and 4 CFR 102.6.
    (b) Contracts with collection agencies will provide that:
    (1) The authority to resolve disputes, compromise claims, suspend or
terminate collection action, and refer the matter to the Justice
Department for litigation will be retained by Broadcasting Board of
Governors;

[[Page 115]]

    (2) Contractors are subject to 5 U.S.C. 552a, the Privacy Act of
1974, as amended, to the extent specified in 5 U.S.C. 552a(m) and to
applicable Federal and State laws and regulations pertaining to debt
collection practices, such as the Fair Debt Collection Practices Act, 15
U.S.C. 1692;
    (3) The contractor is required to strictly account for all amounts
collected;
    (4) The contractor must agree that uncollectible accounts shall be
returned with appropriate documentation to enable Broadcasting Board of
Governors to determine whether to pursue collection through litigation
or to terminate collection;
    (5) The contractor must agree to provide any data in its files
relating to paragraphs (a)(1), (2), and (3) of Sec. 105.2 of the
Federal Claims Collection Standards (4 CFR part 105) upon returning the
account to Broadcasting Board of Governors for subsequent referral to
the Department of Justice for litigation.
    (c) Broadcasting Board of Governors will not use a collection agency
to collect a debt owed by a currently employed or retired Federal
employee, if collection by salary or annuity offset is available.



                         Subpart C_Salary Offset



Sec. 512.17  Purpose.

    This subpart provides the standards to be followed by Broadcasting
Board of Governors in implementing 5 U.S.C. 5514 to recover a debt from
the pay of an Board employee or former employee, and establishes the
procedural guidelines to recover debts when the employee's creditor and
paying agencies are not the same.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3050, Jan. 30, 1990]



Sec. 512.18  Scope.

    (a) Coverage. This subpart applies to Executive agencies, military
departments, an agency or court in the judicial branch, an agency of the
legislative branch and other independent entities of the Federal
Government as defined in 5 CFR 550.1103, under the heading ``Agency''.
    (b) Applicability. This subpart and 5 U.S.C. 5514 apply in
recovering debts by offset without the employee's consent from the
current pay of that employee. Debt collection procedures which are not
specified in 5 U.S.C. 5514 and these regulations will be consistent with
the Federal Claims Collection Standards (4 CFR parts 101-105).
    (1) The procedures contained in this subpart do not apply to debts
or claims arising under the Internal Revenue Code of 1954 as amended (26
U.S.C. 1 et seq.), the Social Security Act (42 U.S.C. 301 et seq.), or
the tariff laws of the United States or to any case where collection of
a debt is explicitly provided for or prohibited by another statute
(e.g., travel advances in 5 U.S.C. 5705).
    (2) This subpart does not preclude an employee from requesting a
waiver of a salary overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or
32 U.S.C. 716, or in any way questioning the amount or validity of a
debt by submitting a subsequent claim to the General Accounting Office
in accordance with procedures prescribed by the General Accounting
Officer, nor does it preclude an employee from requesting waiver when
waiver is available under any statutory provision.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3051, Jan. 30, 1990]



Sec. 512.19  Definitions.

    For purposes of this subpart:
    Board means the Broadcasting Board of Governors.
    Creditor Agency means the agency to which the debt is owed.
    Debt means an amount owed to the United States.
    Disposable Pay means that part of current basic pay, special pay,
incentive pay, retired pay, retainer pay or authorized pay remaining
after the deduction of any amount required to be withheld by law. The
Board will exclude deductions described in 5 CFR 581.105 (b) through (f)
to determine disposable pay subject to salary offset.
    Employee means a current employee of Broadcasting Board of Governors
or of another Executive Agency.
    Executive Agency means:
    (a) An Executive Agency as defined in section 105 of title 5, United
States

[[Page 116]]

Code, including the U.S. Postal Service and the U.S. Postal Rate
Commission;
    (b) A military department as defined in section 102 of title 5,
United States Code;
    (c) An agency or court in the judicial branch, including a court as
defined in section 610 of title 28, United States Code, the District
Court for the Northern Mariana Islands, and the Judicial Panel on
Multidistrict Litigation;
    (d) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
    (e) Other independent establishments that are entities of the
Federal Government.
    FCCS means the Federal Claims Collection Standards jointly published
by the Justice Department and the General Accounting Office at 4 CFR
parts 101-105.
    Paying agency means the agency employing the individual and
authorizing the payment of his or her current pay.
    Salary offset means an administrative offset to collect a debt under
5 U.S.C. 5514 by deductions at one or more officially established pay
intervals from the current pay account of an employee without his or her
consent.
    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 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 710,
5 U.S.C. 8346(b), or any other law.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3051, Jan. 30, 1990]



Sec. 512.20  Notification.

    (a) Salary offset deductions shall not be made unless the Director,
Financial Operations Division of Broadcasting Board of Governors, or
such other official as may be named in the future by the Director of
Broadcasting Board of Governors, provides to the employee a written
notice, 30 calendar days prior to any deduction, stating at a minimum:
    (1) The Board's determination that a debt is owed including the
nature, origin, and amount of the debt;
    (2) The Board's intent to collect the debt by means of deduction
from the employee's current disposable pay account;
    (3) The amount, frequency and proposed beginning date and duration
of the intended deductions;
    (4) An explanation of the Board's policy concerning interest,
penalties, and administrative costs;
    (5) The employee's right to inspect and copy Government records
pertaining to the debt;
    (6) The opportunity to establish a schedule for the voluntary
repayment of the debt or to enter into a written agreement to establish
a schedule for repayment in lieu of offset per the requirements of 4 CFR
102.2(e).
    (7) The employee's right to a hearing arranged by the Board and
conducted by an administrative law judge or, alternatively, an official
not under the control of the head of the Board;
    (8) The method and time period for filing a petition for a hearing;
    (9) That timely filing of the petition will stay the commencement of
collection proceedings;
    (10) That final decision on the hearing will be issued not later
than 60 days after the filing of the petition for hearing unless the
employee requests and the hearing officer grants a delay in the
proceedings.
    (11) That knowingly false, misleading, or frivolous statements,
representations or evidence may subject the employee to:
    (i) Disciplinary procedures under chapter 75 of title 5, United
States Code or any other applicable statutes;
    (ii) Penalties under the False Claims Act, sections 3729-3731 of
title 31 U.S.C. or any other applicable statutes.
    (iii) Criminal penalties under sections 286, 287, 1001, 1002 of
title 18 United States Code or any other applicable statutes.
    (12) Any other rights or remedies available to the employee,
including representation by counsel or his respective bargaining unit,
under the statutes or regulations governing the program for which
collection is being made.
    (13) That amounts paid on or deducted for the debts that are later
waived or found not owed to the United States will be promptly refunded
to the employee.
    (b) Notifications under this section shall be hand delivered with a
record

[[Page 117]]

made of the delivery, or shall be mailed certified mail with return
receipt requested.
    (c) No notification hearing, written responses or final decisions
under this regulation are required of Broadcasting Board of Governors
for any adjustment to pay arising from an employee's election of
coverage under a Federal benefit program requiring periodic deductions
from pay, if the amount to be recovered was accumulated over four pay
periods or less.



Sec. 512.21  Hearing.

    (a) Petition for hearing. (1) A hearing may be requested by filing a
written petition with the Director, Financial Operations Division of
Broadcasting Board of Governors, or such other official as may be named
in the future by the Director of Broadcasting Board of Governors,
stating why the employee believes the Board's determination of the
existence or amount of the debt is in error.
    (2) The petition must be signed by the employee and fully identify
and explain with reasonable specificity all the facts, evidence and
witnesses which the employee believes support his or her position.
    (3) The petition must be filed no later than fifteen (15) calendar
days from the date the notification under Sec. 512.20(b) was hand
delivered or the date of delivery by certified mail.
    (4) Where petition is received after the 15 calendar day limit,
Broadcasting Board of Governors will accept the petition if the employee
can show that the delay was beyond his or her control or because of
failure to receive notice.
    (5) If the petition is not filed within the time limit, and is not
accepted pursuant to paragraph (a)(4) of this section, the employee's
right to hearing will be considered waived, and salary offset will be
implemented.
    (b) Type of hearing. (1) The form and content of the hearing will be
determined by the hearing official who shall be a person outside the
control or authority of Broadcasting Board of Governors.
    (2) The employee may represent him or herself, or may be represented
by counsel.
    (3) The hearing official shall maintain a summary record of the
hearing.
    (4) The hearing official will prepare a written decision which will
state:
    (i) The facts purported to evidence nature and origin of the alleged
debt;
    (ii) The hearing official's analysis, findings, and conclusions
relative to:
    (A) The employee's and/or the Board's grounds;
    (B) The amount and the validity of the alleged debt;
    (C) The repayment schedule, if applicable.
    (5) The decision of the hearing official shall constitute the final
administrative decision of the Board.



Sec. 512.22  Deduction from pay.

    (a) Deduction by salary offset, from an employee's disposable
current pay, shall be subject to the following circumstances:
    (1) When funds are available, the Board will collect debts owed the
United States in full in one lump-sum. If funds are not available or the
debt exceeds 15% of disposable pay for an officially established pay
interval, collection will normally be made in installments.
    (2) The installments shall not exceed 15% of the disposable pay from
which the deduction is made, unless the employee has agreed in writing
to a larger amount.
    (3) Deduction will commence with the next full pay interval
following notice that deductions will commence.
    (4) Installment deductions will not be made over a period greater
than the anticipated period of employment.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3051, Jan. 30, 1990]



Sec. 512.23  Liquidation from final check or recovery from other payment.

    (a) If an employee retires or resigns before collection of the debt
is completed, offset of the entire remaining balance may be made from a
final payment of any nature to such extent as is necessary to liquidate
the debt.
    (b) Where debt cannot be liquidated by offset from final payment,
offset may be made from later payments of any kind due from the United
States inclusive of Civil Service Retirement and Disability Fund
pursuant to 5

[[Page 118]]

U.S.C. 8347 and 5 CFR 831.1801 et seq of this regulation.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3051, Jan. 30, 1990]



Sec. 512.24  Non-waiver of rights by payments.

    An employee's voluntary payment of all or part of a debt being
collected under 5 U.S.C. 5514 shall not be construed as a waiver of any
rights which the employee may have under 5 U.S.C., or any other
provision of contract or law, unless statutory or contractual provisions
provide to the contrary.



Sec. 512.25  Refunds.

    (a) Refunds shall be promptly made when:
    (1) A debt is waived or otherwise found not to be owed to the United
States; or
    (2) The employee's paying agency is directed by an administrative or
judicial order to refund amounts deducted from his or her current pay.
    (b) Refunds do not bear interest unless required or permitted by law
or contract.



Sec. 512.26  Interest, penalties, and administrative costs.

    The assessment of interest, penalties and administrative costs shall
be in accordance with subpart D of this regulation.



Sec. 512.27  Recovery when paying agency is not creditor agency.

    (a) Format for request for recovery. (1) Upon completion of the
procedures prescribed under 5 CFR 550.1104 and its own regulations, the
creditor agency shall certify the debt in writing to the paying agency.
    (2) The creditor agency shall certify in writing that the employee
owes the debt, the amount and basis of the debt; the date on which
payment is due, the date the Government's right to collect first
accrued, and that the creditor agency's regulations implementing section
5514 have been approved by OPM.
    (3) If collection must be made in installments, the creditor agency
must advise the paying agency of the number of installments to be
collected, the amount of each installment, and the commencing date of
the first installment.
    (b) Submitting the request for recovery--(1) Current employees. The
creditor agency shall submit the debt claim, agreement, or other
instruction on the payment schedule to the employee's paying agency.
    (2) Separated employees--(i) Employees who are in the process of
separating. If the employee is in the process of separating, the
creditor agency will submit its debt claim to the employee's paying
agency for collection as provided in Sec. Sec. 512.22 and 512.23. The
paying agency shall certify the total amount of its collection and
notify the creditor agency and the employee as provided in paragraph
(b)(2)(iii) of this section. Where the paying agency is aware that the
employee is entitled to payments from the Civil Service Retirement and
Disability Fund, it will send a copy of the certified debt claim to the
agency responsible for making such payments as notice that a debt is
outstanding. It is the responsibility of the creditor agency for
pursuing the claim.
    (ii) Employees who have already separated. If the employee is
already separated and all payments due from his or her former paying
agency have been paid, the creditor agency may request that monies which
are due and payable to the employee from the Civil Service Retirement
and Disability Fund (5 CFR 831.1801) or other similar funds be
administratively offset in order to collect the debt (31 U.S.C. 3716 and
the FCCS).
    (iii) Employees who transfer from one paying agency to another. If
an employee transfers to a position served by a different paying agency
subsequent to the creditor agency's debt claim but before complete
collection, the paying agency from which the employee separates shall
certify the total of collection made on the debt. One copy of the
certification will be supplied to the employee, and another to the
creditor agency with notice of the employee's transfer. The original
shall be inserted in the employees official personnel folder. The
creditor agency shall submit a properly certified claim to the new
paying agency before collection can be resumed. The paying agency will
then resume collection from the employee's current pay account, and

[[Page 119]]

notify the employee and the creditor agency of the resumption. The
creditor agency will not need to repeat the due process procedure
described by 5 U.S.C. 5514 and 5 CFR 550.1101 et seq.'' Upon settlement
or repayment of the debt all records of the debt will be removed from
official personnel records.
    (c) Processing the debt claim upon receipt by the paying agency:
    (1) Incomplete claims. If the paying agency receives an improperly
completed debt certification, it shall return the request with a notice
that procedures under 5 CFR 550.1101 et seq. and the creditor agency's
own regulations must be completed and a properly completed debt
certification form received before action will be taken to effect
collection.
    (2) Complete claim. If the paying agency receives a properly
completed debt form, deductions will begin prospectively at the next
officially established pay interval. A copy of the debt form will be
given to the debtor along with notice of the date deductions will
commence.
    (3) The paying agency is not required or authorized to review the
merits of the creditor agency's determination with respect to the amount
or validity of the debt as stated in the debt claim.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3051, Jan. 30, 1990]



         Subpart D_Interest, Penalties, and Administrative Costs



Sec. 512.28  Assessment.

    (a) Except as provided in paragraph (h) of this section, or Sec.
512.29, Broadcasting Board of Governors shall assess interest,
penalties, and administrative costs on debts owed to the United States
pursuant to 31 U.S.C. 3717. Before assessing these charges, Broadcasting
Board of Governors will mail or hand deliver a written notice to the
debtor. This notice will include a statement of the Board's requirements
concerning Sec. Sec. 512.9 and 512.21.
    (b) Interest shall accrue from the date on which notice of the debt
is first mailed or hand-delivered to the debtor, using the most current
address available to the Board.
    (c) 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 Fiscal Requirements
Manual Bulletins annually or quarterly, in accordance with 31 U.S.C.
3717. The rate of interest as initially assessed shall remain fixed for
the duration of the indebtedness. However, in cases where the debtor has
defaulted on a repayment agreement and seeks a new agreement,
Broadcasting Board of Governors may set a new rate which reflects the
current value of funds to the Treasury at the time the agreement is
executed. Interest will not be assessed on interest, penalties, or
administrative costs required by this section.
    (d) Broadcasting Board of Governors shall assess charges to cover
administrative costs incurred as a result of a delinquent debt.
Calculation of administrative costs shall be based upon actual costs
incurred. Administrative costs include costs incurred to obtain credit
reports in the case of employee debt or in using a private debt
collector in the case of non-employee debt.
    (e) Broadcasting Board of Governors shall assess a penalty charge
not to exceed 6% per year on any portion of a debt that is delinquent
for more than 90 days. This charge need not be calculated until the 91st
day of delinquency, but shall accrue from the date that the debt became
delinquent.
    (f) When a debt is paid in partial or installment payments, amounts
received shall be applied first to the outstanding penalty and
administrative cost charges, second to accrued interest and third to
outstanding principal.
    (g) Broadcasting Board of Governors will waive the collection of
interest on the debt or any portion of the debt that is paid within 30
days after the date on which interest began to accrue. Broadcasting
Board of Governors may extend this 30-day period, on a case-by-case
basis, if it reasonably determines such action is appropriate.
Broadcasting Board of Governors may also waive in whole or in part the
collection of interest, penalties, and administrative costs

[[Page 120]]

assessed under this section per the criteria specified in part 103 of
the Federal Claims Collection Standards (4 CFR part 103) relating to the
compromise of claims or if the Board determines that collection of these
charges is not in the best interest of the United States. Waiver under
the first sentence of this paragraph is mandatory. Under the second and
third sentences, it may be exercised under the following circumstances:
    (1) Waiver of interest pending consideration of a request for
reconsideration, administrative review, or waiver of the underlying debt
under a permissive statute, and
    (2) Waiver of interest where Broadcasting Board of Governors has
accepted an installment plan under Sec. 512.12, there is no indication
of fault or lack of good faith on the part of the debtor and the amount
of the interest is large enough, in relation to the size of the
installments that the debtor can reasonably afford to pay, that the debt
will never be repaid.
    (h) Where a mandatory waiver or review statute applies, interest and
related charges may not be assessed for those periods during which
collection must be suspended under Sec. 104.2(c)(1) of the Federal
Claims Collection Standards (4 CFR part 104).



Sec. 512.29  Exemptions.

    (a) The provisions of 31 U.S.C. 3717 do not apply--
    (1) To debts owned by any State or local government;
    (2) To debt arising under contracts which were executed prior to,
and were in effect on October 25, 1982;
    (3) To debts where an applicable statute, loan agreement, or
contract either prohibits such charges or explicitly fixes the charges
that apply to the debts arising under the Social Security Act, the
Internal Revenue Code of 1954, or the tariff laws of the United States.
    (b) However Broadcasting Board of Governors is authorized to assess
interest and related charges on debts which are not subject to 31 U.S.C.
3717 to the extent authorized under the common law or other applicable
statutory authority.



PART 513_GOVERNMENT DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND
GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of

Contents



                            Subpart A_General

Sec.
513.100 Purpose.
513.105 Definitions.
513.110 Coverage.
513.115 Policy.

                       Subpart B_Effect of Action

513.200 Debarment or suspension.
513.205 Ineligible persons.
513.210 Voluntary exclusion.
513.215 Exception provision.
513.220 Continuation of covered transactions.
513.225 Failure to adhere to restrictions.

                           Subpart C_Debarment

513.300 General.
513.305 Causes for debarment.
513.310 Procedures.
513.311 Investigation and referral.
513.312 Notice of proposed debarment.
513.313 Opportunity to contest proposed debarment.
513.314 Debarring official's decision.
513.315 Settlement and voluntary exclusion.
513.320 Period of debarment.
513.325 Scope of debarment.

                          Subpart D_Suspension

513.400 General.
513.405 Causes for suspension.
513.410 Procedures.
513.411 Notice of suspension.
513.412 Opportunity to contest suspension.
513.413 Suspending official's decision.
513.415 Period of suspension.
513.420 Scope of suspension.

        Subpart E_Responsibilities of GSA, Board and Participants

513.500 GSA responsibilities.
513.505 Broadcasting Board of Governors responsibilities.
513.510 Participants' responsibilities.

           Subpart F_Drug-Free Workplace Requirements (Grants)

513.600 Purpose.
513.605 Definitions.
513.610 Coverage.

[[Page 121]]

513.615 Grounds for suspension of payments, suspension or termination of
          grants, or suspension or debarment.
513.620 Effect of violation.
513.625 Exception provision.
513.630 Certification requirements and procedures.
513.635 Reporting of and employee sanctions for convictions of criminal
          drug offenses.

Appendix A to Part 513--Certification Regarding Debarment, Suspension,
          and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 513--Certification Regarding Debarment, Suspension,
          Ineligibility and Voluntary Exclusion--Lower Tier Covered
          Transactions
Appendix C to Part 513--Certification Regarding Drug-Free Workplace
          Requirements

    Authority: 40 U.S.C. 486 (c); 41 U.S.C. 701 et seq.; Sec. 2455, Pub.
L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E. O. 12549, 3 CFR,
1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 comp., p. 235.

    Source: 53 FR 19179, 19204, May 26, 1988, unless otherwise noted.

    Cross Reference: See also Office of Management and Budget notice
published at 55 FR 21679, May 25, 1990, and 60 FR 33036, June 26, 1995.



                            Subpart A_General



Sec. 513.100  Purpose.

    (a) Executive Order (E.O.) 12549 provides that, to the extent
permitted by law, Executive departments and agencies shall participate
in a governmentwide system for nonprocurement debarment and suspension.
A person who is debarred or suspended shall be excluded from Federal
financial and nonfinancial assistance and benefits under Federal
programs and activities. Debarment or suspension of a participant in a
program by one agency shall have governmentwide effect.
    (b) These regulations implement section 3 of E.O. 12549 and the
guidelines promulgated by the Office of Management and Budget under
section 6 of the E.O. by:
    (1) Prescribing the programs and activities that are covered by the
governmentwide system;
    (2) Prescribing the governmentwide criteria and governmentwide
minimum due process procedures that each agency shall use;
    (3) Providing for the listing of debarred and suspended
participants, participants declared ineligible (see definition of
``ineligible'' in Sec. 513.105), and participants who have voluntarily
excluded themselves from participation in covered transactions;
    (4) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion; and
    (5) Offering such other guidance as necessary for the effective
implementation and administration of the governmentwide system.
    (c) These regulations also implement Executive Order 12689 (3 CFR,
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec.
2455, 108 Stat. 3327) by--
    (1) Providing for the inclusion in the List of Parties Excluded from
Federal Procurement and Nonprocurement Programs all persons proposed for
debarment, debarred or suspended under the Federal Acquisition
Regulation, 48 CFR Part 9, subpart 9.4; persons against which
governmentwide exclusions have been entered under this part; and persons
determined to be ineligible; and
    (2) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion.
    (d) Although these regulations cover the listing of ineligible
participants and the effect of such listing, they do not prescribe
policies and procedures governing declarations of ineligibility.

[60 FR 33040, 33045, June 26, 1995]



Sec. 513.105  Definitions.

    The following definitions apply to this part:
    Adequate evidence. Information sufficient to support the reasonable
belief that a particular act or omission has occurred.
    Affiliate. Persons are affiliates of each other if, directly or
indirectly, either one controls or has the power to control the other,
or, a third person controls or has the power to control both. Indicia of
control include, but are not limited to: interlocking management or
ownership, identity of interests among family members, shared facilities
and equipment, common use of

[[Page 122]]

employees, or a business entity organized following the suspension or
debarment of a person which has the same or similar management,
ownership, or principal employees as the suspended, debarred,
ineligible, or voluntarily excluded person.
    Agency. Any executive department, military department or defense
agency or other agency of the executive branch, excluding the
independent regulatory agencies.
    Civil judgment. The disposition of a civil action by any court of
competent jurisdiction, whether entered by verdict, decision,
settlement, stipulation, or otherwise creating a civil liability for the
wrongful acts complained of; or a final determination of liability under
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
    Conviction. A judgment or conviction of a criminal offense by any
court of competent jurisdiction, whether entered upon a verdict or a
plea, including a plea of nolo contendere.
    Debarment. An action taken by a debarring official in accordance
with these regulations to exclude a person from participating in covered
transactions. A person so excluded is ``debarred.''
    Debarring official. An official authorized to impose debarment. The
debarring official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    Indictment. Indictment for a criminal offense. An information or
other filing by competent authority charging a criminal offense shall be
given the same effect as an indictment.
    Ineligible. Excluded from participation in Federal nonprocurement
programs pursuant to a determination of ineligibility under statutory,
executive order, or regulatory authority, other than Executive Order
12549 and its agency implementing regulations; for exemple, excluded
pursuant to the Davis-Bacon Act and its implementing regulations, the
equal employment opportunity acts and executive orders, or the
environmental protection acts and executive orders. A person is
ineligible where the determination of ineligibility affects such
person's eligibility to participate in more than one covered
transaction.
    Legal proceedings. Any criminal proceeding or any civil judicial
proceeding to which the Federal Government or a State or local
government or quasi-governmental authority is a party. The term includes
appeals from such proceedings.
    List of Parties Excluded from Federal Procurement and Nonprocurement
Programs. A list compiled, maintained and distributed by the General
Services Administration (GSA) containing the names and other information
about persons who have been debarred, suspended, or voluntarily excluded
under Executive Orders 12549 and 12689 and these regulations or 48 CFR
part 9, subpart 9.4, persons who have been proposed for debarment under
48 CFR part 9, subpart 9.4, and those persons who have been determined
to be ineligible.
    Notice. A written communication served in person or sent by
certified mail, return receipt requested, or its equivalent, to the last
known address of a party, its identified counsel, its agent for service
of process, or any partner, officer, director, owner, or joint venturer
of the party. Notice, if undeliverable, shall be considered to have been
received by the addressee five days after being properly sent to the
last address known by the Board.
    Participant. Any person who submits a proposal for, enters into, or
reasonably may be expected to enter into a covered transaction. This
term also includes any person who acts on behalf of or is authorized to
commit a participant in a covered transaction as an agent or
representative of another participant.
    Person. Any individual, corporation, partnership, association, unit
of government or legal entity, however organized, except: foreign
governments or foreign governmental entities, public international
organizations, foreign government owned (in whole or in part) or
controlled entities, and entities consisting wholly or partially of
foreign governments or foreign governmental entities.
    Preponderance of the evidence. Proof by information that, compared
with

[[Page 123]]

that opposing it, leads to the conclusion that the fact at issue is more
probably true than not.
    Principal. Officer, director, owner, partner, key employee, or other
person within a participant with primary management or supervisory
responsibilities; or a person who has a critical influence on or
substantive control over a covered transaction, whether or not employed
by the participant. Persons who have a critical influence on or
substantive control over a covered transaction are:
    (1) Principal investigators.
    Proposal. A solicited or unsolicited bid, application, request,
invitation to consider or similar communication by or on behalf of a
person seeking to participate or to receive a benefit, directly or
indirectly, in or under a covered transaction.
    Respondent. A person against whom a debarment or suspension action
has been initiated.
    State. Any of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession
of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the State
government if it has a written determination from a State government
that such State considers that instrumentality to be an agency of the
State government.
    Suspending official. An official authorized to impose suspension.
The suspending official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    Suspension. An action taken by a suspending official in accordance
with these regulations that immediately excludes a person from
participating in covered transactions for a temporary period, pending
completion of an investigation and such legal, debarment, or Program
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded
is ``suspended.''
    Voluntary exclusion or voluntarily excluded. A status of
nonparticipation or limited participation in covered transactions
assumed by a person pursuant to the terms of a settlement.
    Broadcasting Board of Governors.

[53 FR 19204, 19179, May 26, 1988, as amended at 60 FR 33041, 33045,
June 26, 1995]



Sec. 513.110  Coverage.

    (a) These regulations apply to all persons who have participated,
are currently participating or may reasonably be expected to participate
in transactions under Federal nonprocurement programs. For purposes of
these regulations such transactions will be referred to as ``covered
transactions.''
    (1) Covered transaction. For purposes of these regulations, a
covered transaction is a primary covered transaction or a lower tier
covered transaction. Covered transactions at any tier need not involve
the transfer of Federal funds.
    (i) Primary covered transaction. Except as noted in paragraph (a)(2)
of this section, a primary covered transaction is any nonprocurement
transaction between an agency and a person, regardless of type,
including: grants, cooperative agreements, scholarships, fellowships,
contracts of assistance, loans, loan guarantees, subsidies, insurance,
payments for specified use, donation agreements and any other
nonprocurement transactions between a Federal agency and a person.
Primary covered transactions also include those transactions specially
designated by the U.S. Department of Housing and Urban Development in
such agency's regulations governing debarment and suspension.
    (ii) Lower tier covered transaction. A lower tier covered
transaction is:
    (A) Any transaction between a participant and a person other than a
procurement contract for goods or services, regardless of type, under a
primary covered transaction.
    (B) Any procurement contract for goods or services between a
participant and a person, regardless of type, expected to equal or
exceed the Federal procurement small purchase threshold fixed at 10
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary
covered transaction.
    (C) Any procurement contract for goods or services between a
participant

[[Page 124]]

and a person under a covered transaction, regardless of amount, under
which that person will have a critical influence on or substantive
control over that covered transaction. Such persons are:
    (1) Principal investigators.
    (2) Providers of federally-required audit services.
    (2) Exceptions. The following transactions are not covered:
    (i) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
    (ii) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, entities
consisting wholly or partially of foreign governments or foreign
governmental entities;
    (iii) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
    (iv) Federal employment;
    (v) Transactions pursuant to national or agency-recognized
emergencies or disasters;
    (vi) Incidental benefits derived from ordinary governmental
operations; and
    (vii) Other transactions where the application of these regulations
would be prohibited by law.
    (b) Relationship to other sections. This section describes the types
of transactions to which a debarment or suspension under the regulations
will apply. Subpart B, ``Effect of Action,'' 513.200, ``Debarment or
suspension,'' sets forth the consequences of a debarment or suspension.
Those consequences would obtain only with respect to participants and
principals in the covered transactions and activities described in
513.110(a). Sections 513.325, ``Scope of debarment,'' and 513.420,
``Scope of suspension,'' govern the extent to which a specific
participant or organizational elements of a participant would be
automatically included within a debarment or suspension action, and the
conditions under which affiliates or persons associated with a
participant may also be brought within the scope of the action.
    (c) Relationship to Federal procurement activities. In accordance
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment,
suspension, proposed debarment or other governmentwide exclusion
initiated under the Federal Acquisition Regulation (FAR) on or after
August 25, 1995 shall be recognized by and effective for Executive
Branch agencies and participants as an exclusion under this regulation.
Similarly, any debarment, suspension or other governmentwide exclusion
initiated under this regulation on or after August 25, 1995 shall be
recognized by and effective for those agencies as a debarment or
suspension under the FAR.

[53 FR 19179, 19204, May 26, 1988, as amended at 60 FR 33041, 33045,
June 26, 1995]



Sec. 513.115  Policy.

    (a) In order to protect the public interest, it is the policy of the
Federal Government to conduct business only with responsible persons.
Debarment and suspension are discretionary actions that, taken in
accordance with Executive Order 12549 and these regulations, are
appropriate means to implement this policy.
    (b) Debarment and suspension are serious actions which shall be used
only in the public interest and for the Federal Government's protection
and not for purposes of punishment. Agencies may impose debarment or
suspension for the causes and in accordance with the procedures set
forth in these regulations.
    (c) When more than one agency has an interest in the proposed
debarment or suspension of a person, consideration shall be given to
designating one agency as the lead agency for making the decision.
Agencies are encouraged to establish methods and procedures for
coordinating their debarment or suspension actions.



                       Subpart B_Effect of Action



Sec. 513.200  Debarment or suspension.

    (a) Primary covered transactions. Except to the extent prohibited by
law, persons who are debarred or suspended

[[Page 125]]

shall be excluded from primary covered transactions as either
participants or principals throughout the Executive Branch of the
Federal Government for the period of their debarment, suspension, or the
period they are proposed for debarment under 48 CFR part 9, subpart 9.4.
Accordingly, no agency shall enter into primary covered transactions
with such excluded persons during such period, except as permitted
pursuant to Sec. 513.215.
    (b) Lower tier covered transactions. Except to the extent prohibited
by law, persons who have been proposed for debarment under 48 CFR part
9, subpart 9.4, debarred or suspended shall be excluded from
participating as either participants or principals in all lower tier
covered transactions (see Sec. 513.110(a)(1)(ii)) for the period of
their exclusion.
    (c) Exceptions. Debarment or suspension does not affect a person's
eligibility for--
    (1) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
    (2) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, and
entities consisting wholly or partially of foreign governments or
foreign governmental entities;
    (3) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
    (4) Federal employment;
    (5) Transactions pursuant to national or agency-recognized
emergencies or disasters;
    (6) Incidental benefits derived from ordinary governmental
operations; and
    (7) Other transactions where the application of these regulations
would be prohibited by law.

[60 FR 33041, 33045, June 26, 1995]



Sec. 513.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec. 513.105(i), are
excluded in accordance with the applicable statutory, executive order,
or regulatory authority.



Sec. 513.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec. 513.315 are
excluded in accordance with the terms of their settlements. Broadcasting
Board of Governors shall, and participants may, contact the original
action agency to ascertain the extent of the exclusion.



Sec. 513.215  Exception provision.

    may grant an exception permitting a debarred, suspended, or
voluntarily excluded person, or a person proposed for debarment under 48
CFR part 9, subpart 9.4, to participate in a particular covered
transaction upon a written determination by the agency head or an
authorized designee stating the reason(s) for deviating from the
Presidential policy established by Executive Order 12549 and Sec.
513.200. However, in accordance with the President's stated intention in
the Executive Order, exceptions shall be granted only infrequently.
Exceptions shall be reported in accordance with Sec. 513.505(a).

[60 FR 33041, 33045, June 26, 1995]



Sec. 513.220  Continuation of covered transactions.

    (a) Notwithstanding the debarment, suspension, proposed debarment
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or
voluntary exclusion of any person by an agency, agencies and
participants may continue covered transactions in existence at the time
the person was debarred, suspended, proposed for debarment under 48 CFR
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A
decision as to the type of termination action, if any, to be taken
should be made only after thorough review to ensure the propriety of the
proposed action.
    (b) Agencies and participants shall not renew or extend covered
transactions (other than no-cost time extensions) with any person who is
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart
9.4, ineligible or voluntary excluded, except as provided in Sec.
513.215.

[60 FR 33041, 33045, June 26, 1995]

[[Page 126]]



Sec. 513.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec. 513.215 or Sec. 513.220, a
participant shall not knowingly do business under a covered transaction
with a person who is--
    (1) Debarred or suspended;
    (2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
    (3) Ineligible for or voluntarily excluded from the covered
transaction.
    (b) Violation of the restriction under paragraph (a) of this section
may result in disallowance of costs, annulment or termination of award,
issuance of a stop work order, debarment or suspension, or other
remedies as appropriate.
    (c) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, proposed for debarment under 48
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the
covered transaction (See appendix B of these regulations), unless it
knows that the certification is erroneous. An agency has the burden of
proof that a participant did knowingly do business with a person that
filed an erroneous certification.

[60 FR 33041, 33045, June 26, 1995]



                           Subpart C_Debarment



Sec. 513.300  General.

    The debarring official may debar a person for any of the causes in
Sec. 513.30, using procedures established in Sec. Sec. 513.310 through
513.314. The existence of a cause for debarment, however, does not
necessarily require that the person be debarred; the seriousness of the
person's acts or omissions and any mitigating factors shall be
considered in making any debarment decision.



Sec. 513.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of
Sec. Sec. 513.300 through 513.314 for:
    (a) Conviction of or civil judgment for:
    (1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, or obstruction of
justice; or
    (4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present responsibility of a person.
    (b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of an agency program, such as:
    (1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction.
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before
October 1, 1988, the effective date of these regulations, or a
procurement debarment by any Federal agency taken pursuant to 48 CFR
subpart 9.4;
    (2) Knowingly doing business with a debarred, suspended, ineligible,
or voluntarily excluded person, in connection with a covered
transaction, except as permitted in Sec. 513.215 or Sec. 513.220;
    (3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;

[[Page 127]]

    (4) Violation of a material provision of a voluntary exclusion
agreement entered into under Sec. 513.315 or of any settlement of a
debarment or suspension action; or
    (5) Violation of any requirement of subpart F of this part, relating
to providing a drug-free workplace, as set forth in Sec. 513.615 of
this part.
    (d) Any other cause of so serious or compelling a nature that it
affects the present responsibility of a person.

[53 FR 19179, 19204, May 26, 1988, as amended at 54 FR 4950, 4955, Jan.
31, 1989]



Sec. 513.310  Procedures.

    Broadcasting Board of Governors shall process debarment actions as
informally as practicable, consistent with the principles of fundamental
fairness, using the procedures in Sec. Sec. 513.311 through 513.314.



Sec. 513.311  Investigation and referral.

    Information concerning the existence of a cause for debarment from
any source shall be promptly reported, investigated, and referred, when
appropriate, to the debarring official for consideration. After
consideration, the debarring official may issue a notice of proposed
debarment.



Sec. 513.312  Notice of proposed debarment.

    A debarment proceeding shall be initiated by notice to the
respondent advising:
    (a) That debarment is being considered;
    (b) Of the reasons for the proposed debarment in terms sufficient to
put the respondent on notice of the conduct or transaction(s) upon which
it is based;
    (c) Of the cause(s) relied upon under Sec. 513.305 for proposing
debarment;
    (d) Of the provisions of Sec. 513.311 through Sec. 513.314, and
any other Broadcasting Board of Governors procedures, if applicable,
governing debarment decisionmaking; and
    (e) Of the potential effect of a debarment.



Sec. 513.313  Opportunity to contest proposed debarment.

    (a) Submission in opposition. Within 30 days after receipt of the
notice of proposed debarment, the respondent may submit, in person, in
writing, or through a representative, information and argument in
opposition to the proposed debarment.
    (b) Additional proceedings as to disputed material facts. (1) In
actions not based upon a conviction or civil judgment, if the debarring
official finds that the respondent's submission in opposition raises a
genuine dispute over facts material to the proposed debarment,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents.
    (2) A transcribed record of any additional proceedings shall be made
available at cost to the respondent, upon request, unless the respondent
and the agency, by mutual agreement, waive the requirement for a
transcript.



Sec. 513.314  Debarring official's decision.

    (a) No additional proceedings necessary. In actions based upon a
conviction or civil judgment, or in which there is no genuine dispute
over material facts, the debarring official shall make a decision on the
basis of all the information in the administrative record, including any
submission made by the respondent. The decision shall be made within 45
days after receipt of any information and argument submitted by the
respondent, unless the debarring official extends this period for good
cause.
    (b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The debarring
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
    (2) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may reject
any such findings, in whole or in part, only after specifically
determining them to be arbitrary and capricious or clearly erroneous.
    (3) The debarring official's decision shall be made after the
conclusion of

[[Page 128]]

the proceedings with respect to disputed facts.
    (c)(1) Standard of proof. In any debarment action, the cause for
debarment must be established by a preponderance of the evidence. Where
the proposed debarment is based upon a conviction or civil judgment, the
standard shall be deemed to have been met.
    (2) Burden of proof. The burden of proof is on the agency proposing
debarment.
    (d) Notice of debarring official's decision. (1) If the debarring
official decides to impose debarment, the respondent shall be given
prompt notice:
    (i) Referring to the notice of proposed debarment;
    (ii) Specifying the reasons for debarment;
    (iii) Stating the period of debarment, including effective dates;
and
    (iv) Advising that the debarment is effective for covered
transactions throughout the executive branch of the Federal Government
unless an agency head or an authorized designee makes the determination
referred to in Sec. 513.215.
    (2) If the debarring official decides not to impose debarment, the
respondent shall be given prompt notice of that decision. A decision not
to impose debarment shall be without prejudice to a subsequent
imposition of debarment by any other agency.



Sec. 513.315  Settlement and voluntary exclusion.

    (a) When in the best interest of the Government, Broadcasting Board
of Governors may, at any time, settle a debarment or suspension action.
    (b) If a participant and the Board agree to a voluntary exclusion of
the participant, such voluntary exclusion shall be entered on the
Nonprocurement List (see subpart E).



Sec. 513.320  Period of debarment.

    (a) Debarment shall be for a period commensurate with the
seriousness of the cause(s). If a suspension precedes a debarment, the
suspension period shall be considered in determining the debarment
period.
    (1) Debarment for causes other than those related to a violation of
the requirements of subpart F of this part generally should not exceed
three years. Where circumstances warrant, a longer period of debarment
may be imposed.
    (2) In the case of a debarment for a violation of the requirements
of subpart F of this part (see 513.305(c)(5)), the period of debarment
shall not exceed five years.
    (b) The debarring official may extend an existing debarment for an
additional period, if that official determines that an extension is
necessary to protect the public interest. However, a debarment may not
be extended solely on the basis of the facts and circumstances upon
which the initial debarment action was based. If debarment for an
additional period is determined to be necessary, the procedures of
Sec. Sec. 513.311 through 513.314 shall be followed to extend the
debarment.
    (c) The respondent may request the debarring official to reverse the
debarment decision or to reduce the period or scope of debarment. Such a
request shall be in writing and supported by documentation. The
debarring official may grant such a request for reasons including, but
not limited to:
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or civil judgment upon which the
debarment was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed;
or
    (5) Other reasons the debarring official deems appropriate.

[53 FR 19179, 19204, May 26, 1988, as amended at 54 FR 4950, 4955, Jan.
31, 1989]



Sec. 513.325  Scope of debarment.

    (a) Scope in general. (1) Debarment of a person under these
regulations constitutes debarment of all its divisions and other
organizational elements from all covered transactions, unless the
debarment decision is limited by its terms to one or more specifically
identified individuals, divisions or other organizational elements or to
specific types of transactions.
    (2) The debarment action may include any affiliate of the
participant that is specifically named and given notice of the proposed
debarment and

[[Page 129]]

an opportunity to respond (see Sec. Sec. 513.311 through 513.314).
    (b) Imputing conduct. For purposes of determining the scope of
debarment, conduct may be imputed as follows:
    (1) Conduct imputed to participant. The fraudulent, criminal or
other seriously improper conduct of any officer, director, shareholder,
partner, employee, or other individual associated with a participant may
be imputed to the participant when the conduct occurred in connection
with the individual's performance of duties for or on behalf of the
participant, or with the participant's knowledge, approval, or
acquiescence. The participant's acceptance of the benefits derived from
the conduct shall be evidence of such knowledge, approval, or
acquiescence.
    (2) Conduct imputed to individuals associated with participant. The
fraudulent, criminal, or other seriously improper conduct of a
participant may be imputed to any officer, director, shareholder,
partner, employee, or other individual associated with the participant
who participated in, knew of, or had reason to know of the participant's
conduct.
    (3) Conduct of one participant imputed to other participants in a
joint venture. The fraudulent, criminal, or other seriously improper
conduct of one participant in a joint venture, grant pursuant to a joint
application, or similar arrangement may be imputed to other participants
if the conduct occurred for or on behalf of the joint venture, grant
pursuant to a joint application, or similar arrangement may be imputed
to other participants if the conduct occurred for or on behalf of the
joint venture, grant pursuant to a joint application, or similar
arrangement or with the knowledge, approval, or acquiescence of these
participants. Acceptance of the benefits derived from the conduct shall
be evidence of such knowledge, approval, or acquiescence.



                          Subpart D_Suspension



Sec. 513.400  General.

    (a) The suspending official may suspend a person for any of the
causes in Sec. 513.405 using procedures established in Sec. Sec.
513.410 through 513.413.
    (b) Suspension is a serious action to be imposed only when:
    (1) There exists adequate evidence of one or more of the causes set
out in Sec. 513.405, and
    (2) Immediate action is necessary to protect the public interest.
    (c) In assessing the adequacy of the evidence, the Board should
consider how much information is available, how credible it is given the
circumstances, whether or not important allegations are corroborated,
and what inferences can reasonably be drawn as a result. This assessment
should include an examination of basic documents such as grants,
cooperative agreements, loan authorizations, and contracts.



Sec. 513.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of
Sec. Sec. 513.400 through 513.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in Sec.
513.305(a); or
    (2) That a cause for debarment under Sec. 513.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of
suspension actions.



Sec. 513.410  Procedures.

    (a) Investigation and referral. Information concerning the existence
of a cause for suspension from any source shall be promptly reported,
investigated, and referred, when appropriate, to the suspending official
for consideration. After consideration, the suspending official may
issue a notice of suspension.
    (b) Decisionmaking process. Broadcasting Board of Governors shall
process suspension actions as informally as practicable, consistent with
principles of fundamental fairness, using the procedures in Sec.
513.411 through Sec. 513.413.



Sec. 513.411  Notice of suspension.

    When a respondent is suspended, notice shall immediately be given:
    (a) That suspension has been imposed;
    (b) That the suspension is based on an indictment, conviction, or
other adequate evidence that the respondent has committed irregularities
seriously

[[Page 130]]

reflecting on the propriety of further Federal Government dealings with
the respondent;
    (c) Describing any such irregularities in terms sufficient to put
the respondent on notice without disclosing the Federal Government's
evidence;
    (d) Of the cause(s) relied upon under Sec. 513.405 for imposing
suspension;
    (e) That the suspension is for a temporary period pending the
completion of an investigation or ensuing legal, debarment, or Program
Fraud Civil Remedies Act proceedings;
    (f) Of the provisions of Sec. 513.411 through Sec. 513.413 and any
other Broadcasting Board of Governors procedures, if applicable,
governing suspension decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 513.412  Opportunity to contest suspension.

    (a) Submission in opposition. Within 30 days after receipt of the
notice of suspension, the respondent may submit, in person, in writing,
or through a representative, information and argument in opposition to
the suspension.
    (b) Additional proceedings as to disputed material facts. (1) If the
suspending official finds that the respondent's submission in opposition
raises a genuine dispute over facts material to the suspension,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the Board presents, unless:
    (i) The action is based on an indictment, conviction or civil
judgment, or
    (ii) A determination is made, on the basis of Department of Justice
advice, that the substantial interests of the Federal Government in
pending or contemplated legal proceedings based on the same facts as the
suspension would be prejudiced.
    (2) A transcribed record of any additional proceedings shall be
prepared and made available at cost to the respondent, upon request,
unless the respondent and the Board, by mutual agreement, waive the
requirement for a transcript.



Sec. 513.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for
example, see Sec. 513.320(c) for reasons for reducing the period or
scope of debarment) or may leave it in force. However, a decision to
modify or terminate the suspension shall be without prejudice to the
subsequent imposition of suspension by any other agency or debarment by
any agency. The decision shall be rendered in accordance with the
following provisions:
    (a) No additional proceedings necessary. In actions: based on an
indictment, conviction, or civil judgment; in which there is no genuine
dispute over material facts; or in which additional proceedings to
determine disputed material facts have been denied on the basis of
Department of Justice advice, the suspending official shall make a
decision on the basis of all the information in the administrative
record, including any submission made by the respondent. The decision
shall be made within 45 days after receipt of any information and
argument submitted by the respondent, unless the suspending official
extends this period for good cause.
    (b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The suspending
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
    (2) The suspending official may refer matters involving disputed
material facts to another official for findings of fact. The suspending
official may reject any such findings, in whole or in part, only after
specifically determining them to be arbitrary or capricious or clearly
erroneous.
    (c) Notice of suspending official's decision. Prompt written notice
of the suspending official's decision shall be sent to the respondent.



Sec. 513.415  Period of suspension.

    (a) Suspension shall be for a temporary period pending the
completion

[[Page 131]]

of an investigation or ensuing legal, debarment, or Program Fraud Civil
Remedies Act proceedings, unless terminated sooner by the suspending
official or as provided in paragraph (b) of this section.
    (b) If legal or administrative proceedings are not initiated within
12 months after the date of the suspension notice, the suspension shall
be terminated unless an Assistant Attorney General or United States
Attorney requests its extension in writing, in which case it may be
extended for an additional six months. In no event may a suspension
extend beyond 18 months, unless such proceedings have been initiated
within that period.
    (c) The suspending official shall notify the Department of Justice
of an impending termination of a suspension, at least 30 days before the
12-month period expires, to give that Department an opportunity to
request an extension.



Sec. 513.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment
(see Sec. 513.325), except that the procedures of Sec. Sec. 513.410
through 513.413 shall be used in imposing a suspension.



        Subpart E_Responsibilities of GSA, Board and Participants



Sec. 513.500  GSA responsibilities.

    (a) In accordance with the OMB guidelines, GSA shall compile,
maintain, and distribute a list of all persons who have been debarred,
suspended, or voluntarily excluded by agencies under Executive Order
12549 and these regulations, and those who have been determined to be
ineligible.
    (b) At a minimum, this list shall indicate:
    (1) The names and addresses of all debarred, suspended, ineligible,
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;
    (5) Any termination date for each listing; and
    (6) The agency and name and telephone number of the agency point of
contact for the action.



Sec. 513.505  Broadcasting Board of Governors responsibilities.

    (a) The Board shall provide GSA with current information concerning
debarments, suspension, determinations of ineligibility, and voluntary
exclusions it has taken. Until February 18, 1989, the Board shall also
provide GSA and OMB with information concerning all transactions in
which Broadcasting Board of Governors has granted exceptions under Sec.
513.215 permitting participation by debarred, suspended, or voluntarily
excluded persons.
    (b) Unless an alternative schedule is agreed to by GSA, the Board
shall advise GSA of the information set forth in Sec. 513.500(b) and of
the exceptions granted under Sec. 513.215 within five working days
after taking such actions.
    (c) The Board shall direct inquiries concerning listed persons to
the agency that took the action.
    (d) Board officials shall check the Nonprocurement List before
entering covered transactions to determine whether a participant in a
primary transaction is debarred, suspended, ineligible, or voluntarily
excluded (Tel. ).
    (e) Board officials shall check the Nonprocurement List before
approving principals or lower tier participants where Board approval of
the principal or lower tier participant is required under the terms of
the transaction, to determine whether such principals or participants
are debarred, suspended, ineligible, or voluntarily excluded.



Sec. 513.510  Participants' responsibilities.

    (a) Certification by participants in primary covered transactions.
Each participant shall submit the certification in appendix A to this
part for it and its principals at the time the participant submits its
proposal in connection with a primary covered transaction, except that
States need only complete such certification as to their principals.
Participants may decide the method and frequency by which they determine
the eligibility of their principals. In

[[Page 132]]

addition, each participant may, but is not required to, check the
Nonprocurement List for its principals (Tel. ). Adverse
information on the certification will not necessarily result in denial
of participation. However, the certification, and any additional
information pertaining to the certification submitted by the
participant, shall be considered in the administration of covered
transactions.
    (b) Certification by participants in lower tier covered
transactions. (1) Each participant shall require participants in lower
tier covered transactions to include the certification in appendix B to
this part for it and its principals in any proposal submitted in
connection with such lower tier covered transactions.
    (2) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction by any Federal agency, unless it
knows that the certification is erroneous. Participants may decide the
method and frequency by which they determine the eligiblity of their
principals. In addition, a participant may, but is not required to,
check the Nonprocurement List for its principals and for participants
(Tel. ).
    (c) Changed circumstances regarding certification. A participant
shall provide immediate written notice to Broadcasting Board of
Governors if at any time the participant learns that its certification
was erroneous when submitted or has become erroneous by reason of
changed circumstances. Participants in lower tier covered transactions
shall provide the same updated notice to the participant to which it
submitted its proposals.



           Subpart F_Drug-Free Workplace Requirements (Grants)

    Source: 55 FR 21688, 21694, May 25, 1990, unless otherwise noted.



Sec. 513.600  Purpose.

    (a) The purpose of this subpart is to carry out the Drug-Free
Workplace Act of 1988 by requiring that--
    (1) A grantee, other than an individual, shall certify to the Board
that it will provide a drug-free workplace;
    (2) A grantee who is an individual shall certify to the Board that,
as a condition of the grant, he or she will not engage in the unlawful
manufacture, distribution, dispensing, possession or use of a controlled
substance in conducting any activity with the grant.
    (b) Requirements implementing the Drug-Free Workplace Act of 1988
for contractors with the Board are found at 48 CFR subparts 9.4, 23.5,
and 52.2.



Sec. 513.605  Definitions.

    (a) Except as amended in this section, the definitions of Sec.
513.105 apply to this subpart.
    (b) For purposes of this subpart--
    (1) Controlled substance means a controlled substance in schedules I
through V of the Controlled Substances Act (21 U.S.C. 812), and as
further defined by regulation at 21 CFR 1308.11 through 1308.15;
    (2) Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
    (3) Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
    (4) Drug-free workplace means a site for the performance of work
done in connection with a specific grant at which employees of the
grantee are prohibited from engaging in the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance;
    (5) Employee means the employee of a grantee directly engaged in the
performance of work under the grant, including:
    (i) All direct charge employees;
    (ii) All indirect charge employees, unless their impact or
involvement is insignificant to the performance of the grant; and,
    (iii) Temporary personnel and consultants who are directly engaged
in the performance of work under the

[[Page 133]]

grant and who are on the grantee's payroll.


This definition does not include workers not on the payroll of the
grantee (e.g., volunteers, even if used to meet a matching requirement;
consultants or independent contractors not on the payroll; or employees
of subrecipients or subcontractors in covered workplaces);
    (6) Federal agency or agency means any United States executive
department, military department, government corporation, government
controlled corporation, any other establishment in the executive branch
(including the Executive Office of the President), or any independent
regulatory agency;
    (7) Grant means an award of financial assistance, including a
cooperative agreement, in the form of money, or property in lieu of
money, by a Federal agency directly to a grantee. The term grant
includes block grant and entitlement grant programs, whether or not
exempted from coverage under the grants management government-wide
common rule on uniform administrative requirements for grants and
cooperative agreements. The term does not include technical assistance
that provides services instead of money, or other assistance in the form
of loans, loan guarantees, interest subsidies, insurance, or direct
appropriations; or any veterans' benefits to individuals, i.e., any
benefit to veterans, their families, or survivors by virtue of the
service of a veteran in the Armed Forces of the United States;
    (8) Grantee means a person who applies for or receives a grant
directly from a Federal agency (except another Federal agency);
    (9) Individual means a natural person;
    (10) State means any of the States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the State
government if it has a written determination from a State government
that such State considers the instrumentality to be an agency of the
State government.



Sec. 513.610  Coverage.

    (a) This subpart applies to any grantee of the Board.
    (b) This subpart applies to any grant, except where application of
this subpart would be inconsistent with the international obligations of
the United States or the laws or regulations of a foreign government. A
determination of such inconsistency may be made only by the Board head
or his/her designee.
    (c) The provisions of subparts A, B, C, D and E of this part apply
to matters covered by this subpart, except where specifically modified
by this subpart. In the event of any conflict between provisions of this
subpart and other provisions of this part, the provisions of this
subpart are deemed to control with respect to the implementation of
drug-free workplace requirements concerning grants.



Sec. 513.615  Grounds for suspension of payments, suspension or
termination of grants, or suspension or debarment.

    A grantee shall be deemed in violation of the requirements of this
subpart if the Board head or his or her official designee determines, in
writing, that--
    (a) The grantee has made a false certification under Sec. 513.630;
    (b) With respect to a grantee other than an individual--
    (1) The grantee has violated the certification by failing to carry
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the
certification (Alternate I to appendix C) or
    (2) Such a number of employees of the grantee have been convicted of
violations of criminal drug statutes for violations occurring in the
workplace as to indicate that the grantee has failed to make a good
faith effort to provide a drug-free workplace.
    (c) With respect to a grantee who is an individual--
    (1) The grantee has violated the certification by failing to carry
out its requirements (Alternate II to appendix C); or

[[Page 134]]

    (2) The grantee is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any grant activity.



Sec. 513.620  Effect of violation.

    (a) In the event of a violation of this subpart as provided in Sec.
513.615, and in accordance with applicable law, the grantee shall be
subject to one or more of the following actions:
    (1) Suspension of payments under the grant;
    (2) Suspension or termination of the grant; and
    (3) Suspension or debarment of the grantee under the provisions of
this part.
    (b) Upon issuance of any final decision under this part requiring
debarment of a grantee, the debarred grantee shall be ineligible for
award of any grant from any Federal agency for a period specified in the
decision, not to exceed five years (see Sec. 513.320(a)(2) of this
part).



Sec. 513.625  Exception provision.

    The Board head may waive with respect to a particular grant, in
writing, a suspension of payments under a grant, suspension or
termination of a grant, or suspension or debarment of a grantee if the
Board head determines that such a waiver would be in the public
interest. This exception authority cannot be delegated to any other
official.



Sec. 513.630  Certification requirements and procedures.

    (a)(1) As a prior condition of being awarded a grant, each grantee
shall make the appropriate certification to the Federal agency providing
the grant, as provided in appendix C to this part.
    (2) Grantees are not required to make a certification in order to
continue receiving funds under a grant awarded before March 18, 1989, or
under a no-cost time extension of such a grant. However, the grantee
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
    (b) Except as provided in this section, all grantees shall make the
required certification for each grant. For mandatory formula grants and
entitlements that have no application process, grantees shall submit a
one-time certification in order to continue receiving awards.
    (c) A grantee that is a State may elect to make one certification in
each Federal fiscal year. States that previously submitted an annual
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. Except as provided in paragraph (d) of this
section, this certification shall cover all grants to all State agencies
from any Federal agency. The State shall retain the original of this
statewide certification in its Governor's office and, prior to grant
award, shall ensure that a copy is submitted individually with respect
to each grant, unless the Federal agency has designated a central
location for submission.
    (d)(1) The Governor of a State may exclude certain State agencies
from the statewide certification and authorize these agencies to submit
their own certifications to Federal agencies. The statewide
certification shall name any State agencies so excluded.
    (2) A State agency to which the statewide certification does not
apply, or a State agency in a State that does not have a statewide
certification, may elect to make one certification in each Federal
fiscal year. State agencies that previously submitted a State agency
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. The State agency shall retain the original of
this State agency-wide certification in its central office and, prior to
grant award, shall ensure that a copy is submitted individually with
respect to each grant, unless the Federal agency designates a central
location for submission.
    (3) When the work of a grant is done by more than one State agency,
the certification of the State agency directly receiving the grant shall
be deemed to certify compliance for all workplaces, including those
located in other State agencies.
    (e)(1) For a grant of less than 30 days performance duration,
grantees shall have this policy statement and program in place as soon
as possible, but

[[Page 135]]

in any case by a date prior to the date on which performance is expected
to be completed.
    (2) For a grant of 30 days or more performance duration, grantees
shall have this policy statement and program in place within 30 days
after award.
    (3) Where extraordinary circumstances warrant for a specific grant,
the grant officer may determine a different date on which the policy
statement and program shall be in place.



Sec. 513.635  Reporting of and employee sanctions for convictions of
criminal drug offenses.

    (a) When a grantee other than an individual is notified that an
employee has been convicted for a violation of a criminal drug statute
occurring in the workplace, it shall take the following actions:
    (1) Within 10 calendar days of receiving notice of the conviction,
the grantee shall provide written notice, including the convicted
employee's position title, to every grant officer, or other designee on
whose grant activity the convicted employee was working, unless a
Federal agency has designated a central point for the receipt of such
notifications. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.
    (2) Within 30 calendar days of receiving notice of the conviction,
the grantee shall do the following with respect to the employee who was
convicted.
    (i) Take appropriate personnel action against the employee, up to
and including termination, consistent with requirements of the
Rehabilitation Act of 1973, as amended; or
    (ii) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency.
    (b) A grantee who is an individual who is convicted for a violation
of a criminal drug statute occurring during the conduct of any grant
activity shall report the conviction, in writing, within 10 calendar
days, to his or her Federal agency grant officer, or other designee,
unless the Federal agency has designated a central point for the receipt
of such notices. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.

(Approved by the Office of Management and Budget under control number
0991-0002)



    Sec. Appendix A to Part 513--Certification Regarding Debarment,
     Suspension, and Other Responsibility Matters--Primary Covered
                              Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective primary
participant is providing the certification set out below.
    2. The inability of a person to provide the certification required
below will not necessarily result in denial of participation in this
covered transaction. The prospective participant shall submit an
explanation of why it cannot provide the certification set out below.
The certification or explanation will be considered in connection with
the department or Board's determination whether to enter into this
transaction. However, failure of the prospective primary participant to
furnish a certification or an explanation shall disqualify such person
from participation in this transaction.
    3. The certification in this clause is a material representation of
fact upon which reliance was placed when the department or Board
determined to enter into this transaction. If it is later determined
that the prospective primary participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal
Government, the department or Board may terminate this transaction for
cause or default.
    4. The prospective primary participant shall provide immediate
written notice to the department or Board to which this proposal is
submitted if at any time the prospective primary participant learns that
its certification was erroneous when submitted or has become erroneous
by reason of changed circumstances.
    5. The terms covered transaction, debarred, suspended, ineligible,
lower tier covered transaction, participant, person, primary covered
transaction, principal, proposal, and voluntarily excluded, as used in
this clause, have the meanings set out in the Definitions and Coverage
sections of the rules implementing Executive Order 12549. You may
contact the department or Board to which this proposal is being
submitted for assistance in obtaining a copy of those regulations.
    6. The prospective primary participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter

[[Page 136]]

into any lower tier covered transaction with a person who is proposed
for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended,
declared ineligible, or voluntarily excluded from participation in this
covered transaction, unless authorized by the department or Board
entering into this transaction.
    7. The prospective primary participant further agrees by submitting
this proposal that it will include the clause titled ``Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or Board
entering into this covered transaction, without modification, in all
lower tier covered transactions and in all solicitations for lower tier
covered transactions.
    8. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not proposed for debarment under 48 CFR part 9,
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded
from the covered transaction, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but
is not required to, check the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs.
    9. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
    10. Except for transactions authorized under paragraph 6 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is proposed for
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred,
ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or Board may terminate this transaction for
cause or default.

Certification Regarding Debarment, Suspension, and Other Responsibility
                  Matters--Primary Covered Transactions

    (1) The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
    (a) Are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded by any Federal department
or Board;
    (b) Have not within a three-year period preceding this proposal been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State or local)
transaction or contract under a public transaction; violation of Federal
or State antitrust statutes or commission of embezzlement, theft,
forgery, bribery, falsification or destruction of records, making false
statements, or receiving stolen property;
    (c) Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph (1)(b) of this
certification; and
    (d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local)
terminated for cause or default.
    (2) Where the prospective primary participant is unable to certify
to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.

[60 FR 33042, 33045, June 26, 1995]



    Sec. Appendix B to Part 513--Certification Regarding Debarment,
 Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Covered
                              Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective lower
tier participant is providing the certification set out below.
    2. The certification in this clause is a material representation of
fact upon which reliance was placed when this transaction was entered
into. If it is later determined that the prospective lower tier
participant knowingly rendered an erroneous certification, in addition
to other remedies available to the Federal Government the department or
Board with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
    3. The prospective lower tier participant shall provide immediate
written notice to the person to which this proposal is submitted if at
any time the prospective lower tier participant learns that its
certification was erroneous when submitted or had become erroneous by
reason of changed circumstances.
    4. The terms covered transaction, debarred, suspended, ineligible,
lower tier covered transaction, participant, person, primary covered
transaction, principal, proposal, and voluntarily excluded, as used in
this clause, have the meaning set out in the Definitions and

[[Page 137]]

Coverage sections of rules implementing Executive Order 12549. You may
contact the person to which this proposal is submitted for assistance in
obtaining a copy of those regulations.
    5. The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is proposed for debarment under 48 CFR part 9, subpart
9.4, debarred, suspended, declared ineligible, or voluntarily excluded
from participation in this covered transaction, unless authorized by the
department or Board with which this transaction originated.
    6. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
``Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion-Lower Tier Covered Transaction,'' without
modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
    7. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not proposed for debarment under 48 CFR part 9,
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded
from covered transactions, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but
is not required to, check the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs.
    8. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
    9. Except for transactions authorized under paragraph 5 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is proposed for
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred,
ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or Board with which this transaction
originated may pursue available remedies, including suspension and/or
debarment.

    Certification Regarding Debarment, Suspension, Ineligibility an
          Voluntary Exclusion--Lower Tier Covered Transactions

    (1) The prospective lower tier participant certifies, by submission
of this proposal, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from participation in this transaction by any
Federal department or agency.
    (2) Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.

[60 FR 33042, 33045, June 26, 1995]



Sec. Appendix C to Part 513--Certification Regarding Drug-Free Workplace
                              Requirements

                     Instructions for Certification

    1. By signing and/or submitting this application or grant agreement,
the grantee is providing the certification set out below.
    2. The certification set out below is a material representation of
fact upon which reliance is placed when the Board awards the grant. If
it is later determined that the grantee knowingly rendered a false
certification, or otherwise violates the requirements of the Drug-Free
Workplace Act, the Board, in addition to any other remedies available to
the Federal Government, may take action authorized under the Drug-Free
Workplace Act.
    3. For grantees other than individuals, Alternate I applies.
    4. For grantees who are individuals, Alternate II applies.
    5. Workplaces under grants, for grantees other than individuals,
need not be identified on the certification. If known, they may be
identified in the grant application. If the grantee does not identify
the workplaces at the time of application, or upon award, if there is no
application, the grantee must keep the identity of the workplace(s) on
file in its office and make the information available for Federal
inspection. Failure to identify all known workplaces constitutes a
violation of the grantee's drug-free workplace requirements.
    6. Workplace identifications must include the actual address of
buildings (or parts of buildings) or other sites where work under the
grant takes place. Categorical descriptions may be used (e.g., all
vehicles of a mass transit authority or State highway department while
in operation, State employees in each local unemployment office,
performers in concert halls or radio studios).
    7. If the workplace identified to the Board changes during the
performance of the grant, the grantee shall inform the Board of the

[[Page 138]]

change(s), if it previously identified the workplaces in question (see
paragraph five).
    8. Definitions of terms in the Nonprocurement Suspension and
Debarment common rule and Drug-Free Workplace common rule apply to this
certification. Grantees' attention is called, in particular, to the
following definitions from these rules:
    Controlled substance means a controlled substance in Schedules I
through V of the Controlled Substances Act (21 U.S.C. 812) and as
further defined by regulation (21 CFR 1308.11 through 1308.15);
    Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
    Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
    Employee means the employee of a grantee directly engaged in the
performance of work under a grant, including: (i) All direct charge
employees; (ii) All indirect charge employees unless their impact or
involvement is insignificant to the performance of the grant; and, (iii)
Temporary personnel and consultants who are directly engaged in the
performance of work under the grant and who are on the grantee's
payroll. This definition does not include workers not on the payroll of
the grantee (e.g., volunteers, even if used to meet a matching
requirement; consultants or independent contractors not on the grantee's
payroll; or employees of subrecipients or subcontractors in covered
workplaces.

        Certification Regarding Drug-Free Workplace Requirements

             Alternate I. (Grantees Other Than Individuals)

    A. The grantee certifies that it will or will continue to provide a
drug-free workplace by:
    (a) Publishing a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in the grantee's workplace and
specifying the actions that will be taken against employees for
violation of such prohibition;
    b) Establishing an ongoing drug-free awareness program to inform
employees about--
    (1) The dangers of drug abuse in the workplace;
    (2) The grantee's policy of maintaining a drug-free workplace;
    (3) Any available drug counseling, rehabilitation, and employee
assistance programs; and
    (4) The penalties that may be imposed upon employees for drug abuse
violations occurring in the workplace;
    (c) Making it a requirement that each employee to be engaged in the
performance of the grant be given a copy of the statement required by
paragraph (a);
    (d) Notifying the employee in the statement required by paragraph
(a) that, as a condition of employment under the grant, the employee
will--
    (1) Abide by the terms of the statement; and
    (2) Notify the employer in writing of his or her conviction for a
violation of a criminal drug statute occurring in the workplace no later
than five calendar days after such conviction;
    (e) Notifying the Board in writing, within ten calendar days after
receiving notice under paragraph (d)(2) from an employee or otherwise
receiving actual notice of such conviction. Employers of convicted
employees must provide notice, including position title, to every grant
officer or other designee on whose grant activity the convicted employee
was working, unless the Federal agency has designated a central point
for the receipt of such notices. Notice shall include the identification
number(s) of each affected grant;
    (f) Taking one of the following actions, within 30 calendar days of
receiving notice under paragraph (d)(2), with respect to any employee
who is so convicted--
    (1) Taking appropriate personnel action against such an employee, up
to and including termination, consistent with the requirements of the
Rehabilitation Act of 1973, as amended; or
    (2) Requiring such employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency;
    (g) Making a good faith effort to continue to maintain a drug-free
workplace through implementation of paragraphs (a), (b), (c), (d), (e)
and (f).
    B. The grantee may insert in the space provided below the site(s)
for the performance of work done in connection with the specific grant:

Place of Performance (Street address, city, county, state, zip code)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

Check [squ] if there are workplaces on file that are not identified
here.

              Alternate II. (Grantees Who Are Individuals)

    (a) The grantee certifies that, as a condition of the grant, he or
she will not engage in the unlawful manufacture, distribution,

[[Page 139]]

dispensing, possession, or use of a controlled substance in conducting
any activity with the grant;
    (b) If convicted of a criminal drug offense resulting from a
violation occurring during the conduct of any grant activity, he or she
will report the conviction, in writing, within 10 calendar days of the
conviction, to every grant officer or other designee, unless the Federal
agency designates a central point for the receipt of such notices. When
notice is made to such a central point, it shall include the
identification number(s) of each affected grant.

[55 FR 21690, 21694, May 25, 1990]



PART 518_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.
518.1 Purpose.
518.2 Definitions.
518.3 Effect on other issuances.
518.4 Deviations.
518.5 Subawards.

                    Subpart B_Pre-Award Requirements

518.10 Purpose.
518.11 Pre-award policies.
518.12 Forms for applying for Federal assistance.
518.13 Debarment and suspension.
518.14 Special award conditions.
518.15 Metric system of measurement.
518.16 Resource Conservation and Recovery Act.
518.17 Certifications and representations.

                    Subpart C_Post-Award Requirements

                    Financial and Program Management

518.20 Purpose of financial and program management.
518.21 Standards for financial management systems.
518.22 Payment.
518.23 Cost sharing or matching.
518.24 Program income.
518.25 Revision of budget and program plans.
518.26 Non-Federal audits.
518.27 Allowable costs.
518.28 Period of availability of funds.

                           Property Standards

518.30 Purpose of property standards.
518.31 Insurance coverage.
518.32 Real property.
518.33 Federally-owned and exempt property.
518.34 Equipment.
518.35 Supplies and other expendable property.
518.36 Intangible property.
518.37 Property trust relationship.

                          Procurement Standards

518.40 Purpose of procurement standards.
518.41 Recipient responsibilities.
518.42 Codes of conduct.
518.43 Competition.
518.44 Procurement procedures.
518.45 Cost and price analysis.
518.46 Procurement records.
518.47 Contract administration.
518.48 Contract provisions.

                           Reports and Records

518.50 Purpose of reports and records.
518.51 Monitoring and reporting program performance.
518.52 Financial reporting.
518.53 Retention and access requirements for records.

                       Termination and Enforcement

518.60 Purpose of termination and enforcement.
518.61 Termination.
518.62 Enforcement.

                 Subpart D_After-the-Award Requirements

518.70 Purpose.
518.71 Closeout procedures.
518.72 Subsequent adjustments and continuing responsibilities.
518.73 Collection of amounts due.

Appendix A to Part 518--Contract Provisions

    Authority: 22 U.S.C. 2658; 31 U.S.C. 503 and 1111; Reorganization
Plan No. 2 of 1977, 42 FR 62461, 3 CFR, 1977 Comp. p. 200; E.O. 12048,
43 FR 13361, 3 CFR, 1978 Comp. p. 168.

    Source: 59 FR 39440, Aug. 3, 1994, unless otherwise noted.



                            Subpart A_General



Sec. 518.1  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. 518.4 and 518.14 or
unless specifically

[[Page 140]]

required by Federal statute or executive order. Non-profit organizations
that implement Federal programs for the States are also subject to State
requirements.



Sec. 518.2  Definitions.

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

[[Page 141]]

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 or higher education or non-profit organization whose
principal purpose is conducting scientific research.
    (o) Federal awarding agency means the Federal agency that provides
an award to the recipient.
    (p) Federal funds authorized means the total amount of 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. 518.24 (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.

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    (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, 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

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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 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. 518.3  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 shall be superseded, except to the extent they are required by
statute, or authorized in accordance with the deviations provision in
Sec. 518.4.



Sec. 518.4  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. Federal awarding agencies may apply
less restrictive requirements when awarding small awards, except for
those requirements which are statutory. Exceptions on a case-by-case
basis may also be made by Federal awarding agencies.



Sec. 518.5  Subawards.

    Unless sections of this part specifically exclude subrecipients from
coverage, the provisions of this part shall be applied to subrecipients
performing work under awards if such subrecipients are institutions of
higher education, hospitals or other non-profit organizations. State and
local government subrecipients are subject to the provisions of
regulations implementing the grants management common rule, ``Uniform
Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments,'' published at 53 FR 9034 (3/11/88).



                    Subpart B_Pre-Award Requirements



Sec. 518.10  Purpose.

    Sections 518.11 through 518.17 prescribes forms and instructions and
other pre-award matters to be used in applying for Federal awards.



Sec. 518.11  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 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.

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    (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. 518.12  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,'' 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. 518.13  Debarment and suspension.

    Federal awarding agencies and recipients shall comply with the
nonprocurement debarment and suspension rule, 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. 518.14  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.



Sec. 518.15  Metric system of measurement.

    The Metric Conversion Act, as amended by the Omnibus Trade and
Competitiveness Act (15 U.S.C. 205), declares that the metric system is
the preferred measurement system for U.S. trade and commerce. The Act
requires each Federal agency to establish a date or dates in
consultation with the Secretary of Commerce, when the metric system of
measurement will be used in the agency's procurements, grants, and other
business-related activities. Metric implementation may take longer where
the use of the system is initially impractical or likely to cause
significant inefficiencies in the accomplishment of federally-funded
activities. Federal awarding agencies shall follow the provisions of
E.O. 12770, ``Metric Usage in Federal Government Programs.''



Sec. 518.16  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

[[Page 145]]

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. 518.17  Certification 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. 518.20  Purpose of financial and program management.

    Sections 518.21 through 518.28 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. 518.21  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 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.

[[Page 146]]

    (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. 518.22  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. 518.21.
    (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 least monthly when electronic funds 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

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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 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

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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. 518.23  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 paragraph (c) (1) or (2) of this section.
    (1) The certified value of the remaining life of the property
recorded in the recipient's accounting records at the time of donation.
    (2) The current fair market value. However, when there is sufficient
justification, the 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 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

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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 paragraphs (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.



Sec. 518.24  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.
    (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 paragraphs (b)(1) or (b)(2) of this section, program income
in excess of any limits stipulated shall be used in accordance with
paragraph (b)(3) of this section.
    (d) In the event that the 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. 518.14.
    (e) Unless Federal awarding agency regulations or the terms and
conditions of the award provide otherwise, recipients shall have no
obligation to

[[Page 150]]

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. 518.30 through 518.37).
    (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.



Sec. 518.25  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 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

[[Page 151]]

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
whether 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. 518.27
    (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 $5000 or five percent of the Federal
award, whichever is greater. This notification shall not be required if
an application for additional funding is submitted for a continuation
award.
    (l) When requesting approval for budget revisions, recipients shall
use the budget forms that were used in the application unless the
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. 518.26  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher
education or

[[Page 152]]

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 recipients as
incorporated into the award document.

[59 FR 39440, Aug. 3, 1994, as amended at 62 FR 45939, 45941, Aug. 29,
1997]



Sec. 518.27  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 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. 518.28  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. 518.30  Purpose of property standards.

    (a) Sections 518.31 through 518.37 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. 518.31 through 518.37.



Sec. 518.31  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. 518.32  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

[[Page 153]]

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 Federal awarding agencies.
    (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 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. 518.33  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. 518.34  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

[[Page 154]]

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 or 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 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

[[Page 155]]

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.
    (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. 518.35  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 cases, 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

[[Page 156]]

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. 518.36  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) Unless waived by the Federal awarding agency, the Federal
Government has the right to the following:
    (1) Obtain, reproduce, publish or otherwise use the data first
produced under an award.
    (2) Authorize others to receive, reproduce, publish, or otherwise
use such data for Federal purposes.
    (d) 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).



Sec. 518.37  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. 518.40  Purpose of procurement standards.

    Sections 518.41 through 518.48 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. 518.41  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 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. 518.42  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,

[[Page 157]]

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. 518.43  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. 518.44  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 or 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 recipient to utilize small
businesses, minority-owned firms, and women's business enterprises,
whenever possible. Recipients of Federal awards shall take all of the
following steps to further this goal.
    (1) Ensure that small businesses, minority-owned firms, and women's
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and
arrange 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

[[Page 158]]

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 of 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 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.



Sec. 518.45  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. 518.46  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. 518.47  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. 518.48  Contract provisions.

    The recipient shall include, in addition to provisions to define a
sound and

[[Page 159]]

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 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. 518.50  Purpose of reports and records.

    Sections 518.51 through 518.53 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. 518.51  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. 518.26.

[[Page 160]]

    (b) The Federal awarding agency shall prescribe the frequency with
which the performance reports shall be submitted. Except as provided in
Sec. 518.51(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 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. 518.52  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.

[[Page 161]]

    (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:
    (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. 518.21,
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. 518.53  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.

[[Page 162]]

    (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. 518.53(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, 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. 518.60  Purpose of termination and enforcement.

    Sections 518.61 and 518.62 set forth uniform suspension, termination
and enforcement procedures.



Sec. 518.61  Termination.

    (a) Awards may be terminated in whole or in part only if the
conditions in paragraphs (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.

[[Page 163]]

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 paragraphs (a)(1) or
(2) of this section.
    (b) If costs are allowed under an award, the responsibilities of the
recipient referred to in Sec. 518.71(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. 518.62  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. 518.14, 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 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) Without 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 paragraphs (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 the Federal awarding
agency implementing regulations (see Sec. 518.13).



                 Subpart D_After-the-Award Requirements



Sec. 518.70  Purpose.

    Sections 518.71 through 518.73 contain closeout procedures and other
procedures for subsequent disallowances and adjustments.



Sec. 518.71  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.

[[Page 164]]

    (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. 518.31 through 518.37.
    (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 disallowing costs resulting from the final audit.



Sec. 518.72  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.
    (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. 518.26.
    (4) Property management requirements in Sec. Sec. 518.31 through
518.37.
    (5) Records retention as required in Sec. 518.53.
    (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. 518.73(a),
including those for property management as applicable, are considered
and provisions made for continuing responsibilities of the recipient, as
appropriate.



Sec. 518.73  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
paragraphs (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 over 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 518--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

[[Page 165]]

entitled. The recipient shall report all suspected or reported
violations to the Federal awarding agency.
    3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When
required by Federal program legislation, all construction contracts
awarded by the recipients and subrecipients of more than $2,000 shall
include a provision for compliance with the Davis-Bacon Act (40 U.S.C.
276a to a-7) and as supplemented by Department of Labor regulations (29
CFR part 5, ``Labor Standards Provisions Applicable to Contracts
Governing Federally Financed and Assisted Construction''). Under this
Act, contractors shall be required to pay wages to laborers and
mechanics at a rate not less than the minimum wages specified in a wage
determination made by the Secretary of Labor. In addition, contractors
shall be required to pay wages not less than once a week. The recipient
shall place a copy of the current prevailing wage determination issued
by the Department of Labor in each solicitation and the award of a
contract shall be conditioned upon the acceptance of the wage
determination. The recipient shall report all suspected or reported
violations to the Federal awarding agency.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in excess of
$2,000 for construction contracts and in excess of $2,500 for other
contracts that involve the employment of mechanics or laborers shall
include a provision for compliance with Sections 102 and 107 of the
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as
supplemented by Department of Labor regulations (29 CFR part 5). Under
Section 102 of the Act, each contractor shall be required to compute the
wages of every mechanic and laborer on the basis of a standard work week
of 40 hours. Work in excess of the standard work week is permissible
provided that the worker is compensated at a rate of not less than 1\1/
2\ times the basic rate of pay for all hours worked in excess of 40
hours in the work week. Section 107 of the Act is applicable to
construction work and provides that no laborer or mechanic shall be
required to work in surroundings or under working conditions which are
unsanitary, hazardous or dangerous. These requirements do not apply to
the purchases of supplies or materials or articles ordinarily available
on the open market, or contracts for transportation or transmission of
intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental,
developmental, or research work shall provide for the right of the
Federal Government and the recipient in any resulting invention in
accordance with 37 CFR part 401, ``Rights to Inventions Made by
Nonprofit Organizations and Small Business Firms Under Government
Grants, Contracts and Cooperative Agreements,'' and any implementing
regulations issued by the awarding agency.
    6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts
and subgrants of amounts in excess of $100,000 shall contain a provision
that requires the recipient to agree to comply with all applicable
standards, orders or regulations issued pursuant to the Clean Air Act
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as
amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the
Federal awarding agency and the Regional Office of the Environmental
Protection Agency (EPA).
    7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who
apply or bid for an award of $100,000 or more shall file the required
certification. Each tier certifies to the tier above that it will not
and has not used Federal appropriated funds to pay any 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 519_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
519.100 Conditions on use of funds.
519.105 Definitions.
519.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

519.200 Agency and legislative liaison.
519.205 Professional and technical services.
519.210 Reporting.

[[Page 166]]

            Subpart C_Activities by Other than Own Employees

519.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

519.400 Penalties.
519.405 Penalty procedures.
519.410 Enforcement.

                          Subpart E_Exemptions

519.500 Secretary of Defense.

                        Subpart F_Agency Reports

519.600 Semi-annual compilation.
519.605 Inspector General report.

Appendix A to Part 519--Certification Regarding Lobbying
Appendix B to Part 519--Disclosure Form To Report Lobbying

    Authority: Sec. 319, Public Law 101-121 (31 U.S.C. 1352); 41 U.S.C.
701 et seq.

    Source: 55 FR 6737, 6750, Feb. 26, 1990, unless otherwise noted.

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



                            Subpart A_General



Sec. 519.100  Conditions on use of funds.

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



Sec. 519.105  Definitions.

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

[[Page 167]]

any Federal contract, grant, loan, or cooperative agreement.


Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
    (c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
    (k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
    (2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
    (l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.

[[Page 168]]

    (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. 519.110  Certification and disclosure.

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


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

[[Page 169]]

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. 519.200  Agency and legislative liaison.

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



Sec. 519.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.
519.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement or
an extension, continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is
for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal, or
application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract, grant, loan, or
cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal

[[Page 170]]

by a lawyer is allowable. Similarly, technical advice provided by an
engineer on the performance or operational capability of a piece of
equipment rendered directly in the negotiation of a contract is
allowable. However, communications with the intent to influence made by
a professional (such as a licensed lawyer) or a technical person (such
as a licensed accountant) are not allowable under this section unless
they provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are
allowable under this section.



Sec. 519.210  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. 519.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.
519.100 (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. 519.110 (a) and (b)
regarding filing a disclosure form by each person, if required, shall
not apply with respect to professional or technical services rendered
directly in the preparation, submission, or negotiation of any
commitment providing for the United States to insure or guarantee a
loan.
    (c) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting or a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of

[[Page 171]]

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. 519.400  Penalties.

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



Sec. 519.405  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. 519.410  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. 519.500  Secretary of Defense.

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

[[Page 172]]

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



                        Subpart F_Agency Reports



Sec. 519.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure
reports (see appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
    (c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
    (d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no later than with the compilations due on May 31, 1991.
OMB shall provide detailed specifications in a memorandum to these
agencies.
    (g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.



Sec. 519.605  Inspector General report.

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

[[Page 173]]



      Sec. Appendix A to Part 519--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

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

            Statement for Loan Guarantees and Loan Insurance

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

[[Page 174]]



     Sec. Appendix B to Part 519--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC13OC91.003


[[Page 175]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.004


[[Page 176]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.005



PART 521_IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT--Table
of Contents



Sec.
521.1 Basis and purpose.
521.2 Definitions.
521.3 Basis for civil penalties and assessments.
521.4 Investigation.
521.5 Review by the reviewing official.
521.6 Prerequisites for issuing a complaint.
521.7 Complaint.
521.8 Service of complaint.
521.9 Answer.
521.10 Default upon failure to file an answer.
521.11 Referral of complaint and answer to the ALJ.
521.12 Notice of hearing.
521.13 Parties to the hearing.
521.14 Separation of functions.
521.15 Ex Parte contacts.
521.16 Disqualifications of reviewing official or ALJ.
521.17 Rights of parties.
521.18 Authority of the ALJ.
521.19 Prehearing conferences.
521.20 Disclosure of documents.
521.21 Discovery.
521.22 Exchange of witness lists, statements and exhibits.

[[Page 177]]

521.23 Subpoenas for attendance at hearing.
521.24 Protective order.
521.25 Fees.
521.26 Form, filing and service of papers.
521.27 Computation of time.
521.28 Motions.
521.29 Sanctions.
521.30 The hearing and burden of proof.
521.31 Determining the amount of penalties and assessments.
521.32 Location of hearing.
521.33 Witnesses.
521.34 Evidence.
521.35 The record.
521.36 Post-hearing briefs.
521.37 Initial decision.
521.38 Reconsideration of initial decision.
521.39 Appeal to the Broadcasting Board of Governors Director.
521.40 Stays ordered by the Department of Justice.
521.41 Stay pending appeal.
521.42 Judicial review.
521.43 Collection of civil penalties and assessments.
521.44 Right to administrative offset.
521.45 Deposit in Treasury of United States.
521.46 Compromise or settlement.
521.47 Limitations.

    Authority: 22 U.S.C. 2658; 31 U.S.C. 3801-3812.

    Source: 56 FR 25028, June 3, 1991, unless otherwise noted.



Sec. 521.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act
of 1986, Public Law 99-509, sections 6101-6104, 100 Stat. 1874 (October
21, 1986), codified at 31 U.S.C. 3801-3812. The Act requires each
authority head to promulgate regulations necessary to implement the
provisions of the statute (31 U.S.C. 3809).
    (b) Purpose. (1) This part 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
Broadcasting Board of Governors or to its agents, and
    (2) Specifies the hearing and appeal rights of persons subject to
allegations of liability for such penalties and assessments.
    (c) Special considerations abroad. Where a party, witness or
material evidence in a proceeding under these regulations is located
abroad, the investigating official, reviewing official or ALJ, as the
case may be, may adjust the provisions below for service, filing of
documents, time limitations, and related matters to meet special
problems arising out of that location.



Sec. 521.2  Definitions.

    ALJ means an Administrative Law Judge in the Broadcasting Board of
Governors appointed pursuant to 5 U.S.C. 3105 or detailed to the
Broadcasting Board of Governors pursuant to 5 U.S.C. 3344.
    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--
    (1) Made to the Broadcasting Board of Governors for property,
services or money (including money representing grants, loans, insurance
or benefits);
    (2) Made to a recipient of property, services or money from the
Broadcasting Board of Governors, or to a party to a contract with the
Broadcasting Board of Governors--
    (i) For property or services if the United States--
    (A) Provided such property or services;
    (B) Provided any portion of the funds for the purchase of such
property or services; or
    (C) Will reimburse such recipient or party for the purchase of such
property or services; or
    (ii) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the United States--
    (A) Provided any portion of the money requested or demanded; or
    (B) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
    (3) Made to the Broadcasting Board of Governors 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. 521.7.
    Defendant means any person alleged in a complaint under Sec. 521.7
to be liable

[[Page 178]]

for a civil penalty or assessment under Sec. 521.3.
    Director means Director of the Broadcasting Board of Governors.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by
Sec. 521.10 or Sec. 521.37, and includes a revised initial decision
issued following a remand or a motion for reconsideration.
    Investigating Official means the Inspector General for the
Broadcasting Board of Governors 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--
    (1) Has the actual knowledge that the claim or statement is false,
fictitious, or fraudulent;
    (2) Acts in deliberate ignorance of the truth or falsity of the
claim or statement; or
    (3) Acts in reckless disregard of the truth or falsity of the claim
or statement.
    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
the District of Columbia or the Commonwealth of Puerto Rico.
    Reviewing official means the General Counsel of the Broadcasting
Board of Governors or his designee who is:
    BBG means the Broadcasting Board of Governors.
    (1) Not subject to supervision by, or required to report to, the
investigating official;
    (2) Not employed in the organizational unit of the Broadcasting
Board of Governors in which the investigating official is employed; and
    (3) Is serving in a position for which the rate of basic pay is not
less than the minimum rate of basic pay for grade GS-16 under the
General Schedule.
    Statement means any representation, certification, affirmation,
document, record, or accounting or bookkeeping entry made--
    (1) With respect to a claim or to obtain the approval or payment of
a claim (including relating to eligibility to make a claim); or
    (2) With respect to (including relating to eligibility for)--
    (i) A contract with, or a bid or proposal for a contract with; or
    (ii) A grant, loan, or benefit from, the Broadcasting Board of
Governors, 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.
    BBG means the Broadcasting Board of Governors.



Sec. 521.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Any person who makes 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,

[[Page 179]]

to a civil penalty of not more than $5,000 for each such claim.
    (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 Broadcasting Board of
Governors, a 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
Broadcasting Board of Governors or such 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) Statement. (1) Any person who makes, a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material
fact that the person making the statement has a duty to include in such
statement; and
    (ii) Contains or is accompanied by an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement, shall be subject, in addition to any other remedy that may be
prescribed by law, to a civil penalty of not more than $5,000 for each
such statement.
    (2) Each written representation, certification, or affirmation
constitutes a separate statement.
    (3) A statement shall be considered made to the Broadcasting Board
of Governors 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 Broadcasting Board
of Governors.
    (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.



Sec. 521.4  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 therefore, or
that such documents, suitably identified, have been withheld based upon
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the
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

[[Page 180]]

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. 521.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under
Sec. 521.4(b), the reviewing official determines that there is adequate
evidence to believe that a person is liable under Sec. 521.3 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. 521.7.
    (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.
521.3 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. 521.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 521.7
only if:
    (1) The Department of Justice approves the issuance of a complaint
in a written statement described in 31 U.S.C. 3803(b)(1); and
    (2) In the case of allegations of liability under Sec. 521.3(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. 521.3(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. 521.7  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. 521.8.
    (b) The complaint shall state:
    (1) 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 assessment without right to appeal, as provided in Sec.
521.10.
    (c) At the same time the reviewing official serves the complaint, he
or she shall serve the defendant with a copy of these regulations.

[[Page 181]]



Sec. 521.8  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 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 the
defendant's representative.
    (4) In case of service abroad authenticated in accordance with the
Convention on the Service Abroad of Judicial and Extra Judicial
Documents in Civil or Commercial Matters.



Sec. 521.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the
reviewing official within 30 days of service of the complaint. An answer
shall be deemed to be a request for a 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 service of the
complaint, file with the reviewing official a general answer denying
liability and requesting a hearing, and a request for an extension of
time within which to file an answer meeting the requirements of
paragraph (b) of this section. The reviewing official shall file
promptly with the ALJ the complaint, the general answer denying
liability, and the request for an extension of time as provided in Sec.
521.11. For good cause shown, the ALJ may grant the defendant up to 30
additional days within which to file an answer meeting the requirements
of paragraph (b) of this section.



Sec. 521.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time
prescribed in Sec. 521.9(a), the reviewing official may refer the
complaint to the ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve
on defendant in the manner prescribed in Sec. 521.8, a notice that an
initial decision will be issued under this section.
    (c) If the defendant fails to answer, the ALJ shall assume the facts
alleged in the complaint to be true, and, if such facts establish
liability under Sec. 521.3, the ALJ shall issue an initial decision
imposing the maximum amount of penalties and assessments allowed under
the statute.
    (d) Except as otherwise provided in this section, by failing to file
a timely answer, the 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 with the ALJ seeking to reopen on the grounds that
extraordinary circumstances prevented the defendant from filing an
answer, 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 file a timely answer, the ALJ
shall withdraw the initial decision in paragraph (c) of this section, if
such a decision has been issued, and shall grant the defendant an
opportunity to answer the complaint.
    (g) A decision of the ALJ denying defendant's motion under paragraph
(e) of this section is not subject to reconsideration under Sec.
521.38.

[[Page 182]]

    (h) The defendant may appeal to the Director the decision denying a
motion to reopen by filing a notice of appeal with the Director within
15 days after the ALJ denies the motion. The timely filing of a notice
of appeal shall stay the initial decision until the Director decides the
issue.
    (i) If the defendant files a timely notice of appeal with the
Director, the ALJ shall forward the record of the proceeding to the
Director.
    (j) The Director shall decide expeditiously whether extraordinary
circumstances excuse the defendant's failure to file a timely answer
based solely on the record before the ALJ.
    (k) If the Director decides that extraordinary circumstances excused
the defendant's failure to file a timely answer, the Director shall
remand the case to the ALJ with instructions to grant the defendant an
opportunity to answer.
    (l) If the Director decides that the defendant's failure to file a
timely answer is not excused, the Director shall reinstate the initial
decision of the ALJ, which shall become final and binding upon the
parties 30 days after the Director issues such decision.



Sec. 521.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall file the
complaint and answer with the ALJ.



Sec. 521.12  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. 521.8. At the same time, the ALJ shall send a copy
of such notice to the representative for the Government.
    (b) Such notice shall include:
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 521.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the
Broadcasting Board of Governors.
    (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. 521.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any
employee or agent of the Broadcasting Board of Governors 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 Director, except as a witness or
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
Broadcasting Board of Governors, including in the offices of either the
investigating official or the reviewing official.



Sec. 521.15  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.

[[Page 183]]



Sec. 521.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a
reviewing official or ALJ. Such motion shall be accompanied by an
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the
party's discovery of reasons requiring disqualification, or such
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the
party's belief that personal bias or other reason for disqualification
exists and the time and circumstances of the party's discovery of such
facts. It shall be accompanied by a certificate of the representative of
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall
proceed no further in the case until he or she resolves the matter of
disqualification in accordance with paragraph (f) of this section.
    (f)(1) If the ALJ determines that the 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 Director may
determine the matter only as part of his or her review of the initial
decision upon appeal, if any.



Sec. 521.17  Rights of parties.

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



Sec. 521.18  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 may:
    (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 to be served within the United States requiring
the attendance of witnesses and the production of documents at
depositions or at hearings. Subpoenas to be served outside the
jurisdiction of the United States shall state on their face the
authority therefore;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and time 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 treaties and other
international agreements or Federal Statutes or regulations invalid.

[[Page 184]]



Sec. 521.19  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 shall issue an order containing all matters agreed upon
by the parties or ordered by the ALJ at a prehearing conference.



Sec. 521.20  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. 521.4(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 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. 521.5 is not discoverable under any
circumstances.
    (d) The defendant may file a motion to compel disclosure of the
doucment subject to the provisions of this section. Such a motion may
only be filed with the ALJ following the filing of an answer pursuant to
Sec. 521.9.



Sec. 521.21  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 the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Sec. 521.22 and Sec.
521.23, 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 with the ALJ. Such a motion shall be accompanied by a copy of the
requested discovery, or in the case of depositions, a summary of the
scope of the proposed deposition.
    (2) Within ten days of service a party may file an opposition to the
motion and/or a motion for protective order as provided Sec. 521.24.
    (3) The ALJ may grant a motion for discovery only if the ALJ finds
that the discovery sought:
    (i) Is necessary for the expeditious, fair, and reasonable
consideration of the issues;

[[Page 185]]

    (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. 521.24.
    (e) Deposition. (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. 521.8.
    (3) The deponent may file with the ALJ a motion to quash the
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a
verbatim transcript of the deposition which it shall make available to
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 521.22  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. 521.33(b). At the time the above documents are exchanged, any
party that intends to rely on the transcript of deposition testimony in
lieu of live testimony at the hearing, if permitted by the ALJ, shall
provide each party with a copy of the specific pages of the transcript
it intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the
testimony of any witness whose name does not appear on the witness list
or any exhibit not provided to the opposing party as provided above,
unless the ALJ finds good cause for the failure or that there is no
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ,
documents exchanged in accordance with paragraph (a) of this section
shall be deemed to be authentic for the purpose of admissibility at the
hearing.



Sec. 521.23  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
specify any documents to be produced and shall designate the witnesses
and describe the address and location thereof with sufficient
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the
witness is 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. 521.8. A subpoena on a party or upon an individual
under the control of a party may be served by first class mail.
    (f) A party or individual to whom the subpoena is directed may file
with the ALJ a motion to quash the subpoena within ten days after
service or on or before the time specified in the subpoena for
compliance if it is less than ten days after service.



Sec. 521.24  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

[[Page 186]]

from annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of
the ALJ;
    (8) That a trade secret or other confidential research, development,
commercial information, or facts pertaining to any criminal
investigation, proceeding or other administrative investigation not be
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the
ALJ.



Sec. 521.25  Fees.

    The party requesting a subpoena shall pay the cost of the fee and
mileage of any witness subpoenaed in the amounts that would be payable
to a witness in a proceeding in the 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
Broadcasting Board of Governors, a check for witness fees and mileage
need not accompany the subpoena.



Sec. 521.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original
and two copies.
    (2) Every pleading and paper filed in the proceeding shall contain a
caption setting forth the title of the action, the case number assigned
by the ALJ, and a designation of the paper (e.g., motion to quash
subpoena), and shall be in English or accompanied by an English
translation.
    (3) Every pleading and paper shall be signed by, and shall contain
the address and telephone number of, the party or the person on whose
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of
mailing may be established by a certificate from the party or its
representative or by proof that the document was sent by certified or
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the
time of filing, serve a copy of such document on every other party.
Service upon any party of any document other than those required to be
served as prescribed in Sec. 521.8, 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.



Sec. 521.27  Computation of time.

    (a) In computing any period of time under this part or in an order
issued hereunder, 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
mail, an additional five days will be added to the time permitted for
any response.

[[Page 187]]



Sec. 521.28  Motions.

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



Sec. 521.29  Sanctions.

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



Sec. 521.30  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. 521.3, and if so, the appropriate amount of any
such civil penalty or assessment considering any aggravating or
mitigating factors.
    (b) The Broadcasting Board of Governors shall prove defendant'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. 521.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and
assessments, the ALJ and the Director, 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

[[Page 188]]

may influence the ALJ and the Director in determining the amount of
penalties and assessments to impose with respect to the misconduct
(i.e., the false, fictitious, or fraudulent claims or statements)
charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the 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;
    (11) Where the misconduct of employees of 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 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 Director from considering any other factors that in any given case
may mitigate or aggravate the offense for which penalties and
assessments are imposed.



Sec. 521.32  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 arguments with
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered
by the ALJ.



Sec. 521.33  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.
521.22(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,

[[Page 189]]

    (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 appearing for the entity pro se or designated by
the party's representative; or
    (3) An individual whose presence is shown by a party to be essential
to the presentation of its case, including an individual employed by the
Government engaged in assisting the representative for the Government.



Sec. 521.34  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 consideration 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. 521.24.



Sec. 521.35  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
Director.
    (c) The record of the hearing may be inspected and copied (upon
payment of a reasonable fee) by anyone, unless otherwise ordered by the
ALJ pursuant to Sec. 521.24.



Sec. 521.36  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 briefs, at a time not exceeding 60 days from the date
the parties receive the transcript of the hearing or, if applicable, the
stipulated record. Such briefs may be accompanied by proposed findings
of fact and conclusions of law. The ALJ may permit the parties to file
reply briefs.



Sec. 521.37  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:

[[Page 190]]

    (1) Whether the claims or statements identified in the complaint, or
any portion thereof, violate Sec. 521.3;
    (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. 521.31.
    (c) The ALJ shall promptly serve the initial decision on all parties
within 90 days after the time for submission of post-hearing briefs and
reply briefs (if 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
Director. 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
Director, or a motion for reconsideration of the initial decision is
timely filed, the initial decision shall constitute the final decision
of the Director and shall be final and binding on the parties 30 days
after it is issued by the ALJ.



Sec. 521.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party
may file a motion for reconsideration of the initial decision within 20
days of receipt of the initial decision. If service was made by mail,
receipt will be presumed to be five days from the date of mailing in the
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have
been erroneously decided and the nature of the alleged errors. Such
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of
the ALJ.
    (d) No party may file a motion for reconsideration of an initial
decision that has been revised in response to a previous motion for
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial
decision shall constitute the final decision of the Director 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 Director
in accordance with Sec. 521.39.
    (g) If the ALJ issues a revised initial decision, that decision
shall constitute the final decision of the Director and shall be final
and binding on the parties 30 days after it is issued, unless it is
timely appealed to the Director in accordance with Sec. 521.39.



Sec. 521.39  Appeal to the Broadcasting Board of Governors Director.

    (a) Any defendant who has filed a timely answer and who is
determined in an initial decision to be liable for a civil penalty or
assessment may appeal such decision to the Broadcasting Board of
Governors Director by filing a notice of appeal with the Broadcasting
Board of Governors Director in accordance with this section.
    (b)(1) No notice of appeal may be filed until the time period for
filing a motion for reconsideration under Sec. 521.38 has expired.
    (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) If no motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ issues the initial
decision.
    (4) The Director may extend the initial 30-day period for an
additional 30 days if the defendant files with the Director 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 with the
Director, and the time for filing motions for reconsideration under
Sec. 521.38 has expired, the ALJ shall forward the record of the
proceeding to the Director.
    (d) A notice of appeal shall be accompanied by a written brief
specifying exceptions to the initial decisions and reasons supporting
the exceptions.

[[Page 191]]

    (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 Director.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the Director 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 Director
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 Director shall remand the matter to the
ALJ for consideration of such additional evidence.
    (j) The Director may affirm, reduce, reverse, compromise, remand, or
settle any penalty or assessment determined by the ALJ in an initial
decision.
    (k) The Director shall promptly serve each party to the appeal with
a copy of her/his decision and a statement describing the right of any
person determined to be liable for a penalty or assessment to seek
judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C.
3805 after a defendant has exhausted all administrative remedies under
this part and within 60 days after the date on which the Director serves
the defendant with a copy of her/his decision, a determination that a
defendant is liable under Sec. 521.3 is final and is not subject to
judicial review.



Sec. 521.40  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 Director 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 Director shall stay the process immediately. The Director
may order the process resumed only upon receipt of the written
authorization of the Attorney General.



Sec. 521.41  Stay pending appeal.

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



Sec. 521.42  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 Director imposing penalties or assessments under this
part and specifies the procedures for such.



Sec. 521.43  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. 521.44  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. 521.42 or Sec.
521.43, or any amount agreed upon in a compromise or settlement under
Sec. 521.46, may be collected by administrative offset under 31 U.S.C.
3716, except that an administrative offset may not be made under the
subsection against a refund of an overpayment of Federal taxes, then or
later owing by the United States to the defendant.



Sec. 521.45  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. 521.46  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

[[Page 192]]

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 Director 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 pendency of any review under Sec.
521.42 or during the pendency of any action to collect penalties and
assessments under Sec. 521.43.
    (d) The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
Sec. 521.42 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 Director, or the Attorney General, as
appropriate. The reviewing official may recommend settlement terms to
the Director, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 521.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must
be served in the manner specified in Sec. 521.8 within 6 years after
the date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of a
notice under Sec. 521.10(b) shall be deemed notice of hearing for
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the
parties.



PART 530_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE BROADCASTING BOARD OF

GOVERNORS--Table of Contents



Sec.
530.101 Purpose.
530.102 Application.
530.103 Definitions.
530.104-530.109 [Reserved]
530.110 Self-evaluation.
530.111 Notice.
530.112-530.129 [Reserved]
530.130 General prohibitions against discrimination.
530.131-530.139 [Reserved]
530.140 Employment.
530.141-530.148 [Reserved]
530.149 Program accessibility: Discrimination prohibited.
530.150 Program accessibility: Existing facilities.
530.151 Program accessibility: New construction and alterations.
530.152-530.159 [Reserved]
530.160 Communications.
530.161-530.169 [Reserved]
530.170 Compliance procedures.
530.171-530.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22890, 22896, June 23, 1986, unless otherwise noted.



Sec. 530.101  Purpose.

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



Sec. 530.102  Application.

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



Sec. 530.103  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 Board. For example, auxiliary aids useful
for persons with impaired vision include readers, brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with hearing
aids, telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the
complainant's name and address and describes

[[Page 193]]

the Board's alleged discriminatory action in sufficient detail to inform
the Board of the nature and date of the alleged violation of section
504. It shall be signed by the complainant or by someone authorized to
do so on his or her behalf. Complaints filed on behalf of classes or
third parties shall describe or identify (by name, if possible) the
alleged victims of discrimination.
    Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alocoholism.
    (2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the Board 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 Board as having such an impairment.
    Historic preservation programs means programs conducted by the Board
that have preservation of historic properties as a primary purpose.
    Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education
services provided by the Board, a handicapped person who is a member of
a class of persons otherwise entitled by statute, regulation, or Board
policy to receive education services from the Board.
    (2) With respect to any other Board program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can acheive the purpose of the program or activity
without modifications in the program or activity that the Board can
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
    (4) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by Sec. 530.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation,

[[Page 194]]

Comprehensive Services, and Developmental Disabilities Amendments of
1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part, section 504
applies only to programs or activities conducted by Executive agencies
and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.



Sec. Sec. 530.104-530.109  [Reserved]



Sec. 530.110  Self-evaluation.

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



Sec. 530.111  Notice.

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



Sec. Sec. 530.112-530.129  [Reserved]



Sec. 530.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the Board.
    (b)(1) The Board, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
    (2) The Board may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
    (3) The Board may not, directly or through contractual or other

[[Page 195]]

arrangments, utilize criteria or methods of administration the purpose
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
    (4) The Board may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the Board; or
    (ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
    (5) The Board, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
    (6) The Board may not administer a licensing or certification
program in a manner that subjects qualified handicapped persons to
discrimination on the basis of handicap, nor may the Board establish
requirements for the programs or activities of licensees or certified
entities that subject qualified handicapped persons to discrimination on
the basis of handicap. However, the programs or activities of entities
that are licensed or certified by the Board are not, themselves, covered
by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive order to a different
class of handicapped persons is not prohibited by this part.
    (d) The Board shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.



Sec. Sec. 530.131-530.139  [Reserved]



Sec. 530.140  Employment.

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



Sec. Sec. 530.141-530.148  [Reserved]



Sec. 530.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 530.150, no qualified
handicapped person shall, because the Board's facilities are
inaccessible to or unusable by handicapped persons, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the Board.



Sec. 530.150  Program accessibility: Existing facilities.

    (a) General. The Board shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not--
    (1) Necessarily require the Board to make each of its existing
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the Board
to take any action that would result in a substantial impairment of
significant historic features of an historic property; or
    (3) Require the Board 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 Board personnel believe that the proposed action
would fundamentally alter the program or activity or would

[[Page 196]]

result in undue financial and administrative burdens, the Board has the
burden of proving that compliance with Sec. 530.150(a) would result in
such alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the Board head or his or her
designee after considering all Board resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the Board shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
    (b) Methods--(1) General. The Board may comply with the requirements
of this section through such means as redesign of equipment,
reassignment of services to accessible buildings, assignment of aides to
beneficiaries, home visits, delivery of services at alternate accessible
sites, alteration of existing facilities and construction of new
facilities, use of accessible rolling stock, or any other methods that
result in making its programs or activities readily accessible to and
usable by handicapped persons. The Board is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The Board, 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 Board shall give priority to those
methods that offer programs and activities to qualified handicapped
persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of
Sec. 530.150(a) in historic preservation programs, the Board shall give
priority to methods that provide physical access to handicapped persons.
In cases where a physical alteration to an historic property is not
required because of Sec. 530.150(a)(2) or (a)(3), alternative methods
of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
    (ii) Assigning persons to guide handicapped persons into or through
portions of historic properties that cannot otherwise be made
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The Board shall comply with the
obligations established under this section by October 21, 1986, except
that where structural changes in facilities are undertaken, such changes
shall be made by August 22, 1989, but in any event as expeditiously as
possible.
    (d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
Board shall develop, by February 23, 1987, a transition plan setting
forth the steps necessary to complete such changes. The Board shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the Board's facilities that limit
the accessibility of its programs or activities to handicapped persons;
    (2) Describe in detail the methods that will be used to make the
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the
plan.

[[Page 197]]



Sec. 530.151  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 Board shall be designed,
constructed, or altered so as to be readily accessible to and usable by
handicapped persons. The definitions, requirements, and standards of the
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41
CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.



Sec. Sec. 530.152-530.159  [Reserved]



Sec. 530.160  Communications.

    (a) The Board shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
    (1) The Board shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the Board.
    (i) In determining what type of auxiliary aid is necessary, the
Board shall give primary consideration to the requests of the
handicapped person.
    (ii) The Board need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
    (2) Where the Board communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf person (TDD's) or
equally effective telecommunication systems shall be used.
    (b) The Board 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 Board shall provide signage at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each primary entrance of an
accessible facility.
    (d) This section does not require the Board to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and adminstrative
burdens. In those circumstances where Board personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the Board
has the burden of proving that compliance with Sec. 530.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the Board head or
his or her designee after considering all Board resources available for
use in the funding and operation of the conducted program or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the Board
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, handicapped persons receive the benefits and services
of the program or activity.



Sec. Sec. 530.161-530.169  [Reserved]



Sec. 530.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the Board.
    (b) The Board shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
    (c) The Director, Office of Equal Employment Opportunity and Civil
Rights, shall be responsible for coordinating implementation of this
section. Complaints may be sent to Director, Office of Equal Employment
Opportunity and Civil Rights, Broadcasting Board of Governors, 301 4th
Street NW., Washington, DC 20547.
    (d) The Board shall accept and investigate all complete complaints
for which it has jurisdiction. All complete

[[Page 198]]

complaints must be filed within 180 days of the alleged act of
discrimination. The Board may extend this time period for good cause.
    (e) If the Board 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 Board shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the Board shall notify the complainant of the
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the Board of the letter required by Sec. 530.170(g). The Board may
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of
the Board.
    (j) The head of the Board shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the Board determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
    (l) The Board may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.

[51 FR 22890, 22896, June 23, 1986, as amended at 51 FR 22890, June 23,
1986]



Sec. Sec. 530.171-530.999  [Reserved]

                        PARTS 531	599 [RESERVED]

[[Page 199]]



          CHAPTER VII--OVERSEAS PRIVATE INVESTMENT CORPORATION




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

                 SUBCHAPTER A--ADMINISTRATIVE PROVISIONS
Part                                                                Page
700-704

[Reserved]

705             Employee ethical conduct standards and
                    financial disclosure regulations........         201
706             Information disclosure under the freedom of
                    information act.........................         201
707             Access to and safeguarding of personal
                    information in records of the overseas
                    private investment corporation..........         211
708             Sunshine regulations........................         218
709             Foreign Corrupt Practices Act of 1977.......         222
710             Administrative enforcement procedures of
                    post-employment restrictions............         224
711             Enforcement of nondiscrimination on the
                    basis of handicap in programs or
                    activities conducted by the Overseas
                    Private Investment Corporation..........         226
712             New restrictions on lobbying................         232
713             Production of nonpublic records and
                    testimony of OPIC employees in legal
                    proceedings.............................         244
714-799

[Reserved]

[[Page 201]]



                 SUBCHAPTER A_ADMINISTRATIVE PROVISIONS



                        PARTS 700	704 [RESERVED]



PART 705_EMPLOYEE ETHICAL CONDUCT STANDARDS AND FINANCIAL DISCLOSURE
REGULATIONS--Table of Contents



    Authority: 5 U.S.C. 7301.



Sec. 705.101  Cross-reference to employee ethical conduct standards
and financial disclosure regulations.

    Employees of the Overseas Private Investment Corporation (OPIC)
should refer to the executive branch-wide Standards of Ethical Conduct
at 5 CFR part 2635, the OPIC regulation at 5 CFR 4301.101 which
supplements the executive branch-wide standards, and the executive
branch-wide financial disclosure regulation at 5 CFR part 2634.

[58 FR 33320, June 17, 1993]



PART 706_INFORMATION DISCLOSURE UNDER THE FREEDOM OF INFORMATION
ACT--Table of Contents



                            Subpart A_General

Sec.
706.1 Description.
706.2 Policy.
706.3 Scope.
706.4 Preservation and transfer of records.
706.5 Other rights and services.

                    Subpart B_Obtaining OPIC Records

706.10 Publically available records.
706.11 Requesting records.

                       Subpart C_Fees for Requests

706.20 Types of fees.
706.21 Requester categories.
706.22 Fees charged.
706.23 Advance payments.
706.24 Requirements for waiver or reduction of fees.

                    Subpart D_Processing of Requests

706.30 Timing of responses to requests.
706.31 Responses to requests.
706.32 Confidential commercial information.
706.33 Administrative appeals.

    Authority: 5 U.S.C. 552.

    Source: 79 FR 8608, Feb. 13, 2014, unless otherwise noted.



                            Subpart A_General



Sec. 706.1  Description.

    This part contains the rules that the Overseas Private Investment
Corporation (``OPIC'') follows in processing requests for records under
the Freedom of Information Act (``FOIA''), 5 U.S.C. 552 as amended.
These rules should be read together with the FOIA and the Uniform
Freedom of Information Fee Schedule and Guidelines published by the
Office of Management and Budget at 52 FR 10012 (Mar. 27, 1987) (``OMB
Guidelines'').



Sec. 706.2  Policy.

    It is OPIC's policy to make its records available to the public to
the greatest extent possible, in keeping with the spirit of the FOIA.
This policy includes providing reasonably segregable information from
records that also contain information that may be withheld under the
FOIA. However, implementation of this policy also reflects OPIC's view
that the soundness and viability of many of its programs depend in large
measure upon full and reliable commercial, financial, technical and
business information received from applicants for OPIC assistance and
that the willingness of those applicants to provide such information
depends on OPIC's ability to hold it in confidence. Consequently, except
as provided by law and in this part, information provided to OPIC in
confidence will not be disclosed without the submitter's consent.



Sec. 706.3  Scope.

    This part applies to all agency records in OPIC's possession and
control. This part does not compel OPIC to create records or to ask
outside parties to provide documents in order to satisfy a FOIA request.
OPIC may, however, in its discretion and in consultation with a FOIA
requester, create a

[[Page 202]]

new record as a partial or complete response to a FOIA request. In
responding to requests for information, OPIC will consider only those
records within its possession and control as of the date of OPIC's
search.



Sec. 706.4  Preservation and transfer of records.

    (a) Preservation of records. OPIC preserves all correspondence
pertaining to the requests that it receives under this part, as well as
copies of all requested records, until disposition or destruction is
authorized pursuant to title 44 of the United States Code or the General
Records Schedule 14 of the National Archives and Records Administration.
Records that are identified as responsive to a request will not be
disposed of or destroyed while they are the subject of a pending
request, appeal, or lawsuit under the FOIA.
    (b) Transfer of records to the National Archives. Under the Records
Disposal Act, 44 U.S.C. Chapter 33, OPIC is required to transfer legal
custody and control of records with permanent historical value to the
National Archives. OPIC's Finance Project and Insurance Contract Case
files generally do not qualify as records with permanent historical
value. OPIC will not transfer these files except when the National
Archives determines that an individual project or case is especially
significant or unique. If the National Archives receives a FOIA request
for records that have been transferred it will respond to the request in
accordance with its own FOIA regulations.



Sec. 706.5  Other rights and services.

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



                    Subpart B_Obtaining OPIC Records



Sec. 706.10  Publically available records.

    Many OPIC records are readily available to the public by electronic
access, including annual reports and financial statements, program
handbooks, press releases, application forms, claims information, and
annual FOIA reports. Records required to be proactively published under
the FOIA are also online. Persons seeking information are encouraged to
visit OPIC's Internet site at: www.opic.gov to see what information is
already available before submitting a request.



Sec. 706.11  Requesting records.

    (a) General information. (1) How to submit. To make a request for
records not covered under Section 706.10, a requester must submit a
written request to OPIC's FOIA Office either by mail to Overseas Private
Investment Corporation, 1100 New York Avenue NW., Washington, DC 20527
or electronic mail to [email protected]. The envelope or subject line should
read ``Freedom of Information Request'' to ensure proper routing. The
request is considered received by OPIC upon actual receipt by OPIC's
FOIA Office.
    (2) Records about oneself. A requester who is making a request for
records about himself or herself must verify his or her identity by
providing a notarized statement or a statement under 28 U.S.C. 1746, a
law that permits statements to be made under penalty of perjury as a
substitute for notarization, stating that the requester is the person he
or she claims to be.
    (3) Records about a third party. Where a request for records
pertains to a third party, a requester may receive greater access by
submitting a notarized authorization signed by that individual, a
declaration by that individual made in compliance with the requirements
set forth in 28 U.S.C. 1746 authorizing disclosure of the records to the
requester, proof of guardianship, or proof that the individual is
deceased (e.g., a copy of a death certificate or an obituary). OPIC may
require a requester to supply additional information if necessary in
order to verify that a particular individual has consented to
disclosure.
    (b) Description of records sought. Requesters must describe the
records sought in sufficient detail to enable OPIC personnel to locate
them with a reasonable amount of effort. To the extent possible,
requesters should include specific information that may assist OPIC in
identifying the requested

[[Page 203]]

records, such as the project name, contract number, date or date range,
country, title, name, author, recipient, subject matter of the record,
or reference number. In general, requesters should include as much
detail as possible about the specific records or the types of records
sought. If a requester fails to reasonably describe the records sought,
OPIC will inform the requester what additional information is needed or
why the request is deficient. Any time you spend clarifying your request
in response to OPIC's inquiry is excluded from the 20 working-day period
(or any extension of this period) that OPIC has to respond to your
request. Requesters who are attempting to reformulate or modify such a
request may discuss their request with a FOIA Officer or a FOIA Public
Liaison. When a requester fails to provide sufficient detail after
having been asked to clarify a request OPIC shall notify the requester
that the request has not been properly made and that no further action
will be taken.
    (c) Format. You may state the format (paper copies, electronic
scans, etc.) in which you would like OPIC to provide the requested
records. If you do not state a preference, you will receive any released
records in the format most convenient to OPIC.
    (d) Requester information. You must include your name, mailing
address, and telephone number. You may also provide your electronic mail
address, which will allow OPIC to contact you quickly to discuss your
request and respond to your request electronically.
    (e) Fees. You must state your willingness to pay fees under these
regulations or, alternately, your willingness to pay up to a specified
limit. If you believe that you qualify for a partial or total fee waiver
under Sec. 706.24 you should request a waiver and provide justification
as required by Sec. 706.24. If your request does not contain a
statement of your willingness to pay fees or a request for a fee waiver,
OPIC will consider your request an agreement to pay up to $25.00 in
fees.



                       Subpart C_Fees for Requests



Sec. 706.20  Types of fees.

    (a) Direct costs are those expenses that an agency expends in
searching for and duplicating (and, in the case of commercial-use
requests, reviewing) records in order to respond to a FOIA request. For
example, direct costs include the salary of the employee performing the
work (i.e., the basic rate of pay for the employee, plus 16 percent of
that rate to cover benefits) and the cost of operating computers and
other electronic equipment. OPIC shall ensure that searches, review, and
duplication are conducted in the most efficient and the least expensive
manner. Direct costs do not include overhead expenses such as the costs
of space, and of heating or lighting a facility.
    (b) Duplication is reproducing a copy of a record or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
    (c) Review is the examination of a record located in response to a
request in order to determine whether any portion of it is exempt from
disclosure. Review time includes processing any record for disclosure,
such as doing all that is necessary to prepare the record for
disclosure, including the process of redacting the record and marking
the appropriate exemptions. Review costs are properly charged even if a
record ultimately is not disclosed. Review time also includes time spent
both obtaining and considering any formal objection to disclosure made
by a confidential commercial information submitter under Sec.
706.32(c), but it does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
    (d) Search is the process of looking for and retrieving records or
information responsive to a request. Search time includes page-by-page
or line-by-line identification of information within records; and the
reasonable efforts expended to locate and retrieve information from
electronic records. Search costs are properly charged even if no records
are located.

[[Page 204]]



Sec. 706.21  Requester categories.

    Requester category means one of five categories that agencies place
requesters in for the purpose of determining whether a requester will be
charged fees for search, review and duplication. This is separate from a
fee waiver, which waives any fees charged. Fee waivers are covered in
Sec. 706.24.
    (a) A Commercial Use request is a request that asks for information
for a use or a purpose that furthers a commercial, trade, or profit
interest, which can include furthering those interests through
litigation.
    (b) An Educational Use request is one made on behalf of an
educational institution, defined as any school that operates a program
of scholarly research. A requester in this category must show that the
request is authorized by, and is made under the auspices of, a
qualifying institution and that the records are not sought for a
commercial use, but rather are sought to further scholarly research.
Records requested for the intention of fulfilling credit requirements
are not considered to be sought for an educational institution's use.
    (c) A Noncommercial Scientific Institution Use request is a request
made on behalf of a noncommercial scientific institution, defined as an
institution that is not operated on a ``commercial'' basis, as defined
in paragraph (a) of this section, and that is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry. A requester in
this category must show that the request is authorized by and is made
under the auspices of a qualifying institution and that the records are
sought to further scientific research and not for a commercial use.
    (d) A News Media Request is a request made by a representative of
the news media in that capacity. A representative of the news media is
defined as any person or entity that actively gathers information of
potential interest to a segment of the public, uses its editorial skills
to turn the raw materials into a distinct work, and distributes that
work to an audience. The term ``news'' means information that is about
current events or that would be of current interest to the public.
Examples of news media entities include television or radio stations
that broadcast news to the public at large and publishers of periodicals
that disseminate news and make their products available through a
variety of means to the general public. A request for records that
supports the news-dissemination function of the requester shall not be
considered to be for a commercial use. ``Freelance'' journalists who
demonstrate a solid basis for expecting publication through a news media
entity shall be considered as working for that entity. A publishing
contract would provide the clearest evidence that publication is
expected; however, OPIC shall also consider a requester's past
publication record in making this determination. OPIC's decision to
grant a requester media status will be made on a case-by-case basis
based upon the requester's intended use.
    (e) All Other Requesters is any request made for a use not covered
by paragraphs (a) through (d) of this section.



Sec. 706.22  Fees charged.

    (a) In responding to FOIA requests, OPIC will charge the following
fees unless a waiver or reduction of fees has been granted under Sec.
706.24.
    (1) Search. (i) Search fees shall be charged for all requests
subject to the restrictions of paragraph (b) of this section.
    (ii) For each hour spent by personnel searching for requested
records, including electronic searches that do not require new
programming, the fees will be as follows: Professional--$41.50; and
administrative--$33.50.
    (iii) Requesters will be charged the direct costs associated with
conducting any search that requires the creation of a new program to
locate the requested records.
    (iv) For requests that require the retrieval of records stored at a
Federal records center operated by the National Archives and Records
Administration (NARA), additional costs shall be charged in accordance
with the Transactional Billing Rate Schedule established by NARA.

[[Page 205]]

    (2) Duplication. Duplication fees will be charged to all requesters,
subject to the restrictions of paragraph (b) of this section. OPIC will
honor a requester's preference for receiving a record in a particular
form or format where it is readily reproducible in the form or format
requested. Where photocopies are supplied, OPIC will provide one copy
per request at a cost of $0.15 per page. For copies of records produced
on tapes, disks, or other electronic media, OPIC will charge the direct
costs of producing the copy, including operator time. Where paper
documents must be scanned in order to comply with a requester's
preference to receive the records in an electronic format, the requester
shall pay the direct costs associated with scanning those materials. For
other forms of duplication OPIC will charge the direct costs.
    (3) Review. Review fees will be charged to requesters who make
commercial-use requests. Review fees will be assessed in connection with
the initial review of the record, i.e., the review conducted by OPIC to
determine whether an exemption applies to a particular record or portion
of a record. No charge will be made for review at the administrative
appeal stage of exemptions applied at the initial review stage. However,
if the appellate authority determines that a particular exemption no
longer applies, any costs associated with the re-review of the records
in order to consider the use of other exemptions may be assessed as
review fees. Review fees will be charged at the same rates as those
charged for a search under paragraph (a)(1)(ii) of this section.
    (b) Restrictions on charging fees. (1) No search fees will be
charged for educational use requests, noncommercial scientific use
requests, or news media requests as defined in Sec. 706.21. When OPIC
fails to comply with the time limits in which to respond to a request,
and if no unusual or exceptional circumstances apply to the processing
of the request, OPIC may not charge search fees, or, in the instances of
requests from requesters defined in Sec. 706.21(b) through (d), may not
charge duplication fees.
    (2) Except for requesters seeking records for a commercial use, OPIC
will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for
other media); and
    (ii) The first two hours of search.
    (3) When the total fee calculated under this section is $25.00 or
less for any request, no fee will be charged.
    (c) Notice of anticipated fees in excess of authorization. When OPIC
determines or estimates that the fees to be assessed in accordance with
this section will exceed the amount authorized, OPIC will notify the
requester of the actual or estimated amount of the fees, including a
breakdown of fees for search, review, and duplication. Processing will
be halted until the requester commits in writing to pay the actual or
estimated total fee. This time will not count against OPIC's twenty day
processing time or any extension of that time. Such a commitment must be
made by the requester in writing, must indicate a given dollar amount,
and must be received by OPIC within thirty calendar days from the date
of notification of the fee estimate. If a commitment is not received
within this period, the request shall be closed. A FOIA Officer or FOIA
Public Liaison is available to assist any requester in reformulating a
request in an effort to reduce fees.
    (d) Charges for other services. Although not required to provide
special services, if OPIC chooses to do so as a matter of administrative
discretion, the direct costs of providing the service will be charged.
Examples of such services include certifying that records are true
copies, providing multiple copies of the same document, or sending
records by means other than first class mail.
    (e) Charging interest. OPIC may charge interest on any unpaid bill
starting on the thirty-first day following the billing date. Interest
charges will be assessed at the rate provided in 31 U.S.C. 3717 and will
accrue from the billing date until payment is received by OPIC. OPIC
will follow the provisions of the Debt Collection Act of 1982 (Public
Law 97-365, 96 Stat. 1749), as amended, and its administrative
procedures, including the

[[Page 206]]

use of consumer reporting agencies, collection agencies, and offset.
    (f) Aggregating requests. If OPIC reasonably believes that a
requester or a group of requesters acting in concert is attempting to
divide a single request into a series of requests for the purpose of
avoiding fees, OPIC may aggregate those requests and charge accordingly.
OPIC will not aggregate multiple requests that involve unrelated
matters.
    (g) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute that
specifically requires an agency to set and collect fees for particular
types of records. In instances where records responsive to a request are
subject to a statutorily-based fee schedule program, OPIC will inform
the requester of the contact information for that source.
    (h) Remittances. All payments under this part must be in the form of
a check or a bank draft denominated in U.S. currency. Checks should be
made payable to the order of United States Treasury and mailed to the
OPIC FOIA Office.



Sec. 706.23  Advance payments.

    (a) For requests other than those described in paragraphs (i)(2) and
(i)(3) of Sec. 706.22, OPIC will not require the requester to make an
advance payment before work is commenced or continued on a request.
Payment owed for work already completed (i.e., payment before copies are
sent to a requester) is not an advance payment.
    (b) When OPIC determines or estimates that a total fee to be charged
under this section will exceed $250.00, it may require that the
requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. OPIC may elect
to process the request prior to collecting fees when it receives a
satisfactory assurance of full payment from a requester with a history
of prompt payment.
    (c) Where a requester has previously failed to pay a properly
charged FOIA fee to any agency within thirty calendar days of the
billing date, OPIC may require that the requester pay the full amount
due, plus any applicable interest on that prior request. OPIC may also
require that the requester make an advance payment of the full amount of
any anticipated fee before OPIC begins to process a new request or
continues to process a pending request or any pending appeal. Where OPIC
has a reasonable basis to believe that a requester has misrepresented
his or her identity in order to avoid paying outstanding fees, it may
require that the requester provide proof of identity.
    (d) In cases in which OPIC requires advance payment, OPIC's response
time will be tolled and further work will not be completed until the
required payment is received. If the requester does not pay the advance
payment within thirty calendar days after the date of OPIC's fee letter,
OPIC may administratively close the request.



Sec. 706.24  Requirements for waiver or reduction of fees.

    (a) Records responsive to a request shall be furnished without
charge or at a reduced rate below that established under Sec. 706.22,
where OPIC determines, based on all available information, that the
requester has demonstrated that:
    (1) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government, and
    (2) Disclosure of the information is not primarily in the commercial
interest of the requester.
    (b) In deciding whether disclosure of the requested information is
in the public interest because it is likely to contribute significantly
to public understanding of operations or activities of the government,
OPIC will consider the following factors:
    (1) The subject of the request must concern identifiable operations
or activities of the Federal government, with a connection that is
direct and clear, not remote or attenuated.
    (2) The disclosable portions of the requested records must be
meaningfully informative about government operations or activities in
order to be ``likely to contribute'' to an increased public
understanding of those operations or activities. The disclosure of

[[Page 207]]

information that already is in the public domain, in either the same or
a substantially identical form, would not contribute to such
understanding where nothing new would be added to the public's
understanding.
    (3) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as his or her ability and
intention to effectively convey information to the public shall be
considered. It shall ordinarily be presumed that a representative of the
news media satisfies this consideration.
    (4) The public's understanding of the subject in question must be
enhanced by the disclosure to a significant extent. However, OPIC shall
not make value judgments about whether the information at issue is
``important'' enough to be made public.
    (c) To determine whether disclosure of the requested information is
primarily in the commercial interest of the requester, OPIC will
consider the following factors:
    (1) OPIC shall identify any commercial interest of the requester, as
defined in paragraph (b)(1) of this section, that would be furthered by
the requested disclosure. Requesters shall be given an opportunity to
provide explanatory information regarding this consideration.
    (2) A waiver or reduction of fees is justified where the public
interest is greater than any identified commercial interest in
disclosure.
    (d) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
    (e) Requests for a waiver or reduction of fees should be made when
the request is first submitted to OPIC and should address the criteria
referenced above. A requester may submit a fee waiver request at a later
time so long as the underlying record request is pending or on
administrative appeal. When a requester who has committed to pay fees
subsequently asks for a waiver of those fees and that waiver is denied,
the requester will be required to pay any costs incurred up to the date
the fee waiver request was received.
    (f) The burden of presenting sufficient evidence or information to
justify the requested fee waiver or reduction falls on the requester.



                    Subpart D_Processing of Requests



Sec. 706.30  Timing of responses to requests.

    (a) In general. OPIC ordinarily will respond to requests within
twenty business days unless the request involves unusual circumstances
as described in subparagraph (d) of this section. The response time will
commence on the date that the request is received by the FOIA Office,
but in any event not later than ten working days after the request is
first received by OPIC. Any time tolled under paragraph (c) of this
section does not count against OPIC's response time.
    (b) Multitrack processing. OPIC has a track for requests that are
granted expedited processing, in accordance with the standards set forth
in paragraph (e) of this section. All non-expedited requests are
processed on the regular track in the order they are received.
    (c) Tolling of response time. OPIC may toll its response time once
to seek clarification of a request in accordance with Sec. 706.11(b) or
as needed to resolve fee issues in accordance with Sec. Sec. 706.22(c)
and 706.23(d). The response time will resume upon OPIC's receipt of the
requester's clarification or upon resolution of the fee issue.
    (d) Unusual circumstances. Whenever the statutory time limits for
processing cannot be met because of ``unusual circumstances'' as defined
in the FOIA, and OPIC extends the time limits on that basis, OPIC will
notify the requester in writing of the unusual circumstances involved
and of the date by which processing of the request can be expected to be
completed. This notice will be sent before the expiration of the twenty
day period to respond. Where the extension exceeds ten working days, the
requester will be provided an opportunity to modify the request or agree
to an alternative time period for processing. OPIC will make its
designated FOIA contact and its FOIA

[[Page 208]]

Public Liaison available for this purpose.
    (e) Aggregating requests. For the purposes of satisfying unusual
circumstances under the FOIA, OPIC may aggregate requests in cases where
it reasonably appears that multiple requests, submitted either by a
requester or by a group of requesters acting in concert, constitute a
single request that would otherwise involve unusual circumstances. OPIC
will not aggregate multiple requests that involve unrelated matters.
    (f) Expedited processing. (1) Requests and appeals will be processed
on an expedited basis whenever it is determined that they involve:
    (i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged
Federal government activity, if made by a person who is primarily
engaged in disseminating information;
    (2) A request for expedited processing may be made at any time.
    (3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. For example,
under paragraph (e)(1)(ii) of this section, a requester who is not a
full-time member of the news media must establish that he or she is a
person whose primary activity or occupation is information
dissemination. Such a requester also must establish a particular urgency
to inform the public about the government activity involved in the
request--one that extends beyond the public's right to know about
government activity generally. A requester cannot satisfy the ``urgency
to inform'' requirement solely by demonstrating that numerous articles
have been published on a given subject. OPIC may waive the formal
certification requirement at its discretion.
    (4) OPIC shall notify the requester within ten calendar days of the
receipt of a request for expedited processing of its decision whether to
grant or deny expedited processing. If expedited processing is granted,
the request shall be given priority, placed in the processing track for
expedited requests, and shall be processed as soon as practicable. If
OPIC denies expedited processing, any appeal of that decision which
complies with the procedures set forth in Sec. 706.33 shall be acted on
expeditiously.



Sec. 706.31  Responses to requests.

    (a) Acknowledgments of requests. If a request will take longer than
ten days to process, OPIC will send the requester an acknowledgment
letter that assigns the request an individualized tracking number.
    (b) Grants of requests. OPIC will notify the requester in writing if
it makes a determination to grant a request in full or in part. The
notice will inform the requester of any fees charged under Sec. 706.22.
OPIC will disclose the requested records to the requester promptly upon
payment of any applicable fees.
    (c) Adverse determinations of requests. OPIC will notify the
requester in writing if it makes an adverse determination denying a
request in any respect. Adverse determinations, or denials of requests,
include decisions that: the requested record is exempt, in whole or in
part; the request does not reasonably describe the records sought; the
information requested is not a record subject to the FOIA; the requested
record does not exist, cannot be located, or has been destroyed; or the
requested record is not readily reproducible in the form or format
sought by the requester. Adverse determinations also include denials
involving fees or fee waiver matters or denials of requests for
expedited processing.
    (d) Content of denial letter. The denial letter will be signed by
the person responsible for the denial, and will include:
    (1) The name and title or position of the person responsible for the
denial;
    (2) A brief statement of the reasons for the denial, including any
FOIA exemptions applied;
    (3) An estimate of the volume of any records or information
withheld, for example, by providing the number of pages or some other
reasonable form of

[[Page 209]]

estimation. This estimation is not required if the volume is otherwise
indicated by deletions marked on records that are disclosed in part, or
if providing an estimate would harm an interest protected by an
applicable exemption;
    (4) A brief description of the types of information withheld and the
reasons for doing so. A description and explanation are not required if
providing it would harm an interest protected by an applicable
exemption;
    (5) A statement that the denial may be appealed under Section
706.33(a) of this subpart, and a description of the requirements set
forth therein; and
    (6) Notice of any fees charged under Sec. 706.22.
    (e) Markings on released documents. Where technically feasible, OPIC
will mark withholdings made on released documents at the place where the
withholding has been made and will include the exemption applied.
Markings on released documents must be clearly visible to the requester.
    (f) Referrals to other government agencies. If you request a record
in OPIC's possession that was created or classified by another Federal
agency, OPIC will promptly refer your request to that agency for direct
response to you unless OPIC can determine by examining the record or by
informal consultation with the originating agency that the record may be
released in whole or part. OPIC will notify you of any such referral.



Sec. 706.32  Confidential commercial information.

    (a) Definitions. (1) Confidential commercial information means
commercial or financial information obtained from a submitter that may
be protected from disclosure under Exemption 4 of the FOIA. Exemption 4
protects:
    (i) Trade secrets; or
    (ii) Commercial or financial information that is privileged or
confidential where either: Disclosure of the information would cause
substantial competitive harm to the submitter, or the information is
voluntarily submitted and would not customarily be publicly released by
the submitter.
    (2) Submitter means any person or entity who provides confidential
commercial information to OPIC, directly or indirectly.
    (b) Designation of confidential commercial information. All
submitters may designate, by appropriate markings, any portions of their
submissions that they consider to be protected from disclosure under the
FOIA. The markings may be made at the time of submission or at a later
time. These markings will be considered by OPIC in responding to a FOIA
request but such markings (or the absence of such markings) will not be
dispositive as to whether the marked information is ultimately released.
Unless otherwise requested and approved these markings will be
considered no longer applicable ten years after submission or five years
after the close of the associated project, whichever is later.
    (c) When notice to submitters is required. (1) Except as provided in
paragraph (d) of this section, OPIC's FOIA Office will use reasonable
efforts to notify a submitter in writing whenever:
    (i) The requested information has been designated in good faith by
the submitter as confidential commercial information; or
    (ii) OPIC has reason to believe that the requested information may
be protected from disclosure under Exemption 4.
    (2) This notification will describe the nature and scope of the
request, advise the submitter of its right to submit written objections
in response to the request, and provide a reasonable time for response.
The notice will either describe the commercial information requested or
include copies of the requested records. In cases involving a voluminous
number of submitters, notice may be made by posting or publishing the
notice in a place or manner reasonably likely to accomplish it.
    (d) Exceptions to submitter notice requirements. The notice
requirements of this section shall not apply if:
    (1) OPIC determines that the information is exempt under the FOIA;
    (2) The information lawfully has been published or has been
officially made available to the public; or
    (3) Disclosure of the information is required by a statute other
than the

[[Page 210]]

FOIA or by a regulation issued in accordance with the requirements of
Executive Order 12600 of June 23, 1987.
    (e) Opportunity to object to disclosure. (1) The submitter may, at
any time prior to the disclosure date described in paragraph (c)(2) of
this section, submit to OPIC's FOIA Office detailed written objections
to the disclosure of the requested information, specifying the grounds
upon which it contends that the information should not be disclosed. In
setting forth such grounds, the submitter should explain the basis of
its belief that the nondisclosure of any item of information requested
is mandated or permitted by law. In the case of information that the
submitter believes to be exempt from disclosure under subsection (b)(4)
of the FOIA, the submitter shall explain why the information is
considered a trade secret or commercial or financial information that is
privileged or confidential and either: How disclosure of the information
would cause substantial competitive harm to the submitter, or why the
information should be considered voluntarily submitted and why it is
information that would not customarily be publicly released by the
submitter. Information provided by a submitter pursuant to this
paragraph may itself be subject to disclosure under the FOIA.
    (2) A submitter who fails to respond within the time period
specified in the notice shall be considered to have no objection to
disclosure of the information. Information received after the date of
any disclosure decision will not be considered. Any information provided
by a submitter under this subpart may itself be subject to disclosure
under the FOIA.
    (3) The period for providing OPIC with objections to disclosure of
information may be extended by OPIC upon receipt of a written request
for an extension from the submitter. Such written request shall set
forth the date upon which any objections are expected to be completed
and shall provide reasonable justification for the extension. In its
discretion, OPIC may permit more than one extension.
    (f) Analysis of objections. OPIC will consider a submitter's
objections and specific grounds for nondislosure in deciding whether to
disclose the requested information.
    (g) Notice of intent to disclose. If OPIC rejects the submitter's
objections, in whole or in part, OPIC will promptly notify the submitter
of its determination at least five working days prior to release of the
information. The notification will include:
    (1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
    (2) A description of the information to be disclosed, or a copy
thereof; and
    (3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a FOIA
lawsuit seeking to compel the disclosure of confidential commercial
information, OPIC will promptly notify the submitter.
    (i) Requester notification. OPIC will notify a requester whenever it
provides the submitter with notice and an opportunity to object to
disclosure and whenever a submitter files a lawsuit to prevent the
disclosure of the information.



Sec. 706.33  Administrative appeals.

    (a) Requirements for making an appeal. A requester may appeal any
adverse determinations denying his or her request to OPIC's Vice
President and General Counsel at [email protected] or 1100 New York Avenue
NW., Washington, DC 20527. Examples of adverse determinations are
provided in Sec. 706.31(c). The requester must make the appeal in
writing and it must be postmarked, or in the case of electronic
submissions, transmitted, within twenty working days following the date
on which the requester receives OPIC's denial. Appeals that have not
been postmarked or transmitted within the twenty days will be considered
untimely and will be administratively closed with notice to the
requester. The appeal letter should include the assigned request number.
The requester should mark both the appeal letter and envelope, or
subject line of the electronic transmission, ``Freedom of Information
Act Appeal.''
    (b) Adjudication of appeals. OPIC's Vice President and General
Counsel or his/her designee will render a written

[[Page 211]]

decision within twenty working days after the date of OPIC's receipt of
the appeal, unless an extension of up to ten working days is deemed
necessary due to unusual circumstances. The requester will be notified
in writing of any extension.
    (c) Decisions on appeals. A decision that upholds the initial
determination will contain a written statement that identifies the
reasons for the affirmance, including any FOIA exemptions applied, and
will provide the requester with notification of the statutory right to
file a lawsuit or the ability to request mediation from the Office of
Government Information Services. If an initial determination is remanded
or modified on appeal the requester will be notified in writing. OPIC's
FOIA Office will then process the request in accordance with that appeal
determination and respond directly to the requester. If an appeal is
granted in whole or in part, the information will be made available
promptly, provided the requirements of Sec. 706.22 regarding payment of
fees are satisfied.
    (d) When appeal is required. Before seeking court review, a
requester generally must first submit a timely administrative appeal.



PART 707_ACCESS TO AND SAFEGUARDING OF PERSONAL INFORMATION IN RECORDS
OF THE OVERSEAS PRIVATE INVESTMENT CORPORATION--Table of Contents



                            Subpart A_General

Sec.
707.11 Scope and purpose.
707.12 Definitions.
707.13 Preservation of records.

    Subpart B_Requests for Access to Records; Amendment of Records,
     Accounting of Disclosures; Notice of Court Ordered Disclosures

707.21 Requests for access to or copies of records.
707.22 Requests to permit access of records to an individual other than
          the individual to whom the record pertains.
707.23 Requests for amendment of records.
707.24 Requests for an accounting of record disclosures.
707.25 Appeals.
707.26 Notification of court-ordered disclosures.
707.27 Fees.

                          Subpart C_Exceptions

707.31 Specific exemptions.
707.32 Special exemption.
707.33 Other rights and services.

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

    Source: 79 FR 8614, Feb. 13, 2014, unless otherwise noted.



                            Subpart A_General



Sec. 707.11  Scope and purpose.

    This part applies to all records in systems of records maintained by
OPIC that are retrievable by an individual's name or personal
identifier. The rules in this part describe the procedures by which
individuals may request access to records about themselves, request
amendment or correction of those records, or request an accounting of
disclosures of records by OPIC. These rules should be read in
conjunction with the Privacy Act of 1974, 5 U.S.C. 552a, which provides
additional information about records maintained on individuals.



Sec. 707.12  Definitions.

    As used in this part:
    (a) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence;
    (b) Maintain includes maintain, collect, use, or disseminate;
    (c) Record means any item, collection, or grouping of information
about an individual that is maintained by an agency, including, but not
limited to, his education, financial transactions, medical history, and
criminal or employment history and that contains his name, or the
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or photograph;
    (d) System of records mean a group of any records under the control
of OPIC from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual;
    (e) Statistical record means a record in a system of records
maintained for statistical research or reporting purposes

[[Page 212]]

only and not used in whole or in part in making any determination about
an identifiable individual, except as provided by 13 U.S.C. 8;
    (f) Routine use means, with respect to the disclosure of a record,
the use of such record for a purpose which is compatible with the
purpose for which it was collected.



Sec. 707.13  Preservation of records.

    OPIC preserves all correspondence pertaining to the requests that it
receives under this part, as well as copies of all requested records,
until disposition or destruction is authorized pursuant to title 44 of
the United States Code or the General Records Schedule 14 of the
National Archives and Records Administration. Records that are
identified as responsive to a request will not be disposed of or
destroyed while they are the subject of a pending request, appeal, or
lawsuit under the Privacy Act.



    Subpart B_Requests for Access to Records; Amendment of Records,
     Accounting of Disclosures; Notice of Court Ordered Disclosures



Sec. 707.21  Requests for access to or copies of records.

    (a) How to submit. An individual may request access to or copies of
records maintained by OPIC that are retrieved by an individual's
personal identifier. To make a request for records a requester must
submit a written request to the Director of Human Resources Management
either by mail or delivery to Overseas Private Investment Corporation,
1100 New York Avenue NW., Washington, DC 20527 or electronic mail to
[email protected]. The envelope or subject line should read ``Privacy Act
Request'' to ensure proper routing. Access to records maintained by OPIC
will be provided only by appointment. No officer or employee of OPIC
shall provide an individual with any records under this part until a
written request as described in paragraph (b) of this section is
provided and the identity of the individual is verified as described in
paragraph (c) of this section.
    (b) Information to include. All requests under this section must:
    (1) Be in writing and be signed by the requester. Unless the
requester is a current officer or employee of OPIC, the letter must also
be duly acknowledged before a notary public or other authorized public
official or signed under 28 U.S.C. 1746, a law that permits statements
to be made under penalty of perjury as a substitute for notarization;
    (2) Provide information sufficient to verify the identity of the
requester, including the requester's full name, current address, date of
birth, place of birth, or the system of record identification name or
number. Also include a clearly legible copy of a valid form of
identification. If the request is being made by a parent or guardian on
behalf of another, also include the same information for the individual
who is the subject of the request along with a court order, birth
certificate, or similar document proving the guardianship. OPIC will
review the sufficiency of identity evidence under paragraph (c) of this
section;
    (3) Provide information sufficient to accurately identify the
records or information so that OPIC staff can locate the records with a
reasonable amount of effort. At minimum this should include the full
name, the system of record identification name, or the system
identification number for the individual who is the subject of the
records. Provision of a social security number is optional. If possible,
also include a description of the records as well as providing a record
creation time range and the name of the systems that should be searched.
A description of OPIC's system of records can be located in the
``Privacy Act Compilation'' published by the National Archives and
Records Administration's Office of the Federal Register. Each system of
records is also published in the Federal Register;
    (4) Specify whether the individual wishes access to or copies of the
information pertaining to him. If access is requested, provide at least
one preferred date and hour for which an appointment is requested during
regular

[[Page 213]]

business hours as provided in paragraph (a) of this section. OPIC
encourages appointments to be made at least one week in advance and for
a requester to provide at least three preferred appointment times; and
    (5) Include an agreement to pay fees or an agreement to pay fees up
to a specified amount under Sec. 707.27. A request that does not
include an agreement to pay fees will be considered an agreement to pay
fees up to $25.00.
    (c) Verification of identity. Prior to providing any requested
information about an individual, the Director of Human Resources
Management shall verify the identity of the individual. If the requester
is acting as the guardian of the individual who is the subject of the
records, the Director will also verify the identity of the individual
who is the subject of the records, the relationship between the
requester and the subject individual, and that the requester is acting
on behalf of the subject individual. In order to verify identity, the
Director shall require the individual to provide reasonable proof of
identity such as a valid driver's license, identification card,
passport, employee identification card, or any other identifying
information. The Director shall deny any request where she determines,
at her sole discretion, that the evidence offered to verify the identity
of an individual is insufficient to conclusively establish the identity
of the individual.
    (d) Release of records. Originals and record copies will not be
released from the files of OPIC. Individuals will not be permitted to
disturb any record files or to remove records from designated place of
examination. If copies were requested in the request letter, copies will
be furnished upon payment of the fees prescribed in Sec. 707.27.
    (e) Denial of request. If the Director of Human Resources Management
declines any request submitted under this section, the denial will be
made in writing and contain a brief description of the denial. Denials
include a determination that an individual has not provided adequate
evidence to verify identity under paragraph (c) of this section, a
determination that the record cannot be located, and a withholding of a
record in whole or in part. In the event of a denial, the requester may
file a written appeal within thirty days of the date of notification,
following the procedures in Sec. 707.25.



Sec. 707.22  Requests to permit access of records to an individual
other than the individual to whom the record pertains.

    (a) Access by an authorized individual. An individual requester who
wishes to be accompanied by another individual when reviewing records
pertaining to the requester must provide OPIC with a signed, written
statement authorizing discussion of the information contained in the
records in the presence of the accompanying individual. Both parties
will be required to verify their identity under Sec. 707.21(c) before
access is granted.
    (b) Release to an authorized individual. An individual requester who
wishes to have copies of records pertaining to the requester released to
another individual must provide OPIC with a written statement
authorizing release of the information contained in the records to the
other individual. The identity of the individual to whom the record
pertains must be verified under Sec. 707.21(c) before release is
authorized.
    (c) Access or release to parent or guardian. Guardians will be
provided access or copies under the provisions of Sec. 707.21.



Sec. 707.23  Requests for amendment of records.

    (a) How to submit. Unless a record is not subject to amendment, per
paragraphs (g) and (h) of this section, an individual may request an
amendment of a record to correct information the individual believes is
not accurate, relevant, timely, or complete. The request must be in
writing, labeled ``Privacy Act Request,'' and should be addressed to the
Director of Human Resources Management. The request may either be mailed
to OPIC or delivered to the receptionist at 1100 New York Avenue NW.,
Washington, DC 20527, during regular business hours, between 8:45 a.m.
and 5:30 p.m., Monday through Friday, excluding public holidays. The
request will be considered received when actually delivered to or, if
mailed, when it

[[Page 214]]

is actually received by the Director of Human Resources Management.
    (b) Information to include. All requests under this section must:
    (1) Be in writing and be signed by the requester. Unless the
requester is a current officer or employee of OPIC, the letter must also
be duly acknowledged before a notary public or other authorized public
official or signed under 28 U.S.C. 1746, a law that permits statements
to be made under penalty of perjury as a substitute for notarization;
    (2) Provide information sufficient to verify the identity of the
requester, including the requester's full name, current address, date of
birth, place of birth, or the system of record identification name or
number. Also include a clearly legible copy of a valid form of
identification. If the request is being made by a parent or guardian on
behalf of another, also include the same information for the individual
who is the subject of the request along with a court order, birth
certificate, or similar document proving the guardianship. OPIC will
review the sufficiency of identity evidence under paragraph (c) of this
section;
    (3) Provide information sufficient to accurately identify each
record so that OPIC staff can locate the record and information with a
reasonable amount of effort. At minimum this should include the full
name, the system of record identification name, or the system record
identification number for the individual who is the subject of the
records and the name for each system that you believe the record is
located in. Provision of a social security number is optional. If
possible, you should also include a description of the records and
provide a record creation time range. A description of OPIC's systems of
records can be located in the ``Privacy Act Compilation'' published by
the National Archives and Records Administration's Office of the Federal
Register. Each system of records is also published in the Federal
Register;
    (4) Specify the correction requested; and
    (5) Detail the basis for the requester's belief that the records and
information are not accurate, relevant, timely, or complete. This
includes providing substantial and reliable evidence sufficient to
permit OPIC to determine whether an amendment is in order.
    (c) Verification of identity. Prior to amending information about an
individual, the Director of Human Resources Management shall verify the
identity of the requesting individual. If the requester is acting as the
guardian of the individual who is the subject of the records, the
Director will also verify the identity of the individual who is the
subject of the records, the relationship between the requester and the
subject individual, and that the requester is acting on behalf of the
subject individual. In order to verify identity, the Director shall
require the individual to provide reasonable proof of identity such as a
valid driver's license, identification card, passport, employee
identification card, or any other identifying information. The Director
shall deny any request where she determines, at her sole discretion,
that the evidence offered to verify the identity of an individual is
insufficient to conclusively establish the identity of the individual.
    (d) Acknowledgment of request. If a request will take longer than
ten (10) business days to process, OPIC will send the requester an
acknowledgment letter. Any request that Director of Human Resources
Management determines does not describe records or information in enough
detail to permit the staff to promptly locate the records; does not
describe the correction requested in enough detail to permit the staff
to make a correction; or does not reasonably specify the amendment
requested or its basis will be returned without prejudice to the
requester and treated as not received.
    (e) Determination. The Director of Human Resources Management will
provide a determination on a request under this section within thirty
(30) days from receipt.
    (1) Amendment. The Director of Human Resources Management will
notify the requester in writing if the amendment is made and provide the
individual an opportunity to request a copy of the amended record.

[[Page 215]]

    (2) Denial. The Director of Human Resources Management will notify
the requester in writing if she denies any portion of a request made
under this section. The denial will include a brief explanation of the
reason for the refusal and the right of the individual to file an appeal
within thirty (30) days, following the procedures in Sec. 707.25. In
the event an appeal is denied, a requester may file a statement of
disagreement with OPIC as described in Sec. 707.25(c).
    (f) Notification of amendment. Within thirty (30) days of the
amendment or correction of a record or the filing of a statement of
disagreement, OPIC will notify all persons, organizations, or agencies
to which it previously disclosed the record, if an accounting of that
disclosure was made. If an individual has filed a statement of
disagreement, OPIC will attach a copy of it to the disputed record
whenever the record is disclosed in the future and may also attach a
concise statement of its reasons for denying the request to amend or
correct.
    (g) Records not subject to amendment. The following records are not
subject to amendment:
    (1) Transcripts of testimony given under oath or written statements
made under oath;
    (2) Transcripts of grand jury proceedings, judicial proceedings, or
quasi-judicial proceedings, which are the official record of those
proceedings;
    (3) Presentence records that originated with the courts; and
    (4) Records in systems of records that have been exempted from
amendment and correction under the Privacy Act, 5 U.S.C. 552a(j) or (k)
or by notice published in the Federal Register.
    (h) No amendment permitted. No part of these rules shall be
construed to permit:
    (1) The alteration of evidence presented in the course of judicial,
quasi-judicial, or quasi-legislative proceedings;
    (2) Collateral attack upon any matter which has been the subject of
judicial or quasi-judicial action; or
    (3) An amendment or correction which would be in violation of an
existing statute, executive order, or regulation.



Sec. 707.24  Requests for an accounting of record disclosures.

    (a) How to submit. Unless an accounting of disclosures is not
required to be kept under paragraph (e) of this section, an individual
may request an accounting of all disclosures OPIC has made of a record,
maintained in a system of records and about the individual, to another
person, organization, or agency. The request must be in writing, labeled
``Privacy Act Request,'' and should be addressed to the Director of
Human Resources Management. The request may either be mailed to OPIC or
delivered to the receptionist at 1100 New York Avenue NW., Washington,
DC 20527, during regular business hours, between 8:45 a.m. and 5:30
p.m., Monday through Friday, excluding public holidays. The request will
be considered received when actually delivered to or, if mailed, when it
is actually received by the Director of Human Resources Management.
    (b) Information to include. All requests under this section must:
    (1) Be in writing and be signed by the requester. Unless the
requester is a current officer or employee of OPIC, the letter must also
be duly acknowledged before a notary public or other authorized public
official or signed under 28 U.S.C. 1746, a law that permits statements
to be made under penalty of perjury as a substitute for notarization;
    (2) Provide information sufficient to verify the identity of the
requester, including the requester's full name, current address, date of
birth, place of birth, or the system of record identification name or
number. Also include a clearly legible copy of a valid form of
identification. If the request is being made by a parent or guardian on
behalf of another, also include the same information for the individual
who is the subject of the request along with a court order, birth
certificate, or similar document proving the guardianship. OPIC will
review the sufficiency of identity evidence under paragraph (c) of this
section;
    (3) Provide information sufficient to accurately identify the
records or information so that OPIC staff can locate the records with a
reasonable amount

[[Page 216]]

of effort. At minimum this should include the full name, the system of
record identification name, or the system record identification number
for the individual who is the subject of the records and the name for
each system that you believe the record is located in. Provision of a
social security number is optional. If possible, you should also include
a description of the records and provide a time range. A description of
OPIC's system of records can be located in the ``Privacy Act
Compilation'' published by the National Archives and Records
Administration's Office of the Federal Register. Each system of records
is also published in the Federal Register;
    (4) Include an agreement to pay fees or an agreement to pay fees up
to a specified amount under Sec. 707.27. A request that does not
include an agreement to pay fees will be considered an agreement to pay
fees up to $25.00.
    (c) Verification of identity. Prior to providing any requested
information about an individual, the Director of Human Resources
Management shall verify the identity of the requesting individual. If
the requester is acting as the guardian of the individual who is the
subject of the records, the Director will also verify the identity of
the individual who is the subject of the records, the relationship
between the requester and the subject individual, and that the requester
is acting on behalf of the subject individual. In order to verify
identity, the Director shall require the individual to provide
reasonable proof of identity such as a valid driver's license,
identification card, passport, employee identification card, or any
other identifying information. The Director shall deny any request where
she determines, at her sole discretion, that the evidence offered to
verify the identity of an individual is insufficient to conclusively
establish the identity of the individual.
    (d) Determination. The Director of Human Resources Management will
provide a requester with one of the following:
    (1) Provision of accounting of disclosures. If the request is
granted, the Director of Human Resources Management will provide the
individual with an accounting containing the date, nature, and purpose
of each disclosure, as well as the name and address of the person,
organization, or agency to which the disclosure was made.
    (2) Denial. The Director of Human Resources Management will notify
the individual in writing if she denies any portion of a request made
under this section. The denial will include a brief explanation of the
reason for the refusal and the right of the individual to request a
review thereof under the provisions of Sec. 707.25.
    (e) Disclosures where an accounting of disclosures is not required.
OPIC need not provide an accounting of disclosures where:
    (1) The disclosures are of the type for which accountings are not
kept. For example, disclosures made to employees within the agency; or
    (2) The disclosure was made in response to a written request from a
law enforcement agency for authorized law enforcement purposes.



Sec. 707.25  Appeals.

    An individual may appeal a denial made under Sec. Sec. 707.21
through 707.23 within thirty (30) days of the notification of such
denial.
    (a) How to submit. The appeal must be in writing, labeled ``Privacy
Act Appeal,'' and should be addressed to the Executive Vice President.
The request may either be mailed to OPIC or delivered to the
receptionist at 1100 New York Avenue NW., Washington, DC 20527, during
regular business hours, between 8:45 a.m. and 5:30 p.m., Monday through
Friday, excluding public holidays.
    (b) Information to include. All requests under this section must:
    (1) Be in writing and be signed by the requester;
    (2) Be clearly labeled ``PRIVACY ACT APPEAL'' on both the letter and
the envelope;
    (3) Clearly reference the determination being appealed; and
    (4) Provide support for your information, including documentation
provided in the initial determination and any additional information.

[[Page 217]]

    (b) Appeal determination. The Executive Vice President will advise
the individual of OPIC's determination within thirty (30) business days.
If the Executive Vice President is unable to provide a determination
within thirty business days, the individual will be advised in writing
of the reason before the expiry of the thirty business days.
    (1) Overturn initial determination. If the Executive Vice President
grants the appeal and overturns the initial determination in whole or
part, the individual will be notified in writing and the requested
action taken promptly along with any other steps OPIC would have taken
had the initial determination come to the same result as the appeal.
    (2) Uphold initial determination. If the Executive Vice President
denies the appeal and upholds the initial determination in whole or in
part, the individual will be notified in writing and provided with an
explanation. In cases where a denial of amendment or correction is
upheld, the individual will also be notified of the ability to file a
statement of disagreement under paragraph (c) of this section.
    (c) Statement of disagreement. If an individual is denied a request
to amend a record in whole or in part and that denial is upheld on
appeal, the individual may file a statement of disagreement. Statements
of disagreement must be concise, clearly identify each part of any
record that is disputed, and should be no longer than one typed page for
each fact disputed. The statement of disagreement will be placed in the
system of records that contains the disputed record and the record will
be marked to indicate that a statement of disagreement has been filed.
The statement of disagreement will be attached to any future releases of
the disputed record and may be accompanied by a concise statement from
OPIC explaining its denial.



Sec. 707.26  Notification of court-ordered disclosures.

    (a) Except in cases under paragraph (c) of this section, when a
record pertaining to an individual is required to be disclosed by court
order, OPIC will make reasonable efforts to provide notice of this to
the individual. If OPIC cannot locate the individual, notice will be
deemed sufficient for this part if it is mailed to the individual's last
known address. The notice will contain a copy of the order and a
description of the information disclosed.
    (b) Notice will be given within a reasonable time after OPIC's
receipt of the order, unless the order is not a matter of public record.
In those cases, the notice will be given only after the order becomes
public.
    (c) Notice is not required if disclosure is made from an exempt
system of records.



Sec. 707.27  Fees.

    (a) The fees to be charged for making copies of any records provided
to an individual under this part are ten (10) cents per page. No fees
will be charged for search or review.
    (b) At its discretion, OPIC may grant a request for special services
such as mailing copies by means other than first class mail or providing
document certification. All special services provided to the requester
will be provided at cost.
    (c) OPIC considers any request under the Privacy Act to be an
authorization to incur up to $25.00 in fees unless a request states
otherwise.
    (d) OPIC may condition access to records or copies of records upon
full payment of any fees due.
    (e) All payments under this part must be in the form of a check or
bank draft denominated in U.S. currency. Checks should be made payable
to the order of the United States Treasury and mailed or hand delivered
to OPIC at 1100 New York Avenue NW., Washington, DC 20527.



                          Subpart C_Exceptions



Sec. 707.31  Specific exemptions.

    The provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H)
and (I) and (f) shall not apply to any system of records maintained by
OPIC that is--
    (a) Subject to the provisions of 5 U.S.C. 552(b)(1);
    (b) Composed of Investigatory material compiled for law enforcement
purposes other than those specified in 5 U.S.C. 552a(j)(2);

[[Page 218]]

    (c) Required by statute to be maintained and used solely as
statistical records;
    (d) Composed of 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 only to the extent that OPIC may
determine, in its sole discretion, that the disclosure of such material
would reveal the identity of the source who, subsequent to September 27,
1975, furnished information to the Government under an express promise
that the identity of the source would be held in confidence or, prior to
such date, under an implied promise to such effect; and
    (e) Composed of testing or examination materials used solely to
determine individual qualifications for appointment or promotion in the
Federal service and OPIC determines, in its sole discretion, that
disclosure of such materials would compromise the fairness of the
testing or examination process.



Sec. 707.32  Special exemption.

    Nothing in this part shall allow an individual access to any
information compiled in reasonable anticipation of a civil action or
proceeding.



Sec. 707.33  Other rights and services.

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



PART 708_SUNSHINE REGULATIONS--Table of Contents



Sec.
708.1 Purpose and applicability.
708.2 Open meeting policy.
708.3 Scheduling of a meeting.
708.4 Public announcement.
708.5 Closed meetings.
708.6 Records of closed meetings.

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

    Source: 42 FR 13110, Mar. 9, 1977, unless otherwise noted.



Sec. 708.1  Purpose and applicability.

    The purpose of this part is to effectuate the provisions of the
Government in the Sunshine Act. This part applies to the deliberations
of a quorum of the Directors of the Corporation required to take action
on behalf of the Corporation where such deliberations determine or
result in the joint conduct or disposition of official Corporation
business, but does not apply to deliberations to take action to open or
close a meeting or to release or withhold information under Sec. 708.5.
Any deliberation to which this part applies is hereinafter in this part
referred to as a meeting of the Board of Directors.



Sec. 708.2  Open meeting policy.

    (a) It is the policy of the Corporation to provide the public with
the fullest practicable information regarding the decisionmaking process
of the Board of Directors of the Corporation while protecting the rights
of individuals and the ability of the Corporation to carry out its
responsibilities. In order to effect this policy, every meeting of the
Board of Directors shall be open to public observation and will only be
closed to public observation if justified under one of the provisions of
Sec. 708.5. The public is invited to observe and listen to all meetings
of the Board of Directors, or portions thereof, open to public
observation, but may not participate or record any of the discussions by
means of electronic or other devices or cameras. Documents being
considered at meetings of the Board of Directors may be obtained subject
to the procedures and exemptions set forth in part 706 of this chapter.
    (b) Directors of the Corporation shall not jointly conduct or
dispose of agency business other than in accordance with this part. This
prohibition shall not prevent Directors from considering individually
business that is circulated to them sequentially in writing.
    (c) The Secretary of the Corporation shall be responsible for
assuring that ample space, sufficient visibility, and adequate acoustics
are provided for public observation of meetings of the Board of
Directors.



Sec. 708.3  Scheduling of a meeting.

    A decision to hold a meeting of the Board of Directors should be
made as provided in the By-laws of the Corporation and at least eight
days prior to

[[Page 219]]

the scheduled meeting date in order for the Secretary of the Corporation
to give the public notice required by Sec. 708.4. However in special
cases, a majority of the Directors may decide to hold a meeting less
than eight days prior to the scheduled meeting date if they determine by
a recorded vote that Corporation business requires such meeting at such
earlier date. After public announcement of a meeting of the Board of
Directors under the provisions of Sec. 708.4, the subject matter
thereof, or the determination to open or close a meeting, or portion
thereof, may only be changed if a majority of the Directors determines
by a recorded vote that business so requires and that no earlier
announcement of the change is possible.



Sec. 708.4  Public announcement.

    (a) Except to the extent that such information is exempt from
disclosure under the provisions of Sec. 708.5, in the case of each
meeting of the Board of Directors, the Secretary shall make public
announcement at least one week before the meeting, of the time, place,
and subject matter of the meeting, whether it is to be open or closed to
the public, and the name and telephone number of the official designated
by the Corporation to respond to requests for information about the
meeting. Such announcement shall be made unless a majority of the
Directors determines by a recorded vote that Corporation business
requires that such meeting be called at an earlier date, in which case
the Secretary shall make public announcement of the time, place, and
subject matter of such meeting, and whether open or closed to the
public, at the earliest practicable time.
    (b) The time or place of a meeting may be changed following the
public announcement required by paragraph (a) of this section only if
the Secretary publicly announces such change at the earliest practicable
time. The subject matter of a meeting, or the determination of the
Corporation to open or close a meeting, or portion of a meeting, to the
public, may be changed following the public announcement required by
this section only if (1) a majority of the Directors determines by a
recorded vote that business so requires and that no earlier announcement
of the change was possible, and (2) the Secretary publicly announces
such change and the vote of each Director upon such change at the
earliest practicable time.
    (c) The earliest practicable time, as used in this subsection, means
as soon as possible, which should in few, if any, instances be later
than the commencement of the meeting or portion in question.
    (d) The Secretary shall use reasonable means to assure that the
public is fully informed of the public announcements required by this
section. Such public announcements may be made by posting notices in the
public areas of the Corporation's headquarters and mailing notices to
the persons on a list maintained for those who want to receive such
announcements.
    (e) Immediately following each public announcement required by this
section, notice of the time, place, and subject matter of a meeting,
whether the meeting is open or closed, any change in one of the
preceding announcements, and the name and telephone number of the
official designated by the Corporation to respond to requests for
information about the meeting shall also be submitted by the Secretary
for publication in the Federal Register.



Sec. 708.5  Closed meetings.

    (a) Meetings of the Board of Directors will be closed to public
observation where the Corporation properly determines, according to the
procedures set forth in paragraph (c) of this section, that such portion
or portions of the meeting or disclosure of such information is likely
to:
    (1) Disclose matters that are (i) specifically authorized under
criteria established by an Executive order to be kept secret in the
interests of national defense or foreign policy and are (ii) in fact
properly classified pursuant to such Executive order;
    (2) Relate solely to the internal personnel rules and practices of
an agency;
    (3) Disclose matters specifically exempted from disclosure by
statute (other than 5 U.S.C. 552), Provided, That such statute (i)
requires that the matters be withheld from the public in such a manner
as to leave no discretion

[[Page 220]]

on the issue, or (ii) establishes particular criteria for withholding or
refers to particular types of matters to be withheld;
    (4) Disclose the trade secrets and commercial or financial
information obtained from a person and privileged or confidential;
    (5) Involve accusing any person of a crime, or formally censuring
any person;
    (6) Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records or
information would (i) interfere with enforcement proceedings, (ii)
deprive a person of a right to a fair trial or an impartial
adjudication, (iii) constitute an unwarranted invasion of personal
privacy, (iv) disclose the identity of a confidential source and, in the
case of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source, (v) disclose investigative
techniques and procedures, or (vi) endanger the life or physical safety
of law enforcement personnel;
    (8) Disclose information the premature disclosure of which would be
likely to significantly frustrate implementation of a proposed agency
action, except in any instance where the Corporation has already
disclosed to the public the content or nature of its proposed action, or
where the Corporation is required by law to make such disclosure on its
own initiative prior to taking final Corporation action on such
proposal; or
    (9) Specifically concern the Corporation's participation in a civil
action or proceeding, an action in a foreign court or international
tribunal, or an arbitration, or the initiation, conduct, or disposition
by the Corporation of a particular case of formal Corporation
adjudication pursuant to the procedures in 5 U.S.C. 554 or otherwise
involving a determination on the record after opportunity for a hearing.
    (b) Meetings of the Board of Directors shall not be closed pursuant
to paragraph (a) of this section when the Corporation finds that the
public interest requires that they be open.
    (c)(1) Action to close a meeting, or portion thereof, pursuant to
the exemptions defined in paragraph (a) of this section may be initiated
by the President or any Director of the Corporation by presentation of a
request for closure to the Board of Directors. The person initiating the
request for closure shall give the Board of Directors a statement
specifying the extent of the proposed closure, the relevant exemptive
provisions and the circumstances pertinent to such request, and how the
public interest will be served by closure. Such statement shall also be
given to the General Counsel of the Corporation to serve as a basis for
the certification the General Counsel may determine can be issued in
accordance with Sec. 708.6. The General Counsel's determination shall
be given to the Board of Directors. Action to close a meeting, or
portion thereof, shall be taken only when a majority of the entire
membership of the Board of Directors votes to take such action. A
separate vote of the Board of Directors shall be taken with respect to
each meeting of the Board of Directors a portion or portions of which
are proposed to be closed to the public or with respect to any
information which is proposed to be withheld. A single vote may be taken
with respect to a series of meetings, a portion or portions of which are
proposed to be closed to the public, or with respect to any information
which is proposed to be withheld. A single vote may be taken with
respect to a series of meetings, a portion or portions of which are
proposed to be closed to the public, or with respect to any information
concerning such series of meetings, so long as each meeting in such
series involves the same particular matters and is scheduled to be held
no more than thirty days after the initial meeting in such series. The
vote of each Director participating in such vote shall be recorded and
no proxies shall be allowed.

[[Page 221]]

    (2) Whenever any person whose interests may be directly affected by
a portion of a meeting requests that the Corporation close such portion
to the public for any of the reasons referred to in paragraph (a)(5),
(a)(6), or (a)(7) of this section, the Corporation, upon request of any
one of its Directors, shall vote by recorded vote whether to close such
meeting.
    (3) Within one day of any vote taken pursuant to paragraph (c)(1) or
(c)(2) of this section, the Secretary shall make publicly available a
written copy of such vote reflecting the vote of each member on the
question. If a portion of a meeting is to be closed to the public, the
Secretary shall, by the close of the business day next succeeding the
day of the vote taken pursuant to paragraph (c)(1) or (c)(2) of this
section, make publicly available a full written explanation of the
Corporation's action closing the portion together with a list of all
persons expected to attend the meeting and their affiliation. The
information required by this subparagraph shall be disclosed except to
the extent that it is exempt from disclosure under the provisions of
paragraph (a) of this section.



Sec. 708.6  Records of closed meetings.

    (a) For every meeting of the Board of Directors closed pursuant to
Sec. 708.5, the General Counsel of the Corporation shall publicly
certify prior to such meeting that, in his or her opinion, the meeting
may be closed to the public and shall state each relevant exemptive
provision. A copy of such certification, together with a statement from
the presiding officer of the meeting setting forth the time and place of
the meeting, and the persons present, shall be retained by the Secretary
as part of the transcript, recording, or minutes required by paragraph
(b) of this section.
    (b) The Secretary shall maintain a complete transcript or electronic
recording adequate to record fully the proceedings of each meeting, or
portion of a meeting, closed to the public, except that in the case of a
meeting, or portion of a meeting, closed to the public pursuant to Sec.
708.5(a)(9), the Secretary shall maintain either such a transcript or
recording, or a set of minutes. Such minutes shall fully and clearly
describe all matters discussed and shall provide a full and accurate
summary of any actions taken, and the reasons therefor, including a
description of each of the views expressed on any item and the record of
any roll-call vote (reflecting the vote of each member on the question).
All documents considered in connection with any Corporation action shall
be identified in such minutes.
    (c) The Secretary shall maintain a complete verbatim copy of the
transcript, a complete copy of the minutes, or a complete electronic
recording of each meeting, or portion of a meeting, closed to the
public, for a period of at least two years after such meeting, or until
one year after the conclusion of the proceeding of the Board of
Directors with respect to which the meeting or portion was held,
whichever occurs later.
    (d) Within ten days of receipt of a request for information
(excluding Saturdays, Sundays, and legal public holidays), the
Corporation shall make available to the public, in the Office of
Secretary of the Corporation, Washington, DC, the transcript, electronic
recording, or minutes (as required by paragraph (b) of this section) of
the discussion of any item on the agenda, or of any item of the
testimony of any witness received at the meeting, except for such item
or items of such discussion or testimony as the Secretary determines to
contain information which may be withheld under the provisions of Sec.
708.5. Copies of such transcript, or minutes, or a transcription of such
recording disclosing the identify of each speaker, shall be furnished to
any person at the actual cost of duplication or transcription.
    (e) The determination of the Secretary to withhold information
pursuant to paragraph (d) of this section may be appealed to the
President of the Corporation, in his or her capacity as administrative
head of the Corporation. The President will make a determination to
withhold or release the requested information within twenty days from
the date of receipt of the request for review (excluding Saturdays,
Sundays, and legal public holidays).

[[Page 222]]



PART 709_FOREIGN CORRUPT PRACTICES ACT OF 1977--Table of Contents



Sec.
709.1 Authority and purpose.
709.2 Applicability.
709.3 Definitions.
709.4 Cause for suspension of entities from eligibility.
709.5 Procedure.
709.6 Suspension duration criteria.
709.7 Effect of suspension.
709.8 Procedure for voiding suspensions.

    Authority: Sec. 237(1), Foreign Assistance Act of 1961, added by
Pub. L. 95-268.

    Source: 43 FR 36064, Aug. 15, 1978, unless otherwise noted.



Sec. 709.1  Authority and purpose.

    (a) These regulations are issued under the general powers of the
Overseas Private Investment Corporation (``OPIC'') and pursuant to
section 237(1) of the Foreign Assistance Act of 1961, added by Pub. L.
95-268. \1\ The Board of Directors of OPIC has authorized the President
of OPIC to issue these regulations and to amend them as the President
shall deem appropriate.
---------------------------------------------------------------------------

    \1\ Section 237(1) of that Act states:
    (1) No payment may be made under any insurance or reinsurance which
is issued under this title on or after the date of enactment of this
subsection for any loss occurring with respect to a project, if the
preponderant cause of such loss was an act by the investor seeking
payment under this title, by a person possessing majority ownership and
control of the investor at the time of the act, or by any agent of such
investor or controlling person, and a court of the United States has
entered a final judgment that such act constituted a violation under the
Foreign Corrupt Practices Act of 1977.
    (2) Not later than 120 days after the date of enactment of this
subsection, the Corporation shall adopt regulations setting forth
appropriate conditions under which any person convicted under the
Foreign Corrupt Practices Act of 1977 for an offense related to a
project insured or otherwise supported by the Corporation shall be
suspended, for a period of not more than 5 years, from eligibility to
receive any insurance, reinsurance, guaranty, loan or other financial
support authorized by this title.
---------------------------------------------------------------------------

    (b) These regulations prescribe the procedure under which
individuals and companies may be suspended, as mandated by section
237(1) of the Foreign Assistance Act of 1961, as amended, from
eligibility for OPIC services because of conviction under the Foreign
Corrupt Practices Act of 1977 (Pub. L. 95-213) of an offense related to
an OPIC-supported project.
    (c) The purposes of the suspensions provided herein are to carry out
the statutory requirements of Section 237(1) of the Foreign Assistance
Act of 1961, as amended, to protect the interest of the United States
and to foster full and free competition in international commerce.
    (d) The specific provisions of law under which OPIC operates and the
general powers conferred on OPIC give OPIC broad discretion in the
conduct of its programs. The issuance of these regulations is not to be
construed as in any way limiting or derogating from the discretion of
OPIC to determine whether or not to support the investment of a
particular entity in a particular case.



Sec. 709.2  Applicability.

    These regulations take effect on the date of publication in the
Federal Register and govern eligibility for OPIC services for which OPIC
has not previously obligated itself.



Sec. 709.3  Definitions

    (a) The Act means the Foreign Corrupt Practices Act of 1977.
    (b) Entity means any individual, association, company, corporation,
concern, partnership, or person.
    (c) Offense means any act or omission to act which has been found by
a United States court of competent jurisdiction to constitute, with
respect to a particular entity, a violation of the Act, of section
13(b)(2), 13(b)(3) or 30A of the Securities Exchange Act of 1934 (which
were added in 1977 by the Act), or of any other provision of law derived
from the Act.
    (d) Suspension means the designation of an entity as ineligible to
receive OPIC services through a suspension determination.
    (e) Suspension determination means a determination by the President
of OPIC pursuant to these regulations that an entity is ineligible to
receive OPIC services.

[[Page 223]]



Sec. 709.4  Cause for suspension of entities from eligibility.

    Any entity which has been convicted of an offense related to a
project insured or otherwise supported by OPIC may be suspended from
eligibility for additional OPIC services for a period of not more than 5
years pursuant to a suspension determination.



Sec. 709.5  Procedure.

    (a) Upon receipt of an application for OPIC services from any entity
which OPIC has reason to believe may have been convicted under the Act
the OPIC General Counsel shall ascertain whether a conviction has been
entered against such entity under the Act and, if so, whether it was
entered for an offense related to a project insured or otherwise
supported by OPIC. If such an offense is found, the General Counsel
shall advise the President of such finding and any known circumstances
indicating that suspension would not be in the national interest of the
United States. If, after reviewing the submission from the General
Counsel, the President determines that national interest considerations
are not great enough to preclude suspension, OPIC shall furnish the
subject entity with a written notice (1) specifying the offense and
stating that suspension for the maximum duration is being considered and
(2) inviting the subject entity to submit to OPIC any evidence of facts
or circumstances which it deems appropriate to indicate that a
suspension should not be imposed or that the duration of the suspension
should be less than the maximum. Such notice shall further state that
the subject entity must provide such evidence within 30 days of the date
of such written notice or any extension of time granted in writing by
OPIC. The General Counsel shall promptly review any evidence submitted
by the subject entity and report his findings and recommendations to the
President. The President shall determine whether the subject entity
shall be suspended and, if so, the President shall issue a suspension
determination specifying the duration of such suspension. Notice of such
suspension determination shall be forwarded by registered mail to the
subject entity and any entity so notified shall be advised that such
suspension may be reduced as provided in section 5(b) or voided as
provided in section 8.
    (b) The duration of any suspension may be reduced by the President
at any time for good cause, including the submission by the suspended
entity of an application for relief, supported by evidence and setting
forth appropriate grounds for granting such relief, such as the
institution of measures designed to preclude the recurrence of the
actions with respect to which the suspension was initially imposed.
Notice of each such reduction shall be forwarded to the suspended entity
by registered mail.
    (c) The duration of any suspension may be increased by the President
at any time for good cause, subject to providing the subject entity with
notice and opportunity to submit evidence in accordance with section
5(a). In no event shall any such increase result in a period of
suspension exceeding 5 years with respect to any single conviction.



Sec. 709.6  Suspension duration criteria.

    Factors which the President may consider in setting or amending the
duration of any suspension imposed pursuant to these regulations
include, but are not limited to, the following:
    (a) Whether the offense with respect to which suspension has been
imposed or is being considered was committed with the knowledge or
consent of the board of directors or other group or officer or
individual responsible for the overall management of the subject entity;
    (b) Whether or not such offense was committed under pressure of
extortion, political intervention, or other duress exerted by the
government, or any official of the government, of the country in which
such offense was committed;
    (c) Quantitative factors relating to the seriousness of the offense,
such as the amounts of any improper payments and the frequency with
which, and period of time over which, they were made;
    (d) The purpose of any such offense;
    (e) Whether such offense violated the laws of the country in which
it was committed;

[[Page 224]]

    (f) The extent to which the offense was related to the establishment
or operation of a project supported by OPIC; and
    (g) Any factors relating to the effect of suspension on the national
interest of the United States.



Sec. 709.7  Effect of suspension.

    (a) Any entity suspended pursuant to a suspension determination
shall not, for the duration of such suspension, and subject to the
provisions of section 7(b), be eligible to receive any additional
insurance, reinsurance, guaranty, loan, or other financial support from
OPIC.
    (b) Suspended entities:
    (1) May be retained on the OPIC mailing list only for the purpose of
receiving informational mailings;
    (2) May register projects with OPIC but may not submit project
applications to OPIC;
    (3) May continue to deal with OPIC with respect to agreements
entered with OPIC prior to the suspension and may amend or be granted
modifications of such agreements, including loan reschedulings and
refinancings;
    (4) May not be invited to participate in OPIC-sponsored investment
missions or other similar activities; and
    (5) May not receive indirectly, or beneficially, whether through the
purchase of project participations, the use of intermediary entities or
other such devices, any OPIC services which they would not be entitled
to receive directly, and may not be the beneficiary of financial support
advanced by a third party where such support, in turn, is guaranteed or
insured by OPIC; provided, however that such suspended entity shall be
entitled to all benefits and payments accruing to holders of negotiable
instruments guaranteed by OPIC and acquired by such suspended entity
pursuant to a public offering thereof by the original or any subsequent
holder thereof.



Sec. 709.8  Procedure for voiding suspensions.

    Upon receipt by OPIC from the subject entity of notice of the entry
of a final judgment of reversal of the conviction or convictions on
which a suspension was based, and subject to verification thereof by the
General Counsel and to a finding by the General Counsel that no other
convictions under the act are outstanding, the President shall void such
suspension



PART 710_ADMINISTRATIVE ENFORCEMENT PROCEDURES OF POST-EMPLOYMENT
RESTRICTIONS--Table of Contents



Sec.
710.1 General.
710.2 Action on receipt of information regarding violation.
710.3 Initiation of administrative disciplinary proceeding.
710.4 Notice.
710.5 Failure to request hearing.
710.6 Appointment and qualifications of examiner.
710.7 Time, date and place of hearing.
710.8 Rights of parties at hearing.
710.9 Burden of proof.
710.10 Findings.
710.11 Appeal.
710.12 Finding of violation.
710.13 Appropriate action.
710.14 Judicial review.
710.15 Delegation of authority.

    Authority: 18 U.S.C. 207(j).

    Source: 45 FR 5685, Jan. 24, 1980, unless otherwise noted.



Sec. 710.1  General.

    The following procedures are hereby established with respect to the
administrative enforcement of restrictions on post-employment activities
(18 U.S.C. 207(a), (b) or (c) and implementing regulations (44 FR 19987
and 19988, April 3, 1979) published by the Office of Government Ethics.



Sec. 710.2  Action on receipt of information regarding violation.

    On receipt of information regarding a possible violation of the
statutory or regulatory post-employment restrictions by a former OPIC
employee and after determining that such information does not appear to
be frivolous, the President of OPIC or the President's designee shall
provide such information to the Director of the Office of Government
Ethics and to the Criminal Division, Department of Justice. Any
investigation or administrative action shall be coordinated with the
Department of Justice to avoid

[[Page 225]]

prejudicing possible criminal proceedings. If the Department of Justice
informs OPIC that it does not intend to institute criminal proceedings,
such coordination shall no longer be required and OPIC shall be free to
pursue administrative action.



Sec. 710.3  Initiation of administrative disciplinary proceeding.

    Whenever the President of OPIC or the President's designee
determines after appropriate review that there is reasonable cause to
believe that a former OPIC employee had violated the statutory or
regulatory post-employment restrictions, an administrative disciplinary
proceeding shall be initiated.



Sec. 710.4  Notice.

    The President of OPIC or the President's designee shall initiate an
administrative disciplinary hearing by providing the former OPIC
employee with notice of an intention to institute a proceeding and an
opportunity for a hearing. Notice must include:
    (a) A statement of allegations and the basis thereof sufficiently
detailed to enable the former employee to prepare an adequate defense;
    (b) Notification of the right to a hearing; and
    (c) An explanation of the method by which a hearing may be
requested.



Sec. 710.5  Failure to request hearing.

    The President of OPIC may take appropriate action referred to in
Sec. 710.13 in the case of any former OPIC employee who has failed to
make a written request to OPIC for a hearing within 30 days after
receiving adequate notice.



Sec. 710.6  Appointment and qualifications of examiner.

    When a former OPIC employee after receiving adequate notice requests
a hearing, a presiding official (hereinafter referred to as
``examiner'') shall be appointed by the President of OPIC to make an
initial decision. The examiner shall be a responsible person who is a
member of the bar of a State or of the District of Columbia, who is
impartial and who has not participated in any manner in the decision to
initiate the proceedings. The examiner may or may not be an OPIC
employee.



Sec. 710.7  Time, date and place of hearing.

    The examiner shall establish a reasonable time, date and place to
conduct the hearing. In establishing a date, the examiner shall give due
regard to the former employee's need for:
    (a) Adequate time to prepare a defense properly; and
    (b) An expeditious resolution of allegations that may be damaging to
the individual's reputation.



Sec. 710.8  Rights of parties at hearing.

    A hearing shall include, at a minimum, the following rights for both
parties to:
    (a) Represent oneself or be represented by counsel;
    (b) Introduce and examine witnesses and submit physical evidence
(including the use of interrogatories);
    (c) Confront and cross-examine adverse witnesses;
    (d) Present oral argument; and
    (e) Receive a transcript or recording of the proceedings on request.



Sec. 710.9  Burden of proof.

    In any hearing under this part, OPIC shall have the burden of proof
and must establish substantial evidence of a violation of the statutory
or post-employment restrictions.



Sec. 710.10  Findings.

    The examiner shall make a determination exclusively on matters of
record in the proceeding and shall set forth in the written decision all
findings of fact and conclusions of law relevant to the matters in
issue.



Sec. 710.11  Appeal.

    (a) Within 20 days of the date of the initial decision, either party
may appeal the decision to the President of OPIC. The President's
decision on such appeal shall be based solely on the record of the
proceedings or those portions thereof cited by the parties to limit the
issues.
    (b) If the President modifies or reverses the examiner's decision,
the President shall specify such findings of

[[Page 226]]

fact and conclusions of law as are different from those of the examiner.
    (c) The decision of the President on appeal, shall constitute final
administrative decision. An initial decision of the examiner which has
not been appealed during the 20-day period provided shall become a final
administrative decision on the twenty-first day.



Sec. 710.12  Finding of violation.

    The President of OPIC shall take appropriate action referred to in
Sec. 710.13 in the case of an individual who is found in violation of
the statutory or regulatory post-employment restrictions, after a final
administrative decision.



Sec. 710.13  Appropriate action.

    Appropriate action includes:
    (a) Prohibiting the individual from making, on behalf of any other
person (except the United States), any formal or informal appearance
before, or with the intent to influence, any oral or written
communication to, OPIC on any matter or business for a period not to
exceed five years, which may be accomplished by directing OPIC employees
to refuse to participate in any such appearance or to accept any such
communication.
    (b) Taking other appropriate disciplinary action.

[45 FR 5685, Jan. 24, 1980; 49 FR 18295, Apr. 30, 1984]



Sec. 710.14  Judicial review.

    Any person found to have participated in a violation of statutory or
regulatory post-employment restrictions (18 U.S.C. 207(a), (b) or (c) or
the regulations compiled at 44 FR 19987 and 19988, April 3, 1979) may
seek judicial review of the administrative determination.



Sec. 710.15  Delegation of authority.

    The functions of the President of OPIC specified in Sec. Sec.
710.2, 710.4 and 710.5 of this part are delegated to the General Counsel
of OPIC. An examiner shall be delegated authority on an ad hoc basis.



PART 711_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE OVERSEAS PRIVATE INVESTMENT

CORPORATION--Table of Contents



Sec.
711.101 Purpose.
711.102 Application.
711.103 Definitions.
711.104-711.109 [Reserved]
711.110 Self-evaluation.
711.111 Notice.
711.112-711.129 [Reserved]
711.130 General prohibitions against discrimination.
711.131-711.139 [Reserved]
711.140 Employment.
711.141-711.148 [Reserved]
711.149 Program accessibility: Discrimination prohibited.
711.150 Program accessibility: Existing facilities.
711.151 Program accessibility: New construction and alterations.
711.152-711.159 [Reserved]
711.160 Communications.
711.161-711.169 [Reserved]
711.170 Compliance procedures.
711.171-711.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 53 FR 25882, 25885, July 8, 1988, unless otherwise noted.



Sec. 711.101  Purpose.

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



Sec. 711.102  Application.

    This regulation (Sec. Sec. 711.101-711.170) applies to all programs
or activities conducted by the agency, except for programs or activities
conducted outside the United States that do not involve individuals with
handicaps in the United States.



Sec. 711.103  Definitions.

    For purposes of this regulation, the term--

[[Page 227]]

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

[[Page 228]]

    (2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
    (3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
    (4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this regulation by Sec. 711.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this regulation, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
    Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.



Sec. Sec. 711.104-711.109  [Reserved]



Sec. 711.110  Self-evaluation.

    (a) The agency shall, by September 6, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this regulation and, to the extent modification
of any such policies and practices is required, the agency shall proceed
to make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following completion
of the self-evaluation, maintain on file and make available for public
inspection:
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 711.111  Notice.

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



Sec. Sec. 711.112-711.129  [Reserved]



Sec. 711.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit,

[[Page 229]]

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



Sec. Sec. 711.131-711.139  [Reserved]



Sec. 711.140  Employment.

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



Sec. Sec. 711.141-711.148  [Reserved]



Sec. 711.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 711.150, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.

[[Page 230]]



Sec. 711.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
    (1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 711.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
    (b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with handicaps. The agency is
not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of
Sec. 711.150(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to individuals
with handicaps. In cases where a physical alteration to an historic
property is not required because of Sec. 711.150(a) (2) or (3),
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the
obligations established under this section by November 7, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by September 6, 1991, but in any event as expeditiously as
possible.
    (d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by March 6, 1989, a transition plan setting forth
the steps necessary to complete such changes. The agency shall provide
an opportunity to interested persons,

[[Page 231]]

including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the development of the
transition plan by submitting comments (both oral and written). A copy
of the transition plan shall be made available for public inspection.
The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
    (2) Describe in detail the methods that will be used to make the
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the
plan.



Sec. 711.151  Program accessibility: New construction and alterations.

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



Sec. Sec. 711.152-711.159  [Reserved]



Sec. 711.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
    (2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
    (c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 711.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with handicaps receive the

[[Page 232]]

benefits and services of the program or activity.



Sec. Sec. 711.161-711.169  [Reserved]



Sec. 711.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
    (c) The Director of Personnel shall be responsible for coordinating
implementation of this section. Complaints may be sent to Overseas
Private Investment Corporation, 1615 M Street, NW., Washington, DC
20527, Attention: Director of Personnel.
    (d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
    (f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 711.170(g). The agency may
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of
the agency.
    (j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.

[53 FR 25882, 25885, July 8, 1988, as amended 53 FR 25883, July 8, 1988]



Sec. Sec. 711.171-711.999  [Reserved]



PART 712_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
712.100 Conditions on use of funds.
712.105 Definitions.
712.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

712.200 Agency and legislative liaison.
712.205 Professional and technical services.
712.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

712.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

712.400 Penalties.
712.405 Penalty procedures.
712.410 Enforcement.

[[Page 233]]

                          Subpart E_Exemptions

712.500 Secretary of Defense.

                        Subpart F_Agency Reports

712.600 Semi-annual compilation.
712.605 Inspector General report.

Appendix A to Part 712--Certification Regarding Lobbying
Appendix B to Part 712--Disclosure Form To Report Lobbying

    Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352).

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

    Source: 55 FR 6737, 6750, Feb. 26, 1990, unless otherwise noted.



                            Subpart A_General



Sec. 712.100  Conditions on use of funds.

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



Sec. 712.105  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,

[[Page 234]]

including those subject to the Federal Acquisition Regulation (FAR), and
any other acquisition contract for real or personal property or services
not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
    (k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
    (2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
    (l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
    (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

[[Page 235]]

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. 712.110  Certification and disclosure.

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


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

[[Page 236]]

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. 712.200  Agency and legislative liaison.

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



Sec. 712.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.
712.100 (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

[[Page 237]]

allowable under this section unless they provide advice and analysis
directly applying their professional or technical expertise and unless
the advice or analysis is rendered directly and solely in the
preparation, submission or negotiation of a covered Federal action.
Thus, for example, communications with the intent to influence made by a
lawyer that do not provide legal advice or analysis directly and solely
related to the legal aspects of his or her client's proposal, but
generally advocate one proposal over another are not allowable under
this section because the lawyer is not providing professional legal
services. Similarly, communications with the intent to influence made by
an engineer providing an engineering analysis prior to the preparation
or submission of a bid or proposal are not allowable under this section
since the engineer is providing technical services but not directly in
the preparation, submission or negotiation of a covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are
allowable under this section.



Sec. 712.210  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. 712.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.
712.100 (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. 712.110 (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

[[Page 238]]

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. 712.400  Penalties.

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



Sec. 712.405  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. 712.410  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. 712.500  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. 712.600  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

[[Page 239]]

Clerk of the House of Representatives a report containing a compilation
of the information contained in the disclosure reports received during
the six-month period ending on March 31 or September 30, respectively,
of that year.
    (b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
    (c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
    (d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no later than with the compilations due on May 31, 1991.
OMB shall provide detailed specifications in a memorandum to these
agencies.
    (g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.



Sec. 712.605  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 712--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

[[Page 240]]

extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
    (3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

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

[[Page 241]]



     Sec. Appendix B to Part 712--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC13OC91.006


[[Page 242]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.007


[[Page 243]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.008


[[Page 244]]





PART 713_PRODUCTION OF NONPUBLIC RECORDS AND TESTIMONY OF OPIC
EMPLOYEES IN LEGAL PROCEEDINGS--Table of Contents



Sec.
713.1 What does this part prohibit?
713.2 When does this part apply?
713.3 How do I request nonpublic records or testimony?
713.4 What must my written request contain?
713.5 When should I make my request?
713.6 Where should I send my request?
713.7 What will OPIC do with my request?
713.8 If my request is granted, what fees apply?
713.9 If my request is granted, what restrictions may apply?
713.10 Definitions.

    Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 702;
18 U.S.C. 207; 18 U.S.C. 641; 22 U.S.C. 2199(d); 28 U.S.C. 1821.

    Source: 64 FR 8241, Feb. 19, 1999, unless otherwise noted.



Sec. 713.1  What does this part prohibit?

    This part prohibits the release of nonpublic records for legal
proceedings or the appearance of an OPIC employee to testify in legal
proceedings except as provided in this part. Any person possessing
nonpublic records may release them or permit their disclosure or release
only as provided in this part.
    (a) Duty of OPIC employees. (1) If you are an OPIC employee and you
are served with a subpoena requiring you to appear as a witness or to
produce records, you must promptly notify the Vice-president/General
Counsel in the Department of Legal Affairs. The Vice-President/General
Counsel has the authority to instruct OPIC employees to refuse to appear
as a witness or to withhold nonpublic records. The Vice-President/
General Counsel may let an OPIC employee provide testimony, including
expert or opinion testimony, if the Vice-President/General Counsel
determines that the need for the testimony clearly outweighs contrary
considerations.
    (2) If a court or other appropriate authority orders or demands from
you expert or opinion testimony or testimony beyond authorized subjects
contrary to the Vice-President/General Counsel's instructions, you must
immediately notify the Vice-President/General Counsel of the order and
then respectfully decline to comply with the order. You must decline to
answer questions on the grounds that this part forbids such disclosure.
You should produce a copy of this part, request an opportunity to
consult with the Vice-President/General Counsel, and explain that
providing such testimony without approval may expose you to disciplinary
or other adverse action.
    (b) Duty of persons who are not OPIC employees. (1) If you are not
an OPIC employee but have custody of nonpublic records, as defined at
Sec. 713.10, and you are served with a subpoena requiring you to
produce records or to testify as a witness, you must promptly notify
OPIC of the subpoena. Also, you must notify the issuing court or
authority and the person or entity for whom the subpoena was issued of
the contents of this part. Provide notice to OPIC by sending a copy of
the subpoena to the Vice-President/General Counsel, OPIC, 1100 New York
Avenue, NW, Washington, DC 20527. After reviewing notice, OPIC may
advise the issuing court or authority and the person or entity for whom
the subpoena was issued that this part applies and, in addition, may
intervene, attempt to have the subpoena quashed or withdrawn, or
register appropriate objections.
    (2) After you notify the Vice-President/General Counsel of the
subpoena, respond to the subpoena by appearing at the time and place
stated in the subpoena, unless otherwise directed by the Vice President/
General Counsel. Unless otherwise authorized by the Vice-President/
General Counsel, decline to produce any records or give any testimony,
basing your refusal on this part. If the issuing court or authority
orders the disclosure of records or orders you to testify, decline to
produce records or testify and advise the Vice-President/General
Counsel.
    (c) Penalties. Anyone who discloses nonpublic records or gives
testimony related to those records, except as expressly authorized by
OPIC or as ordered by a federal court after OPIC has had the opportunity
to be heard, may face the penalties provided in 18 U.S.C. 641 and other
applicable laws. Also, former OPIC employees, in addition to

[[Page 245]]

the prohibition contained in this part, are subject to the restrictions
and penalties of 18 U.S.C. 207.



Sec. 713.2  When does this part apply?

    This part applies if you want to obtain nonpublic records or
testimony of an OPIC employee for a legal proceeding. It does not apply
to records that OPIC is required to release, records which OPIC
discretionarily releases under the Freedom of Information Act (FOIA),
records that OPIC releases to federal or state investigatory agencies,
records that OPIC is required to release pursuant to the Privacy Act, 5
U.S.C. 552a, or records that OPIC releases under any other applicable
authority.

[79 FR 8619, Feb. 13, 2014]



Sec. 713.3  How do I request nonpublic records or testimony?

    To request nonpublic records or the testimony of an OPIC employee,
you must submit a written request as described in Sec. 713.4 to the
Vice-President/General Counsel of OPIC. If you serve a subpoena on OPIC
or an OPIC employee before submitting a written request and receiving a
final determination, OPIC will oppose the subpoena on the grounds that
you failed to follow the requirements of this part.

[79 FR 8619, Feb. 13, 2014]



Sec. 713.4  What must my written request contain?

    Your written request for records or testimony must include:
    (a) The caption of the legal proceeding, docket number, and name of
the court or other authority involved.
    (b) A copy of the complaint or equivalent document setting forth the
assertions in the case and any other pleading or document necessary to
show relevance.
    (c) A list of categories of records sought, a detailed description
of how the information sought is relevant to the issues in the legal
proceeding, and a specific description of the substance of the testimony
or records sought.
    (d) A statement as to how the need for the information outweighs the
need to maintain the confidentiality of the information and outweighs
the burden on OPIC to produce the records or provide testimony.
    (e) A statement indicating that the information sought is not
available from another source, such as the requestor's own books and
records, other persons or entities, or the testimony of someone other
than an OPIC employee, such as retained experts.
    (f) A description of all prior decisions, orders, or pending motions
in the case that bear upon the relevance of the records or testimony you
want.
    (g) The name, address, and telephone number of counsel to each party
in the case.
    (h) An estimate of the amount of time you anticipate that you and
other parties will need with each OPIC employee for interviews,
depositions, and/or testimony.



Sec. 713.5  When should I make my request?

    Submit your request at least 45 days before the date you need the
records or testimony. If you want your request processed in a shorter
time, you must explain why you could not submit the request earlier and
why you need such expedited processing. OPIC retains full discretion to
grant, deny, or propose a new completion date on any request for
expedited processing. If you are requesting the testimony of an OPIC
employee, OPIC expects you to anticipate your need for the testimony in
sufficient time to obtain it by deposition. The Vice-President/General
Counsel may well deny a request for testimony at a legal proceeding
unless you explain why you could not have used deposition testimony
instead. The Vice-President/General Counsel will determine the location
of a deposition, taking into consideration OPIC's interest in minimizing
the disruption for an OPIC employee's work schedule and the costs and
convenience of other persons attending the deposition.

[79 FR 8619, Feb. 13, 2014]



Sec. 713.6  Where should I send my request?

    Send your request or subpoena for records or testimony to the
attention of the Vice-President/General Counsel, OPIC, 1100 New York
Avenue NW, Washington, DC 20527.

[[Page 246]]



Sec. 713.7  What will OPIC do with my request?

    (a) Factors OPIC will consider. OPIC may consider various factors in
reviewing a request for nonpublic records or testimony of OPIC
employees, including:
    (1) Whether disclosure would assist or hinder OPIC in performing its
statutory duties or use OPIC resources unreasonably, including whether
responding to the request will interfere with OPIC employees' ability to
do their work.
    (2) Whether disclosure is necessary to prevent the perpetration of a
fraud or other injustice in the matter.
    (3) Whether you can get the records or testimony you want from
sources other than OPIC.
    (4) Whether the request is unduly burdensome.
    (5) Whether disclosure would violate a statute, executive order, or
regulation, such as the Privacy Act, 5 U.S.C. 552a.
    (6) Whether disclosure would reveal confidential, sensitive or
privileged information, trade secrets or similar, confidential
commercial or financial information, or would otherwise be inappropriate
for release and, if so, whether a confidentiality agreement or
protective order as provided in Sec. 713.9(a) can adequately limit the
disclosure.
    (7) Whether the disclosure would interfere with law enforcement
proceedings, compromise constitutional rights, or hamper OPIC programs
or other OPIC operations.
    (8) Whether the disclosure could result in OPIC's appearing to favor
one litigant over another.
    (9) Any other factors OPIC determines to be relevant to the
interests of OPIC.
    (b) Review of your request. OPIC will process your request in the
order it is received. OPIC will try to respond to your request within 45
days, but this may vary, depending on the scope of your request.
    (c) Final determination. the Vice-President/General Counsel makes
the final determination on requests for nonpublic records or OPIC
employee testimony. All final determinations are in the sole discretion
of the Vice-President/General Counsel. The Vice-President/General
Counsel will notify you and the court or other authority of the final
determination of your request. In considering your request, the Vice-
President/General Counsel may contact you to inform you of the
requirements of this part, ask that the request or subpoena be modified
or withdrawn, or may try to resolve the request or subpoena informally
without issuing a final determination.



Sec. 713.8  If my request is granted, what fees apply?

    (a) Generally. You must pay any fees associated with complying with
your request, including copying fees for records and witness fees for
testimony. The Vice-President/General Counsel may condition the
production of records or appearance for testimony upon advance payment
of a reasonable estimate of the fees.
    (b) Fees for records. You must pay all fees for searching, reviewing
and duplicating records produced in response to your request. The fees
will be the same as those charged by OPIC under its Freedom of
Information Act regulations, 22 CFR Part 706, Subpart B, Sec. 706.26.
    (c) Witness fees. Your must pay the fees, expenses, and allowances
prescribed by the court's rules for attendance by a witness. If no such
fees are prescribed, the local federal district court rule concerning
witness fees, for the federal district court closest to where the
witness appears, will apply. For testimony by current OPIC employees,
you must pay witness fees, allowances, and expenses to the Vice-
President/General Counsel by check made payable to the ``Overseas
Private Investment Corporation'' within 30 days from receipt of OPIC's
billing statement. For the testimony of a former OPIC employee, you must
pay witness fees, allowances, and expenses directly to the former
employee, in accordance with 28 U.S.C. 1821 or other applicable
statutes.
    (d) Certification of records. OPIC may authenticate or certify
records to facilitate their use as evidence. If you require
authenticated records, you must request certified copies at least 45
days before the date they will be needed.

[[Page 247]]

Send your request to the Vice-President/General Counsel. OPIC will
charge you a certification fee of $5.00 per document.
    (e) Waiver of fees. A waiver or reduction of any fees in connection
with the testimony, production, or certification or authentication of
records may be granted in the discretion of the Vice-President/General
Counsel. Waivers will not be granted routinely. If you request a waiver,
your request for records or testimony must state the reasons why a
waiver should be granted.



Sec. 713.9  If my request is granted, what restrictions may apply?

    (a) Records. The Vice-President/General Counsel may impose
conditions or restrictions on the release of nonpublic records,
including a requirement that you obtain a protective order or execute a
confidentiality agreement with the other parties in the legal proceeding
that limits access to and any further disclosure of the nonpublic
records. The terms of a confidentiality agreement or protective order
must be acceptable to the Vice-President/General Counsel. In cases where
protective orders or confidentiality agreements have already been
executed, OPIC may condition the release of nonpublic records on an
amendment to the existing protective order or confidentiality agreement.
    (b) Testimony. The Vice-President/General Counsel may impose
conditions or restrictions on the testimony of OPIC employees,
including, for example, limiting the areas of testimony or requiring you
and the other parties to the legal proceeding to agree that the
transcript of the testimony will be kept under seal or will only be used
or made available in the particular legal proceeding for which you
requested the testimony. The Vice-President/General Counsel may also
require you to provide a copy of the transcript of the testimony to OPIC
at your expense.



Sec. 713.10  Definitions.

    For purposes of this part:
    Legal proceedings means any matter before any federal, state or
foreign administrative or judicial authority, including courts,
agencies, commissions, boards, grand juries, or other tribunals,
involving such proceedings as lawsuits, licensing matters, hearings,
trials, discovery, investigations, mediation or arbitration. When OPIC
is a party to a legal proceeding, it will be subject to the applicable
rules of civil procedure governing production of documents and
witnesses; however testimony and/or production of documents by OPIC
employees, as defined, will still be subject to this part.
    Nonpublic records means any OPIC records which are exempt from
disclosure by statute or under Part 706, OPIC's regulations implementing
the provisions of the Freedom of Information Act. For example, this may
include records created in connection with OPIC's receipt, evaluation
and action on actual and proposed OPIC finance projects and insurance
policies (whether such projects or policies were cancelled or not),
including all reports, internal memoranda, opinions, interpretations,
and correspondence, whether prepared by OPIC employees or by persons
under contract, as well as confidential business information submitted
by parties seeking to do business with OPIC. Whether OPIC has actually
chosen in practice to apply any exemption to specific documents is
irrelevant to the question of whether they are ``nonpublic'' for the
purposes of this Part.
    OPIC employee means current and former officials, members of the
Board of Directors, officers, directors, employees and agents of the
Overseas Private Investment Corporation, including contract employees,
consultants and their employees. This definition does not include
persons who are no longer employed by OPIC and are retained or hired as
expert witnesses or agree to testify about general matters, matters
available to the public, or matters with which they had no specific
involvement or responsibility during their employment.
    Subpoena means any order, subpoena for records or other tangible
things or for testimony, summons, notice or legal process issued in a
legal proceeding.
    Testimony means any written or oral statements made by an individual
in

[[Page 248]]

connection with a legal proceeding, including personal appearances in
court or at depositions, interviews in person or by telephone, responses
to written interrogatories or other written statements such as reports,
declarations, affidavits, or certifications or any response involving
more than the delivery of records.

                        PARTS 714	799 [RESERVED]

[[Page 249]]



               CHAPTER IX--FOREIGN SERVICE GRIEVANCE BOARD




  --------------------------------------------------------------------
Part                                                                Page
900

[Reserved]

901             General.....................................         251
902             Organization................................         253
903             Initiation and documentation of cases.......         253
904             Jurisdiction and preliminary determinations.         255
905             Burden of proof.............................         257
906             Hearings....................................         257
907             Procedure when hearing is not held..........         259
908             Remedies....................................         259
909             Decisionmaking..............................         261
910             Miscellaneous...............................         261
911             Implementation disputes.....................         262
912-999

[Reserved]

[[Page 251]]

                           PART 900 [RESERVED]



PART 901_GENERAL--Table of Contents



                       Subpart A_Purpose and Scope

Sec.
901.1 Purpose and scope.

           Subpart B_Meanings of Terms as Used in This Chapter

901.10 Act.
901.11 Agency.
901.12 Board.
901.13 Executive secretary.
901.14 Service.
901.15 Exclusive representative.
901.16 Grievant.
901.17 Charged employee.
901.18 Grievance.
901.19 Labor organization.
901.20 Party.
901.21 Record of proceedings.
901.22 Representative.

    Authority: Secs. 610, 1101, 1102, 1105, and 1106 of the Foreign
Service Act of 1980, Pub. L. 96-465 (22 U.S.C. 4131, 4132, 4135, and
4136), as amended.

    Source: 50 FR 31353, Aug. 2, 1985, unless otherwise noted.



                       Subpart A_Purpose and Scope



Sec. 901.1  Purpose and scope.

    The regulations contained in this chapter establish the internal
organization of the Foreign Service Grievance Board and prescribe its
procedures in:
    (a) Determining its jurisdiction in cases involving grievances and
separation for cause proceedings;
    (b) Compiling a record in such cases;
    (c) Conducting hearings in such cases, when required or deemed
necessary; and
    (d) Deciding such cases, or otherwise disposing of them, so as to
ensure the fullest measure of due process for the members of the Foreign
Service.



           Subpart B_Meanings of Terms As Used in This Chapter



Sec. 901.10  Act.

    Act means the Foreign Service Act of 1980 (Pub. L. 96-465, October
17, 1980), as amended.

[56 FR 55458, Oct. 28, 1991]



Sec. 901.11  Agency.

    Agency means the Department of State, the Agency for International
Development, the U.S. Information Agency, the Department of Agriculture,
or the Department of Commerce, if the Agency employs the individual
appearing in a case before the Board and/or has control over the act,
omission, or condition forming the subject matter of such case.



Sec. 901.12  Board.

    Board means the Foreign Service Grievance Board, including any
designated panel or member thereof.



Sec. 901.13  Executive secretary.

    Executive secretary means the executive secretary of the Board or
his or her designee.



Sec. 901.14  Service.

    Service means the Foreign Service of the United States.



Sec. 901.15  Exclusive representative.

    Exclusive representative means any labor organization which is
certified as the exclusive representative of the bargaining unit of
which the grievant or charged employee is a member.



Sec. 901.16  Grievant.

    Grievant means anyone who has filed a grievance and who is a member
of the Service and is a citizen of the United States, or for the
purposes of Sec. 901.18(a)(7) a former member of the Service, or in the
case of death of the member, the surviving spouse or, if none, another
member of the family.



Sec. 901.17  Charged employee.

    Charged employee means a member of the Senior Foreign Service or a
member of the Service assigned to a salary class who has been proposed
for separation for cause under section 610(a)(2) of the Act.



Sec. 901.18  Grievance.

    (a) Grievance means any act, omission, or condition subject to the
control of an Agency which is alleged to deprive a member of the Service
who is a citizen of the United States of a right

[[Page 252]]

or benefit authorized by law or regulation or is otherwise a source of
concern or dissatisfaction to the member, including but not limited to:
    (1) Complaints against separation of a member allegedly contrary to
law or regulation or predicated upon alleged inaccuracy, omission, error
or falsely prejudicial character of information in any part of the
official personnel record of the member;
    (2) Other alleged violation, misinterpretation or misapplication of
applicable law, regulation, collective bargaining agreement or published
post or agency policy affecting the terms and conditions of the
employment or career status of the member;
    (3) Allegedly wrongful disciplinary action against the member;
    (4) Dissatisfaction with respect to the working environment of the
member;
    (5) Alleged inaccuracy, omission, error, or falsely prejudicial
character of information in the official personnel record of the member
which is or could be prejudicial to the member;
    (6) Action alleged to be in the nature of reprisal or other
interference with freedom of action in connection with participation by
a member in a grievance; and
    (7) Alleged denial of an allowance, premium pay or other financial
benefit to which the member claims entitlement under applicable laws or
regulations.
    (b) The scope of grievances described above may be modified by
written agreement between an Agency and its exclusive representative.
    (c) The term grievance does not include:
    (1) Complaints against an individual assignment of a member under
chapter 5 of the Act, other than an assignment which is alleged to be
contrary to law or regulation;
    (2) The judgment of a selection board (established under section 602
of the Act) or a tenure board (established under section 306(b) of the
Act) or any other equivalent body established by laws or regulations
which similarly evaluates the performance of members of the Service on a
comparative basis, including a merit promotion selecting official,
except that alleged procedural violations of law, regulation or
collective bargaining agreement or prohibited personnel practice(s)
arising under these procedures are grievable;
    (3) The expiration of a limited appointment, termination of a
limited appointment under section 611 of the Act, or the denial of a
limited career extension or denial of a renewal of a limited career
extension under section 607(b) of the Act; or
    (4) Pursuant to section 1109 of the Act, any complaint or appeal
where a specific statutory hearing procedure exists other than
procedures for considering prohibited personnel practice charges before
the Merit Systems Protection Board or Special Counsel (5 U.S.C. 1206).
    (5) Non-adoption of a member suggestion or disapproval of a quality
salary increase, performance award, or any other kind of honorary
discretionary award, except where such action is alleged to be contrary
to law, regulation or collective bargaining agreement; and
    (6) The content of published agency policy which is not contrary to
law, regulation or collective bargaining agreement.
    (d) For the purposes of these regulations, the written complaint
concerning any act, omission, or condition specified above may be
referred to as the ``grievance''.

[50 FR 31353, Aug. 2, 1985, as amended at 56 FR 55458, Oct. 28, 1991]



Sec. 901.19  Labor organization.

    Labor organization means any employee organization accorded
recognition as the exclusive employee representative under section
1002(11) of the Act. For the Department of State and the Agency for
International Development (AID), the exclusive employee representative
is the American Foreign Service Association; for the U.S. Information
Agency (USIA), the exclusive employee representative is the American
Federation of Government Employees, Local 1812 (AFL-CIO).



Sec. 901.20  Party.

    Party means--
    (a) The grievant/charged employee;
    (b) The Agency or Agencies employing the grievant/charged employee
and/

[[Page 253]]

or having control over the act, omission, or condition leading to
appearance before the Board; or
    (c) The exclusive representative if it has achieved party status
under Sec. 903.4.


A Party may act through its duly designated representative.

[50 FR 31353, Aug. 2, 1985, as amended at 56 FR 55458, Oct. 28, 1991]



Sec. 901.21  Record of proceedings.

    Record of proceedings means the case file maintained by the Board on
each grievance case, or separation for cause proceeding.



Sec. 901.22  Representative.

    Representative means the person(s) identified in writing to the
Board as assisting the party or parties in the presentation of the case.



PART 902_ORGANIZATION--Table of Contents



Sec.
902.1 Chairperson and deputy chairperson.
902.2 Board operations.
902.3 Board staff.

    Authority: Secs. 1105 and 1106 of the Foreign Service Act of 1980,
Pub. L. 96-465 (22 U.S.C. 4135 and 4136), as amended.



Sec. 902.1  Chairperson and deputy chairperson.

    The chairperson presides over meetings of the Board. The chairperson
shall select one of the Board members as deputy. In the absence of the
chairperson, the deputy chairperson, or in his or her absence, another
member designated by the chairperson, may act for him or her.

[50 FR 31354, Aug. 2, 1985]



Sec. 902.2  Board operations.

    (a) The Board may operate either as a whole, or through panels or
individual members designated by the chairperson.
    (b) When operating as a whole, the Board may not act in the absence
of a quorum. A majority of the members shall constitute a quorum. The
Board will act by a majority vote of those present. Amendments to these
regulations and Board policies adopted pursuant to Sec. 910.3 shall be
adopted by the Board operating as a whole.
    (c) Board panels and presiding members of panels shall be designated
by the chairperson subject only to the provisions of Sec. 906.4.

[50 FR 31354, Aug. 2, 1985, as amended at 56 FR 55459, Oct. 28, 1991]



Sec. 902.3  Board staff.

    The chairperson shall select the Board's executive secretary and
other staff provided for in the Act. The executive secretary and staff
shall be responsible only to the Board through the chairperson.

[50 FR 31354, Aug. 2, 1985]



PART 903_INITIATION AND DOCUMENTATION OF CASES--Table of Contents



Sec.
903.1 Initiation of cases.
903.2 Record of proceedings.
903.3 Rulings on materials.
903.4 Participation of exclusive representative.
903.5 Service of documents.
903.6 Interrogatories.
903.7 Acknowledgment.
903.8 Withdrawal.
903.9 Access to records.
903.10 Access to witnesses.

    Authority: Secs. 610, 1104, and 1106-1109 of the Foreign Service Act
of 1980, Pub. L. 96-465 (22 U.S.C. 4010, 4134, and 4136-4139), as
amended.

    Source: 50 FR 31354, Aug. 2, 1985, unless otherwise noted.



Sec. 903.1  Initiation of cases.

    (a) Grievances submitted to the Board shall be in writing, and shall
explain the nature of the grievance, and the remedy sought; shall
contain all the documentation furnished to the Agency and the Agency's
final review; and shall be timely filed in accordance with applicable
regulations.
    (b) A member whose grievance is not resolved satisfactorily under
Agency procedures, the representative of the grievant, or the exclusive
representative (on behalf of a grievant who is a member of the
bargaining unit), shall be entitled to file a grievance with the Board
no later than 60 days after receiving the Agency decision. In the event
that an Agency has not provided its decision within 90 days of filing

[[Page 254]]

with the Agency, the grievant, the representative of the grievant, or
the exclusive representative (on the grievant's behalf) shall be
entitled to file a grievance with the Board no later than 150 days after
the date of filing with the Agency. The Board may extend or waive for
good cause shown the time limits stated in this section, and may permit
or request the views of the parties with respect to whether good cause
has been shown for such an extension.
    (c) Separation for cause proceedings against a charged employee
shall be initiated before the Board by submission of a statement of the
acts or behavior considered by the Agency to warrant separation.



Sec. 903.2  Record of proceedings.

    Upon receipt of initial documents relating to a case, a record of
proceedings shall be established, and all material received or obtained
by the Board in connection with the case shall be placed in it unless
the Board excludes such material under Sec. 903.3. The parties and the
exclusive representative, if any, shall have access to the record of
proceedings. Classified portions of the record of proceedings may be
reviewed by the parties and the exclusive representative, if any, under
conditions prescribed by the Board to ensure appropriate security.



Sec. 903.3  Rulings on materials.

    The Board may at any stage of the proceedings exclude materials from
the record of proceedings at the request of a party or on its own
initiative, on the grounds that such materials are irrelevant,
immaterial or unduly repetitive.



Sec. 903.4  Participation of exclusive representative.

    (a) Upon the initiation of a case, the executive secretary shall
ascertain from the Agency, the grievant/charged employee and any labor
organization which has been certified as the exclusive representative of
employees of the Agency, whether the relevant position occupied by the
grievant/charged employee is part of the bargaining unit for which the
labor organization is the exclusive representative. If a substantial
dispute exists as to whether that position is part of the bargaining
unit, and if the Board determines that resolution of that dispute is
necessary for determining the status of the labor organization in a
case, the Board shall notify the parties and the labor organization, who
may request the Foreign Service Labor Relations Board to make a final
determination of that dispute. If the Foreign Service Labor Relations
Board determines that the grievant or charged employee is a member of a
bargaining unit represented by an exclusive representative, the
executive secretary shall promptly send a copy of the papers filed with
the Board to the exclusive representative.
    (b) The exclusive representative has the right to intervene as a
party to the case if such exclusive representative gives timely notice
to the Board in writing of its decision to intervene as a party. Notice
shall be considered to be timely if given prior to or at the prehearing
conference, or, in a case to be decided under part 907 of this chapter,
if given within 10 days of receipt of a notice from the Board of the
Board's intent to close the record of proceedings.
    (c) An exclusive representative which has not intervened under
paragraph (b) of this section may be permitted to intervene as a party
upon written application. In ruling upon the application, the Board
shall consider whether granting the application will unduly delay or
prejudice the adjudication of the rights of the original parties, and
may place conditions on the exclusive representative's participation to
avoid such delay or prejudice.



Sec. 903.5  Service of documents.

    Any party submitting documents to the Board in connection with a
case shall send a copy to the other parties and to the exclusive
representative, if any. The Board shall send copies of its
correspondence concerning the case to the parties and the exclusive
representative, if any.



Sec. 903.6  Interrogatories.

    Each party shall be entitled to serve interrogatories upon another
party, and have such interrogatories answered by the other party unless
the Board finds such interrogatories irrelevant,

[[Page 255]]

immaterial, or unduly repetitive. Parties shall follow procedures
established by the Board concerning the use of interrogatories.



Sec. 903.7  Acknowledgment.

    Each case received shall be acknowledged in writing by the executive
secretary of the Board. If in the judgment of the executive secretary
additional documentation or information is needed, he or she may request
such materials.



Sec. 903.8  Withdrawal.

    A case may be withdrawn at any time by written notification to the
Board from the party initiating the case. A case may be determined by
the Board to have lapsed when the grievant fails to respond in writing
to two successive written Board inquiries within any deadline fixed for
such response. The Board may permit the reopening of lapsed cases upon a
showing of good cause and may permit or request the views of the parties
as to whether good cause has been shown.



Sec. 903.9  Access to records.

    (a) If a party is denied access to any Agency record prior to or
during the consideration of a case by the Agency, the party may protest
such denial before the Board in connection with the case.
    (b) In considering a case, the Board shall have access to any Agency
record as follows:
    (1) the Board shall request access to any Agency record which the
grievant/charged employee requests to substantiate his or her grievance
or defense to a charge if the Board determines that such record may be
relevant and material to the case.
    (2) the Board may request access to any other Agency record which
the Board determines may be relevant and material to the case.
    (3) An Agency shall make available to the Board any Agency record
requested under paragraphs (b)(1) and (2) of this section unless the
head or deputy head or such Agency personally certifies in writing to
the Board that disclosure of the record to the Board and the parties
would adversely affect the foreign policy or national security of the
United States or that such disclosure is prohibited by law. If such a
certification is made with respect to any record, the Agency shall
supply to the Board a summary or extract of such record unless the
reasons specified in the preceding sentence preclude such a summary or
extract.
    (c) If the Board determines that an Agency record, or a summary or
extract of a record, made available to the Board under paragraph (b) of
this section is relevant and material to the case, the Agency concerned
shall make such record, summary, or extract, as the case may be,
available to the parties.
    (d) In considering a case, the Board may take into account the fact
that the parties or the Board were denied access to any Agency record
which the Board determines is or may be relevant and material to the
case.
    (e) The parties in any case decided by the Board shall have access
to the record of proceedings and the decision of the Board.



Sec. 903.10  Access to witnesses.

    The grievant or grievant's representative, or charged employee or
his representative, shall be given access to witnesses employed by the
foreign affairs agencies. In the event that the agency of the grievant
determines that the requests for access are excessive, it may so notify
the Board, which shall rule on the relevance and materiality of the
potential testimony and may order that access be granted to any or all
of the potential witnesses. It shall be the responsibility of the
grievant to advise the agency of the agency witnesses to be interviewed
and to request administrative leave.



PART 904_JURISDICTION AND PRELIMINARY DETERMINATIONS--Table of Contents



Sec.
904.1 General.
904.2 Preliminary determinations.
904.3 Relationship to other remedies.
904.4 Suspension of agency actions.

    Authority: Secs. 1101, 1104, 1108, and 1109 of the Foreign Service
Act of 1980, Pub. L. 96-465 (22 U.S.C. 4131, 4134, 4138, and 4139), as
amended.

[[Page 256]]



Sec. 904.1  General.

    The Board's jurisdiction extends to any grievance, and to any
separation for cause proceeding initiated pursuant to section 610(a)(2)
of the Act.

[50 FR 31355, Aug. 2, 1985]



Sec. 904.2  Preliminary determinations.

    (a) If an Agency, in its final review, has questioned whether a
complaint constitutes a grievance, the Board will make a preliminary
determination of its jurisdiction unless the Board concludes that
resolution of the question of jurisdiction should be deferred until the
Board has compiled a record of proceedings or held a hearing on the
merits of the case.
    (b) The Board may also make a preliminary determination on any
question raised by a Party concerning the timeliness of a grievance, the
election of other remedies under Sec. 904.3, or any other issue whose
resolution might avoid the necessity of further proceedings.
    (c) Before making a preliminary determination under this section,
the Board shall obtain the views of the other parties and transmit those
views to all parties.
    (d) Where an issue presented for preliminary determination under
this section is contested by a party or would result in the termination
of a case, a panel of three members of the Board shall decide the issue.

[50 FR 31355, Aug. 2, 1985, as amended at 56 FR 55459, Oct. 28, 1991]



Sec. 904.3  Relationship to other remedies.

    (a) A grievant may not file a grievance with the Board if the
grievant has formally requested, prior to filing a grievance, that the
matter or matters which are the basis of the grievance be considered or
resolved and relief provided under another provision of law, regulation,
or executive order, and the matter has been carried to final decision
under such provision on its merits or is still under consideration. This
provision shall not apply to grievants who have filed a prohibited
personnel practice charge before the Special Counsel for the Merit
Systems Protection Board.
    (b) If a grievant is not prohibited from filing a grievance under
paragraph (a) of this section, the grievant may file with the Board a
grievance which is also eligible for consideration, resolution, and
relief as a prohibited personnel practice complaint under the provisions
of law relating to the Merit Systems Protection Board or Special
Counsel, or under a regulation or executive order. An election of
remedies under this section shall be final upon the acceptance of
jurisdiction by the Board.

[50 FR 31355, Aug. 2, 1985]



Sec. 904.4  Suspension of agency actions.

    (a) If the Board determines that the agency is considering
involuntary separation of the Grievant, disciplinary action against the
Grievant, or recovery from the Grievant of alleged overpayment of
salary, expenses, or allowances, which is related to a grievance pending
before the Board, and that such action should be suspended, the agency
shall suspend such action until the Board has ruled on the grievance.
Notwithstanding such suspension of action, the head of the agency
concerned or a chief of mission or principal officer may exclude the
Grievant from official premises or from the performance of specified
functions when such exclusion is determined in writing to be essential
to the functioning of the post or office to which the Grievant is
assigned.
    (b) Notwithstanding paragraph (a) of this section, the Board shall
not determine that action to suspend without pay a Grievant shall be
suspended if the head of an agency or his designee has determined that
there is reasonable cause to believe that a Grievant has committed a
job-related crime for which a sentence of imprisonment may be imposed
and has taken action to suspend the Grievant without pay pending a final
resolution of the underlying matter. For this purpose, reasonable cause
to believe that a member has committed a crime for which a sentence of
imprisonment may be imposed shall be defined as a member of the Service
having been convicted of, and sentence of imprisonment having been
imposed for a job-related crime.

[[Page 257]]

    (c) The Board shall expedite its decisions on requested suspensions
of proposed Agency actions. The Board may permit or require argument
with respect to such requests by the Parties and Exclusive
Representative, if any.

[56 FR 55459, Oct. 28, 1991]



PART 905_BURDEN OF PROOF--Table of Contents



Sec.
905.1 Grievances other than disciplinary actions.
905.2 Disciplinary grievances.
905.3 Separation for cause.

    Authority: Secs. 610 and 1106 of the Foreign Service Act of 1980,
Pub. L. 96-465 (22 U.S.C. 4010 and 4136), as amended.



Sec. 905.1  Grievances other than disciplinary actions.

    (a) In all grievances other than those concerning disciplinary
actions, the grievant has the burden of establishing, by a preponderance
of the evidence, that the grievance is meritorious.
    (b) Where a grievant establishes that an evaluation contained
falsely prejudicial material which may have been a substantial factor in
an agency action, and the question is presented whether the agency would
have taken the same action had the evaluation not contained that
material, the burden will shift to the agency to establish, by a
preponderance of the evidence, that it would have done so.
    (c) Where a grievant establishes that a procedural error occurred
which is of such a nature that it may have been a substantial factor in
an agency action with respect to the grievant, and the question is
presented whether the agency would have taken the same action had the
procedural error not occurred, the burden will shift to the agency to
establish, by a preponderance of the evidence, that it would have done
so.

[50 FR 31356, Aug. 2, 1985]



Sec. 905.2  Disciplinary grievances.

    In grievances over disciplinary actions, the agency has the burden
of establishing by a preponderance of the evidence that the disciplinary
action was justified, provided, however, that in a grievance concerning
suspension without pay pursuant to section 610(a)(3) of the Act, the
Board's determination of the grievance shall be limited to:
    (a) Whether the required procedures have been followed; and
    (b) Whether there exists reasonable cause to believe a crime has
been committed for which a sentence of imprisonment may be imposed and
there is a nexus between the conduct and the efficiency of the Service.
    For this purpose, reasonable cause to believe that a member has
committed a crime for which a sentence of imprisonment may be imposed
shall be defined as a member of the Service having been convicted of,
and sentence of imprisonment having been imposed for, a job-related
crime.

[56 FR 55459, Oct. 28, 1991]



Sec. 905.3  Separation for cause.

    In separation for cause cases, the agency has the burden of
establishing, by a preponderance of the evidence, that the proposed
separation is for such cause as will promote the efficiency of the
service.

[50 FR 31356, Aug. 2, 1985]



PART 906_HEARINGS--Table of Contents



Sec.
906.1 Decision whether to hold a hearing.
906.2 Mandatory hearing.
906.3 Notification.
906.4 Hearing panels and members.
906.5 Prehearing conferences.
906.6 Powers of presiding member.
906.7 Conduct of hearing.
906.8 Witnesses.
906.9 Failure of party to appear.

    Authority: Secs. 610 and 1106 of the Foreign Service Act of 1980,
Pub. L. 96-465 (22 U.S.C. 4010 and 4136), as amended.

    Source: 50 FR 31356, Aug. 2, 1985, unless otherwise noted.



Sec. 906.1  Decision whether to hold a hearing.

    After deciding either to accept jurisdiction over a grievance or to
postpone decision of that question under Sec. 904.2(a) of this chapter,
the Board will make an initial determination of whether a hearing shall
be held in accordance with part 906 of this chapter,

[[Page 258]]

or whether the grievance shall be resolved without a hearing in
accordance with part 907 of this chapter. The Board may reconsider its
decision as to holding a hearing upon the written request of any party
or on its own initiative.



Sec. 906.2  Mandatory hearing.

    The Board shall conduct a hearing--(a) At the request of the
grievant in any case which involves disciplinary action or a grievant's
retirement from the Service for expiration of time-in-class or based on
relative performance, or (b) In any case which in the judgment of the
Board can best be resolved by a hearing or presentation of oral
argument. The Board shall also conduct a hearing in separation for cause
proceedings unless the charged employee waives in writing his or her
right to such hearing.



Sec. 906.3  Notification.

    When the Board orders a hearing, the executive secretary shall so
notify the parties in writing. The parties shall be given reasonable
notice of the date and place selected by the Board for the hearing.



Sec. 906.4  Hearing panels and members.

    Unless the Board and the parties agree otherwise, all hearings shall
be held before a panel of at least three members.



Sec. 906.5  Prehearing conferences.

    (a) The Board may in its discretion order a prehearing conference of
the parties (which may be presided over by any member) for the purpose
of considering:
    (1) Simplification or clarification of the issues;
    (2) Serving of interrogatories;
    (3) Stipulations, admissions, agreements on documents, matters
already on record, or similar agreements which will avoid the necessity
of proving facts or issues not in dispute;
    (4) Identification of witnesses the parties may wish to call and the
intended scope of their testimony; limitation on the number of
witnesses; and arrangement for the appearance of witnesses;
    (5) Avoidance of irrelevant, immaterial, or unduly repetitive
testimony;
    (6) The possibility of disposition of the case through agreement;
    (7) The order of presentation at the hearing and the allocation of
the burden of proof; and
    (8) Such other matters as may aid in the disposition of the case.
    (b) The parties authorized to attend the hearing may attend the
prehearing conference.
    (c) The results of the conference shall be summarized in writing by
the Board and made a part of the record of proceedings. Copies of the
summary shall be sent to the parties. The parties may submit comments or
corrections on the summary.



Sec. 906.6  Powers of presiding member.

    In connection with the hearing, the presiding member shall, as
appropriate:
    (a) Fix the time and place of the hearing;
    (b) Order further conferences;
    (c) Regulate the course of the hearing;
    (d) Administer oaths and affirmations;
    (e) Dispose of procedural requests and similar matters;
    (f) Rule on admissibility of testimony and exhibits;
    (g) Exclude any person from the hearing for behavior that obstructs
the hearing;
    (h) Authorize and set the time for the filing of briefs or other
documents;
    (i) Grant continuances and extensions of time;
    (j) Reopen the record;
    (k) Take any other action in the course of the proceedings
consistent with the purpose of this part.



Sec. 906.7  Conduct of hearing.

    (a) Authorized attendance. The parties and, as determined by the
Board, a reasonable number of representatives of the parties are
entitled to be present at the hearing. The Board may, after considering
the views of the parties and of any other individuals connected with the
grievance, decide that a hearing should be open to others. No person
shall be permitted to attend the hearing when classified material is
being discussed unless that person possesses the appropriate security
clearance.

[[Page 259]]

    (b) Procedure. Hearings shall be conducted by the presiding member
so as to assure a full and fair proceeding. The Board shall not be
limited by the legal rules of evidence. However, the presiding member
shall exclude irrelevant, immaterial, or unduly repetitive evidence. The
Board may require the parties to designate one of their representatives
as principal spokesperson.
    (c) Order of presentation. In cases involving disciplinary action,
including separation for cause cases, the Agency will ordinarily present
its case first and will retain that order of precedence throughout the
hearing. In other cases the grievant will ordinarily present his or her
case first and will retain that order of precedence throughout the
hearing.
    (d) Evidence. Subject to the presiding member's rulings on the
relevancy, materiality, and repetitious nature of evidence, the parties
may offer such evidence, including interrogatories, depositions and
Agency records as they desire. The shall produce such additional
evidence as the presiding member shall consider relevant and material.
Where deemed appropriate by the Board, the parties may be supplied only
with a summary or extract of classified material (also see Sec. 903.9
of this chapter).
    (e) Testimony. Testimony at a hearing shall be given under oath or
affirmation.
    (f) Transcript. A verbatim transcript shall be made of any hearing
and shall be part of the record of proceedings.



Sec. 906.8  Witnesses.

    (a) General. Each party shall be entitled to examine and cross-
examine witnesses at the hearing or by deposition. A party wishing to
take the deposition of a witness shall give the other parties reasonable
notice of the time and place of the deposition and of the identity of
the witness.
    (b) Availability. Upon request of the Board or upon request of the
grievant/charged employee deemed relevant and material by the Board, an
Agency shall promptly make available at the hearing or by deposition any
witness under its control, supervision or responsibility. If the Board
determines that the actual presence of such witness at the hearing is
required for just resolution of the case, the witness shall be made
available at the hearing, with necessary costs and travel expenses paid
by the Agency which is a party to the hearing.
    (c) Notice. The parties are responsible for notifying their
witnesses and for arranging for their appearance at the time and place
set for the hearing. The Board may preclude a witness from testifying
because of the failure of the party responsible for witness' appearance
to comply with this section.



Sec. 906.9  Failure of party to appear.

    The hearing may proceed in the absence of any party who, after due
notice and without good cause, fails to be present or obtain an
adjournment.



PART 907_PROCEDURE WHEN HEARING IS NOT HELD--Table of Contents



    Authority: Sec. 1106 of the Foreign Service Act of 1980, Pub. L. 96-
465 (22 U.S.C. 4136), as amended.



Sec. 907.1  General.

    (a) In a case in which a hearing is not required under Sec. 906.1
of this chapter, the Board may request in writing that specified
documents or other evidence be furnished to it and/or may authorize the
executive secretary to obtain such additional documents or other
evidence as may be necessary to understand and decide the case.
    (b) Each party will be offered the opportunity to review and to
supplement, by written submissions, the record of proceedings, prior to
the date fixed by the Board for closing of the Record. The Board shall
then consider the case and make a decision based on that Record. This
may include the ordering of a hearing in accordance with part 906.

[50 FR 31357, Aug. 2, 1985]



PART 908_REMEDIES--Table of Contents



Sec.
908.1 Board orders.
908.2 Attorney fees.
908.3 Board recommendations.

    Authority: Secs. 1106 and 1107 of the Foreign Service Act of 1980,
Pub. L. 96-465 (22 U.S.C. 610, 4010, 4136, and 4137).

[[Page 260]]



Sec. 908.1  Board orders.

    If the Board finds that a grievance is meritorious, the Board shall
have the authority to direct the Agency:
    (a) To correct any official personnel record relating to the
grievant which the Board finds to be inaccurate or erroneous, to have an
omission, or to contain information of a falsely prejudicial character;
    (b) To reverse a decision denying the grievant compensation or any
other perquisite of employment authorized by laws or regulations when
the Board finds that such decision was arbitrary, capricious, or
contrary to laws or regulations;
    (c) To retain in the Service a member whose separation would be in
consequence of the matter by which the member is aggrieved;
    (d) To reinstate the grievant, and to grant the grievant back pay,
where it is established that the separation or suspension without pay of
the employee was unjustified or unwarranted under the Back Pay Act (5
U.S.C. 5596(b)(1));
    (e) To take any corrective action deemed appropriate by the Board
provided it is not contrary to law or collective bargaining agreement.

[50 FR 31357, Aug. 2, 1985, as amended at 56 FR 55459, Oct. 28, 1991]



Sec. 908.2  Attorney fees.

    (a) If the Board finds that a grievance is meritorious or that an
Agency has not established the cause for separation of a charged
employee in a hearing before the Board pursuant to section 610 of the
Act, the Board shall have the authority to direct the Agency to pay
reasonable attorney fees to the same extent and in the same manner as
such fees may be required by the Merit Systems Protection Board under 5
U.S.C. 7701(g).
    (b) Requests for attorney fees, accompanied by supporting
documentation, must be filed with the Board within thirty (30) days of
the date of the Board's decision.

[56 FR 55459, Oct. 28, 1991]



Sec. 908.3  Board recommendations.

    (a) If the Board finds that the grievance is meritorious and that
remedial action should be taken that relates directly to promotion,
tenure, or assignment of the Grievant or to other remedial action not
otherwise provided for in this section, or if the Board finds that the
evidence in a grievance proceeding warrants disciplinary action against
any employee of an Agency, it shall make an appropriate recommendation
to the head of the concerned Agency.
    (b) The head of the Agency shall make a written decision on the
recommendation of the Board within 30 days after receiving the
recommendation and shall implement the recommendation of the Board
except to the extent that the head of the Agency rejects the
recommendation in whole or in part on the basis of a determination that
implementation of the recommendation would be contrary to law or would
adversely affect the foreign policy or national security of the United
States. If the head of the Agency rejects the recommendation in whole or
in part, the decision shall specify the reasons for such action. Copies
of the decision shall be served on the other parties. Pending the
decision of the head of the Agency, there shall be no ex parte
communication concerning the grievance between the head of the Agency
and any person involved in the proceedings of the Board. The head of the
Agency shall, however, have access to the entire Record of the
Proceedings of the Board.
    (c) A recommendation under this section shall, for the purposes of
section 1110 of the Act, be considered a final action upon the
expiration of a 30-day period referred to in paragraph (b) of this
section, except to the extent that it is rejected by the head of the
Agency by an appropriate written decision.
    (d)(1) If the head of the Agency makes a written decision under
paragraph (b) of this section rejecting a recommendation in whole or in
part on the basis of a determination that implementing such
recommendation would be contrary to law, the head of the Agency shall,
within the 30-day period referred to in paragraph (b) of this section:
    (i) Submit a copy of such decision to the Board; and

[[Page 261]]

    (ii) Request that the Board reconsider its recommendation or, if
less than the entirety is rejected, that the Board reconsider the
portion rejected.
    (2) Within 30 days after receiving such a request, the Board shall,
after reviewing the head of the Agency's decision, make a recommendation
to the head of the agency confirming, modifying, or vacating its
original recommendation or, if less than the entirety was rejected, the
portion involved. Reconsideration shall be limited to the question of
whether implementing the Board's original recommendation, either in
whole or in part, as applicable, would be contrary to law.
    (e) A Board recommendation made under the preceding paragraph (d)(2)
of this section shall be considered a final action for the purpose of
section 1110 of the Act, and shall be implemented by the head of the
Agency.
    (f) The provisions of paragraphs (c), (d), and (e) of this section
shall not apply with respect to any grievance in which the Board has
issued a final decision pursuant to section 1107 of the Act before
December 22, 1987.

[50 FR 31357, Aug. 2, 1985. Redesignated and amended at 56 FR 55459,
Oct. 28, 1991]



PART 909_DECISIONMAKING--Table of Contents



Sec.
909.1 Basis.
909.2 Board order.
909.3 Board recommendation.
909.4 Other decision.
909.5 Time limits for compliance.
909.6 Summaries of Board decisions.

    Authority: Secs. 1106 and 1107, Foreign Service Act of 1980 (Pub. L.
96-465; 22 U.S.C. 4136 and 4137).

    Source: 50 FR 31358, Aug. 2, 1985, unless otherwise noted.



Sec. 909.1  Basis.

    Decisions of the Board shall be based upon the record of
proceedings, shall be in writing, shall include findings of fact, and
shall include a statement of the reasons for the decision.



Sec. 909.2  Board order.

    Where the Board's decision imposes action on an Agency the decision
shall be in the form of a remedial order addressed to the designated
official of the Agency. A copy of the decision shall be supplied to each
party.



Sec. 909.3  Board recommendation.

    Where the Board's decision is a recommendation, it shall be directed
to the head of the Agency. A copy of the decision shall be supplied to
each party.



Sec. 909.4  Other decision.

    Where the Board's decision requires no action by an Agency, the
decision shall be forwarded to the grievant. A copy of the decision
shall be supplied to each party.



Sec. 909.5  Time limits for compliance.

    Orders of the Board and recommendations which are not rejected in
accordance with Sec. 908.2 of this chapter shall be complied with
within any time limits for compliance established by the Board's
decision, unless the Board extends the time limit on a showing of good
cause.



Sec. 909.6  Summaries of Board decisions.

    The Board may, from time to time, issue such summaries and
expurgated versions of its decisions as it may consider necessary to
permit the Agencies, the exclusive representative organization(s), and
the members of the Service to become aware of the general nature of the
cases it has received and their manner of disposition, without invading
the privacy of the grievants.



PART 910_MISCELLANEOUS--Table of Contents



Sec.
910.1 Requests to reopen cases.
910.2 Ex parte communications.
910.3 Board policy statements.
910.4 Confidentiality; Record of grievances awarded.
910.5 Judicial review.
910.6 Pending grievances.

    Authority: Secs. 1106, 1107, 1110, and 2401 of the Foreign Service
Act of 1980, Pub. L. 96-465 (22 U.S.C. 4136, 4137, 4140, and 4172).



Sec. 910.1  Requests to reopen cases.

    The Board may reconsider any decision upon the presentation of newly

[[Page 262]]

discovered or previously unavailable material evidence.

[50 FR 31358, Aug. 2, 1985. Redesignated at 56 FR 55460, Oct. 28, 1991]



Sec. 910.2  Ex parte communications.

    (a) ``Ex parte communications'' are oral or written communications
between the Board or its staff and an interested party to a proceeding
which are made without providing the other parties a chance to
participate.
    (b) Ex parte communications concerning the merits of any matter
which has or may come before the Board for adjudication or which would
otherwise contravene the rules regarding written submissions are
prohibited until the Board renders a final decision. Any communication
made in contravention of this rule shall be made a part of the record
and an opportunty for rebuttal allowed. If the communication was oral, a
memorandum stating the substance of the discussion shall be placed in
the record.
    (c) This rule does not apply to communications concerning such
matters as the status of a case, the methods for transmitting evidence
to the Board, and other procedural matters which do not concern the
merits of any matter before the Board for adjudication and which do not
otherwise contravene the rules regarding written submissions.

[50 FR 31358, Aug. 2, 1985. Redesignated at 56 FR 55460, Oct. 28, 1991]



Sec. 910.3  Board policy statements.

    The Board may publish statements regarding policies it has
established as to its operations and procedures.

[50 FR 31358, Aug. 2, 1985. Redesignated at 56 FR 55460, Oct. 28, 1991]



Sec. 910.4  Confidentiality; Record of grievances awarded.

    (a) To the maximum extent practicable, the Board will make every
effort to preserve the confidentiality of the identity of the grievant
or charged employee.
    (b) The records of the Board shall be maintained by the Board under
appropriate safeguards to preserve confidentiality and shall be separate
from all records of the Agencies; provided, however, that records of all
grievances awarded in favor of the Grievant in which the grievance
concerns gross misconduct by a supervisor shall be separately maintained
by the Board and the procedures regarding confidentiality and disclosure
of such records shall be as provided in section 1107(e) of the Foreign
Service Act of 1980, as amended; and provided further, that the Board
shall not make a finding of gross misconduct without first providing the
supervisor whose conduct is at issue notice and an opportunity to
respond.

[50 FR 31358, Aug. 2, 1985. Redesignated and amended at 56 FR 55460,
Oct. 28, 1991]



Sec. 910.5  Judicial review.

    Any aggrieved party may obtain judicial review of a final action of
an Agency head or the Board on any grievance in the district courts of
the United States in accordance with the standards set forth in chapter
7 of title 5 of the United States Code. 5 U.S.C. 706 shall apply without
limitation or exception.

[50 FR 31358, Aug. 2, 1985. Redesignated at 56 FR 55460, Oct. 28, 1991]



Sec. 910.6  Pending grievances.

    Any grievance pending before the Board prior to February 15, 1981
shall be resolved under the provisions of the Foreign Service Act of
1946 as amended, and the regulations promulgated thereunder.

[50 FR 31358, Aug. 2, 1985. Redesignated at 56 FR 55460, Oct. 28, 1991]



PART 911_IMPLEMENTATION DISPUTES--Table of Contents



Sec.
911.1 Definition.
911.2 Filing complaint.
911.3 Procedure.
911.4 Effect of Board decision.
911.5 Arbitrability of determination.
911.6 Finality of choice.
911.7 Review.

    Authority: Sec. 1014 of the Foreign Service Act of 1980, Pub. L. 96-
465 (22 U.S.C. 4114), as amended.

    Source: 50 FR 31359, Aug. 2, 1985, unless otherwise noted.

[[Page 263]]



Sec. 911.1  Definition.

    An implementation dispute is any dispute between the agency and the
exclusive representative, as provided in regulations adopted as a result
of collective bargaining between the agencies and the employee
representatives. Such a dispute, also referred to as an institutional
dispute, is one which directly concerns the rights and obligations of an
agency and an exclusive representative toward each other or the rights
or obligations between an agency and one or more employees as set forth
in a collective bargaining agreement.



Sec. 911.2  Filing complaint.

    If the dispute is not satisfactorily resolved at the agency level,
the moving party may file a complaint within 45 calendar days from the
date of the response (or in any case must file within 90 days of filing
the implementation dispute) with the Board in writing and with
specificity as to the nature of the violation.



Sec. 911.3  Procedure.

    Implementation disputes shall be handled by the Board in accordance
with the procedures set forth in parts 901-910 of this chapter.



Sec. 911.4  Effect of Board decision.

    The action of the Board shall be final and binding and shall be
implemented by the parties, unless an exception is filed with the
Foreign Service Labor Relations Board within 30 days after receipt of
the Grievance Board action.



Sec. 911.5  Arbitrability of determination.

    Questions that cannot be resolved by the parties as to whether a
complaint is subject to this procedure may be referred by either party
to the Grievance Board for a threshold determination.



Sec. 911.6  Finality of choice.

    An alleged violation of an institutional right as reflected in a
collective bargaining agreement may be filed under these procedures or
as an unfair labor practice, but not both.



Sec. 911.7  Review.

    Resolution of disputes under this section shall not be subject to
judicial review.

                        PARTS 912	999 [RESERVED]

[[Page 265]]



                  CHAPTER X--INTER-AMERICAN FOUNDATION




  --------------------------------------------------------------------
Part                                                                Page
1000

[Reserved]

1001            Employee responsibilities and conduct.......         267
1002            Availability of records.....................         267
1003            Rules safeguarding personal information in
                    IAF records.............................         269
1004            Rules for implementing open meetings within
                    the Inter-American Foundation...........         275
1005            Enforcement of nondiscrimination on the
                    basis of handicap in programs or
                    activities conducted by the Inter-
                    American Foundation.....................         278
1006            Governmentwide debarment and suspension
                    (nonprocurement)........................         284
1007            Salary offset...............................         307
1008            Governmentwide requirements for drug-free
                    workplace (financial assistance)........         311
1009-1099

 [Reserved]

[[Page 267]]

                          PART 1000 [RESERVED]



PART 1001_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



    Authority: 5 U.S.C. 7301.



Sec. 1001.1  Cross-references to employee ethical conduct standards
and financial disclosure regulations.

    Directors and other employees of the Inter-American Foundation
should refer to the Standards of Ethical Conduct for Employees of the
Executive Branch at 5 CFR part 2635, the Inter-American Foundation
regulations at 5 CFR part 7301 which supplement the executive branch
standards, and the executive branch financial disclosure regulations at
5 CFR part 2634.

[59 FR 3772, Jan. 27, 1994]



PART 1002_AVAILABILITY OF RECORDS--Table of Contents



Sec.
1002.1 Introduction.
1002.2 Definitions.
1002.3 Access to Foundation records.
1002.4 Written requests.
1002.5 Records available at the Foundation.
1002.6 Records of other Departments and Agencies.
1002.7 Fees.
1002.8 Exemptions.
1002.9 Denial of records; review.

    Authority: 5 U.S.C. 552, and 31 U.S.C. 483(a).

    Source: 37 FR 8375, Apr. 26, 1972, unless otherwise noted.



Sec. 1002.1  Introduction.

    (a) It is the policy of the Inter-American Foundation that
information about its operations, procedures, and records be freely
available to the public in accordance with the provisions of the Freedom
of Information Act.
    (b) The Foundation will make the fullest possible disclosure of its
information and identifiable records consistent with the provisions of
this Act and the regulations in this part.



Sec. 1002.2  Definitions.

    As used in this part, the following words have the meaning set forth
below:
    Act. ``Act'' means the Act of June 5, 1967, sometimes referred to as
the ``Freedom of Information Act'' or the Public Information Section of
the Administrative Procedure Act, as amended, Pub. L. 90-23, 81 Stat.
54, and codified at 5 U.S.C. 552.
    Foundation. ``Foundation'' means the Inter-American Foundation.
    President. ``President'' means the President of the Foundation.
    Records. The word ``records'' includes all books, papers, or other
documentary materials made or received by the Foundation in connection
with the transaction of its business which have been preserved or are
appropriate for preservation by the Foundation as evidence of the
organization, functions, policies, decisions, procedures, operations, or
other activities, or because of the informational value of data
contained therein. Library or other material acquired and preserved
solely for reference or exhibition purposes, and stocks of publications
and processed documents are not included within the definition of the
word ``records.''



Sec. 1002.3  Access to Foundation records.

    Any person desiring to have access to Foundation records should call
or apply in person between the hours of 9 a.m. and 5 p.m. on weekdays
(holidays excluded) at the Foundation offices at 901 N. Stuart St., 10th
Floor, Arlington, VA 22203. Requests for access should be made to the
General Counsel, Office of the General Counsel () at the Foundation
offices. If request is made for copies of any record, the General
Counsel's Office will assist the person making such request in seeing
that such copies are provided according to the rules in this part.

[37 FR 8375, Apr. 26, 1972, as amended at 71 FR 63235, Oct. 30, 2006]



Sec. 1002.4  Written requests.

    In order to facilitate the processing of written requests, every
petitioner should:
    (a) Address his request to:

General Counsel, Inter-American Foundation, 901 N. Stuart St., 10th
Floor, Arlington, VA 22203.

    (b) Identify the desired record by name or brief description, or
number,

[[Page 268]]

and date, as applicable. The identification should be specific enough so
that a record can be readily identified and found;
    (c) Include a check or money order to the order of the ``Inter-
American Foundation'' covering the appropriate search and copying fees,
or request a determination of fee;
    (d) Allow a reasonable amount of time for reply. Furnishing the
requested information will involve search and retrieval of records,
copying and mailing;
    (e) Blanket requests or requests for ``the entire file of'' or ``all
matters relating to'' a specified subject will not be accepted.

[37 FR 8375, Apr. 26, 1972, as amended at 71 FR 63236, Oct. 30, 2006]



Sec. 1002.5  Records available at the Foundation.

    The General Counsel's Office will make available, to the extent not
authorized to be withheld, the following works or classes of
information:
    (a) A copy of Agency regulations, including a copy of title 22 of
the Code of Federal Regulations, or of any other title of the Code in
which Agency regulations may have been published;
    (b) Final unclassified reports;
    (c) Copies of grants, loans, or other agreements in force;
    (d) Personnel information affecting the public;
    (e) Procurement information affecting the public;
    (f) Contracts;
    (g) Reimbursable agreements with other agencies.

[37 FR 8375, Apr. 26, 1972, as amended at 71 FR 63236, Oct. 30, 2006]



Sec. 1002.6  Records of other Departments and Agencies.

    Requests for records that have been originated by or are primarily
the concern of another U.S. Department or Agency will be forwarded to
the particular Department of Agency involved, and the petitioner
notified. In response to requests for records or publications published
by the Government Printing Office or other Government printing activity,
the Foundation will refer the petitioner to the appropriate sales office
and refund any fee payments therefor which accompany the request.



Sec. 1002.7  Fees.

    Except as otherwise specifically provided by the Foundation, a fee
will be levied for all searches for, or copies of, records. These fees
will be computed so as to recover the full cost of searching and
copying.
    (a) Advance payment and deposits. When the amount of a fee can be
readily computed (as, for example, when a specified number of copy pages
are requested) advance payment will be required. When the amount cannot
be readily computed (as, for example, when an unknown amount of
stafftime must be used in complying with a request), the General Counsel
may require payment of a reasonable deposit before undertaking to
collect the requested records. At the earliest practicable time, the
General Counsel will determine the full amount of the fee and, before
complying fully with the request, will require payment of any balance
due or refund any overpayment.
    (b) Schedule of fees. The following fees apply for services rendered
to the public:

(1) Searching for records and collateral assistance, per hour or   $5.00
 fraction thereof...............................................
(2) Making copies (Xerox or comparable) per page................    0.40



Should a situation arise which is not covered by the above schedule, the
fee to be charged will include all direct and indirect costs of the
service, including but not limited to materials, labor, and the like.
The amount of the fee including charges, if any, for records printed by
contractors or grantees will be determined by the A&F Director.
    (c) Revision of schedule. The fee schedule will be revised from time
to time, without notice, to assure recovery of the cost of rendering
information services to any person. The revised schedule will be
available without charge.

[37 FR 8375, Apr. 26, 1972, as amended at 71 FR 63236, Oct. 30, 2006]



Sec. 1002.8  Exemptions.

    The Act authorizes exemption from disclosure of records and
information concerning matters that are:

[[Page 269]]

    (a) Specifically required by Executive order to be exempt from
disclosure in the interest of the national defense or foreign policy;
    (b) Related solely to the internal personnel rules and practices by
the Foundation;
    (c) Specifically exempted from disclosure by statute;
    (d) Trade secrets and commercial or financial information obtained
from any person which is privileged or confidential;
    (e) Interagency or intra-agency memoranda or letters which would not
be available by law to a private party in litigation with the
Foundation;
    (f) Personnel and medical files and similar files the disclosure of
which would constitute an unwarranted invasion of personal privacy;
    (g) Investigatory files (including security investigation files and
files concerning the conduct of employees) compiled for law enforcement
purposes except to the extent available by law to a private party.


The Foundation will not honor requests for exempt records or
information.



Sec. 1002.9  Denial of records; review.

    If a request for records is denied, the person who made the request
is entitled to have the denial reviewed by the Foundation President as
promptly as circumstances permit. If the President determines that the
withholding is improper, he will direct in writing that the requested
records be made available in accordance with these regulations. If he
determines that the withholding is proper, he will so notify such person
in writing, and his determination will constitute the final Foundation
decision.



PART 1003_RULES SAFEGUARDING PERSONAL INFORMATION IN IAF RECORDS--Table
of Contents



Sec.
1003.1 General policies, conditions of disclosure, accounting of certain
          disclosures, and definitions.
1003.2 Definitions.
1003.3 Access to records.
1003.4 Inter-American Foundation system of records requirements.
1003.5 Access to personal information from Inter-American Foundation
          records.
1003.6 Administrative review.
1003.7 Judicial review.
1003.8 Exemptions.
1003.9 Mailing lists.
1003.10 Reports.

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

    Source: 41 FR 19211, May 11, 1976, unless otherwise noted.



Sec. 1003.1  General policies, conditions of disclosure, accounting of
certain disclosures, and definitions.

    (a) The Inter-American Foundation will safeguard an individual
against an invasion of personal privacy. Except as otherwise provided by
law or regulation its officials and employees will:
    (1) Permit an individual to determine what records pertaining to him
or her will be collected, maintained, used, or disseminated by the
Inter-American Foundation.
    (2) Permit an individual to prevent records pertaining to him or
her, obtained by the Inter-American Foundation for a particular purpose,
from being used or made available for another purpose without his or her
consent.
    (3) Permit an individual to gain access to information pertaining to
him or her in the Inter-American Foundation records, to have a copy made
of all or any portion thereof, and to correct or amend such records.
    (4) Collect, maintain, use or disseminate any record of identifiable
personal information in a manner that assures that such action is for a
necessary and lawful purpose, that the information is correct and
accurate for its intended use, and that adequate safeguards are provided
to prevent misuse of such information.
    (5) Permit exemptions from records requirements provided in 5 U.S.C.
552a only where an important public policy need for such exemption has
been determined pursuant to specific statutory authority.
    (b) The Inter-American Foundation will not disclose any record
contained in a system of records by any means of communication to any
person or any other agency except by written request of or prior written
consent of the individual to whom the record pertains unless such
disclosure is:

[[Page 270]]

    (1) To those officers and employees of the agency which maintains
the record and who have a need for the record in the performance of
their duties;
    (2) Required under 5 U.S.C. 552;
    (3) For a routine use of the record compatible with the purpose for
which it was collected;
    (4) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to title 13, United
States Code;
    (5) To a recipient who has provided the Inter-American Foundation
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 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 authority
by law, and if the head of the agency or instrumentality has made a
written request to the Inter-American foundation 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 Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
    (10) To the Comptroller General, or any 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.
    (c) With respect to each system of records (i.e., a group of records
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) under Inter-American foundation control the
Inter-American Foundation will (except for disclosures made under
paragraph (b) (1) or (2) of this section) keep an accurate accounting as
follows:
    (1) For each disclosure of a record to any person or to another
agency made under paragraph (b) of this section, maintain information
consisting of the date, nature, and purpose of each disclosure, and the
name and address of the person or agency to whom the disclosure is made;
    (2) Retain the accounting made under paragraph (c)(1) of this
section for at least 5 years or the life of the record, whichever is
longer, after the disclosures for which the accounting is made;
    (3) Except for disclosures made under paragraph (b)(7) of this
section, make the accounting under paragraph (c)(1) of this section
available to the individual named in the record at his or her request;
and
    (4) Inform any person or other agency about any correction or
notation of dispute made by the agency of any record that has been
disclosed to the person or agency if an accounting of the disclosure was
made.
    (d) The parent of any minor, or the legal guardian of any individual
who has been declared incompetent due to physical or mental incapacity
or age by a court of competent jurisdiction, may act on behalf of the
individual.
    (e) Section 552a(e), title 5, United States Code, provided that:
    (1) Any officer or employee of the Inter-American Foundation, who by
virtue of his or her employment or official position, has possession of,
or access to, Inter-American Foundation records which contain
individually identifiable information the disclosure of which is
prohibited by 5 U.S.C. 552a and who knowing that disclosure of the
specific material is so prohibied, willfully discloses the material in
any manner to any person or agency not entitled to receive it, shall be
guilty of

[[Page 271]]

a misdemeanor and fined not more than $5,000.
    (2) Any officer or employee of the Inter-American Foundation who
willfully maintains a system of records without meeting the notice
requirements of 5 U.S.C. 552a(e)(4) shall be guilty of a misdemeanor and
fined not more than $5,000.
    (3) Any person who knowingly and willfully requests or obtains any
record concerning an individual from the Inter-American Foundation under
false pretenses shall be guilty of a misdemeanor and fined not more than
$5,000.



Sec. 1003.2  Definitions.

    The following definitions apply:
    (a) The term agency includes any executive department, military
department, Government corporation, Government controlled corporation,
or other establishment in the executive branch of the government
(including the Executive Office of the President), or any independent
regulatory agency.
    (b) The term individual means a citizen of the United States or an
alien lawfully admitted for permanent residence.
    (c) The term maintain includes maintain, collect, use, or
disseminate.
    (d) The term record means any item, collection, or grouping of
information about an individual that is maintained by an agency,
including, but not limited to, his or her educational, financial
transactions, medical history, and criminal or employment history and
that contains his or her name, or the identifying number, symbol, or
other identifying particular assigned to the individual, such as a
finger or voice print or a photograph.
    (e) The term system of records means a group of any records under
the control of any agency from which information is retrieved by the
name of the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual.
    (f) The term statistical record means a record in a system of
records maintained for statistical research or reporting purposes only
and not used in whole or in part in making any determination about an
identifiable individual except as provided by section 8 of title 13,
United States Code.
    (g) The term routine use means, with respect to the disclosure or a
record, the use of such record for a purpose which is compatible with
the purpose for which it was collected.



Sec. 1003.3  Access to records.

    (a) Except as otherwise provided by law or regulation any individual
upon request may gain access to his or her record or to any information
pertaining to him or her which is contained in any system or records
maintained by the Inter-American Foundation. The individual will be
permitted, and upon his or her request, a person of his or her own
choosing permitted to accompany him or her, to review the record and
have a copy made of all or any portion thereof in a form comprehensible
to him or her. The Inter-American foundation will require, however, a
written statement from the individual authorizing discussion of that
individual's record in the accompanying person's presence.
    (b) Any individual may request amendment of any Inter-American
Foundation record pertaining to him or her. Not later than 10 days
(excluding Saturdays, Sundays, and legal public holidays) after the date
of receipt of such request, the Inter-American Foundation will
acknowledge in writing such receipt. The Inter-American Foundation will
also promptly either:
    (1) Correct any part thereof which the individual believes is not
accurate, relevant, timely, or complete; or
    (2) Inform the individual of the Inter-American Foundation's refusal
to amend the record in accordance with his or her request, the reason
for the refusal, the procedures by which the individual may request a
review of that refusal by the Administrator or designee, and the name
and address of such official.
    (c) Any individual who disagrees with the Inter-American
Foundation's refusal to amend his or her record may request a review of
such refusal. The Inter-American Foundation will complete such review
not later than 30 days (excluding Saturdays, Sundays, and legal public
holidays) from the date on which the individual requests

[[Page 272]]

such review and make a final determination unless, for good cause shown,
the Administrator extends such 30-day period. If, after review, the
Administrator or designee also refuses to amend the record in accordance
with the request the individual will be advised of the right to file
with the Inter-American Foundation a concise statement setting forth the
reasons for his or her disagreement with the Inter-American Foundation's
refusal, and also advised of the provisions for judicial review of the
reviewing official's determination (5 U.S.C. 552a(g)(1)(A)).
    (d) In any disclosure, containing information about which the
individual has filed a statement of disagreement, occurring after the
filing of the statement under paragraph (c) of this section, the Inter-
American Foundation will clearly note any part of the record which is
disputed and provide copies of the statement (and, if the Inter-American
Foundation deems it appropriate, copies also of a concise statement of
the Inter-American Foundation's reasons for not making the amendments
requested) to persons or other agencies to whom the disputed record has
been disclosed.
    (e) Nothing in 5 U.S.C. 552a, however, allows an individual access
to any information compiled in reasonable anticipation of a civil action
or proceeding.

[41 FR 19211, May 11, 1976, as amended at 42 FR 37368, July 21, 1977]



Sec. 1003.4  Inter-American Foundation system of records requirements.

    (a) The Inter-American Foundation will maintain in its records any
such information about an individual as is relevant and necessary to
accomplish a purpose of the Inter-American Foundation required to be
accomplished by statute or Executive order of the President.
    (b) The Inter-American Foundation will collect 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, and privileges under Federal programs.
    (c) The Inter-American Foundation will inform 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 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 which may be made of the information, as
published pursuant to paragraph (d)(4) of this section; and
    (4) The effects on him or her, if any, of not providing all or any
part of the requested information.
    (d) Subject to the provisions of paragraph (k) of this section, the
Inter-American Foundation will publish in the Federal Register at least
annually a notice of the existence and character of its system of
records. This notice will include:
    (1) The name and location of the system or systems;
    (2) The categories of individuals on whom records are maintained in
the system or systems;
    (3) The categories of records maintained in the system or systems;
    (4) Each routine use of the records contained in the system or
systems, including the categories of users and the purpose of such use;
    (5) The policies and practices of the Inter-American Foundation
regarding storage, retrievability, access controls, retention, and
disposal of the records;
    (6) The title and business address of the Inter-American Foundation
official or officials responsible for the system or systems of records;
    (7) The Inter-American Foundation procedures whereby an individual
can be notified at his or her request if the system or systems of
records contain a record pertaining to him or her;
    (8) The Inter-American Foundation procedures whereby an individual
can be notified at his or her request how he or she can gain access to
any record pertaining to him or her contained in the system or systems
of records, and how he or she can contest its content; and

[[Page 273]]

    (9) The categories of sources of records in the system or systems.
    (e) All records used by the Inter-American Foundation in making any
determination about any individual will be maintained with the accuracy,
relevance, timeliness, and completeness reasonably necessary to assure
fairness to the individual in the determination.
    (f) Before disseminating any record about any individual to any
person other than an agency the Inter-American Foundation will make
reasonable efforts to assure that such records are accurate, complete,
timely, and relevant for Inter-American Foundation purposes unless the
dissemination is required pursuant to 5 U.S.C. 552.
    (g) The Inter-American Foundation will maintain no record describing
how any individual exercises rights guaranteed by the First Amendment
unless 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) The Inter-American Foundation will make reasonable efforts to
serve notice on an individual when any record on such individuals is
made available to any person under compulsory legal process when such
process becomes a matter of public record.
    (i) The Inter-American Foundation will establish rules of conduct
for persons involved in the design, development, operation, or
maintenance of any system of records, or in maintaining any record. Each
such person will be instructed regarding such rules and the requirements
of 5 U.S.C. 552a. The instruction will include any other rules and
procedures adopted pursuant to 5 U.S.C. 552a, and the penalties it
provides for noncompliance.
    (j) The Inter-American Foundation will establish appropriate
administrative, technical, and physical safeguards to insure the
security and confidentiality of records and to protect against any
anticipated threats or hazards to their security or integrity which
could result in substantial harm, embarrassment, inconvenience, or
unfairness to any individual on whom information is maintained.
    (k) At least 30 days prior to the publication of a notice in the
Federal Register at least annually regarding the routine use of the
records contained in the Inter-American Foundation system or systems of
records including the categories of users and the purpose of such use,
pursuant to paragraph (d)(4) of this section, the Inter-American
Foundation will also:
    (1) Publish a notice in the Federal Register of any new use or
intended use of the information in the system or systems; and
    (2) Provide an opportunity for interested persons to submit written
data, views, or arguments to the Inter-American Foundation.



Sec. 1003.5  Access to personal information from Inter-American
Foundation records.

    (a) The Inter-American Foundation will promulgate regulations, as
necessary, to insure compliance with the provisions of 5 U.S.C. 552a,
developed in accordance with the provisions of 5 U.S.C. 553, as
applicable.
    (b) Any individual will be notified upon request if any Inter-
American Foundation system of records named contains a record pertaining
to him or her. Such request must be in writing over the signature of the
requester. The request must contain a reasonable description of the
Inter-American Foundation system or systems of records meant, as
described at least annually by notice published in the Federal Register
describing the existence and character of the Inter-American
Foundation's system or systems of records. The request should be made to
the Executive Officer, Inter-American Foundation, 1515 Wilson Boulevard,
Rosslyn, Virginia 22209. Personal contacts should normally be made
during the regular duty hours of the office concerned, which are 8:30
a.m. to 4:00 p.m. Monday through Friday. Identification of the
individual requesting the information will be required consisting of
name, signature, address, and claim, insurance or other identifying file
number, if any, as a minimum.
    (c) The department or staff office having jurisdiction over the
records involved will establish appropriate disclosure procedures and
will notify the

[[Page 274]]

individual requesting disclosure of his or her record or information
pertaining to him or her of the time, place and conditions under which
the Inter-American Foundation will comply to the extent permitted by law
and Inter-American Foundation regulation. Special procedures will be
established by the department or staff office concerned governing the
disclosure to an individual of medical records, including psychological
records pertaining to him or her.
    (d) The department or staff office having jurisdiction over the
records involved will also establish procedures for reviewing a request
from an individual concerning the amendment of any record or information
pertaining to the individual for making a determination on the request,
for an appeal within the Inter-American Foundation of an initial adverse
Inter-American Foundation determination, and for whatever additional
means may be necessary for each individual to be able to exercise fully
his or her rights under 5 U.S.C. 552a.
    (e) Fees to be charged, if any, to any individual for making copies
of his or her record, excluding the cost of any search for and review of
the record, will be as follows:
    (1) Photocopy reproductions from all types of copying processes,
each reproduction image, $0.05.
    (2) Where the Inter-American Foundation undertakes to perform for a
requester or for any other person services which are very clearly not
required to be performed under section 552a, title 5, United States
Code, either voluntarily or because such services are required by some
other law (e.g., the formal certification of records as true copies,
attestation under the seal of the Inter-American Foundation, etc.), the
question of charging fees for such services will be determined by the
official or designee authorized to release the information under Sec.
1.556, in the light of the Federal user charge statute, 31 U.S.C. 483a,
and any other applicable law.



Sec. 1003.6  Administrative review.

    (a) Upon denial of a request, the responsible Inter-American
Foundation official or designated employee will inform the requester in
writing of the denial, cite the reason or reasons and the Inter-American
Foundation regulations upon which the denial is based, and advise that
the denial may be appealed to the Administrator.
    (b) The final agency decision in such appeals will be made by the
Administrator or Deputy Administrator.



Sec. 1003.7  Judicial review.

    Any person may file a complaint against the Inter-American
Foundation in the appropriate U.S. district court, as provided in 5
U.S.C. 552a(g), whenever the Inter-American Foundation:
    (a) Makes a determination not to amend an individual's record in
accordance with his or her request, or fails to make such review in
conformity with that section;
    (b) Refuses to comply with an individual request;
    (c) Fails to maintain any record concerning any individual with such
accuracy, relevance, timeliness, and completeness as is necessary to
assure fairness in any determination relating to the qualifications,
character, rights, or opportunities of, or benefits to the individual
that may be made on the basis of such record, and consequently a
determination is made which is adverse to the individual; or
    (d) Fails to comply under any other provision of 5 U.S.C. 552a, or
any Inter-American Foundation regulation promulgated thereunder, in such
a way as to have an adverse effect on an individual.



Sec. 1003.8  Exemptions.

    No Inter-American Foundation records system or systems as such are
exempted from the provisions of 5 U.S.C. 552a as permitted under certain
conditions by 5 U.S.C. 552a (j) and (k).



Sec. 1003.9  Mailing lists.

    An individual's name and address may not be sold or rented by the
Inter-American Foundation unless such action is specifically authorized
by law. This section does not require the withholding of names and
addresses otherwise permitted to be made public.

[[Page 275]]



Sec. 1003.10  Reports.

    (a) The Administrator or designee will provide adequate advance
notice to Congress and the Office of Management and Budget of any
proposal to establish or alter any Inter-American Foundation system or
systems of records, as required by 5 U.S.C. 552a(o). This will permit an
evaluation of the probable or potential effect of such proposal on the
privacy and other personal or property rights of individuals or the
disclosure of information relating to such individuals, and its effect
on the preservation of the constitutional principles of federalism and
separation of powers.
    (b) If at any time an Inter-American Foundation system or systems of
records is determined to be exempt from the application of 5 U.S.C. 552a
in accordance with the provisions of 5 U.S.C. 552a (j) and (k), the
number of records contained in such system or systems will be separately
listed and reported to the Office of Management and Budget in accordance
with the then prevailing guidelines and instructions of that agency.



PART 1004_RULES FOR IMPLEMENTING OPEN MEETINGS WITHIN THE
INTER-AMERICAN FOUNDATION--Table of Contents



Sec.
1004.1 General policies.
1004.2 Definitions.
1004.3 Requirement of open meetings.
1004.4 Grounds on which meetings may be closed.
1004.5 Procedures for announcing meetings.
1004.6 Procedures for closing meetings.
1004.7 Reconsideration of opening or closing of meeting.
1004.8 Transcripts, recording of closed meeting.

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

    Source: 71 FR 63237, Oct. 30, 2006, unless otherwise noted.



Sec. 1004.1  General policies.

    The Inter-American Foundation (IAF) will, in accordance with the
Government in the Sunshine Act, 5 U.S.C. 552b, provide the public with
the fullest practical information regarding its decisionmaking processes
while protecting the rights of individuals and its ability to carry out
its responsibilities.



Sec. 1004.2  Definitions.

    The following definitions apply:
    (a) Agency includes any executive department, military department,
government corporation, government controlled corporation other
establishment in the executive branch of the government (including the
Executive Office of the President) or any independent regulatory agency,
and is headed by a collegial body composed of two or more individual
members, a majority of whom are appointed to such position by the
President with the advice and consent of the Senate, and any subdivision
thereof authorized to act on behalf of the agency. The Inter-American
Foundation is a government corporation headed by a nine-member Board of
Directors, all of whom are appointed by the President with the advice
and consent of the Senate, and is therefore an ``agency'' under these
terms.
    (b) Meeting means the deliberation of this Board of Directors where
such deliberation determines or results in the joint conduct or
disposition of official IAF business, but does not include deliberations
required or permitted by subsection 1004.6 or 1004.7.
    (c) Member means an individual who belongs to the IAF Board of
Directors.
    (d) Public Observation means attendance at any meeting but does not
include participation, or attempted participation, in such meeting in
any matter.



Sec. 1004.3  Requirement of open meetings.

    Members shall not jointly conduct or dispose of agency business
other than in accordance with this section. Except as provided in Sec.
1004.4 every portion of every meeting of the agency shall be open to
public observation.



Sec. 1004.4  Grounds on which meetings may be closed.

    The IAF shall open every portion of every meeting of the agency for
public observation. Except in a case where the agency finds that the
public interest requires otherwise, this requirement

[[Page 276]]

does not apply where the agency determines that such portion or portions
of its meeting or the disclosure of such information is likely to:
    (a) Disclose matters that are:
    (1) Specifically authorized under criteria established by an
Executive order to be kept secret in the interests of national defense
or foreign policy, and
    (2) In fact, properly classified pursuant to such Executive order;
    (b) Relate solely to the internal personnel rules and practice of
the agency;
    (c) Disclose matters specifically exempted from disclosure by
statute, provided that such statute:
    (1) Requires that the matters be withheld from the public in such
manner as to have no discretion on the issue, or
    (2) Establishes practical criteria for withholding or refers to
particular types of matters to be withheld;
    (d) Disclose trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime, or formally censuring
any person;
    (f) Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records or
information would:
    (1) Interfere with enforcement proceedings,
    (2) Deprive a person of a right to a fair trial of an impartial
adjudication,
    (3) Constitute an unwarranted invasion of personal privacy,
    (4) Disclose the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, information furnished by a
confidential source,
    (5) Disclose investigative techniques and procedures, or
    (6) Endanger the life or physical safety of law enforcement
personnel;
    (h) Disclose information contained in or related to examination,
operating or condition reports prepared by, on behalf of, or for the use
of an agency responsible for the regulation or supervision of financial
institutions;
    (i) Disclose information the premature disclosure of which would be
likely to significantly frustrate implementation of a proposed agency
action. This shall not apply in any instance where the IAF has already
disclosed to the public the content or nature of its proposed action or
where the IAF is required by law to make such disclosure of its own
initiative prior to taking final IAF action on such proposal;
    (j) Specifically concern the IAF's issuance of subpoena, or the
IAF's participation in a civil action or proceeding, an action in a
foreign court or international tribunal, or an arbitration, or the
initiation, conduct, or disposition by the IAF of a particular case of
formal agency adjudication pursuant to the procedures in section 554 of
this title or otherwise involving a determination on the record after
opportunity for a hearing.

    Note to Sec. 1004.4: The requirements of Sec. Sec. 1004.5 and
1004.6 shall not apply to any information pertaining to those meetings
exempted under this section.



Sec. 1004.5  Procedures for announcing meetings.

    (a) In the case of each meeting, the IAF shall make public, at least
one week before the meeting, of the time, place and subject matter of
the meeting, whether it is to be open or closed to the public, and the
name and phone number of the official designated by the IAF to respond
to requests for information about the meeting. Such announcement shall
be made unless a majority of the Board of Directors of the IAF
determines by a recorded vote that the IAF requires that such a meeting
be called at an earlier date, in which case the IAF shall make public
announcement of the time, place and subject matter of such meeting and
whether open or closed to the public, at the earliest practical time.
    (b) Immediately following the public announcement, the IAF will
submit notice for publication in the Federal Register.

[[Page 277]]

    (c) The IAF shall also make public the announcement by other
reasonable means, accessible to the public.



Sec. 1004.6  Procedures for closing meetings.

    (a) The closing of a meeting or a portion of a meeting shall occur
only when:
    (1) A majority of the membership of the IAF Board votes to take such
action. That vote shall determine whether or not any portion or portions
of a meeting or portions of a series of meetings may be closed to public
observation for any of the reasons provided in Sec. 1004.4 and whether
or not the public interest nevertheless requires that portion of the
meeting or meetings remain open. A single vote may be taken with respect
to a series of meetings, a portion or portions of which are proposed to
be closed to the public, or with respect to any information concerning
such series of meetings, so long as each meeting in such series involves
the same particular matters and is scheduled to be held no more than
thirty days after the initial meeting in such series. The vote of each
Board member participating in such vote shall be recorded and no proxies
shall be allowed.
    (2) Whenever any person whose interests may be directly affected by
a portion of a meeting requests that the IAF close such portion to the
public for any of the reasons referred to in Sec. 1004.4 the IAF, upon
request of any one of its Board members, shall take a recorded vote,
whether to close such portion of the meeting.
    (b) Within one day of any vote taken pursuant to this Section, the
IAF shall make publicly available a written copy of such vote reflecting
the vote of each member on the question and full written explanation of
its action closing the entire or portion of the meeting together with a
list of persons expecting to attend the meeting and their affiliation.
    (c) The IAF shall, subject to change, announce the time, place and
subject matter of the meeting at least 7 days before the meeting.
    (d) For every closed meeting pursuant to Sec. 1004.4, the General
Counsel of the IAF shall publicly certify prior to a Board of Directors'
vote on closing the meeting, that, in his or her opinion, the meeting
may be closed to the public and shall state each relevant exemptive
provision. A copy of such certification, together with a statement from
the presiding officer of the meeting setting forth the time and place of
the meeting, and the persons present, shall be retained by the IAF.



Sec. 1004.7  Reconsideration of opening or closing of meeting.

    The time or place of a Board meeting may be changed, without vote,
following public announcement. The IAF will announce any such change at
the earliest practicable time. The subject matter of a meeting, or the
determination of the agency to open or close a meeting, or portion of a
meeting, to the public, may be changed only if a majority of the Board
of Directors determines by a recorded vote that IAF business so requires
and that no earlier announcement of the change was possible, and the IAF
publicly announces such change and the vote of each member upon such
change at the earliest practicable time.



Sec. 1004.8  Transcripts, recording of closed meetings.

    (a) The IAF shall maintain a complete transcript or electronic
recording adequate to record fully the proceedings of each meeting, or
portion of a meeting, closed to the public, except that in the case of a
meeting, or portion of a meeting, closed to the public pursuant to
paragraph (d), (h), or (j) of Sec. 1004.4, the IAF shall maintain
either such a transcript or recording, or a set of minutes. Such records
shall fully and clearly describe all matters discussed and shall provide
a full and accurate summary of any actions taken, and the reasons
therefore, including a description of each of the views expressed on any
item and the record of any roll call vote (reflecting the vote of each
member on the question). All documents considered in connection with any
action shall be identified in such records.
    (b) The IAF, after review by the General Counsel shall make promptly

[[Page 278]]

available to the public, in a place easily accessible to the public, the
transcript or electronic recording or minutes of the discussion of any
time on the agenda, or any item of the testimony of any witness received
at the Board meeting, except for such item or items of such discussion
or testimony as the IAF determines to contain information which may be
withheld under Sec. 1004.4. Copies of such transcript, or a
transcription of such recording disclosing the identity of each speaker,
shall be furnished to any person at the actual cost of duplication or
transcription. The IAF shall maintain a complete verbatim copy of the
transcript, a complete copy of the minutes or a complete electronic
recording of each meeting, or portion of a meeting, closed to the
public, for a period of at least two years after such meeting, or until
one year after the conclusion or any IAF proceedings with respect to
which the meeting or portion was held, whichever occurs later.



PART 1005_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE INTER-AMERICAN

FOUNDATION--Table of Contents



Sec.
1005.101 Purpose.
1005.102 Application.
1005.103 Definitions.
1005.104-1005.109 [Reserved]
1005.110 Self-evaluation.
1005.111 Notice.
1005.112-1005.129 [Reserved]
1005.130 General prohibitions against discrimination.
1005.131-1005.139 [Reserved]
1005.140 Employment.
1005.141-1005.148 [Reserved]
1005.149 Program accessibility: Discrimination prohibited.
1005.150 Program accessibility: Existing facilities.
1005.151 Program accessibility: New construction and alterations.
1005.152-1005.159 [Reserved]
1005.160 Communications.
1005.161-1005.169 [Reserved]
1005.170 Compliance procedures.
1005.171-1005.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22890, 22896, June 23, 1986, unless otherwise noted.



Sec. 1005.101  Purpose.

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



Sec. 1005.102  Application.

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



Sec. 1005.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with hearing
aids, telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
    Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.

[[Page 279]]

    Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alocoholism.
    (2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
    Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education
services provided by the agency, a handicapped person who is a member of
a class of persons otherwise entitled by statute, regulation, or agency
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can acheive the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
    (4) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by Sec. 1005.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.

[[Page 280]]



Sec. Sec. 1005.104-1005.109  [Reserved]



Sec. 1005.110  Self-evaluation.

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



Sec. 1005.111  Notice.

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



Sec. Sec. 1005.112-1005.129  [Reserved]



Sec. 1005.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
    (3) The agency may not, directly or through contractual or other
arrangments, utilize criteria or methods of administration the purpose
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination

[[Page 281]]

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



Sec. Sec. 1005.131-1005.139  [Reserved]



Sec. 1005.140  Employment.

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



Sec. Sec. 1005.141-1005.148  [Reserved]



Sec. 1005.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1005.150, no qualified
handicapped person shall, because the agency's facilities are
inaccessible to or unusable by handicapped persons, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.



Sec. 1005.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not--
    (1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1005.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens

[[Page 282]]

but would nevertheless ensure that handicapped persons receive the
benefits and services of the program or activity.
    (b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by handicapped persons. The agency is not
required to make structural changes in existing facilities where other
methods are effective in achieving compliance with this section. The
agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of
Sec. 1005.150(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to handicapped
persons. In cases where a physical alteration to an historic property is
not required because of Sec. 1005.150(a)(2) or (a)(3), alternative
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
    (ii) Assigning persons to guide handicapped persons into or through
portions of historic properties that cannot otherwise be made
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the
obligations established under this section by October 21, 1986, except
that where structural changes in facilities are undertaken, such changes
shall be made by August 22, 1989, but in any event as expeditiously as
possible.
    (d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by February 23, 1987, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to handicapped
persons;
    (2) Describe in detail the methods that will be used to make the
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the
plan.



Sec. 1005.151  Program accessibility: New construction and alterations.

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

[[Page 283]]



Sec. Sec. 1005.152-1005.159  [Reserved]



Sec. 1005.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
    (ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
    (2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf person (TDD's) or
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
    (c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and adminstrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1005.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, handicapped persons receive the benefits and services
of the program or activity.



Sec. Sec. 1005.161-1005.169  [Reserved]



Sec. 1005.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
    (c) The General Counsel, Inter-American Foundation, shall be
responsible for coordinating implementation of this section. Complaints
may be sent to 901 N. Stuart St., 10th Floor, Arlington, VA 22203.
    (d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
    (f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of

[[Page 284]]

the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not
readily accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 1005.170(g). The agency may
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of
the agency.
    (j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.

[51 FR 22890, 22896, June 23, 1986, as amended at 51 FR 22891, June 23,
1986; 71 FR 63236, Oct. 30, 2006]



Sec. Sec. 1005.171-1005.999  [Reserved]



PART 1006_GOVERNMENTWIDE DEBARMENT AND SUSPENSION
(NONPROCUREMENT)--Table of Contents



Sec.
1006.25 How is this part organized?
1006.50 How is this part written?
1006.75 Do terms in this part have special meanings?

                            Subpart A_General

1006.100 What does this part do?
1006.105 Does this part apply to me?
1006.110 What is the purpose of the nonprocurement debarment and
          suspension system?
1006.115 How does an exclusion restrict a person's involvement in
          covered transactions?
1006.120 May we grant an exception to let an excluded person participate
          in a covered transaction?
1006.125 Does an exclusion under the nonprocurement system affect a
          person's eligibility for Federal procurement contracts?
1006.130 Does exclusion under the Federal procurement system affect a
          person's eligibility to participate in nonprocurement
          transactions?
1006.135 May the Inter-American Foundation exclude a person who is not
          currently participating in a nonprocurement transaction?
1006.140 How do I know if a person is excluded?
1006.145 Does this part address persons who are disqualified, as well as
          those who are excluded from nonprocurement transactions?

                     Subpart B_Covered Transactions

1006.200 What is a covered transaction?
1006.205 Why is it important to know if a particular transaction is a
          covered transaction?
1006.210 Which nonprocurement transactions are covered transactions?
1006.215 Which nonprocurement transactions are not covered transactions?
1006.220 Are any procurement contracts included as covered transactions?
1006.225 How do I know if a transaction in which I may participate is a
          covered transaction?

    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons

1006.300 What must I do before I enter into a covered transaction with
          another person at the next lower tier?
1006.305 May I enter into a covered transaction with an excluded or
          disqualified person?
1006.310 What Must I do if a Federal agency excludes a person with whom
          I am already doing business in a covered transaction?
1006.315 May I use the services of an excluded person as a principal
          under a covered transaction?

[[Page 285]]

1006.320 I verify that principals of my covered transactions are
          eligible to participate?
1006.325 What happens if I do business with an excluded person in a
          covered transaction?
1006.330 What requirements must I pass down to persons at lower tiers
          with whom I intend to do business?

            Disclosing Information--Primary Tier Participants

1006.335 What information must I provide before a covered transaction
          with the Inter-American Foundation?
1006.340 If I disclose unfavorable information required under Sec.
          1006.335, will I be prevented from participating in the
          transaction?
1006.345 What happens if I fail to disclose the information required
          under Sec. 1006.335?
1006.350 What must I do if I learn of the information required under
          Sec. 1006.335 after entering into a covered transaction with
          the Inter-American Foundation?

             Disclosing Information--Lower Tier Participants

1006.355 What information must I provide to a higher tier participant
          before entering into a covered transaction with that
          participant?
1006.360 What happens if I fail to disclose the information required
          under Sec. 1006.355?
1006.365 What must I do if I learn of information required under Sec.
          1006.355 after entering into a covered transaction with a
          higher tier participant?

   Subpart D_Responsibilities of Inter-American Foundation Officials
                         Regarding Transactions

1006.400 May I enter into a transaction with an excluded or disqualified
          person?
1006.405 May I enter into a covered transaction with a participant if a
          principal of the transaction is excluded?
1006.410 May I approve a participant's use of the services of an
          excluded person?
1006.415 What must I do if a Federal agency excludes the participant or
          a principal after I enter into a covered transaction?
1006.420 May I approve a transaction with an excluded or disqualified
          person at a lower tier?
1006.425 When do I check to see if a person is excluded or disqualified?
1006.430 How do I check to see if a person is excluded or disqualified?
1006.435 What must I require of a primary tier participant?
1006.440 What method do I use to communicate those requirements to
          participants?
1006.445 What action may I take if a primary tier participant knowingly
          does business with an excluded or disqualified person?
1006.450 What action may I take if a primary tier participant fails to
          disclose the information required under Sec. 1006.335?
1006.455 What may I do if a lower tier participant fails to disclose the
          information required under Sec. 1006.355 to the next higher
          tier?

                 Subpart E_Excluded Parties List System

1006.500 What is the purpose of the Excluded Parties List System (EPLS)?
1006.505 Who uses the EPLS?
1006.510 Who maintains the EPLS?
1006.515 What specific information is in the EPLS?
1006.520 Who places the information into the EPLS?
1006.525 Whom do I ask if I have questions about a person in the EPLS?
1006.530 Where can I find the EPLS?

   Subpart F_General Principles Relating to Suspension and Debarment
                                 Actions

1006.600 How do suspension and debarment actions start?
1006.605 How does suspension differ from debarment?
1006.610 What procedures does the Inter-American Foundation use in
          suspension and debarment actions?
1006.615 How does the Inter-American Foundation notify a person of a
          suspension and debarment action?
1006.620 Do Federal agencies coordinate suspension and debarment
          actions?
1006.625 What is the scope of a suspension or debarment action?
1006.630 May the Inter-American Foundation impute the conduct of one
          person to another?
1006.635 May the Inter-American Foundation settle a debarment or
          suspension action?
1006.640 May a settlement include a voluntary exclusion?
1006.645 Do other Federal agencies know if the Inter-American Foundation
          agrees to a voluntary exclusion?

                          Subpart G_Suspension

1006.700 When may the suspending official issue a suspension?
1006.705 What does the suspending official consider in issuing a
          suspension?
1006.710 When does a suspension take effect?
1006.715 What notice does the suspending official give me if I am
          suspended?
1006.720 How may I contest a suspension?
1006.725 How much time do I have to contest a suspension?

[[Page 286]]

1006.730 What information must I provide to the suspending official if I
          contest a suspension?
1006.735 Under what conditions do I get an additional opportunity to
          challenge the facts on which the suspension is based?
1006.740 Are suspension proceedings formal?
1006.745 How is fact-finding conducted?
1006.750 What does the suspending official consider in deciding whether
          to continue or terminate my suspension?
1006.755 When will I know whether the suspension is continued or
          terminated?
1006.760 How long may my suspension last?

                           Subpart H_Debarment

1006.800 What are the causes for debarment?
1006.805 What notice does the debarring official give me if I am
          proposed for debarment?
1006.810 When does a debarment take effect?
1006.815 How may I contest a proposed debarment?
1006.820 How much time do I have to contest a proposed debarment?
1006.825 What information must I provide to the debarring official if I
          contest a proposed debarment?
1006.830 Under what conditions do I get an additional opportunity to
          challenge the fact on which the proposed debarment is based?
1006.835 Are debarment proceedings formal?
1006.840 How is fact-finding conducted?
1006.845 What does the debarring official consider in deciding whether
          to debar me?
1006.850 What is the standard of proof in a debarment action?
1006.855 Who has the burden of proof in a debarment action?
1006.860 What factors may influence the debarring official's decision?
1006.865 How long may my debarment last?
1006.870 When do I know if the debarring official debars me?
1006.875 May I ask the debarring official to reconsider a decision to
          debar me?
1006.880 What factors may influence the debarring official during
          reconsideration?
1006.885 May the debarring official extend a debarment?

                          Subpart I_Definitions

1006.900 Adequate evidence.
1006.905 Affiliate.
1006.910 Agency.
1006.915 Agent or representative.
1006.920 Civil judgment.
1006.925 Conviction.
1006.930 Debarment.
1006.935 Debarring official.
1006.940 Disqualified.
1006.945 Excluded or exclusion.
1006.950 Excluded Parties List System.
1006.955 Indictment.
1006.960 Ineligible or ineligibility.
1006.965 Legal proceedings.
1006.970 Nonprocurement transaction.
1006.975 Notice.
1006.980 Participant.
1006.985 Person.
1006.990 Preponderance of the evidence.
1006.995 Principal.
1006.1000 Respondent.
1006.1005 State.
1006.1010 Suspending official.
1006.1015 Suspension.
1006.1020 Voluntary exclusion or voluntarily excluded

Subpart J [Reserved]

Appendix to Part 1006--Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C.
6101 note); E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR,
1989 Comp., p. 235.



Sec. 1006.25  How is this part organized?

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

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


[[Page 287]]

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

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



Sec. 1006.50  How is this part written?

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



Sec. 1006.75  Do terms in this part have special meanings?

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



                            Subpart A_General



Sec. 1006.100  What does this part do?

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



Sec. 1006.105  Does this part apply to me?

    Portions of this part (see table at Sec. 1006.25(b)) apply to you
if you are a(n)--
    (a) Person who has been, is, or may reasonably be expected to be, a
participant or principal in a covered transaction;
    (b) Respondent (a person against whom the Inter-American Foundation
has initiated a debarment or suspension action);
    (c) Inter-American Foundation debarring or suspending official; or
    (d) Inter-American Foundation official who is authorized to enter
into covered transactions with non-Federal parties.



Sec. 1006.110  What is the purpose of the nonprocurement debarment
and suspension system?

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

[[Page 288]]

to protect the public interest. A Federal agency may not exclude a
person or commodity for the purposes of punishment.



Sec. 1006.115  How does an exclusion restrict a person's involvement
in covered transactions?

    With the exceptions stated in Sec. Sec. 1006.120, 1006.315, and
1006.420, a person who is excluded by the Inter-American Foundation or
any other Federal agency may not:
    (a) Be a participant in a(n) Inter-American Foundation transaction
that is a covered transaction under subpart B of this part;
    (b) Be a participant in a transaction of any other Federal agency
that is a covered transaction under that agency's regulation for
debarment and suspension; or
    (c) Act as a principal of a person participating in one of those
covered transactions.



Sec. 1006.120  May we grant an exception to let an excluded person
participate in a covered transaction?

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



Sec. 1006.125  Does an exclusion under the nonprocurement system
affect a person's eligibility for Federal procurement contracts?

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



Sec. 1006.130  Does exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement

transactions?

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



Sec. 1006.135  May the Inter-American Foundation exclude a person who
is not currently participating in a nonprocurement transaction?

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



Sec. 1006.140  How do I know if a person is excluded?

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



Sec. 1006.145  Does this part address persons who are disqualified,
as well as those who are excluded from nonprocurement transactions?

    Except if provided for in Subpart J of this part, this part--
    (a) Addresses disqualified persons only to--
    (1) Provide for their inclusion in the EPLS; and
    (2) State responsibilities of Federal agencies and participants to
check for disqualified persons before entering into covered
transactions.
    (b) Does not specify the--
    (1) Inter-American Foundation transactions for which a disqualified
person is ineligible. Those transactions vary on a case-by-case basis,
because they depend on the language of the specific

[[Page 289]]

statute, Executive order, or regulation that caused the
disqualification;
    (2) Entities to which the disqualification applies; or
    (3) Process that the agency uses to disqualify a person. Unlike
exclusion, disqualification is frequently not a discretionary action
that a Federal agency takes.



                     Subpart B_Covered Transactions



Sec. 1006.200  What is a covered transaction?

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



Sec. 1006.205  Why is it important if a particular transaction is a
covered transaction?

    The importance of a covered transaction depends upon who you are.
    (a) As a participant in the transaction, you have the
responsibilities laid out in Subpart C of this part. Those include
responsibilities to the person or Federal agency at the next higher tier
from whom you received the transaction, if any. They also include
responsibilities if you subsequently enter into other covered
transactions with persons at the next lower tier.
    (b) As a Federal official who enters into a primary tier
transaction, you have the responsibilities laid out in subpart D of this
part.
    (c) As an excluded person, you may not be a participant or principal
in the transaction unless--
    (1) The person who entered into the transaction with you allows you
to continue your involvement in a transaction that predates your
exclusion, as permitted under Sec. 1006.310 or Sec. 1006.415; or
    (2) A(n) Inter-American Foundation official obtains an exception
from the Inter-American Foundation Debarring Official to allow you to be
involved in the transaction, as permitted under Sec. 1006.120.



Sec. 1006.210  Which nonprocurement transactions are covered
transactions?

    All nonprocurement transactions, as defined in Sec. 1006.970, are
covered transactions unless listed in Sec. 1006.215. (See appendix to
this part.)



Sec. 1006.215  Which nonprocurement transactions are not covered
transactions?

    The following types of nonprocurement transactions are not covered
transactions:
    (a) A direct award to--
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization;
    (3) An entity owned (in whole or in part) or controlled by a foreign
government; or
    (4) Any other entity consisting wholly or partially of one or more
foreign governments or foreign governmental entities.
    (b) A benefit to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted). For example, if
a person receives social security benefits under the Supplemental
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et
seq., those benefits are not covered transactions and, therefore, are
not affected if the person is excluded.
    (c) Federal employment.
    (d) A transaction that the Inter-American Foundation needs to
respond to a national or agency-recognized emergency or disaster.
    (e) A permit, license, certificate, or similar instrument issued as
a means to regulate public health, safety, or the environment, unless
the Inter-American Foundation specifically designates it to be a covered
transaction.
    (f) An incidental benefit that results from ordinary governmental
operations.
    (g) Any other transaction if the application of an exclusion to the
transaction is prohibited by law.

[[Page 290]]



Sec. 1006.220  Are any procurement contracts included as covered
transactions?

    (a) Covered transactions under this part--
    (1) Do not include any procurement contracts awarded directly by a
Federal agency; but
    (2) Do include some procurement contracts awarded by non-Federal
participants in nonprocurement covered transactions (see appendix to
this part).
    (b) Specifically, a contract for goods or services is a covered
transaction if any of the following applies:
    (1) The contract is awarded by a participant in a nonprocurement
transaction that is covered under Sec. 1006.210, and the amount of the
contract is expected to equal or exceed $25,000.
    (2) The contract requires the consent of a(n) Inter-American
Foundation official. In that case, the contract, regardless of the
amount, always is a covered transaction, and it does not matter who
awarded it. For example, it could be a subcontract awarded by a
contractor at a tier below a nonprocurement transaction, as shown in the
appendix to this part.
    (3) The contract is for federally-required audit services.



Sec. 1006.225  How do I know if a transaction in which I may
participate is a covered transaction?

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



    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons



Sec. 1006.300  What must I do before I enter into a covered
transaction with another person at the next lower tier?

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



Sec. 1006.305  May I enter into a covered transaction with an excluded
or disqualified person?

    (a) You as a participant may not enter into a covered transaction
with an excluded person, unless the Inter-American Foundation grants an
exception under Sec. 1006.120.
    (b) You may not enter into any transaction with a person who is
disqualified from that transaction, unless you have obtained an
exception under the disqualifying statute, Executive order, or
regulation.



Sec. 1006.310  What must I do if a Federal agency excludes a person
with whom I am already doing business in a covered transaction?

    (a) You as a participant may continue covered transactions with an
excluded person if the transactions were in existence when the agency
excluded the person. However, you are not required to continue the
transactions, and you may consider termination. You should make a
decision about whether to terminate and the type of termination action,
if any, only after a thorough review to ensure that the action is proper
and appropriate.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, unless the Inter-
American Foundation grants an exception under Sec. 1006.120.



Sec. 1006.315  May I use the services of an excluded person as a
principal under a covered transaction?

    (a) You as a participant may continue to use the services of an
excluded person as a principal under a covered transaction if you were
using the services of that person in the transaction before the person
was excluded. However, you are not required to continue

[[Page 291]]

using that person's services as a principal. You should make a decision
about whether to discontinue that person's services only after a
thorough review to ensure that the action is proper and appropriate.
    (b) You may not begin to use the services of an excluded person as a
principal under a covered transaction unless the Inter-American
Foundation grants an exception under Sec. 1006.120.



Sec. 1006.320  Must I verify that principals of my covered
transactions are eligible to participate?

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



Sec. 1006.325  What happens if I do business with an excluded person
in a covered transaction?

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



Sec. 1006.330  What requirements must I pass down to persons at lower
tiers with whom I intend to do business?

    Before entering into a covered transaction with a participant at the
next lower tier, you must require that participant to--
    (a) Comply with this subpart as a condition of participation in the
transaction. You may do so using any method(s), unless Sec. 1006.440
requires you to use specific methods.
    (b) Pass the requirement to comply with this subpart to each person
with whom the participant enters into a covered transaction at the next
lower tier.

            Disclosing Information--Primary Tier Participants



Sec. 1006.335  What information must I provide before entering into a
covered transaction with the Inter-American Foundation?

    Before you enter into a covered transaction at the primary tier, you
as the participant must notify the Inter-American Foundation office that
is entering into the transaction with you, if you know that you or any
of the principals for that covered transaction:
    (a) Are presently excluded or disqualified;
    (b) Have been convicted within the preceding three years of any of
the offenses listed in Sec. 1006.800(a) or had a civil judgment
rendered against you for one of those offenses within that time period;
    (c) Are presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with
commission of any of the offenses listed in Sec. 1006.800(a); or
    (d) Have had one or more public transactions (Federal, State, or
local) terminated within the preceding three years for cause or default.



Sec. 1006.340  If I disclose unfavorable information required under
Sec. 1006.335, will I be prevented from participating in the

transaction?

    As a primary tier participant, your disclosure of unfavorable
information about yourself or a principal under Sec. 1006.335 will not
necessarily cause us to deny your participation in the covered
transaction. We will consider the information when we determine whether
to enter into the covered transaction. We also will consider any
additional information or explanation that you elect to submit with the
disclosed information.



Sec. 1006.345  What happens if I fail to disclose information required
under Sec. 1006.335?

    If we later determine that you failed to disclose information under
Sec. 1006.335 that you knew at the time you entered into the covered
transaction, we may--
    (a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or

[[Page 292]]

    (b) Pursue any other available remedies, including suspension and
debarment.



Sec. 1006.350  What must I do if I learn of information required under
Sec. 1006.335 after entering into a covered transaction with the

Inter-American
          Foundation?

    At any time after you enter into a covered transaction, you must
give immediate written notice to the Inter-American Foundation office
with which you entered into the transaction if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec.
1006.335; or
    (b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. 1006.335.

             Disclosing Information--Lower Tier Participants



Sec. 1006.355  What information must I provide to a higher tier
participant before entering into a covered transaction with that

participant?

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



Sec. 1006.360  What happens if I fail to disclose the information
required under Sec. 1006.355?

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



Sec. 1006.365  What must I do if I learn of information required under
Sec. 1006.355 after entering into a covered transaction with a higher

tier participant?

    At any time after you enter into a lower tier covered transaction
with a person at a higher tier, you must provide immediate written
notice to that person if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec.
1006.355; or
    (b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. 1006.355.



   Subpart D_Responsibilities of Inter-American Foundation Officials
                         Regarding Transactions



Sec. 1006.400  May I enter into a transaction with an excluded or
disqualified person?

    (a) You as an agency official may not enter into a covered
transaction with an excluded person unless you obtain an exception under
Sec. 1006.120.
    (b) You may not enter into any transaction with a person who is
disqualified from that transaction, unless you obtain a waiver or
exception under the statute, Executive order, or regulation that is the
basis for the person's disqualification.



Sec. 1006.405  May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?

    As an agency official, you may not enter into a covered transaction
with a participant if you know that a principal of the transaction is
excluded, unless you obtain an exception under Sec. 1006.120.



Sec. 1006.410  May I approve a participant's use of the services of an
excluded person?

    After entering into a covered transaction with a participant, you as
an agency official may not approve a participant's use of an excluded
person as a principal under that transaction, unless you obtain an
exception under Sec. 1006.120.



Sec. 1006.415  What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?

    (a) You as an agency official may continue covered transactions with
an excluded person, or under which an excluded person is a principal, if
the transactions were in existence when the person was excluded. You are
not required to continue the transactions,

[[Page 293]]

however, and you may consider termination. You should make a decision
about whether to terminate and the type of termination action, if any,
only after a thorough review to ensure that the action is proper.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an
excluded person is a principal, unless you obtain an exception under
Sec. 1006.120.



Sec. 1006.420  May I approve a transaction with an excluded or
disqualified person at a lower tier?

    If a transaction at a lower tier is subject to your approval, you as
an agency official may not approve--
    (a) A covered transaction with a person who is currently excluded,
unless you obtain an exception under Sec. 1006.120; or
    (b) A transaction with a person who is disqualified from that
transaction, unless you obtain a waiver or exception under the statute,
Executive order, or regulation that is the basis for the person's
disqualification.



Sec. 1006.425  When do I check to see if a person is excluded or
disqualified?

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



Sec. 1006.430  How do I check to see if a person is excluded or
disqualified?

    You check to see if a person is excluded or disqualified in two
ways:
    (a) You as an agency official must check the EPLS when you take any
action listed in Sec. 1006.425.
    (b) You must review information that a participant gives you, as
required by Sec. 1006.335, about its status or the status of the
principals of a transaction.



Sec. 1006.435  What must I require of a primary tier participant?

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



Sec. 1006.440  What method do I use to communicate those requirements
to participants?

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



Sec. 1006.445  What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?

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



Sec. 1006.450  What action may I take if a primary tier participant
fails to disclose the information required under Sec. 1006.335?

    If you as an agency official determine that a participant failed to
disclose information, as required by Sec. 1006.335, at the time it
entered into a covered transaction with you, you may--
    (a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and
debarment.

[[Page 294]]



Sec. 1006.455  What may I do if a lower tier participant fails to
disclose the information required under Sec. 1006.355 to the next

higher tier?

    If you as an agency official determine that a lower tier participant
failed to disclose information, as required by Sec. 1006.355, at the
time it entered into a covered transaction with a participant at the
next higher tier, you may pursue any remedies available to you,
including the initiation of a suspension or debarment action.



                 Subpart E_Excluded Parties List System



Sec. 1006.500  What is the purpose of the Excluded Parties List System
(EPLS)?

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



Sec. 1006.505  Who uses the EPLS?

    (a) Federal agency officials use the EPLS to determine whether to
enter into a transaction with a person, as required under Sec.
1006.430.
    (b) Participants also may, but are not required to, use the EPLS to
determine if--
    (1) Principals of their transactions are excluded or disqualified,
as required under Sec. 1006.320; or
    (2) Persons with whom they are entering into covered transactions at
the next lower tier are excluded or disqualified.
    (c) The EPLS is available to the general public.



Sec. 1006.510  Who maintains the EPLS?

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



Sec. 1006.515  What specific information is in the EPLS?

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



Sec. 1006.520  Who places the information into the EPLS?

    Federal officials who take actions to exclude persons under this
part or officials who are responsible for identifying disqualified
persons must enter the following information about those persons into
the EPLS:
    (a) Information required by Sec. 1006.515(a);
    (b) The Taxpayer Identification Number (TIN) of the excluded or
disqualified person, including the social security number (SSN) for an
individual, if the number is available and may be disclosed under law;
    (c) Information about an excluded or disqualified person, generally
within five working days, after--
    (1) Taking an exclusion action;
    (2) Modifying or rescinding an exclusion action;
    (3) Finding that a person is disqualified; or
    (4) Finding that there has been a change in the status of a person
who is listed as disqualified.

[[Page 295]]



Sec. 1006.525  Whom do I ask if I have questions about a person in the
EPLS?

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



Sec. 1006.530  Where can I find the EPLS?

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



   Subpart F_General Principles Relating to Suspension and Debarment
                                 Actions



Sec. 1006.600  How do suspension and debarment actions start?

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



Sec. 1006.605  How does suspension differ from debarment?

    Suspension differs from debarment in that--

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



Sec. 1006.610  What procedures does the Inter-American Foundation use
in suspension and debarment actions?

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



Sec. 1006.615  How does the Inter-American Foundation notify a person
of a suspension or debarment action?

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



Sec. 1006.620  Do Federal agencies coordinate suspension and debarment
actions?

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

[[Page 296]]



Sec. 1006.625  What is the scope of a suspension or debarment?

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



Sec. 1006.630  May the Inter-American Foundation impute conduct of one
person to another?

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



Sec. 1006.635  May the Inter-American Foundation settle a debarment or
suspension action?

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



Sec. 1006.640  May a settlement include a voluntary exclusion?

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



Sec. 1006.645  Do other Federal agencies know if the Inter-American
Foundation agrees to a voluntary exclusion?

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



                          Subpart G_Suspension



Sec. 1006.700  When may the suspending official issue a suspension?

    Suspension is a serious action. Using the procedures of this subpart
and subpart F of this part, the suspending official may impose
suspension only when that official determines that--
    (a) There exists an indictment for, or other adequate evidence to
suspect, an offense listed under Sec. 1006.800(a), or
    (b) There exists adequate evidence to suspect any other cause for
debarment listed under Sec. 1006.800(b) through (d); and

[[Page 297]]

    (c) Immediate action is necessary to protect the public interest.



Sec. 1006.705  What does the suspending official consider in issuing a
suspension?

    (a) In determining the adequacy of the evidence to support the
suspension, the suspending official considers how much information is
available, how credible it is given the circumstances, whether or not
important allegations are corroborated, and what inferences can
reasonably be drawn as a result. During this assessment, the suspending
official may examine the basic documents, including grants, cooperative
agreements, loan authorizations, contracts, and other relevant
documents.
    (b) An indictment, conviction, civil judgment, or other official
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of
suspension actions.
    (c) In deciding whether immediate action is needed to protect the
public interest, the suspending official has wide discretion. For
example, the suspending official may infer the necessity for immediate
action to protect the public interest either from the nature of the
circumstances giving rise to a cause for suspension or from potential
business relationships or involvement with a program of the Federal
Government.



Sec. 1006.710  When does a suspension take effect?

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



Sec. 1006.715  What notice does the suspending official give me if I am
suspended?

    After deciding to suspend you, the suspending official promptly
sends you a Notice of Suspension advising you--
    (a) That you have been suspended;
    (b) That your suspension is based on--
    (1) An indictment;
    (2) A conviction;
    (3) Other adequate evidence that you have committed irregularities
which seriously reflect on the propriety of further Federal Government
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on
notice without disclosing the Federal Government's evidence;
    (d) Of the cause(s) upon which we relied under Sec. 1006.700 for
imposing suspension;
    (e) That your suspension is for a temporary period pending the
completion of an investigation or resulting legal or debarment
proceedings;
    (f) Of the applicable provisions of this subpart, Subpart F of this
part, and any other Inter-American Foundation procedures governing
suspension decision making; and
    (g) Of the governmentwide effect of your suspension from procurement
and nonprocurement programs and activities.



Sec. 1006.720  How may I contest a suspension?

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



Sec. 1006.725  How much time do I have to contest a suspension?

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

[[Page 298]]

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



Sec. 1006.730  What information must I provide to the suspending
official if I contest a suspension?

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



Sec. 1006.735  Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?

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



Sec. 1006.740  Are suspension proceedings formal?

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



Sec. 1006.745  How is fact-finding conducted?

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

[[Page 299]]



Sec. 1006.750  What does the suspending official consider in deciding
whether to continue or terminate my suspension?

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



Sec. 1006.755  When will I know whether the suspension is continued or
terminated?

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



Sec. 1006.760  How long may my suspension last?

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



                           Subpart H_Debarment



Sec. 1006.800  What are the causes for debarment?

    We may debar a person for--
    (a) Conviction of or civil judgment for--
    (1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, tax
evasion, receiving stolen property, making false claims, or obstruction
of justice; or
    (4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects your
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before
October 1, 1988, or a procurement debarment by any Federal agency taken
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;

[[Page 300]]

    (2) Knowingly doing business with an ineligible person, except as
permitted under Sec. 1006.120;
    (3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion
agreement entered into under Sec. 1006.640 or of any settlement of a
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it
affects your present responsibility.



Sec. 1006.805  What notice does the debarring official give me if I am
proposed for debarment?

    After consideration of the causes in Sec. 1006.800 of this subpart,
if the debarring official proposes to debar you, the official sends you
a Notice of Proposed Debarment, pursuant to Sec. 1006.615, advising
you--
    (a) That the debarring official is considering debarring you;
    (b) Of the reasons for proposing to debar you in terms sufficient to
put you on notice of the conduct or transactions upon which the proposed
debarment is based;
    (c) Of the cause(s) under Sec. 1006.800 upon which the debarring
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, Subpart F of this
part, and any other Inter-American Foundation procedures governing
debarment; and
    (e) Of the governmentwide effect of a debarment from procurement and
nonprocurement programs and activities.



Sec. 1006.810  When does a debarment take effect?

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



Sec. 1006.815  How may I contest a proposed debarment?

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



Sec. 1006.820  How much time do I have to contest a proposed
debarment?

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



Sec. 1006.825  What information must I provide to the debarring
official if I contest a proposed debarment?

    (a) In addition to any information and argument in opposition, as a
respondent your submission to the debarring official must identify--
    (1) Specific facts that contradict the statements contained in the
Notice of Proposed Debarment. Include any information about any of the
factors listed in Sec. 1006.860. A general denial is insufficient to
raise a genuine dispute over facts material to the debarment;
    (2) All existing, proposed, or prior exclusions under regulations
implementing E.O. 12549 and all similar actions taken by Federal, State,
or local agencies, including administrative

[[Page 301]]

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



Sec. 1006.830  Under what conditions do I get an additional
opportunity to challenge the facts on which a proposed debarment

is based?

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



Sec. 1006.835  Are debarment proceedings formal?

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



Sec. 1006.840  How is fact-finding conducted?

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



Sec. 1006.845  What does the debarring official consider in deciding
whether to debar me?

    (a) The debarring official may debar you for any of the causes in
Sec. 1006.800. However, the official need not debar you even if a cause
for debarment exists. The official may consider the seriousness of your
acts or omissions and the mitigating or aggravating factors set forth at
Sec. 1006.860.
    (b) The debarring official bases the decision on all information
contained in the official record. The record includes--
    (1) All information in support of the debarring official's proposed
debarment;
    (2) Any further information and argument presented in support of, or
in opposition to, the proposed debarment; and
    (3) Any transcribed record of fact-finding proceedings.
    (c) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may reject
any resultant findings, in whole or in part, only after specifically
determining them to be arbitrary, capricious, or clearly erroneous.

[[Page 302]]



Sec. 1006.850  What is the standard of proof in a debarment action?

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



Sec. 1006.855  Who has the burden of proof in a debarment action?

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



Sec. 1006.860  What factors may influence the debarring official's
decision?

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

[[Page 303]]

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



Sec. 1006.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of
debarment will be based on the seriousness of the cause(s) upon which
your debarment is based. Generally, debarment should not exceed three
years. However, if circumstances warrant, the debarring official may
impose a longer period of debarment.
    (b) In determining the period of debarment, the debarring official
may consider the factors in Sec. 1006.860. If a suspension has preceded
your debarment, the debarring official must consider the time you were
suspended.
    (c) If the debarment is for a violation of the provisions of the
Drug-Free Workplace Act of 1988, your period of debarment may not exceed
five years.



Sec. 1006.870  When do I know if the debarring official debars me?

    (a) The debarring official must make a written decision whether to
debar within 45 days of closing the official record. The official record
closes upon the debarring official's receipt of final submissions,
information and findings of fact, if any. The debarring official may
extend that period for good cause.
    (b) The debarring official sends you written notice, pursuant to
Sec. 1006.615 that the official decided, either--
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective
dates; and
    (iv) Advises you that your debarment is effective for covered
transactions and contracts that are subject to the Federal Acquisition
Regulation (48 CFR chapter 1), throughout the executive branch of the
Federal Government unless an agency head or an authorized designee
grants an exception.



Sec. 1006.875  May I ask the debarring official to reconsider a
decision to debar me?

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



Sec. 1006.880  What factors may influence the debarring official
during reconsideration?

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



Sec. 1006.885  May the debarring official extend a debarment?

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

[[Page 304]]



                          Subpart I_Definitions



Sec. 1006.900  Adequate evidence.

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



Sec. 1006.905  Affiliate.

    Persons are affiliates of each other if, directly or indirectly,
either one controls or has the power to control the other or a third
person controls or has the power to control both. The ways we use to
determine control include, but are not limited to--
    (a) Interlocking management or ownership;
    (b) Identity of interests among family members;
    (c) Shared facilities and equipment;
    (d) Common use of employees; or
    (e) A business entity which has been organized following the
exclusion of a person which has the same or similar management,
ownership, or principal employees as the excluded person.



Sec. 1006.910  Agency.

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



Sec. 1006.915  Agent or representative.

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



Sec. 1006.920  Civil judgment.

    Civil judgment means the disposition of a civil action by any court
of competent jurisdiction, whether by verdict, decision, settlement,
stipulation, other disposition which creates a civil liability for the
complained of wrongful acts, or a final determination of liability under
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).



Sec. 1006.925  Conviction.

    Conviction means--
    (a) A judgment or any other determination of guilt of a criminal
offense by any court of competent jurisdiction, whether entered upon a
verdict or plea, including a plea of nolo contendere; or
    (b) Any other resolution that is the functional equivalent of a
judgment, including probation before judgment and deferred prosecution.
A disposition without the participation of the court is the functional
equivalent of a judgment only if it includes an admission of guilt.



Sec. 1006.930  Debarment.

    Debarment means an action taken by a debarring official under
subpart H of this part to exclude a person from participating in covered
transactions and transactions covered under the Federal Acquisition
Regulation (48 CFR chapter 1). A person so excluded is debarred.



Sec. 1006.935  Debarring official.

    (a) Debarring official means an agency official who is authorized to
impose debarment. A debarring official is either--
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 1006.940  Disqualified.

    Disqualified means that a person is prohibited from participating in
specified Federal procurement or nonprocurement transactions as required
under a statute, Executive order (other than Executive Orders 12549 and
12689) or other authority. Examples of disqualifications include persons
prohibited under--
    (a) The Davis-Bacon Act (40 U.S.C. 276(a));
    (b) The equal employment opportunity acts and Executive orders; or
    (c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C.
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).



Sec. 1006.945  Excluded or exclusion.

    Excluded or exclusion means--
    (a) That a person or commodity is prohibited from being a
participant in

[[Page 305]]

covered transactions, whether the person has been suspended; debarred;
proposed for debarment under 48 CFR part 9, subpart 9.4; voluntarily
excluded; or
    (b) The act of excluding a person.



Sec. 1006.950  Excluded Parties List System

    Excluded Parties List System (EPLS) means the list maintained and
disseminated by the General Services Administration (GSA) containing the
names and other information about persons who are ineligible. The EPLS
system includes the printed version entitled, ``List of Parties Excluded
or Disqualified from Federal Procurement and Nonprocurement Programs,''
so long as published.



Sec. 1006.955  Indictment.

    Indictment means an indictment for a criminal offense. A
presentment, information, or other filing by a competent authority
charging a criminal offense shall be given the same effect as an
indictment.



Sec. 1006.960  Ineligible or ineligibility.

    Ineligible or ineligibility means that a person or commodity is
prohibited from covered transactions because of an exclusion or
disqualification.



Sec. 1006.965  Legal proceedings.

    Legal proceedings means any criminal proceeding or any civil
judicial proceeding, including a proceeding under the Program Fraud
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal
Government or a State or local government or quasi-governmental
authority is a party. The term also includes appeals from those
proceedings.



Sec. 1006.970  Nonprocurement transaction.

    (a) Nonprocurement transaction means any transaction, regardless of
type (except procurement contracts), including, but not limited to the
following:
    (1) Grants.
    (2) Cooperative agreements.
    (3) Scholarships.
    (4) Fellowships.
    (5) Contracts of assistance.
    (6) Loans.
    (7) Loan guarantees.
    (8) Subsidies.
    (9) Insurances.
    (10) Payments for specified uses.
    (11) Donation agreements.
    (b) A nonprocurement transaction at any tier does not require the
transfer of Federal funds.



Sec. 1006.975  Notice.

    Notice means a written communication served in person, sent by
certified mail or its equivalent, or sent electronically by e-mail or
facsimile. (See Sec. 1006. 615.)



Sec. 1006.980  Participant.

    Participant means any person who submits a proposal for or who
enters into a covered transaction, including an agent or representative
of a participant.



Sec. 1006.985  Person.

    Person means any individual, corporation, partnership, association,
unit of government, or legal entity, however organized.



Sec. 1006.990  Preponderance of the evidence.

    Preponderance of the evidence means proof by information that,
compared with information opposing it, leads to the conclusion that the
fact at issue is more probably true than not.



Sec. 1006.995  Principal.

    Principal means--
    (a) An officer, director, owner, partner, principal investigator, or
other person within a participant with management or supervisory
responsibilities related to a covered transaction; or
    (b) A consultant or other person, whether or not employed by the
participant or paid with Federal funds, who--
    (1) Is in a position to handle Federal funds;
    (2) Is in a position to influence or control the use of those funds;
or,
    (3) Occupies a technical or professional position capable of
substantially influencing the development or outcome of an activity
required to perform the covered transaction.



Sec. 1006.1000  Respondent.

    Respondent means a person against whom an agency has initiated a
debarment or suspension action.

[[Page 306]]



Sec. 1006.1005  State.

    (a) State means--
    (1) Any of the states of the United States;
    (2) The District of Columbia;
    (3) The Commonwealth of Puerto Rico;
    (4) Any territory or possession of the United States; or
    (5) Any agency or instrumentality of a state.
    (b) For purposes of this part, State does not include institutions
of higher education, hospitals, or units of local government.



Sec. 1006.1010  Suspending official.

    (a) Suspending official means an agency official who is authorized
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 1006.1015  Suspension.

    Suspension is an action taken by a suspending official under subpart
G of this part that immediately prohibits a person from participating in
covered transactions and transactions covered under the Federal
Acquisition Regulation (48 CFR chapter 1) for a temporary period,
pending completion of an agency investigation and any judicial or
administrative proceedings that may ensue. A person so excluded is
suspended.



Sec. 1006.1020  Voluntary exclusion or voluntarily excluded.

    (a) Voluntary exclusion means a person's agreement to be excluded
under the terms of a settlement between the person and one or more
agencies. Voluntary exclusion must have governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has agreed
to a voluntary exclusion.

Subpart J [Reserved]

[[Page 307]]



            Sec. Appendix to Part 1006--Covered Transactions
[GRAPHIC] [TIFF OMITTED] TR26NO03.000



PART 1007_SALARY OFFSET--Table of Contents



Sec.
1007.1 Purpose and scope.
1007.2 Definitions.
1007.3 Applicability.
1007.4 Notice requirements.
1007.5 Hearing.
1007.6 Written decision.
1007.7 Coordinating offset with another Federal agency.
1007.8 Procedures for salary offset.
1007.9 Refunds.
1007.10 Statute of limitations.
1007.11 Non-waiver of rights.
1007.12 Interest, penalties, and administrative costs.

    Authority: 5 U.S.C. 5514, E.O. 12107, 3 CFR, 1978 Comp., p. 264; 5
CFR part 550, subpart K, and 22 U.S.C. 290f(e)(11).

    Source: 57 FR 2837, Jan. 24, 1992, unless otherwise noted.



Sec. 1007.1  Purpose and scope.

    (a) This regulation provides procedures for the collection by
administrative offset of a federal employee's salary without his/her
consent to satisfy certain debts owed to the federal government. These
regulations apply to all federal employees who owe debts to the Inter-
American Foundation (IAF) and to current employees of the Inter-American
Foundation who owe debts to other federal agencies. This regulation does
not apply when the employee consents to recovery from his/her current
pay account.
    (b) This regulation does not apply to debts or claims arising under:

[[Page 308]]

    (1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et
seq.;
    (2) The Social Security Act, 42 U.S.C. 301 et seq.;
    (3) The tariff laws of the United States; or
    (4) Any case where a collection of a debt by salary offset is
explicitly provided for or prohibited by another statute.
    (c) This regulation does not apply to any adjustment to pay arising
out of an employee's selection of coverage or a change in coverage under
a federal benefits program requiring periodic deductions from pay if the
amount to be recovered was accumulated over four pay periods or less.
    (d) This regulation does not preclude the compromise, suspension, or
termination of collection action where appropriate under the standards
implementing the Federal Claims Collection Act, 31 U.S.C. 3711 et seq.,
4 CFR parts 101 through 105, 45 CFR part 1177.
    (e) This regulation does not preclude an employee from requesting
waiver of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774 or 32
U.S.C. 716 or in any way questioning the amount or validity of the debt
by submitting a subsequent claim to the General Accounting Office. This
regulation does not preclude an employee from requesting a waiver
pursuant to other statutory provisions applicable to the particular debt
being collected.
    (f) Matters not addressed in these regulations should be reviewed in
accordance with the Federal Claims Collection Standards at 4 CFR 101.1
et seq.



Sec. 1007.2  Definitions.

    For the purposes of the part, the following definitions will apply:
    Agency means an executive agency as defined at 5 U.S.C. 105
including the U.S. Postal Service, the U.S. Postal Commission, a
military department as defined at 5 U.S.C. 102, an agency or court in
the judicial branch, an agency of the legislative branch including the
U.S. Senate and House of Representatives and other independent
establishments that are entities of the Federal government.
    Creditor Agency means the agency to which the debt is owed.
    Debt means an amount owed to the United States from sources which
include loans insured or guaranteed by the United States and all other
amounts due the United States from fees, leases, rents, royalties,
services, sales of real or personal property, overpayments, penalties,
damages, interests, fines, forfeitures (except those arising under the
Uniform Code of Military Justice), and all other similar sources.
    Disposable pay means the amount that remains from an employee's
federal pay after the required deductions for social security, federal,
state or local income tax, health insurance premiums, retirement
contributions, life insurance premiums, federal employment taxes, and
any other deductions that are required to be withheld by law.
    Hearing official means an individual responsible for conducting any
hearing with respect to the existence or amount of a debt claimed and
who renders a decision on the basis of such hearing. A hearing official
may not be under the supervision or control of the President of the
Inter-American Foundation.
    Paying Agency means the agency that employs the individual who owes
the debt and authorizes the payment of his/her current pay.
    President means the President of the Inter-American Foundation or
the President's designee.
    Salary offset means an administrative offset to collect a debt
pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially
established pay intervals from the current pay account of an employee
without his/her consent.



Sec. 1007.3  Applicability.

    (a) These regulations are to be followed when:
    (1) The Inter-American Foundation is owed a debt by an individual
currently employed by another federal agency;
    (2) The Inter-American Foundation is owed a debt by an individual
who is a current employee of the Inter-American Foundation; or
    (3) The Inter-American Foundation employs an individual who owes a
debt to another federal agency.

[[Page 309]]



Sec. 1007.4  Notice requirements.

    (a) Deductions shall not be made unless the employee is provided
with written notice, signed by the President, of the debt at least 30
days before salary offset commences.
    (b) The written notice shall contain:
    (1) A statement that the debt is owed and an explanation of its
nature and amount;
    (2) The agency's intention to collect the debt by deducting from the
employee's current disposable pay account;
    (3) The amount, frequency, proposed beginning date, and duration of
the intended deduction(s);
    (4) An explanation of interest, penalties, and administrative
charges, including a statement that such charges will be assessed unless
excused in accordance with the Federal Claims Collections Standards at 4
CFR 101.1 et seq.;
    (5) The employee's right to inspect, request, and receive a copy of
government records relating to the debt;
    (6) The opportunity to establish a written schedule for the
voluntary repayment of the debt;
    (7) The right to a hearing conducted by an impartial hearing
official;
    (8) The methods and time period for petitioning for hearings;
    (9) A statement that the timely filing of a petition for a hearing
will stay the commencement of collection proceedings;
    (10) A statement that a final decision on the hearing will be issued
not later than 60 days after the filing of the petition requesting the
hearing unless the employee requests and the hearing official grants a
delay in the proceedings;
    (11) A statement that knowingly false or frivolous statements,
representations, or evidence may subject the employee to appropriate
disciplinary procedures;
    (12) A statement of other rights and remedies available to the
employee under statutes or regulations governing the program for which
the collection is being made; and
    (13) Unless there are contractual or statutory provisions to the
contrary, a statement that amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee.



Sec. 1007.5  Hearing.

    (a) Request for hearing. (1) An employee must file a petition for a
hearing in accordance with the instructions outlined in the agency's
notice to offset.
    (2) A hearing may be requested by filing a written petition
addressed to the President of the Inter-American Foundation stating why
the employee disputes the existence or amount of the debt. The petition
for a hearing must be received by the President no later than fifteen
(15) calendar days after the date of the notice to offset unless the
employee can show good cause for failing to meet the deadline date.
    (b) Hearing procedures. (1) The hearing will be presided over by an
impartial hearing official.
    (2) The hearing shall conform to procedures contained in the Federal
Claims Collection Standards, 4 CFR 102.3(c). The burden shall be on the
employee to demonstrate that the existence or the amount of the debt is
in error.



Sec. 1007.6  Written decision.

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



Sec. 1007.7  Coordinating offset with another Federal agency.

    (a) The Inter-American Foundation as the creditor agency. (1) When
the President determines that an employee of another federal agency owes
a delinquent debt to the Inter-American Foundation, the President shall
as appropriate:
    (i) Arrange for a hearing upon the proper petitioning by the
employee;
    (ii) Certify to the paying agency in writing that the employee owes
the debt, the amount and basis of the debt, the date on which payment is
due, the date the Government's right to collect

[[Page 310]]

the debt accrued, and that Foundation regulations for salary offset have
been approved by the Office of Personnel Management;
    (iii) If collection must be made in installments, the President must
advise the paying agency of the amount or percentage of disposable pay
to be collected in each installment;
    (iv) Advise the paying agency of the actions taken under 5 U.S.C.
5514(b) and provide the dates on which action was taken unless the
employee has consented to salary offset in writing or signed a statement
acknowledging receipt of procedures required by law. The written consent
or acknowledgment must be sent to the paying agency;
    (v) If the employee is in the process of separating, the Foundation
must submit its debt claim to the paying agency as provided in this
part. The paying agency must certify any amounts already collected,
notify the employee, and send a copy of the certification and notice of
the employee's separation to the Inter-American Foundation. If the
paying agency is aware that the employee is entitled to payments from
the Civil Service Retirement and Disability Fund or similar payments, it
must certify to the agency responsible for making such payments the
amount of the debt and that the provisions of 5 CFR 550.1108 have been
followed; and
    (vi) If the employee has already separated and all the payments due
from the paying agency have been paid, the President may request unless
otherwise prohibited, that money payable to the employee from the Civil
Service Retirement and Disability Fund or other similar funds be
collected by administrative offset.
    (b) The Foundation as the paying agency. (1) Upon receipt of a
properly certified debt claim from another agency, deductions will be
scheduled to begin at the next established pay interval. The employee
must receive written notice that the Inter-American Foundation has
received a certified debt claim from the creditor agency, the amount of
the debt, the date salary offset will begin, and the amount of the
deduction(s). The Inter-American Foundation shall not review the merits
of the creditor agency's determination of the validity or the amount of
the certified claim.
    (2) If the employee transfers to another agency after the creditor
agency has submitted its debt claim to the Inter-American Foundation and
before the debt is collected completely, the Inter-American Foundation
must certify the total amount collected. One copy of the certification
must be furnished to the employee. A copy must be furnished to the
creditor agency with notice of the employee's transfer.



Sec. 1007.8  Procedures for salary offset.

    (a) Deductions to liquidate an employee's debt will be by the method
and in the amount stated in the President's notice of intention to
offset as provided in Sec. 1007.4. Debts will be collected in one lump
sum where possible. If the employee is financially unable to pay in one
lump sum, collection must be made in installments.
    (b) Debts will be collected by deduction at officially established
pay intervals from an employee's current pay account unless alternative
arrangements for repayment are made.
    (c) Installment deductions will be made over a period not greater
than the anticipated period of employment. The size of installment
deductions must bear a reasonable relationship to the size of the debt
and the employee's ability to pay. The deduction for the pay interval
for any period must not exceed 15% of disposable pay unless the employee
has agreed in writing to a deduction of a greater amount.
    (d) Unliquidated debts may be offset against any financial payment
due to a separated employee including but not limited to final salary or
leave payments in accordance with 31 U.S.C. 3716.



Sec. 1007.9  Refunds.

    (a) The Inter-American Foundation will refund promptly any amounts
deducted to satisfy debts owed to the IAF when the debt is waived, found
not owed to the IAF, or when directed by an administrative or judicial
order.
    (b) The creditor agency will promptly return any amounts deducted by
IAF to satisfy debts owed to the creditor agency when the debt is
waived, found

[[Page 311]]

not owed, or when directed by an administrative or judicial order.
    (c) Unless required by law, refunds under this subsection shall not
bear interest.



Sec. 1007.10  Statute of limitations.

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



Sec. 1007.11  Non-waiver of rights.

    An employee's involuntary payment of all or any part of a debt
collected under these regulations will not be construed as a waiver of
any rights that employee may have under 5 U.S.C. 5514 or any other
provision of contract or law unless there are statutes or contract(s) to
the contrary.



Sec. 1007.12  Interest, penalties, and administrative costs.

    Charges may be assessed for interest, penalties, and administrative
costs in accordance with the Federal Claims Collection Standards, 4 CFR
102.13.



PART 1008_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
1008.100 What does this part do?
1008.105 Does this part apply to me?
1008.110 Are any of my Federal assistance awards exempt from this part?
1008.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

1008.200 What must I do to comply with this part?
1008.205 What must I include in my drug-free workplace statement?
1008.210 To whom must I distribute my drug-free workplace statement?
1008.215 What must I include in my drug-free awareness program?
1008.220 By when must I publish my drug-free workplace statement and
          establish my drug-free awareness program?
1008.225 What actions must I take concerning employees who are convicted
          of drug violations in the workplace?
1008.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

1008.300 What must I do to comply with this part if I am an individual
          recipient?
1008.301 [Reserved]

    Subpart D_Responsibilities of Inter-American Foundation Awarding
                                Officials

1008.400 What are my responsibilities as an Inter-American Foundation
          awarding official?

           Subpart E_Violations of This Part and Consequences

1008.500 How are violations of this part determined for recipients other
          than individuals?
1008.505 How are violations of this part determined for recipients who
          are individuals?
1008.510 What actions will the Federal Government take against a
          recipient determined to have violated this part?
1008.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

1008.605 Award.
1008.610 Controlled substance.
1008.615 Conviction.
1008.620 Cooperative agreement.
1008.625 Criminal drug statute.
1008.630 Debarment.
1008.635 Drug-free workplace.
1008.640 Employee.
1008.645 Federal agency or agency.
1008.650 Grant.
1008.655 Individual.
1008.660 Recipient.
1008.665 State.
1008.670 Suspension.

    Authority: 41 U.S.C. 701 et seq.

    Source: 68 FR 66590, Nov. 26, 2003, unless otherwise noted.

[[Page 312]]



                     Subpart A_Purpose and Coverage



Sec. 1008.100  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. 1008.105  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 Inter-American
Foundation; or
    (2) A(n) Inter-American Foundation awarding official. (See
definitions of award and recipient in Sec. Sec. 1008.605 and 1008.660,
respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
            If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an            A, B and E.
 individual.
(2) A recipient who is an individual...  A, C and E.
(3) A(n) Inter-American Foundation       A, D and E.
 awarding official.
------------------------------------------------------------------------



Sec. 1008.110  Are any of my Federal assistance awards exempt from
this part?

    This part does not apply to any award that the Inter-American
Foundation President or designee determines that the application of this
part would be inconsistent with the international obligations of the
United States or the laws or regulations of a foreign government.



Sec. 1008.115  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. 1008.510(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. 1008.200  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. 1008.205
through 1008.220); and
    (2) Take actions concerning employees who are convicted of violating
drug statutes in the workplace (see Sec. 1008.225).
    (b) Second, you must identify all known workplaces under your
Federal awards (see Sec. 1008.230).



Sec. 1008.205  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

[[Page 313]]

than five calendar days after the conviction.



Sec. 1008.210  To whom must I distribute my drug-free workplace
statement?

    You must require that a copy of the statement described in Sec.
1008.205 be given to each employee who will be engaged in the
performance of any Federal award.



Sec. 1008.215  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. 1008.220  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. 1008.205 and an ongoing awareness
program as described in Sec. 1008.215, 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  must have the policy statement
 is less than 30 days.                    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  must have the policy statement
 is 30 days or more.                      and program in place within 30
                                          days after award.
(c) You believe there are extraordinary  may ask the Inter-American
 circumstances that will require more     Foundation awarding official
 than 30 days for you to publish the      to give you more time to do
 policy statement and establish the       so. The amount of additional
 awareness program.                       time, if any, to be given is
                                          at the discretion of the
                                          awarding official.
------------------------------------------------------------------------



Sec. 1008.225  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. 1008.205(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. 1008.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each Inter-American
Foundation award. A failure to do so is a violation of your drug-free
workplace requirements. You may identify the workplaces--
    (1) To the Inter-American Foundation official that is making the
award, either at the time of application or upon award; or

[[Page 314]]

    (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 Inter-American Foundation
officials or their designated representatives.
    (b) Your workplace identification for an award must include the
actual address of buildings (or parts of buildings) or other sites where
work under the award takes place. Categorical descriptions may be used
(e.g., all vehicles of a mass transit authority or State highway
department while in operation, State employees in each local
unemployment office, performers in concert halls or radio studios).
    (c) If you identified workplaces to the Inter-American Foundation
awarding official at the time of application or award, as described in
paragraph (a)(1) of this section, and any workplace that you identified
changes during the performance of the award, you must inform the Inter-
American Foundation awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 1008.300  What must I do to comply with this part if I am an
individual recipient?

    As a condition of receiving a(n) Inter-American Foundation award, if
you are an individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a
violation occurring during the conduct of any award activity, you will
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the Inter-American Foundation awarding official or other
designee for each award that you currently have, unless Sec. 1008.301
or the award document designates a central point for the receipt of the
notices. When notice is made to a central point, it must include the
identification number(s) of each affected award.



Sec. 1008.301  [Reserved]



    Subpart D_Responsibilities of Inter-American Foundation Awarding
                                Officials



Sec. 1008.400  What are my responsibilities as a(n) Inter-American
Foundation awarding official?

    As a(n) Inter-American Foundation awarding official, you must obtain
each recipient's agreement, as a condition of the award, to comply with
the requirements in--
    (a) Subpart B of this part, if the recipient is not an individual;
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec. 1008.500  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 Inter-American Foundation President or
designee determines, in writing, that--
    (a) The recipient has violated the requirements of subpart B of this
part; or
    (b) The number of convictions of the recipient's employees for
violating criminal drug statutes in the workplace is large enough to
indicate that the recipient has failed to make a good faith effort to
provide a drug-free workplace.



Sec. 1008.505  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 Inter-American Foundation President or designee determines,
in writing, that--
    (a) The recipient has violated the requirements of subpart C of this
part; or
    (b) The recipient is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any award activity.

[[Page 315]]



Sec. 1008.510  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. 1008.500 or Sec. 1008.505, the Inter-American
Foundation may take one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 22 CFR part 1006,
for a period not to exceed five years.



Sec. 1008.515  Are there any exceptions to those actions?

    The Inter-American Foundation may waive with respect to a particular
award, in writing, a suspension of payments under an award, suspension
or termination of an award, or suspension or debarment of a recipient if
the Inter-American Foundation determines that such a waiver would be in
the public interest. This exception authority cannot be delegated to any
other official.



                          Subpart F_Definitions



Sec. 1008.605  Award.

    Award means an award of financial assistance by the Inter-American
Foundation or other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or
not the grant is exempted from coverage under the Governmentwide rule
[Agency-specific CFR citation] 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).
    (c) Notwithstanding paragraph (a)(2) of this section, this paragraph
is not applicable for the Inter-American Foundation.



Sec. 1008.610  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. 1008.615  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. 1008.620  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. 1008.650),
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. 1008.625  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. 1008.630  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

[[Page 316]]

the common rule, Government-wide Debarment and Suspension
(Nonprocurement), that implements Executive Order 12549 and Executive
Order 12689.



Sec. 1008.635  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. 1008.640  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. 1008.645  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. 1008.650  Grant.

    Grant means an award of financial assistance that, consistent with
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value
to the recipient to carry out a public purpose of support or stimulation
authorized by a law of the United States, rather than to acquire
property or services for the Federal Government's direct benefit or use;
and
    (b) In which substantial involvement is not expected between the
Federal agency and the recipient when carrying out the activity
contemplated by the award.



Sec. 1008.655  Individual.

    Individual means a natural person.



Sec. 1008.660  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. 1008.665  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. 1008.670  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.

                       PARTS 1009	1099 [RESERVED]

[[Page 317]]



 CHAPTER XI--INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES
                    AND MEXICO, UNITED STATES SECTION




  --------------------------------------------------------------------
Part                                                                Page
1100            Employee responsibilities and conduct.......         319
1101            Privacy Act of 1974.........................         319
1102            Freedom of Information Act..................         330
1103            Enforcement of nondiscrimination on the
                    basis of handicap in programs or
                    activities conducted by International
                    Boundary and Water Commission, United
                    States and Mexico, United States Section         339
1104            Protection of archaeological resources......         345
1105-1199

 [Reserved]

[[Page 319]]



PART 1100_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



    Authority: 5 U.S.C. 7301.

    Source: 71 FR 25934, May 3, 2006, unless otherwise noted.



Sec. 1100.1  Cross-references to employee ethical conduct standards,
financial disclosure and financial interests regulations and other

conduct rules.

    Employees of the United States Section of the International Boundary
and Water Commission are subject to the executive branch standards of
ethical conduct contained in 5 CFR part 2635, the executive branch
financial disclosure regulations contained in 5 CFR part 2634, and the
executive branch financial interests regulations contained in 5 CFR part
2640, as well as the executive branch employee responsibilities and
conduct regulations contained in 5 CFR part 735.



PART 1101_PRIVACY ACT OF 1974--Table of Contents



Sec.
1101.1 Purpose and scope.
1101.2 Definitions.
1101.3 General policy: Collection and use of personal information.
1101.4 Reports on new systems of records; computer matching programs.
1101.5 Security, confidentiality and protection of records.
1101.6 Requests for access to records.
1101.7 Disclosure of records to individuals who are subjects of those
          records.
1101.8 Disclosure of records to third parties.
1101.9 Exemptions.
1101.10 Accounting for disclosures.
1101.11 Fees.
1101.12 Request to correct or amend a record.
1101.13 Agency review of request to correct or amend a record.
1101.14 Appeal of Agency decision not to correct or amend a record.
1101.15 Judicial review.
1101.16 Criminal penalties.
1101.17 Annual Report to Congress.

    Authority: Privacy Act of 1974 (Pub. L. 93-579, as amended, 5 U.S.C.
552a).

    Source: 57 FR 24945, June 12, 1992, unless otherwise noted.



Sec. 1101.1  Purpose and scope.

    The purpose of these regulations is to prescribe responsibilities,
rules, guidelines, and policies and procedures to implement the Privacy
Act of 1974 (Pub. L. 93-579, as amended; 5 U.S.C. 552a) to assure that
personal information about individuals collected by the United States
Section is limited to that which is legally authorized and necessary and
is maintained in a manner which precludes unwarranted intrusions upon
individual privacy. Further, these regulations establish procedures by
which an individual can: (a) Determine if the United States Section
maintains records or a system of records which includes a record
pertaining to the individual and (b) gain access to a record pertaining
to him or her for the purpose of review, amendment or correction.



Sec. 1101.2  Definitions.

    For the purpose of these regulations:
    (a) Act means the Privacy Act of 1974.
    (b) Agency is defined to include any executive department, military
department, Government corporation, Government controlled corporation or
other establishment in the executive branch of the Government (including
the Executive Office of the President, or any independent regulatory
agency) (5 U.S.C. 552)).
    (c) Commission means the International Boundary and Water
Commission, United States and Mexico.
    (d) Commissioner means head of the United States Section,
International Boundary and Water Commission, United States and Mexico.
    (e) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence.
    (f) Maintain includes maintain, collect, use, or disseminate.
    (g) Record means any item, collection, or grouping of information
about an individual that is maintained by an agency, including, but not
limited to, his education, financial transactions, medical history, and
criminal or employment history and that contains his name, or the
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or a photograph.
    (h) Routine use means, with respect to the disclosure of a record,
the use of

[[Page 320]]

such record for a purpose which is compatible with the purpose for which
it is collected.
    (i) Section means the United States Section, International Boundary
and Water Commission, United States and Mexico.
    (j) Statistical record means a record in a system of records
maintained for statistical research or reporting purposes only and not
used in whole or in part in making any determination about an
identifiable individual, except as provided by 13 U.S.C. 8 (Census
data).
    (k) System of records means a group of any records under the control
of any agency from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual.



Sec. 1101.3  General policy: Collection and use of personal information.

    (a) Heads of Divisions, Branches, and the projects shall ensure that
all Section personnel subject to their supervision are advised of the
provisions of the Act, including the criminal penalties and civil
liabilities provided therein, and that Section personnel are made aware
of their responsibilities to protect the security of personal
information, to assure its accuracy, relevance, timeliness and
completeness, to avoid unauthorized disclosure either orally or in
writing, and to ensure that no system of records concerning individuals,
no matter how small or specialized, is maintained without public notice.
    (b) Section personnel shall:
    (1) Collect no information of a personal nature from individuals
unless authorized to collect it to achieve a function or carry out a
responsibility or function of the Section.
    (2) Collect from individuals only that information which is
necessary to Section responsibilities or functions;
    (3) Collect information, wherever possible, directly from the
individual to whom it relates;
    (4) Inform individuals from whom information is collected of the
authority for collection, the purpose thereof, the uses that will be
made of the information, and the effects, both legal and practical, of
not furnishing the information;
    (5) Neither collect, maintain, use nor disseminate information
concerning an individual's religious or political beliefs or activities
or his membership in associations or organizations, unless (i) the
individual has volunteered such information for his own benefit; (ii)
the information is expressly authorized by statute to be collected,
maintained, used or disseminated; or (iii) the activities involved are
pertinent to and within the scope of an authorized investigation or
adjudication activity;
    (6) Advise an individual's supervisors of the existence or
contemplated development of any system of records which retrieves
information about individuals by individual identified;
    (7) Maintain an accounting of all disclosures of information to
other than Section personnel;
    (8) Disclose no information concerning individuals to other than
Section personnel except when authorized by the Act or pursuant to a
routine use published in the Federal Register;
    (9) Maintain and process information concerning individuals with
care in order to ensure that no inadvertent disclosure of the
information is made to other than Section personnel; and
    (10) Call to the attention of the PA Officer any information in a
system maintained by the Section which is not authorized to be
maintained under the provisions of the Act, including information on
First Amendment activities, information that is inaccurate, irrelevant
or so incomplete as to risk unfairness to the individual concerned.
    (c) The system of records maintained by the Section shall be
reviewed annually by the PA Officer to ensure compliance with the
provisions of the Act.
    (d) Information which may be used in making determinations about an
individual's rights, benefits, and privileges shall, to the greatest
extent practicable, be collected directly from that individual. In
deciding whether collection of information from an individual, as
opposed to a third party source, is practicable, the following criteria,
among others, may be considered:
    (1) Whether the nature of the information sought is such that it can
only be obtained from a third party;

[[Page 321]]

    (2) Whether the cost of collecting the information from the
individual is unreasonable when compared with the cost of collecting it
from a third party;
    (3) Whether there is a risk that information requested from the
third parties, if inaccurate, could result in an adverse determination
to the individual concerned;
    (4) Whether the information, if supplied by the individual, would
have to be verified by a third party; or
    (5) Whether provisions can be made for verification by the
individual of information collected from third parties.
    (e) Employees whose duties require handling of records subject to
the Act shall, at all times, take care to protect the integrity,
security and confidentiality of these records.
    (f) No employee of the section may alter or destroy a record subject
to the Act unless (1) such alteration or destruction is properly
undertaken in the course of the employee's regular duties or (2) such
alteration or destruction is required by a decision of the Commissioner
or the decision of a court of competent jurisdiction.



Sec. 1101.4  Reports on new systems of records; computer matching
programs.

    (a) Before establishing any new systems of records, or making any
significant change in a system of records, the Section shall provide
adequate advance notice to:
    (1) The Committee on Government Operations of the House of
Representatives;
    (2) The Committee on Governmental Affairs of the Senate; and
    (3) The Office of Management and Budget.
    (b) Before participating in any computerized information ``matching
program,'' as that term is defined by 5 U.S.C. 552a(a)(8) the Section
will comply with the provisions of 5 U.S.C. 552a(o), and will provide
adequate advance notice as described in Sec. 1101.4(a) above.



Sec. 1101.5  Security, confidentiality and protection of records.

    (a) The Act requires that records subject to the Act be maintained
with appropriate administrative, technical and physical safeguards to
ensure the security and confidentiality of records and to protect
against any anticipated threats or hazards to their security or
integrity which could result in substantial harm, embarrassment,
inconvenience or unfairness to any individual on whom information is
maintained.
    (b) When maintained in manual form (typed, printed, handwritten,
etc.) records shall be maintained, at a minimum, subject to the
following safeguards, or safeguards affording comparable protection:
    (1) Areas in which the records are maintained or regularly used
shall be posted with an appropriate warning stating that access to the
records is limited to authorized persons. The warning shall also
summarize the requirements of Sec. 1101.3 and state that the Act
contains a criminal penalty for the unauthorized dislosure of records to
which it applies.
    (2) During working hours: (i) The area in which the records are
maintained or regularly used shall be occupied by authorized personnel
or (ii) access to the records shall be restricted by their storage in
locked metal file cabinets or a locked room.
    (3) During non-working hours, access to the records shall be
restricted by their storage in locked metal file cabinets or a locked
room.
    (4) Where a locked room is the method of security provided for a
system, that security shall be supplemented by: (i) Providing lockable
file cabinets or containers for the records or (ii) changing the lock or
locks for the room so that they may not be opened with a master key. For
purposes of this paragraph, a master key is a key which may be used to
open rooms other than the room containing records subject to the Act,
unless those rooms are utilized by officials or employees authorized to
have access to the records subject to the Act.
    (5) Personnel handling personal information during routine use will
ensure that the information is properly controlled to prevent
unintentional or unauthorized disclosure. Such information will be used,
held, or stored only

[[Page 322]]

where facilities or conditions are adequate to prevent unauthorized or
unintentional disclosure.
    (c) When the records subject to the Act are maintained in
computerized form, safeguards shall be utilized based on those
recommended in the National Bureau of Standard's booklet ``Computer
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30,
1975), and any supplements thereto, which are adequate and appropriate
to assuring the integrity of the records.



Sec. 1101.6  Requests for access to records.

    (a) Any individual may submit an inquiry to the Section to ascertain
whether a system of records contains a record pertaining to him or her.
    (b) The inquiry should be made either in person or by mail addressed
to the PA Officer, United States Section, International Boundary and
Water Commission, 4171 North Mesa, Suite C-310, El Paso, TX 79902-1422.
The PA Officer shall provide assistance to the individual making the
inquiry to assure the timely identification of the appropriate systems
of records. The office of the PA Officer is located in Suite C-316 and
is open to an individual between the hours of 8 a.m. and 4:30 p.m.,
Monday through Friday (excluding holidays).
    (c) Inquiries submitted by mail should be marked ``PRIVACY ACT
REQUEST'' on the bottom left-hand corner of the envelope.
    (d) The letter should state that the request is being made under the
Privacy Act.
    (e) Inquiries concerning whether a system of records contains a
record pertaining to an individual should contain the following:
    (1) Name, address and telephone number (optional) of the individual
making the inquiry;
    (2) Name, address and telephone number (optional) of the individual
to whom the record pertains, if the inquiring individual is either the
parent of a minor or the legal guardian of the individual to whom a
record pertains;
    (3) A certified or authenticated copy of documents establishing
parentage or guardianship;
    (4) Whether the individual to whom the record pertains is a citizen
of the United States or an alien lawfully admitted for permanent
residence into the United States;
    (5) Name of the system of records, as published in the Federal
Register;
    (6) Location of the system of records, as published in the Federal
Register;
    (7) Such additional information as the individual believes will or
might assist the Section in responding to the inquiry and in verifying
the individual's identity (for example: date of birth, place of birth,
names of parents, place of work, dates of employment, position title,
etc.);
    (8) Date of inquiry; and
    (9) Signature of the requester.


The Section reserves the right to require compliance with the
identification procedures appearing at paragraph (f) of this section
where conditions warrant.
    (f) The requirement for identification of individuals seeking access
to records are as follows:
    (1) In person: Each individual making a request in person shall be
required to present satisfactory proof of identity. The means of proof,
in the order of preference and priority, are:
    (i) A document bearing the individual's photograph (for example,
driver's license, passport or military or civilian identification card);
    (ii) A document bearing the individual's signature, preferably
issued for participation in a federally sponsored program (for example,
Social Security card, unemployment insurance book, employer's
identification card, national credit card and professional, craft or
union membership card); and
    (iii) A document bearing either the photograph or the signature of
the individual, preferably issued for participation in a federally
sponsored program (for example, Medicaid card). In the event the
individual can provide no suitable documentation of identity, the
Section will require a signed statement asserting the individual's
identity and stipulating that the individual understands the penalty
provision of 5 U.S.C. 552a(i)(3).
    (2) Not in person: If the individual making a request does not
appear in person before the PA Officer, a certificate of a notary public
or equivalent

[[Page 323]]

officer empowered to administer oaths must accompany the request.
    (3) Parents of minors and legal guardians: An individual acting as
the parent of a minor or the legal guardian of the individual or an heir
or legal representative of a deceased person to whom a record pertains
shall establish his or her personal identity in the manner prescribed in
either paragraph (f)(1) or (2) of this section. In addition, such
individual shall establish his or her identity in the representative
capacity of parent or legal guardian. In the case of the parent of a
minor, the proof of identity shall be a certified or authenticated copy
of the minor's birth certificate. In the case of a legal guardian of an
individual who has been declared incompetent due to physical or mental
incapacity or age by a court of competent jurisdiction, the proof of
identity shall be a certified or authenticated copy of the court's
order. A parent or legal guardian may act only for a living individual,
not for a decedent. A parent or legal guardian may be accompanied during
personal access to a record by another individual, provided the
requirements of paragraph (f) of Sec. 1101.7 are satisfied. In the case
of an heir or legal representative of a deceased person the proof of
identity shall be a certified copy of the Will, if any; the order of a
court of competent jurisdiction admitting the Will to probate; the order
of a court of competent jurisdiction appointing an executor, executrix,
or administrator; a letter of administration; or any other documentary
evidence which establishes the identity of the individual as an heir or
legal representative of a deceased person.
    (g) When the provisions of this part are alleged to have the effect
of impeding an individual in exercising his or her right to access, the
Section will consider, from an individual making a request, alternative
suggestions regarding proof of identity and access to records.
    (h) An inquiry which is not addressed as specified in paragraph (b)
of this section or which is not marked as specified in paragraph (c) of
this section will be so addressed and marked by the Section's personnel
and forwarded immediately to the PA Officer. An inquiry which is not
properly addressed by the individual will not be deemed to have been
``received'' for purposes of measuring time periods for response until
forwarding of the inquiry to the PA Officer has been effected. In each
instance when an inquiry so forwarded is received, the PA Officer shall
notify the individual that his or her inquiry was improperly addressed
and the date when the inquiry was received at the proper address.
    (i) Each inquiry received shall be acted upon promptly by the PA
Officer. Although there is no fixed time when an agency must respond to
a request for access to records under the Act, every effort will be made
to respond within ten (10) days (excluding Saturdays, Sundays and
holidays) of the date of receipt. If a response cannot be made within
ten (10) days, the PA Officer shall send an acknowledgment during that
period providing information on the status of the inquiry and asking for
such further information as may be necessary to process the inquiry.
Every effort will be made to provide the requested records within thirty
(30) days.
    (j) An individual shall not be required to state a reason or
otherwise justify his or her inquiry.



Sec. 1101.7  Disclosure of records to individuals who are subjects of
those records.

    (a) Each request received shall be acted upon promptly by the PA
Officer. Every effort will be made to respond within ten (10) days
(excluding Saturdays, Sundays, and holidays) of the date of receipt. If
a response cannot be made within ten (10) days due to unusual
circumstances, the PA Officer shall send an acknowledgment during that
period providing information on the status of the request and asking for
such further information as may be necessary to process the request.
Every effort will be made to provide the requested records within thirty
(30) days. ``Unusual circumstances'' shall include circumstances where a
search for and collection of requested records from inactive storage,
field facilities or other establishments are required, cases where a
voluminous amount of data is involved, instances where information on
other individuals must be separated

[[Page 324]]

or expunged from the particular record, and cases where consultations
with other agencies having a substantial interest in the determination
of the request are necessary.
    (b) Grant of access:
    (1) Notification.
    (i) An individual shall be granted access to a record pertaining to
him or her except where the record is subject to an exemption under the
Act and these rules.
    (ii) The PA Officer shall notify the individual of such
determination and provide the following information:
    (A) The methods of access, as set forth in paragraph (b)(2) of this
section;
    (B) The place at which the records may be inspected;
    (C) The earliest date on which the record may be inspected and the
period of time that the records will remain available for inspection. In
no event shall the earliest date be later than thirty (30) days from the
date of notification;
    (D) The estimated date by which a copy of the record could be mailed
and the estimate of fees pursuant to Sec. 1101.11. In no event shall be
estimated date be later than thirty (30) days from the date of
notification;
    (E) The fact that the individual, if he or she wishes, may be
accompanied by another individual during the personal access, subject to
the procedures set forth in paragraph (f) of this section; and
    (F) Any additional requirements needed to grant access to a specific
record.
    (2) Method of access: The following methods of access to records by
an individual may be available depending on the circumstances of a given
situation:
    (i) Inspection in person may be made in the office specified by the
PA Officer, between the hours of 8 a.m. and 4:30 p.m., Monday through
Friday (excluding holidays);
    (ii) Transfer of records to a Federal facility more convenient to
the individual may be arranged, but only if the PA Officer determines
that a suitable facility is available, that the individual's access can
be properly supervised at that facility, and that transmittal of the
records to that facility will not unduly interfere with operations of
the section or involve unreasonable costs, in terms of both money and
manpower; and
    (iii) Copies may be mailed at the request of the individual, subject
to payment of the fees prescribed in Sec. 1101.11. The Section, at its
own initiative, may elect to provide a copy by mail, in which case no
fee will be charged to the individual.
    (c) Access to medical records: Upon advice by a physician that
release of medical information directly to the requester could have an
adverse effect on the requester, the Section may attempt to arrange an
acceptable alternative. This will normally involve release of such
information to a physician named by the requester, with the requester's
written consent. (Note that release to any third party, including a
physician or family member, must comply with the provisions of Sec.
1101.8 of this part.)
    (d) The Section shall supply such other information and assistance
at the time of access to make the record intelligible to the individual.
    (e) The Section reserves the right to limit access to copies and
abstracts of original records, rather than the original records. This
election would be appropriate, for example, when the record is in an
automated data media such as tape of disc, when the record contains
information on other individuals, and when deletion of information is
permissible under exemptions (for example 5, U.S.C. 552(k)(1)). In no
event shall original records of the Section be made available to the
individual except under the immediate supervision of the PA Officer or
his designee. Title 18 U.S.C. 2701(a) makes it a crime to conceal,
mutilate, obliterate, or destroy a record filed in a public office, or
to attempt to do any of the foregoing.
    (f) Any individual who requests access to a record pertaining to
that individual may be accompanied by another individual of his or her
choice. ``Accompanied'' includes discussion of the record in the
presence of the other individual. The individual to whom the record
pertains shall authorize the presence of the other individual in writing
and shall include the name of the other individual, a specific
description of the record to which access is

[[Page 325]]

sought, and the date and the signature of the individual to whom the
record pertains. The other individual shall sign the authorization in
the presence of the PA Officer or his designee. An individual shall not
be required to state a reason or otherwise justify his or her decision
to be accompanied by another individual during the personal access to a
record.
    (g) Initial denial of access:
    (1) Grounds. Access by an individual to a record which pertains to
that individual will be denied only upon a determination by the PA
Officer that:
    (i) The record is subject to an exemption under the Act and these
rules;
    (ii) The record is information compiled in reasonable anticipation
of a civil action or proceeding;
    (iii) The provisions of Sec. 1101.7(c) pertaining to medical
records have been temporarily invoked; or
    (iv) The individual unreasonably has failed to comply with the
procedural requirements of these rules.
    (2) Notification. The PA Officer shall give notice of denial of
access of records to the individual in writing and shall include the
following information:
    (i) The PA Officer's name and title or position;
    (ii) The date of denial;
    (iii) The reasons for the denial, including citation to the
appropriate section of the Act and these rules;
    (iv) The individual's opportunities for further administrative
consideration, including the identity and address of the responsible
official;
    (v) If stated to be administratively final within the Section, the
individual's right to judicial review under 5 U.S.C. 552a(g) (1) and
(5).
    (3) Administrative review: When an initial denial of a request is
issued by the PA Officer, the individual's opportunities for further
consideration shall be as follows:
    (i) As to denial under paragraph (g)(1)(i) of this section, the sole
procedure is a petition for the issuance, amendment, or repeal of a rule
under 5 U.S.C. 553(e). Such petition shall be filed with the
Commissioner, United States Section, International Boundary and Water
Commission, 4171 North Mesa, Suite C-310, El Paso, TX 79902-1422. If the
exception was determined by another agency, the PA Officer will provide
the individual with the name and address of the other agency and any
relief sought by the individual shall be that provided by the
regulations of the other agency. Within the Section, no such denial is
administratively final until such a petition has been filed by the
individual and disposed of on the merits by the Commissioner.
    (ii) As to denial under paragraphs (g)(1), (ii), (iii) or (iv) of
this section, the individual may file for review with the Commissioner,
as indicated in the PA Officer's initital denial notification.
    (h) If a request is partially granted and partially denied, the PA
Officer shall follow the appropriate procedures of this section as to
the records within the grant and the records within the denial.



Sec. 1101.8  Disclosure of records to third-parties.

    (a) The Section will not disclose any information about an
individual to any person other than the individual except in the
following instances:
    (1) Upon written request by the individual about whom the
information is maintained;
    (2) With prior written consent of the individual about whom the
information is maintained;
    (3) To the parent(s) of a minor child, or the legal guardian of an
incompetent person, when said parent(s) or legal guardian act(s) on
behalf of said minor or incompetent person.
    (4) When permitted under 5 U.S.C. 552a(b) (1) through (11) which
provides as follows:
    (i) To those officers and employees of the agency which maintains
the record who have a need for the record in the performance of their
duties;
    (ii) Required under 5 U.S.C. 552 of the U.S. Code;
    (iii) For a routine use as defined in the Act at 5 U.S.C.
552a(a)(7);
    (iv) To the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to the
provisions of title 13 of the U.S. Code;

[[Page 326]]

    (v) To a recipient who has provided the agency with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
    (vi) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Administrator of General Services or his designee to determine whether
the record has such value;
    (vii) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, if the head of the agency or instrumentality has made a written
request to the agency which maintains the record specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
    (viii) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
    (ix) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee, and
to a Congressman who is acting on behalf of his constituent;
    (x) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office; or
    (xi) Pursuant to the order of a court of competent jurisdiction;
    (5) When required by the Act and not covered explicitly by the
provisions of 5 U.S.C. 552a(b). These situations include the following:
    (i) Dissemination of a corrected or amended record or notation of a
disagreement statement (5 U.S.C. 552a(c)(4));
    (ii) Disclosure of records to an individual to whom they pertain (5
U.S.C. 552a(d));
    (iii) Civil actions by an individual (5 U.S.C. 552a(g));
    (iv) Release of records or information to the Privacy Protection
Study Commission (Section 5 of Pub. L. 93-579);
    (v) Fulfill the needs of Office of Management and Budget to provide
continuing oversight and assistance to the section in implementation of
the Act (Section 6 of Pub. L. 93-579).



Sec. 1101.9  Exemptions.

    The following are exempt from disclosure under 5 U.S.C. 552a (j) and
(k):
    (a) Any record originated by another agency which has determined
that the record is exempt. If a request encompasses such a record, the
Section will advise the requester of its existence, and of the name and
address of the source agency.
    (b) Records specifically authorized under criteria established by an
executive order to be kept secret in the interest of national defense or
foreign policy, and which are, in fact, properly classified pursuant to
such executive order.
    (c) Those systems of records listed as exempt in the Notice of
Records of the Federal Register, including: Certificates of Medical
Examination; Occupational Health and Injury Files; and Investigative
Records.



Sec. 1101.10  Accounting for disclosures.

    (a) Each system manager shall establish a system of accounting for
all disclosures of records, either orally or in writing made outside the
Section, unless otherwise exempted under this section. Accounting
procedures may be established in the least expensive and most convenient
form that will permit the PA Officer to advise individuals promptly upon
request of the persons or agencies to which records concerning them have
been disclosed. Accounting of disclosures made under 5 U.S.C. 552a(b)(7)
relating to civil or criminal law enforcement activities shall not be
made available to the individual named in the record.
    (b) Accounting records, at a minimum, shall include the date,
nature, and purpose of each disclosure of a

[[Page 327]]

record and the name and address of the person or agency to whom the
disclosure was made. Accounting records shall be maintained for at least
five years or the life of the record, whichever is longer.
    (c) Accounting is not required to be kept for disclosure made within
the Section or disclosures made pursuant to the Freedom of Information
Act.
    (d) If an accounting of the disclosure was made, the PA Officer
shall inform any person or other agency about any correction or notation
of dispute made by the Section in accordance with 5 U.S.C. 552a(d) of
any record that has been disclosed to the person or agency.



Sec. 1101.11  Fees.

    (a) Under the Act, fees can only be charged for the cost of copying
records. No fees may be charged for the time it takes to search for the
records or for the time it takes to determine if any exemptions apply.
The Section will not charge a fee for the first copy of an individual's
personnel record.
    (b) The Section will charge a fee of $0.10 per page for copies of
documents which are identified by an individual and reproduced at the
individual's request for retention, except that there will be no charge
for requests involving costs of $1.00 or less, but the copying fees for
contemporaneous request by the same individual shall be aggregated to
determine the total fee.
    (c) Special and additional services provided at the request of the
individual, such as certification or authentication, will be charged to
the individual in accordance with other published regulations of the
Section pursuant to statute (for example, 22 CFR part 1102--Freedom of
Information Act.)
    (d) Remittances shall be in the form of either a personal check or
bank draft drawn on a bank in the United States, a postal money order,
or cash. Remittance shall be made payable to the order of the U.S.
Section, International Boundary and Water Commission, and delivered to
or mailed to the PA Officer, United States Section, International
Boundary and Water Commission, 4171 North Mesa, Suite C-310, El Paso, TX
79902-1422. The Section will assume no responsibility for cash sent by
mail.
    (e) A receipt for fees paid will be given only upon request.



Sec. 1101.12  Request to correct or amend a record.

    (a) Any individual may submit a request for correction of or
amendment to a record to the Section. The request should be made either
in person or by mail addressed to the PA Officer who processed the
individual's request for access to the record, and to whom is delegated
authority to make initial determinations on requests for correction or
amendment.
    (b) Since the request, in all cases, will follow a request for
access under Sec. 1101.6, the individual's identity will be established
by his or her signature on the request.
    (c) A request for correction or amendment should be in writing. The
envelope containing the request should be marked ``Privacy Act Amendment
Request'' on the lower left hand corner. The request should include the
following:
    (1) First, the letter should state that it is a request to amend a
record under the Privacy Act of 1974.
    (2) Second, the request should identify the specific record and the
specific information in the record for which an amendment is being
sought.
    (3) Third, the request should state why the information is not
accurate, relevant, timely, or complete. Supporting evidence may be
included with the request.
    (4) Fourth, the request should state what new or additional
information, if any, should be included in place of the erroneous
information. Evidence of the validity of new or additional information
should be included. If the information in the file is wrong and needs to
be removed rather than supplemented or corrected, the request should
make this clear.
    (5) Fifth, the request should include the name, address, and
telephone number (optional) of the requester.



Sec. 1101.13  Agency review of request to correct or amend a record.

    (a) (1) Not later than ten (10) days (excluding Saturdays, Sundays
and

[[Page 328]]

holidays) after receipt of a request to correct or amend a record, the
PA Officer shall send an acknowledgment providing an estimate of time
within which action will be taken on the request and asking for such
further information as may be necessary to process the request. The
estimate of time may take into account unusual circumstances as
described in Sec. 1101.7(a). No acknowledgment will be sent if the
request can be reviewed, processed and the individual notified of the
results of review (either compliance or denial) within ten (10) days
(excluding Saturdays, Sundays and holidays). Requests filed in person
will be acknowledged in writing at the time submitted.
    (2) Promptly after acknowledging receipt of a request, or after
receiving such further information as might have been requested, or
after arriving at a decision within ten (10) days, the PA Officer shall
either:
    (i) Make the requested correction or amendment and advise the
individual in writing of such action, providing either a copy of the
corrected or amended record or a statement as to the means whereby the
correction or amendment was effected in cases where a copy cannot be
provided (for example, erasure of information from a record maintained
only in an electronic data bank); or
    (ii) Inform the individual in writing that his or her request is
denied and provide the following information:
    (A) The PA Officer's name, title and position;
    (B) The date of denial;
    (C) The reasons for the denial, including citation to the
appropriate sections of the Act and these rules;
    (D) The procedures for appeal of the denial as set forth in Sec.
1101.14.


The term promptly in this paragraph means within thirty (30) days
(excluding Saturdays, Sundays and holidays). If the PA Officer cannot
make the determination within thirty (30) days, the individual will be
advised in writing of the reason therefor and of the estimated date by
which the determination will be made.
    (b) Whenever an individual's record is corrected or amended pursuant
to a request by that individual, the PA Officer shall notify all persons
and agencies to which copies of the record had been disclosed prior to
its correction or amendment, if an accounting of such disclosure
required by the Act was made. The notification shall require a receipt
agency maintaining the record to acknowledge receipt of the
notification, to correct or amend the record, and to apprise any agency
or person to which it has disclosed the record of the substance of the
correction or amendment.
    (c) The following criteria will be considered by the PA Officer in
reviewing a request for correction or amendment.
    (1) The sufficiency of the evidence submitted by the individual;
    (2) The factual accuracy of the information;
    (3) The relevance and necessity of the information in terms of
purpose for which it was collected.
    (4) The timeliness and currency of the information in light of the
purpose for which it was collected;
    (5) The completeness of the information in terms of the purpose for
which it was collected;
    (6) The degree of possibility that denial of the request could
unfairly result in determinations adverse to the individual;
    (7) The character of the record sought to be corrected or amended;
and
    (8) The propriety and feasibility of complying with the specific
means of correction or amendment requested by the individual.
    (d) The Section will not undertake to gather evidence for the
individual, but does reserve the right to verify the evidence which the
individual submits.
    (e) Correction or amendment of a record requested by an individual
will be denied only upon a determination by the PA Officer that:
    (1) The individual has failed to establish, by a preponderance of
the evidence, the propriety of the correction or amendment in light of
the criteria set forth in paragraph (c) of this section;
    (2) The record sought to be corrected or amended was compiled in a
terminated judicial, quasi-judicial or quasi-legislative proceeding to
which the individual was a party or participant;
    (3) The record sought to be corrected or amended is the subject of a
pending

[[Page 329]]

judicial, quasi-judicial or quasi-legislative proceeding to which the
individual is a party or participant;
    (4) The correction or amendment would violate a duly enacted statute
or promulgated regulation; or
    (5) The individual unreasonably has failed to comply with the
procedural requirements of these rules.
    (f) If a request is partially granted and partially denied, the PA
Officer shall follow the appropriate procedures of this section as to
the records within the grant and the records within the denial.



Sec. 1101.14  Appeal of agency decision not to correct or amend a
record.

    (a) An appeal of the initial refusal to amend a record under Sec.
1101.13 may be requested by the individual who submitted the request.
The appeal must be requested in writing, and state that the appeal is
being made under the Privacy Act of 1974, it should identify the denial
that is being appealed and the records that were withheld, it should
include the requester's name and address and telephone number
(optional), and it should be signed by the individual making the
request. It should be received by the Section within sixty (60) calendar
days of the date the individual is informed of the PA Officer's refusal
to amend a record in whole or in part. The request should be addressed
and sent via certified mail to the Commissioner, United States Section,
International Boundary and Water Commission, 4171 North Mesa, suite C-
310, El Paso, TX 79902-1422. The processing of appeals will be
facilitated if the words ``PRIVACY APPEAL'' appear in capital letters on
both the envelope and the top of the appeal papers. An appeal not
addressed and marked as provided herein will be marked by Section
personnel when it is so identified and will be forwarded immediately to
the Commissioner.
    (b) The time for decision on the appeal begins on the date the
appeal is received by the Commissioner. The appeal should include any
documentation, information or statements advanced for the amendment of
the record.
    (c) There shall be a written record of the reason for the final
determination. The final determination will be made not later than
thirty (30) days (excluding Saturdays, Sundays and holidays) from the
date the Commissioner receives the appeal; unless, for good cause shown,
the Commissioner extends such determination beyond the thirty (30) day
period.
    (d) When the final determination is that the record should be
amended in accordance with the individual's request, the Commissioner
shall direct the office responsible for the record to comply. The office
responsible for the record shall:
    (1) Amend the record as directed;
    (2) If a distribution of the record has been made, advise all
previous recipients of the record of the amendment and its substance;
    (3) So advise the individual in writing.
    (e) When the final decision is that the request of the individual to
amend the record is refused, the Commissioner shall advise the
individual:
    (1) Of the refusal and the reasons for it;
    (2) Of his or her right to file a concise statement of the reasons
for disagreeing with the decision of the Section;
    (3) Of the procedures for filing the statement of disagreement;
    (4) That the statement which is filed will be made available to
anyone to whom the record is subsequently disclosed together with, at
the discretion of the Section, a brief statement by the Section
summarizing its reasons for refusing to amend the record;
    (5) That prior recipients of the disputed record will be provided a
copy of any statement of dispute to the extent that an accounting of
disclosures was maintained; and
    (6) Of his or her right to seek judicial review of the Section's
refusal to amend the record.
    (f) When the final determination is to refuse to amend a record and
the individual has filed a statement under paragraph (e)(2) of this
section, the Section will clearly annotate the record so that the fact
that the record is disputed is apparent to anyone who may subsequently
have access to use or disclose it. When information that is the subject
of a statement of dispute

[[Page 330]]

filed by an individual is subsequently disclosed, the Section will note
that the information is disputed and provide a copy of the individual's
statement. The Section may also include a brief summary of the reasons
for not making a correction when disclosing disputed information. Such
statements will normally be limited to the reasons given to the
individual for not amending the record. Copies of the Section's
statement shall be treated as part of the individual's record for
granting access; however, it will not be subject to amendment by the
individual under these rules.
    (g) An appeal will be decided on the basis of the individual's
appeal papers and the record submitted by the PA officer. No personal
appearance or hearings on appeals will be allowed.



Sec. 1101.15  Judicial review.

    After having exhausted all administrative remedies set forth in
Sec. 1101.7(g)(3) or Sec. 1101.14, a requester may bring a civil
action against the Section, in a United States District Court of proper
venue, within two years of the final administrative decision which the
requester seeks to challenge.



Sec. 1101.16  Criminal penalties.

    (a) Under the provisions of the Act, it is a Federal crime for any
person to knowingly and willfully request or obtain information from a
Federal agency, including this Section, by false pretenses.
    (b) It is also a crime for any officer or employee of the Section to
knowingly and willfully:
    (1) Make an unauthorized disclosure; or
    (2) Fail to publish public notice of a system of records as required
by 5 U.S.C. 552a(e)(4).



Sec. 1101.17  Annual report to Congress.

    (a) On or before August 1 of each calendar year the Commissioner
shall submit a report covering the preceding calendar year to the
Speaker of the House of Representatives and the President of the Senate
for referral to the appropriate committees of the Congress. The report
shall include:
    (1) The U.S. Section's point of contact responsible for implementing
the Privacy Act of 1974;
    (2) The number of active systems, new systems published, systems
deleted, systems automated, either in whole or part, number of existing
systems for which new routine uses were established, number of existing
systems for which new exemptions were claimed, number of existing
systems from which exemptions were deleted, and number of public
comments received by the agency of publication of rules or notices;
    (3) Total number of requests for access, number of requests wholly
or partially granted, number of requests totally denied, number of
requests for which no record was found, number of appeals of denials of
access, number of appeals in which denial was upheld, number of appeals
in which denial was overturned either in whole or part, number of
requests to amend records in system, number of amendment requests wholly
or partially granted, number of amendment requests totally denied,
number of appeals of denials of amendment requests, number of appeals in
which denial was upheld, number in which denial was overturned either in
whole or in part, whether the U.S. Section denied an individual access
to his or her records in a system of record on any basis other than a
Privacy Act exemption under 5 U.S.C. 552(j) or (k), and the legal
justification for the denial, number of instances in which individuals
litigated the results of appeals of access or amendment, and the results
of such litigation, and a statement of our involvement in matching
programs;
    (4) Any other information which will indicate the U.S. Section's
effort to comply with the objectives of the Act, to include any problems
encountered, with recommendations for solving thereof;
    (5) And, a copy of these regulations.



PART 1102_FREEDOM OF INFORMATION ACT--Table of Contents



Sec.
1102.1 Purpose.
1102.2 Definitions.

[[Page 331]]

1102.3 Procedures for requesting access to records or information.
1102.4 Fees.
1102.5 Categories of requesters for fee purposes.
1102.6 Fee waivers and appeals.
1102.7 The Section's determination and appeal procedures.
1102.8 Exemptions.
1102.9 Annual report to Congress.
1102.10 Examination of records.

    Authority: 5 U.S.C. 552 (Pub. L. 90-23, as amended by Pub. L. 93-502
and 99-570).

    Source: 55 FR 35898, Sept. 4, 1990, unless otherwise noted.



Sec. 1102.1  Purpose.

    The purpose of this part is to prescribe rules, guidelines and
procedures to implement the Freedom of Information Act (FOIA), 5 U.S.C.
552, as amended on November 21, 1974, by Public Law 93-502, and on
October 27, 1986, by Public Law 99-570.



Sec. 1102.2  Definitions.

    Act means the Freedom of Information Act, 5 U.S.C. 552, as amended.
    Commercial-use request refers to a request from or on behalf of one
who seeks information for a cause or purpose that furthers the
commercial, trade, or profit interests of the requester or person on
whose behalf the request is made. In determining whether a requester
properly belongs in this category, the Section will consider how the
requester will use the documents.
    Commissioner means head of the United States Section, International
Boundary and Water Commission, United States and Mexico.
    Direct costs means those expenditures which the Section actually
incurs in searching for and duplicating (and in the case of commercial
requesters, reviewing) documents to respond to a FOIA request. Direct
costs include, for example, the salary of the employee performing work
(the basic rate of pay for the employee plus 16 percent of that rate to
cover benefits) and the cost of operating duplicating machinery. Not
included in direct costs are overhead expenses such as costs of space,
and heating or lighting the facility where the records are stored.
    Disclose or disclosure means making records available, on request
for examination and copying, or furnishing a copy of records.
    Duplication refers to the process of making a copy of a document in
response to a FOIA request. Such copies can take the form of paper,
microform, audiovisual materials, or machine-readable documentation. The
Section will provide a copy of the material in a form that is usable by
the requester unless it is administratively burdensome to do so.
    Educational institution refers to a preschool, a public or private
elementary or secondary school, an institution of graduate higher
education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
    Noncommercial scientific institution refers to an institution that
is not operated on a ``commercial'' basis as that term is referenced
above, and which is operated solely for the purpose of conducting
scientific research the results of which are not intended to promote any
particular product or industry.
    Person or Requester includes any individual, firm, corporation,
organization or other entity.
    Records and/or information are defined as all books, papers,
manuals, maps, photographs, or other documentary materials, regardless
of physical form or characteristics, made or received by the Section
under Federal law or in connection with the transaction of public
business or in carrying out its treaty responsibilities and obligations,
and preserved or appropriate for preservation by the Section as evidence
of the organization, functions, policies, decisions, procedures,
operations, or other activities of the Government or because of the
information value of the data in them, but does not include books,
magazines or other material acquired solely for library purposes and
through other sources, and does not include analyses, computations, or
compilations of information not extant at the time of the request. The
term ``records'' does not include objects or articles such as
structures, furniture, paintings, sculptures, three-dimensional models,
vehicles, and equipment.

[[Page 332]]

    Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to the
public. Examples of news media include television or radio stations
broadcasting to the public at large, and publishers of periodicals (but
only those instances when they can qualify as disseminators of ``news'')
who make their products available for purchase or subscription by the
general public. In the case of ``freelance'' journalists, they may be
regarded as working for a news organization if they can demonstate a
solid basis for expecting publication through that organization even
though not actually employed by it.
    Request means a letter or other written communication seeking
records or information under the Freedom of Information Act.
    Review refers to the process of examining documents located in
response to a request that is for commercial use to determine if any
portion of that document is permitted to be withheld, and processing any
document for disclosure (i.e., doing all that is necessary to excise
them and otherwise prepare them for release). It does not include time
spent resolving general legal or policy issues regarding the application
of exemptions.
    Search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents. Searches should be
performed in the most efficient and least expensive manner so as to
minimize costs for both the Section and the requester; for example,
line-by-line searches should not be undertaken when it would be more
efficient to duplicate the entire document. Note that such activity
should be distinguished from ``review'' of material in determining
whether the material is exempt from disclosure. Searches may be done
manually or by computer using existing programming.
    The Section means United States Section, International Boundary and
Water Commission, United States and Mexico.


All terms used in this part which are defined in 5 U.S.C. 552 shall have
the same meaning herein.



Sec. 1102.3  Procedures for requesting access to records or information.

    (a) A request for any information or records shall be addressed to
the FOIA Officer, United States Section, International Boundary and
Water Commission, 4171 North Mesa, suite C-310, El Paso, TX 79902-1422.
The envelope and the letter shall be clearly marked ``Freedom of
Information Request'' or ``Request for Records,'' or the equivalent, to
distinguish it from other mail to the Section. If the request is not so
marked and addressed, the 10-day time limit described in the Act will
not begin to run until the request has been received by the FOIA Officer
in the normal course of business. In each instance where a request is
received in the normal course of business, the FOIA Officer shall notify
the requester that its request was improperly addressed and the date the
request was received.
    (b) In order for the Section to locate records or information and
make them available, it is necessary that it be able to identify the
specific record or information sought. Persons wishing to inspect or
obtain copies of records or information should, therefore, seek to
identify them as fully and accurately as possible. In cases where
requests are submitted which are not sufficient to permit
identification, the FOIA Officer will endeavor to assist the persons
seeking the records or information in filling in necessary details. In
most cases, however, persons seeking records or information will find
that time taken in trying to identify materials in the beginning is well
worth their while in enabling the Section to respond promptly to their
request.
    (c) A person submitting a request should--
    (1) Indicate the specific event or action, if any or if known, to
which the request has reference.
    (2) Designate the Division, Branch, or Project Office of the Section
which may be responsible for or may have

[[Page 333]]

produced the record or information requested.
    (3) Furnish the date of the record or information or the date or
period to which it refers or relates, if known.
    (4) Name the character of record or information, such as a contract,
an application, or a report.
    (5) List the Section's personnel who may have prepared or have
knowledge of the record or information.
    (6) Furnish the reference material such as newspapers or
publications which are known to have made a reference to the record or
information desired.
    (7) If the request relates to a matter in pending litigation or one
which has been litigated, supply the Court location and case style and
number.
    (8) Describe, when the request includes more than one record or
source of information, specifically each record or information so that
availability may be separately determined.
    (9) Clearly indicate whether the request is an initial request or an
appeal from a denial of a record or information previously requested.
    (10) Identify, when the request concerns a matter about the
Section's personnel, the person as follows: First name, middle name or
initial, and surname; date and place of birth; and social security
account number, if known.
    (d) No particular format is needed for the request, except that it:
    (1) Must be in writing;
    (2) Must describe the records or information sought with sufficient
detail to permit identification;
    (3) Should state a limitation of the fees the requester is willing
to pay, if any; and
    (4) Must include the name, address, and telephone number (optional)
of the person submitting the request.



Sec. 1102.4  Fees.

    (a) The following shall be applicable with respect to services
rendered to members of the public under this subpart:
    (1) Fee schedule.
    (i) Searching for records, per hour or fraction thereof per
individual:

Professional......................................................$18.00
Clerical...........................................................$9.00

Includes the salary of the category of employee who actually performs
the search, plus an additional 16% of that rate to cover benefits.

    (ii) The cost for computer searches will be calculated based on the
salary of the category of employee who actually performs the computer
search, plus 16% of that rate to cover benefits, plus the direct costs
of the central processing unit, input-output devices, and memory
capacity of the actual computer configuration.
    (iii) Reproduction fees:

    Pages no larger than 8\1/2\ by 14 inches when reproduced by routine
electrostatic copying: $0.10 per page.
    Pages requiring reduction, enlargement, or other special services
will be billed at direct cost to the Section.
    Reproduction by other than routine electrostatic copying will be
billed at direct cost to the Section.

    (iv) Certification of each record as a true copy--$1.00
    (v) Certification of each record as a true copy under official
seal--$1.50
    (vi) For each signed statement of negative result of search for
record--$1.00
    (vii) For each signed statement of nonavailability of record--$1.00
    (viii) Duplication of architectural photographs and drawings:

Available tracing or reproducible, per square foot.................$0.10
If intermediate nagative and reproducible required................$2.00;
Plus tracing per square foot.......................................$1.00

    (ix) Postage and handling. It will be up to the person requesting
the records or information to designate how the material will be mailed
or shipped. In the absence of such instructions no records or
information will be sent to a foreign address, and records and
information will be sent to domestic addresses utilizing first class
certified mail, return receipt requested and will be billed at direct
cost to the Section.
    (2) Only requesters who are seeking documents for commercial use
will be charged for time spent reviewing records to determine whether
thay are exempt from mandatory disclosure. The cost for review will be
calculated based on the salary of the category of the employee who
actually performed the review plus 16% of the rate to cover

[[Page 334]]

benefits. Charges will be assessed only for the initial review (i.e.,
review undertaken the first time in order to analyze the applicability
of specific exemption(s) to a particular record or portion of record)
and not review at the administrative appeal level of the exemption(s)
already applied.
    (3) If records requested under this part are stored elsewhere than
the headquarters of the U.S. Section, IBWC, 4171 North Mesa, EL Paso,
TX, the special cost of returning such records to the headquarters shall
be include in the search costs. These costs will be computed at the
actual costs of transportation of either a person or the requested
record between the place where the record is stored and the Section
headquarters when, for time or other reasons, it is not feasible to rely
on Government mail service.
    (4) When no specific fee has been established for a service, or the
request for a service does not fall under one of the above categories
due to the amount or size or type thereof, the FOIA Officer is
authorized to establish an appropriate fee, pursuant to the criteria
established in Office of Management and Budget Circular No. A-25,
entitled ``User Charges.''
    (b) Where it is anticipated that the fees chargeable under this part
will amount to more than $25 and the requester has not indicated in
advance her/his willingness to pay fees as high as anticipated, the
requester shall be promptly notified of the amount of the anticipated
fees or such portion thereof as can readily be estimated. The notice or
request for an advance deposit shall extend an offer to the requester to
confer with knowledgeable Section personnel in an attempt to reformulate
the request in a manner which will reduce the fees and meet the needs of
the requester. Dispatch of such notice or request shall suspend the
running of the period for response by the Section until a reply is
received from the requester.
    (c) Search costs are due and payable even if the record which was
requested cannot be located after all reasonable efforts have been made,
or if the Section determines that a record which has been requested, but
which is exempt from disclosure under this part, is to be withheld.
    (d) The Section will begin assessing interest charges on an unpaid
bill starting the 31st day following the day on which the billing was
sent. The accrual of interest will be stayed upon receipt of the fee,
rather than upon its processing by the Section. Interest will at the
rate precribed in section 3717 of title 31 U.S.C.
    (e) A requester may not file multiple requests at the same time,
each seeking portions of a document or documents, solely in order to
avoid payment of fees. When the Section reasonably believes that a
requester or a group of requesters acting in concert is attempting to
break a request down into a series of requests for the purpose of
evading the assessment of fees, the Section will aggregate any such
requests and charge accordingly.
    (f) The Section will not require a requester to make an advance
payment, i.e., payment before work is commenced or continued on a
request, unless:
    (1) The Section estimates or determines that allowable charges that
a requester may be required to pay are likely to exceed $250. Then the
Section will notify the requester of the likely costs and obtain
satisfactory assurance of full payment where the requester has a history
of prompt payment of FOIA fees, or require an advance payment of an
amount up to the full estimated charges in the case of requesters with
no history of payment; or
    (2) Requesters who have previously failed to pay fees charged in a
timely fashion (i.e., within 30 days of the date of the billing), the
Section will require such requesters to pay the full amount owed plus
any applicable interest as provided above or demonstrate that they have,
in fact, paid the fee, and to make an advance payment of the full amount
of the estimated fee before the agency begins to process new requests or
pending requests from such requesters.


When the Section acts under paragraph (f) (1) or (2) of this section,
the administrative time limit prescribed in subsection (a)(6) of the
FOIA (i.e., 10 working days from receipt of initial requests plus
permissible extensions of

[[Page 335]]

that time limit) will begin only after the Section has received payments
described above.
    (g) In accordance with the provisions and authorities of the Debt
Collection Act of 1982 (Pub. L. 97-365), the Section reserves the right
to disclose information to consumer reporting agencies and to use
collection agencies, where appropriate, to encourage repayment.
    (h) No fees under $10 will be billed by the Section because the cost
of collection would be greater than the fee.
    (i) Requester should pay fees by check or money order made out to
the U.S. Section, International Boundary and Water Commission, and
mailed to the Finance and Accounting Office, United States Section,
International Boundary and Water Commission, 4171 North Mesa, suite C-
310, El Paso, TX 79902-1422.



Sec. 1102.5  Categories of requesters for fee purposes.

    There are four categories of requesters: Commercial use requesters;
educational and non-commercial scientific institutions; representatives
of the news media; and all other requesters. The Act prescribes specific
levels of fees for each of these categories. The Section will take into
account information provided by requesters in determining their
eligibility for inclusion in one of these categories is as defined in
Sec. 1102.2. It is in the requester's best interest to provide as much
information as possible to demonstrate inclusion within a non-commercial
category of fee treatment.
    (a) The Section will assess charges which recover the full direct
costs of searching for, reviewing for release, and duplicating the
records sought for commercial use. Commercial use requesters are
entitled to neither two hours of free search time nor 100 free pages of
reproduction of documents.
    (b) The Section will provide documents to educational and non-
commercial scientific institutions for the cost of reproduction alone,
excluding charges for the first 100 pages. To be eligible for inclusion
in this category, requesters must show that the request being made is
authorized by, and under the auspices of, a qualifying institution and
that the records are not sought for a commercial use, but are sought in
furtherance of scholarly (if the request is from an educational
institution) or scientific (if the request is from a non-commercial
scientific institution) research.
    (c) The Section will provide documents to representatives of the
news media for the cost of reproduction alone, excluding charges for the
first 100 pages. To be eligible for inclusion in this category; a
requester must meet the criteria in Sec. 1102.2(m), and the request
must not be made for a commercial use. In reference to this class of
requesters, a request for records supporting the news dissemination
function of the requester shall not be considered to be a request that
is for a commercial use.
    (d) The Section will charge requesters who do not fit into any of
the categories above fees which recover the full reasonable direct cost
of searching for and reproducing records that are responsive to the
request, except that the first 100 pages of reproduction and the first
two hours of search time shall be furnished without charge. Moreover,
requests from record subjects for records about themselves will continue
to be treated under the fee provisions of the Privacy Act of 1974 which
permit fees only for reproduction.
    (e) In making determinations under this section, the Section may
take into account whether requesters who previously were granted (b),
(c), or (d) status under the Act did in fact use the requested records
for purposes compatible with the status accorded them.



Sec. 1102.6  Fee waivers and appeals.

    (a) Waiver or reduction of any fee provided for in Sec. 1102.4 may
be made upon a determination by the FOIA Officer, United States Section,
International Boundary and Water Commission, 4171 North Mesa, suite C-
310, El Paso, TX 79902-1422. The Section shall furnish documents without
charge or at a reduced charge provided 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
requester. Requests for a waiver or

[[Page 336]]

reduction of fees shall be considered on a case-by-case basis.
    (1) In order to determine whether 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, the Section will consider the following four factors:
    (i) The subject of the request: Whether the subject of the requested
records concerns the operations or activities of the Government;
    (ii) The informative value of the information to be disclosed:
Whether the disclosure is likely to contribute to an understanding of
Government operations or activities;
    (iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to public understanding; and
    (iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute significantly to public
understanding of Government operations or activities.
    (2) In order to determine whether disclosure of the information is
not primarily in the commercial interest of the requester, the Section
will consider the following two factors:
    (i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
    (ii) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is primarily in the commercial interest of the requester.
    (b) The Section will not consider waiver or reduction of fees for
requesters (persons or organizations) from whom unpaid fees remain due
to the Section for another information access request.
    (c)(1) The Section's decision to refuse to waive or reduce fees as
requested under paragraph (a) of this section may be appealed to the
Commissioner, United States Section, International Boundary and Water
Commission, 4171 North Mesa, Suite C-310, El Paso, TX 79902-1422.
Appeals should contain as much information and documentation as possible
to support the request for a waiver or reduction of fees.
    (2) Appeals will be reviewed by the Commissioner, who may consult
with other officials of the Section as appropriate. The requester will
be notified within thirty working days from the date on which the
Section received the appeal.



Sec. 1102.7  The Section's determination and appeal procedures.

    Upon receipt of any request for records of information under the Act
the following guidelines shall be followed:
    (a) The FOIA Officer will determine within 10 days (excepting
Saturdays, Sundays, and legal holidays) after receipt of any such
request whether to comply with such request and will immediately notify
the person making such request of such determination, the reasons
therefore, and of the right to such person to appeal to the Commissioner
any adverse determination.
    (b) All appeals should be addressed to the Commissioner, United
States Section, International Boundary and Water Commission, 4171 North
Mesa, Suite, C-310, El Paso, TX 79902-1422, and should be clearly
identified as such on the envelope and in the letter of appeal by using
the marking ``Freedom of Information Appeal'' or ``Appeal for Records''
or the equivalent. Failure to properly address an appeal may defer the
date of receipt by the Section to take into account the time reasonably
required to forward the appeal to the Commissioner. In each instance
when an appeal is incorrectly addressed to the Commissioner, he shall
notify the person making the appeal that his appeal was improperly
addressed and of the date the appeal was received by the Commissioner.
The Commissioner will make a determination with respect to any appeal
within 20 days (excepting Saturdays, Sundays, and legal holidays) after
the receipt of an appeal. If on appeal the denial or the request is in
whole or in part upheld, the Commissioner will notify the person making
such request of the provisions for

[[Page 337]]

judicial review under the Act. An appeal must be in writing and filed
within 30 days from receipt of the initial determination (in cases of
denials of an entire request), or from receipt of any records being made
available pursuant to the initial determination (in case of partial
denials). In those cases where a request or appeal is not addressed to
the proper official, the time limitations stated above will be computed
from the receipt of the request or appeal by the proper official.
    (c) In unusual circumstances, as set forth in paragraph (d) of this
section, the time limits for responding to the original request or the
appeal may be extended by not more than an additional 10 working days by
written notice to the person making a request. This notice must be sent
within either 10- or 20-day time limit and will specify the reason for
the extension and the date on which determination is expected to be
dispatched. The extension may be invoked only once during the
consideration of a request either during the initial consideration
period or during the consideration of an appeal, but not both.
    (d) The unusual circumstances are:
    (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 which are demanded in
a single request; or
    (3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the requestor among two or more components of the
agency having substantial subject-matter interest therein.
    (e) If the FOIA Officer receives a request which is of proper
concern to an agency or entity outside the Section, it will be returned
to the person making the request, advising the requester to refer it to
the appropriate agency or entity if requester desires, and providing the
requester with the name or title, address and other appropriate
information. An information copy of the request and the letter of
referral will be forwarded promptly to the agency or entity outside the
Section that may expect the request. In the event the FOIA Officer
receives a request to make available a record or provide information
which is of interest to more than one agency (Federal, State, municipal,
or legal entity created thereby), the FOIA Officer will retain and act
upon the request if the Section is one of the interest agencies and if
its interest in the record is paramount.
    (f) The Commissioner's determination on an appeal shall be in
writing and when it denies records in whole or in part, the letter to
the person making a request shall include:
    (1) Notation of the specific exemption or exemptions of the Act
authorizing the withholding.
    (2) A statement that the decision is final for the Section.
    (3) Advice that judicial review of the denial is available in the
district in which the person making the request resides or has his
principal place of business, the district in which the Section's records
are situated, or the District of Columbia.
    (4) The names and titles or positions of each official responsible
for the denial of a request.


When appropriate, the written determination may also state how an
exemption applied in that particular case, and, when relevant, why a
discretionary rebase is not appropriate.
    (g) In those cases where it is necessary to find and examine records
before the legality or appropriateness of their disclosure can be
determined, and where after diligent effort this has not been achieved
within the required period, the FOIA Officer may advise the person
making the request that a determination to presently deny the request
has been made because the records or information have not been found or
examined, that the determination will be considered when the search or
examination is completed and the time within which completion is
expected, but that the person making the request may immediately file an
administrative appeal to the Commissioner.

[[Page 338]]



Sec. 1102.8  Exemptions.

    (a) 5 U.S.C. 552(b) provides that the requirements of the FOIA do
not apply to matters that are:
    (1) Classified documents. Specifically authorized under criteria
established by an Executive order to be kept secret in the interest of
national defense or foreign policy and that are, in fact, properly
classified under the Executive order.
    (2) Internal personnel rules and practices. Related solely to the
internal personnel rules and practices of an agency.
    (3) Information exempt under other laws. Specifically exempted from
disclosure by statute, provided that the statute--
    (i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue or
    (ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
    (4) Confidential business information. Trade secrets and commercial
or financial information obtained from a person and privileged or
confidential.
    (5) Internal government communications. Interagency or intra-agency
memorandums or letters which would not be available by law to a party
other than an agency in litigation with the agency.
    (6) Personal privacy. Personnel, medical, and similar files the
disclosure of which would constitute a clearly unwarranted invasion of
personal privacy.
    (7) Law enforcement. Records or information compiled for law
enforcement purposes, but only to the extent that the production of such
law enforcement records or information:
    (i) Could reasonably be expected to interfere with enforcement
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a 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) Financial institutions. Contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of an agency responsible for the regulation or supervision of
financial institutions.
    (9) Geological information. Geological and geophysical information
and data, including maps, concerning wells.
    (b) The Section will provide any reasonably segregable portion of a
record to a requester after deletion of the portions that are exempt
under this section.
    (c) The section will invoke no exemption under this section if the
requested records are available to the requester under the Privacy Act
of 1974 and its implementing regulations.
    (d) Whenever a request is made which involves access to records
described in paragraph (a)(7)(i) of this section and
    (1) The investigation or proceeding involves a possible violation of
criminal law, and
    (2) There is reason to believe that the subject of the investigation
or proceeding is not aware of its pendency, and disclosure of the
existence of the records could reasonably be expected to interfere with
enforcement proceedings, the agency may, during only such time as that
circumstance continues, treat the records as not subject to the
requirements of this section.



Sec. 1102.9  Annual report to Congress.

    (a) On or before March 1 of each calendar year the Commissioner
shall submit a report covering the preceding calendar year to the
Speaker of the

[[Page 339]]

House of Representatives and President of the Senate for referral to the
appropriate committees of the Congress. The report shall include:
    (1) The number of determinations made by the section not to comply
with request for records made to the section under the Act and this part
and the reasons for each such determination.
    (2) The number of appeals made by persons under the Act and this
part, the result of such appeals, and the reason for the action upon
each appeal that results in a denial of information.
    (3) The names and titles or positions of each person responsible for
the denial of records requested under the Act, and the number of
instances of participation for each.
    (4) The results of each proceeding conducted pursuant to
552(1)(4)(F) of the Act, including a report of the disciplinary action
taken against the officer or employee who was primarily responsible for
improperly withholding records or an explanation of why disciplinary
action was not taken.
    (5) A copy of this part.
    (6) A copy of the fee schedule and the total amount of fees
collected by the section for making records available under the Act.
    (7) Such other information as indicates efforts to administer fully
the Act.
    (b) A copy of each such report to the Congress made pursuant to
paragraph (a) of this section will be made available for public
inspection and copying in the office of the FOIA Officer, United States
Section, International Boundary and Water Commission, 4171 North Mesa,
Suite C-310, El Paso, TX 79902-1422.



Sec. 1102.10  Examination of records.

    When a request to examine records is approved by the FOIA Officer,
every reasonable effort will be made to provide facilities for the
purpose of such examination. ``On the spot'' copying will be available
if the FOIA Officer decides there will be no interference with ordinary
activities or routine business of the section.



 PART 1103_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
 IN PROGRAMS OR ACTIVITIES CONDUCTED BY INTERNATIONAL BOUNDARY AND

 WATER COMMISSION, UNITED STATES AND MEXICO, UNITED STATES
 SECTION--Table of Contents



Sec.
1103.101 Purpose.
1103.102 Application.
1103.103 Definitions.
1103.104-1103.109 [Reserved]
1103.110 Self-evaluation.
1103.111 Notice.
1103.112-1103.1103 [Reserved]
1103.130 General prohibitions against discrimination.
1103.131-1103.139 [Reserved]
1103.140 Employment.
1103.141-1103.148 [Reserved]
1103.149 Program accessibility: Discrimination prohibited.
1103.150 Program accessibility: Existing facilities.
1103.151 Program accessibility: New construction and alterations.
1103.152-1103.159 [Reserved]
1103.160 Communications.
1103.161-1103.169 [Reserved]
1103.170 Compliance procedures.
1103.171-1103.999 [Reserved]

    Authority: 29 U.S.C. 794.

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



Sec. 1103.101  Purpose.

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



Sec. 1103.102  Application.

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



Sec. 1103.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.

[[Page 340]]

    Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with hearing
aids, telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
    Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one of more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addition and
alcholism.
    (2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can achieve the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by Sec. 1103.140.

[[Page 341]]

    Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.

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



Sec. Sec. 1103.104-1103.109  [Reserved]



Sec. 1103.110  Self-evaluation.

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



Sec. 1103.111  Notice.

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



Sec. Sec. 1103.112-1103.129  [Reserved]



Sec. 1103.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualfied handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
    (3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of

[[Page 342]]

administration the purpose or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive order to a different
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.



Sec. Sec. 1103.131-1103.139  [Reserved]



Sec. 1103.140  Employment.

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



Sec. Sec. 1103.141-1103.148  [Reserved]



Sec. 1103.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1103.150, no qualified
handicapped person shall, because the agency's facilities are
inaccessible to or unusable by handicapped persons, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.



Sec. 1103.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not--
    (1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons; or
    (2) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1103.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
    (b) Methods. The agency may comply with the requirements of this
section

[[Page 343]]

through such means as redesign of equipment, reassignment of services to
accessible buildings, assignment of aides to beneficiaries, home visits,
delivery of services at alternate accessible sites, alteration of
existing facilities and construction of new facilities, use of
accessible rolling stock, or any other methods that result in making its
programs or activities readily accessible to and usable by handicapped
persons. The agency is not required to make structural changes in
existing facilities where other methods are effective in achieving
compliance with this section. The agency, in making alterations to
existing buildings, shall meet accessibility requirements to the extent
compelled by the Architectural Barriers Act of 1968, as amended (42
U.S.C. 4151-4157), and any regulations implementing it. In choosing
among available methods for meeting the requirements of this section,
the agency shall give priority to those methods that offer programs and
activities to qualified handicapped persons in the most integrated
setting appropriate.
    (c) Time period for compliance. The agency shall comply with the
obligations established under this section by June 6, 1986, except that
where structural changes in facilities are undertaken, such changes
shall be made by April 7, 1989, but in any event as expeditiously as
possible.
    (d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by October 7, 1986, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to handicapped
persons;
    (2) Describe in detail the methods that will be used to make the
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the
plan.

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



Sec. 1103.151  Program accessibility: New construction and alterations.

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



Sec. Sec. 1103.152-1103.159  [Reserved]



Sec. 1103.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
    (ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
    (2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including
persons

[[Page 344]]

with impaired vision or hearing, can obtain information as to the
existence and location of accessible services, activities, and
facilities.
    (c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1103.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, handicapped persons receive the benefits and services
of the program or activity.



Sec. Sec. 1103.161-1103.169  [Reserved]



Sec. 1103.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
    (c) Director, Equal Employment Opportunity shall be responsible for
coordinating implementation of this section. Complaints may be sent to
Director, Equal Employment Opportunity, International Boundary and Water
Commission, United States and Mexico, United States Section, The
Commons, Building C, Suite 310, 4171 North Mesa, El Paso, Texas 79902.
    (d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
    (f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 1103.170(g). The agency may
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of
the agency.
    (j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt

[[Page 345]]

of the request. If the head of the agency determines that additional
information is needed from the complainant, he or she shall have 60 days
from the date of receipt of the additional information to make his or
her determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.

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



Sec. Sec. 1103.171-1103.999  [Reserved]



PART 1104_PROTECTION OF ARCHAEOLOGICAL RESOURCES--Table of Contents



Sec.
1104.1 Purpose.
1104.2 Definitions.
1104.3 Prohibited acts.
1104.4 Permit requirements and exceptions.
1104.5 Application for permits and information collection.
1104.6 Notification to Indian tribes of possible harm to, or destruction
          of, sites on public lands having religious or cultural
          importance.
1104.7 Issuance of permits.
1104.8 Terms and conditions of permits.
1104.9 Suspension and revocation of permits.
1104.10 Appeals relating to permits.
1104.11 Relationship to section 106 of the National Historic
          Preservation Act.
1104.12 Custody of archaeological resources.
1104.13 Determination of archaeological or commercial value and cost of
          restoration and repair.
1104.14 Assessment of civil penalties.
1104.15 Civil penalty amounts.
1104.16 Other penalties and rewards.
1104.17 Confidentiality of archaeological resource information.
1104.18 Report to the Secretary of the Interior.

    Authority: Pub. L. 96-95, 93 Stat. 721 (16 U.S.C. 470aa-11) (Sec.
10(a).) Related Authority: Pub. L. 59-209, 34 Stat. 225 (16 U.S.C. 432,
433); Pub. L. 86-523, 74 Stat. 220, 221 (16 U.S.C. 469), as amended, 88
Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470a-t), as
amended, 84 Stat. 204 (1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976),
92 Stat. 3467 (1978), 94 Stat. 2987 (1980); Pub. L. 95-341, 92 Stat. 469
(42 U.S.C. 1996).

    Source: 56 FR 21590, May 10, 1991, unless othewise noted.



Sec. 1104.1  Purpose.

    (a) The regulations in this part implement provisions of the
Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa-11) by
establishing the definitions, standards, and procedures to be followed
by the Commissioner in providing protection for archaeological
resources, located on public lands through permits authorizing
excavation and/or removal of archaeological resources, through civil
penalties for unauthorized excavation and/or removal, through provisions
for the preservation of archaeological resource collections and data,
and through provisions for ensuring confidentiality of information about
archaeological resources when disclosure would threaten the
archaeological resources.
    (b) The regulations in this part do not impose any new restrictions
on activities permitted under other laws, authorities, and regulations
relating to mining, mineral leasing, reclamation, and other multiple
uses of the public lands.



Sec. 1104.2  Definitions.

    As used for purposes of this part:
    (a) Archaeological resource means any material remains of human life
or activities which are at least 100 years of age, and which are of
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific
or humanistic understandings of past human behavior, cultural
adaptation, and related topics through the application of scientific or
scholarly techniques such as controlled observation, contextual
measurement, controlled collection, analysis, interpretation and
explanation.
    (2) Material remains means physical evidence of human habitation,
occupation, use, or activity, including the site, location, or context
in which such evidence is situated.
    (3) The following classes of material remains (and illustrative
examples), if they are at least 100 years of age, are of archaeological
interest and shall be

[[Page 346]]

considered archaeological resources unless determined otherwise pursuant
to paragraph (a)(4) or (a)(5) of this section:
    (i) Surface or subsurface structures, shelters, facilities, or
features (including, but not limited to, domestic structures, storage
structures, cooking structures, ceremonial structures, artificial
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces,
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits,
burial pits or graves, hearths, kilns, post molds, wall trenches,
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons
and weapon projectiles, clothing, and ornaments (including, but not
limited to, pottery and other ceramics, cordage, basketry and other
weaving, bottles and other glassware, bone, ivory, shell, metal, wood,
hide, feathers, pigments, and flaked, ground, or pecked stone);
    (iv) By-products, waste products, or debris resulting from
manufacture or use of human-made or natural materials;
    (v) Organic waste (including but not limited to, vegetable and
animal remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth,
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios and other works of
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of
the above material remains;
    (ix) All portions of shipwrecks (including but not limited to,
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any of the foregoing.
    (4) The following material remains shall not be considered of
archaeological interest, and shall not be considered to be
archaeological resources for purposes of the Act and this part, unless
found in a direct physical relationship with archaeological resources as
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Commissioner may determine that certain material remains, in
specified areas under the Commissioner's jurisdiction, and under
specified circumstances, are not or are no longer of archaeological
interest and are not to be considered archaeological resources under
this part. Any determination made pursuant to this subparagraph shall be
documented. Such Determination shall in no way affect the Commissioner's
obligations under other applicable laws or regulations.
    (b) Arrowhead means any projectile point which appears to have been
designed for use with an arrow.
    (c) Commissioner means the head of the United States Section,
International Boundary and Water Commission, United States and Mexico,
and his delegate.
    (d) Public lands means lands to which the United States of America
holds fee title, and which are under the control of the U.S. Section,
International Boundary and Water Commission, United States and Mexico.
    (e) Indian tribe as defined in the Act means any Indian tribe, band,
nation, or other organized group or community. In order to clarify this
statutory definition for purposes of this part, Indian tribe means:
    (1) Any tribal entity which is included in the annual list of
recognized tribes published in the Federal Register by the Secretary of
the Interior pursuant to 25 CFR part 54;
    (2) Any other tribal entity acknowledged by the Secretary of the
Interior pursuant to 25 CFR part 54 since the most recent publication of
the annual list;
    (f) Person means an individual, corporation, partnership, trust,
institution, association, or any other private entity, or any officer,
employee, agent, department, or instrumentality of the United States, or
of any Indian tribe, or of any State or political subdivision thereof.
    (g) State means any of the fifty states, the District of Columbia,
Puerto Rico, Guam, and the Virgin Islands.
    (h) Act means the Archaeological Resources Protection Act of 1979
(16 U.S.C. 470aa-11.), as amended.

[[Page 347]]



Sec. 1104.3  Prohibited acts.

    (a) No person may excavate, remove, damage, or otherwise alter or
deface any archaeological resource located on public lands unless such
activity is pursuant to a permit issued under Sec. 1104.7 or exempted
by Sec. 1104.4(b) of this part.
    (b) No person may sell, purchase, exchange, transport, or receive
any archaeological resource, if such resource was excavated or removed
in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect
under any other provision of Federal law.



Sec. 1104.4  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological
resources from public lands, and to carry out activities associated with
such excavation and/or removal, shall apply to the Commissioner for a
permit for the proposed work, and shall not begin the proposed work
until a permit has been issued. The Commissioner may issue a permit to
any qualified person, subject to appropriate terms and conditions,
provided that the person applying for a permit meets conditions in Sec.
1104.7(a) of this part.
    (b) Exceptions:
    (1) No permit shall be required under this part for any person
conducting activities on the public lands under other permits, leases,
licenses, or entitlements for use, when those activities are exclusively
for purposes other than the excavation and/or removal of archaeological
resources, even though those activities might incidentally result in the
disturbance of archaeological resources. General earth-moving excavation
conducted under a permit or other authorization shall not be construed
to mean excavation and/or removal as used in this part. This exception
does not, however, affect the Commissioner's responsibility to comply
with other authorities which protect archaeological resources prior to
approving permits, leases, licenses, or entitlements for use; any
excavation and/or removal of archaeological resources required for
compliance with those authorities shall be conducted in accordance with
the permit requirements of this part.
    (2) No permit shall be required under this part for any person
collecting for private purposes any rock, coin, bullet, or mineral which
is not an archaeological resource as defined in this part, provided that
such collecting does not result in disturbance of any archaeological
resource.
    (3) No permit shall be required under section 3 of the Act of June
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit
is issued under this part.
    (c) Persons carrying out official agency duties under the
Commissioner's direction, associated with the management of
archaeological resources, need not follow the permit application
procedures of Sec. 1104.5. However, the Commissioner shall insure that
provisions of Sec. Sec. 1104.7 and 1104.8 have been met by other
documented means, and that any official duties which might result in
harm to or destruction of any Indian tribal religious or cultural site,
as determined by the Commissioner, have been the subject of
consideration under Sec. 1104.6.
    (d) Upon the written request of the Governor of any State, on behalf
of the State or its educational institutions, the Commissioner shall
issue a permit, subject to the provisions of Sec. Sec. 1104.4(b)(5),
1104.6, 1104.7(a) (3), (4), (5), (6), and (7), 1104.8, 1104.9, 1104.11,
and 1104.12(a) to such Governor or to such designee as the Governor
deems qualified to carry out the intent of the Act, for purposes of
conducting archaeological research, excavating and/or removing
archaeological resources, and safeguarding and preserving any materials
and data collected in a university, museum, or other scientific or
educational institution approved by the Commissioner.
    (e) Under other statutory, regulatory, or administrative authorities
governing the use of public lands, authorizations may be required for
activities which do not require a permit under this part. Any person
wishing to conduct on public lands any activities related to but
believed to fall outside the scope of this part should consult with the
Commissioner, for the purpose

[[Page 348]]

of determining whether any authorization is required, prior to beginning
such activities.



Sec. 1104.5  Application for permits and information collection.

    (a) Any person may apply to the Commissioner for a permit to
excavate and/or remove archaeological resources from public lands and to
carry out activities associated with such excavation and/or removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and
why it is proposed to be conducted, proposed time of performance,
locational maps, and proposed outlet for public written dissemination of
the results.
    (2) The name and address of the individual(s) proposed to be
responsible for conducting the work, institutional affiliation, if any,
and evidence of education, training, and experience in accord with the
minimal qualifications listed in Sec. 1104.7(a).
    (3) The name and address of the individual(s), if different from the
individual(s) named in paragraph (b)(2) of this section, proposed to be
responsible for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct, and
complete the proposed work, including evidence of logistical support and
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of
archaeological resources on public lands, the names of the university,
museum, or other scientific or educational institution in which the
applicant proposes to store all collections, and copies of records,
data, photographs, and other documents derived from the proposed work.
Applicants shall submit written certification, signed by an authorized
official of the institution, of willingness to assume curatorial
responsibility for the collections, records, data, photographs and other
documents and to safeguard and preserve these materials as property of
the United States.
    (c) The Commissioner may require additional information, pertinent
to land management responsibilities, to be included in the application
for permit and shall so inform the applicant.
    (d) Paperwork Reduction Act. The information collection requirement
contained in Sec. 1104.5 of these regulations has been approved by the
Office of Management and Budget under 44 U.S.C. 3501 et seq. and
assigned clearance number 1024-0037. The purpose of the information
collection is to meet statutory and administrative requirements in the
public interest. The information will be used to assist the Commissioner
in determining that applicants for permits are qualified, that the work
proposed would further archaeological knowledge, that archaeological
resources and associated records and data will be properly preserved,
and that the permitted activity would not conflict with the management
of the public lands involved. Response to the information requirement is
necessary in order for an applicant to obtain a benefit.



Sec. 1104.6  Notification to Indian tribes of possible harm to, or
destruction of, sites on public lands having religious or cultural

importance.

    (a) If the issuance of a permit under this part may result in harm
to, or destruction of, any Indian tribal religious or cultural site on
public lands, as determined by the Commissioner, at least 30 days before
issuing such a permit the Commissioner shall notify any Indian tribe
which may consider the site as having religious or cultural importance.
Such notice shall not be deemed a disclosure to the public for purposes
of section 9 of the Act.
    (1) Notice by the Commissioner to any Indian tribe shall be sent to
the chief executive officer or other designated official of the tribe.
Indian tribes are encouraged to designate a tribal official to be the
focal point for any notification and discussion between the tribe and
the Commissioner.
    (2) The Commissioner may provide notice to any other Native American
group that is known by the Commissioner to consider sites potentially
affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Commissioner may meet
with official representatives of any Indian

[[Page 349]]

tribe or group to discuss their interests, including ways to avoid or
mitigate potential harm or destruction such as excluding sites from the
permit area. Any mitigation measures which are adopted shall be
incorporated into the terms and conditions of the permit under Sec.
1104.8.
    (4) When the Commissioner determines that a permit applied for under
this part must be issued immediately because of an imminent threat of
loss or destruction of an archaeological resource, the Commissioner
shall so notify the appropriate tribe.
    (b)(1) In order to identify sites of religious or cultural
importance, the Commissioner shall seek to identify all Indian tribes
having aboriginal or historic ties to the lands under the Commissioner's
jurisdiction and seek to determine, from the chief executive officer or
other designated official of any such tribe, the location and nature of
specific sites of religious or cultural importance so that such
information may be on file for land management purposes. Information on
site eligible for or included in the National Register of Historic
Places may be withheld from public disclosure pursuant to section 304 of
the Act of October 15, 1966, as amended (16 U.S.C. 470w-3).
    (2) If the Commissioner becomes aware of a Native American group
that is not an Indian tribe as defined in this part but has aboriginal
or historic ties to public lands under the Commissioner's jurisdiction,
the Commissioner may seek to communicate with official representatives
of that group to obtain information on sites they may consider to be of
religious or cultural importance.
    (3) The Commissioner may enter into agreement with any Indian tribe
or other Native American group for determining locations for which such
tribe or group wishes to receive notice under this section.



Sec. 1104.7  Issuance of permits.

    (a) The Commissioner may issue a permit, for a specified period of
time appropriate to the work to be conducted, upon determining that:
    (1) The applicant is appropriately qualified, as evidenced by
training, education, and/or experience, and possesses demonstrable
competence in archaeological theory and methods, and in collecting,
handling, analyzing, evaluating, and reporting archaeological data,
relative to the type and scope of the work proposed, and also meets the
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as
evidenced by timely completion of theses, research reports, or similar
documents;
    (iv) Completion of at least 16 months of professional experience
and/or specialized training in archaeological field, laboratory, or
library research, administration, or management, including at least 4
months experience and/or specialized training in the kind of activity
the individual proposes to conduct under authority of a permit; and
    (v) Applicants proposing to engage in historical archaeology should
have had at least one year of experience in research concerning
archaeological resources of the prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of
furthering archaeological knowledge in the public interest, which may
include but need not be limited to, scientific or scholarly research,
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose,
is not inconsistent with any management plan or established policy,
objectives, or requirements applicable to the management of the public
lands concerned;
    (4) Where the proposed work consists of archaeological survey and/or
data recovery undertaken in accordance with other approved uses of the
public lands, and the proposed work has been agreed to in writing by the
Commissioner pursuant to section 106 of the National Historic
Preservation Act (16 U.S.C. 470f), paragraphs (a)(2) and (a)(3) of this
section shall be deemed satisfied by the prior approval;

[[Page 350]]

    (5) Evidence is submitted to the Commissioner that any university,
museum, or other scientific or educational institution proposed in the
application as the repository possesses adequate curatorial capability
for safeguarding and preserving the archaeological resources and all
associated records; and
    (6) The applicant has certified that, not later than 90 days after
the date the final report is submitted to the Commissioner, the
following will be delivered to the appropriate official of the approved
university, museum, or other scientific or educational institution,
which shall be named in the permit:
    (i) All artifacts, samples, collections, and copies of records,
data, photographs, and other documents resulting from work conducted
under the requested permit where the permit is for the excavation and/or
removal of archaeological resources from public lands.
    (b) When the area of the proposed work would cross jurisdictional
boundaries, so that permit applications must be submitted to more than
one Federal agency, the Commissioner shall coordinate the review and
evaluation of applications and the issuance of permits.



Sec. 1104.8  Terms and conditions of permits.

    (a) In all permits issued, the Commissioner shall specify:
    (1) The nature and extent of work allowed and required under the
permit, including the time, duration, scope, location, and purpose of
the work;
    (2) The name of the individual(s) responsible for conducting the
work and, if different, the name of the individual(s) responsible for
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or
educational institutions in which any collected materials and data shall
be deposited; and
    (4) Reporting requirements.
    (b) The Commissioner may specify such terms and conditions as deemed
necessary, consistent with this part, to protect public safety and other
values and/or resources, to secure work areas, to safeguard other
legitimate land uses, and to limit activities incidental to work
authorized under a permit.
    (c) Initiation of work or other activities under the authority of a
permit signifies the permittee's acceptance of the terms and conditions
of the permit.
    (d) The permittee shall not be released from requirements of a
permit until all outstanding obligations have been satisifed, whether or
not the term of the permit has expired.
    (e) The permittee may request that the Commissioner extend or modify
a permit.
    (f) The permittee's performance under any permit issued for a period
greater than 1 year shall be subject to review by the Commissioner, at
least annually.



Sec. 1104.9  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Commissioner may
suspend a permit issued pursuant to this part upon determining that the
permittee has failed to meet any of the terms and conditions of the
permit or has violated any prohibition of the Act or Sec. 1104.3. The
Commissioner shall provide written notice to the permittee of the
suspension, the cause thereof, and the requirements which must be met
before the suspension will be removed.
    (2) The Commissioner may revoke a permit upon assessment of a civil
penalty under Sec. 1104.14 upon the permittee's conviction under
section 6 of the Act, or upon determining that the permittee has failed
after notice under this section to correct the situation which led to
suspension of the permit.
    (b) Suspension or revocation for management purposes. The
Commissioner may suspend or revoke a permit, without liability to the
United States, its agents, or employees, when continuation of work under
the permit would be in conflict with management requirements not in
effect when the permit was issued. The Commissioner shall provide
written notice to the permittee stating the nature of and basis for the
suspension or revocation.



Sec. 1104.10  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit
issuance, suspension, revocation, and terms and conditions of a permit.

[[Page 351]]



Sec. 1104.11  Relationship to section 106 of the National Historic
Preservation Act.

    Issuance of a permit in accordance with the Act and this part does
not constitute an undertaking requiring compliance with section 106 of
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance
of such a permit does not excuse the Commissioner from compliance with
section 106 where otherwise required.



Sec. 1104.12  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from the public
lands remain the property of the United States.
    (b) The Commissioner may provide for the exchange of archaeological
resources among suitable universities, museums, or other scientific or
educational institutions, when such resources have been excavated or
removed from public lands under the authority of a permit issued by the
Commissioner.



Sec. 1104.13  Determination of archaeological or commercial value and
cost of restoration and repair.

    (a) Archaeological value. For purposes of this part, the
archaeological value of any archaeological resource involved in a
violation of the prohibitions in Sec. 1104.3 of this part or conditions
of a permit issued pursuant to this part shall be the value of the
information associated with the archaeological resource. This value
shall be appraised in terms of the costs of the retrieval of the
scientific information which would have been obtainable prior to the
violation. These costs may include, but need not be limited to, the cost
of preparing a research design, conducting field work, carrying out
laboratory analysis, and preparing reports as would be necessary to
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial
value of any archaeological resource involved in a violation of the
prohibitions in Sec. 1104.3 of this part or conditions of a permit
issued pursuant to this part shall be its fair market value. Where the
violation has resulted in damage to the archaeological resource, the
fair market value should be determined using the condition of the
archaeological resource prior to the violation, to the extent that its
prior condition can be ascertained.
    (c) Cost of restoration and repair. For purposes of this part, the
cost of restoration and repair of archaeological resources damaged as a
result of a violation of prohibitions or conditions pursuant to this
part, shall be the sum of the costs already incurred for emergency
restoration or repair work, plus those costs projected to be necessary
to complete restoration and repair, which may include, but need not be
limited to, the costs of the following:
    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;
    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by
the disturbance of the archaeological resource, to protect it from
further disturbance;
    (6) Examination and analysis of the archaeological resource
including recording remaining archaeological information, where
necessitated by disturbance, in order to salvage remaining values which
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with religious custom
and State, local, or tribal law, where appropriate, as determined by the
Commissioner;
    (8) Preparation of reports relating to any of the above activities.



Sec. 1104.14  Assessment of civil penalties.

    (a) The Commissioner may assess a civil penalty against any person
who has violated any prohibition contained in Sec. 1104.3 or who has
violated any term or condition included in a permit issued in accordance
with the Act and this part.
    (b) Notice of violation. The Commissioner shall serve a notice of
violation upon any person believed to be subject to a civil penalty,
either in person or by registered or certified mail (return

[[Page 352]]

receipt requested). The Commissioner shall include in the notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any
initial proposal to mitigate or remit where appropriate, or a statement
that notice of a proposed penalty amount will be served after the
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant
to paragraph (d) of this section, or to await the Commissioner's notice
of assessment, and to request a hearing in accordance with paragraph (g)
of this section. The notice shall also inform the person of the right to
seek judicial review of any final administrative decision assessing a
civil penalty.
    (c) The person served with a notice of violation shall have 45
calendar days from the date of its service (or the date of service of a
proposed penalty amount, if later) in which to respond. During this time
the person may:
    (1) Seek informal discussions with the Commissioner;
    (2) File a petition for relief in accordance with paragraph (d) of
this section;
    (3) Take no action and await the Commissioner's notice of
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any
mitigation or remission offered in the notice. Acceptance of the
proposed penalty or mitigation or remission shall be deemed a waiver of
the notice of assessment and of the right to request a hearing under
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of
violation may request that no penalty be assessed or that the amount be
reduced, by filing a petition for relief with the Commissioner within 45
calendar days of the date of service of the notice of violation (or of a
proposed penalty amount, if later). The petition shall be in writing and
signed by the person served with the notice of violation. If the person
is a corporation, the petition must be signed by an officer authorized
to sign such documents. The petition shall set forth in full the legal
or factual basis for the requested relief.
    (e) Assessment of penalty. (1) The Commissioner shall assess a civil
penalty upon expiration of the period for filing a petition for relief,
upon completion of review of any petition filed, or upon completion of
informal discussions, whichever is later.
    (2) The Commissioner shall take into consideration all available
information, including information provided pursuant to paragraphs (c)
and (d) of this section or furnished upon further request by the
Commissioner.
    (3) If the facts warrant a conclusion that no violation has
occurred, the Commissioner shall so notify the person served with a
notice of violation, and no penalty shall be assessed.
    (4) Where the facts warrant a conclusion that a violation has
occurred, the Commissioner shall determine a penalty amount in
accordance with Sec. 1104.15.
    (f) Notice of assessment. The Commissioner shall notify the person
served with a notice of violation of the penalty amount assessed by
serving a written notice of assessment, either in person or by
registered or certified mail (return receipt requested). The
Commissioner shall include in the notice of assessment:
    (1) The facts and conclusions from which it was determined that a
violation did occur;
    (2) The basis in Sec. 1104.15 for determining the penalty amount
assessed and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the
procedures to be followed, and to seek judicial review of any final
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is
deemed to have been waived as provided in paragraph (c)(4) of this
section, the person served with a notice of assessment may file a
written request for a hearing with the adjudicatory body specified in
the notice. The person shall enclose with the request for hearing a copy
of

[[Page 353]]

the notice of assessment, and shall deliver the request as specified in
the notice of assessment, personally or by registered or certified mail
(return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45
days of the date of service of the notice of assessment shall be deemed
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil
penalty assessed shall be determined in accordance with this part, and
shall not be limited by the amount assessed by the Commissioner under
paragraph (f) of this section or any offer of mitigation or remission
made by the Commissioner.
    (h) Final administrative decision. (1) Where the person served with
a notice of violation has accepted the penalty pursuant to paragraph
(c)(4) of this section, the notice of violation shall constitute the
final administrative decision;
    (2) Where the person served with a notice of assessment has not
filed a timely request for a hearing pursuant to paragraph (g)(1) of
this section, the notice of assessment shall constitute the final
administrative decision;
    (3) Where the person served with a notice of assessment has filed a
timely request for a hearing pursuant to paragraph (g)(1) of this
section, the decision resulting from the hearing or any applicable
administrative appeal therefrom shall constitute the final
administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty
shall have 45 calendar days from the date of issuance of the final
administrative decision in which to make full payment of the penalty
assessed, unless a timely request for appeal has been filed with a
United States District Court as provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Commissioner may request
the Attorney General to institute a civil action to collect the penalty
in a United States District Court for any district in which the person
assessed a civil penalty is found, resides, or transacts business. Where
the Commissioner is not represented by the Attorney General, a civil
action may be initiated directly by the Commissioner.
    (j) Other remedies not waived. Assessment of a penalty under this
section shall not be deemed a waiver of the right to pursue other
available legal or administrative remedies.



Sec. 1104.15  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a
civil penalty has not committed any previous violation of any
prohibition in Sec. 1104.3 or of any term or condition included in a
permit issued pursuant to this part, the maximum amount of the penalty
shall be the full cost of restoration and repair of archaeological
resources damaged plus the archaeological or commercial value of
archaeological resources destroyed or not recovered.
    (2) Where the person being assessed a civil penalty has committed
any previous violation of any prohibition in Sec. 1104.3 or of any term
or condition included in a permit issued pursuant to this part, the
maximum amount of the penalty shall be double the cost of restoration
and repair plus double the archaeological or commercial value of
archaeological resources destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the
surface of the ground shall not be subject to the penalties prescribed
in this section.
    (b) Determination of penalty amount, mitigation, and remission. The
Commissioner may assess a penalty amount less than the maximum amount of
penalty and may offer to mitigate or remit the penalty.
    (1) Determination of the penalty amount and/or a proposal to
mitigate or remit the penalty may be based upon any of the following
factors:
    (i) Agreement by the person being assessed a civil penalty to return
to the Commissioner archaeological resources removed from public lands;
    (ii) Agreement by the person being assessed a civil penalty to
assist the Commissioner in activity to preserve, restore, or otherwise
contribute to the protection and study of archaeological resources on
public lands;

[[Page 354]]

    (iii) Agreement by the person being assessed a civil penalty to
provide information which will assist in the detection, prevention, or
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that
this factor shall only be considered when the person being assessed a
civil penalty has not been found to have previously violated the
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did
not willfully commit the violation;
    (vi) Determination that the proposed penalty would constitute
excessive punishment under the circumstances;
    (vii) Determination of other mitigating circumstances appropriate to
consideration in reaching a fair and expeditious assessment.
    (2) When the penalty is for a violation which may have had an effect
on a known Indian tribal religious or cultural site on public lands, the
Commissioner should consult with and consider the interests of the
affected tribe(s) prior to proposing to mitigate or remit the penalty.



Sec. 1104.16  Other penalties and rewards.

    (a) Section 6 of the Act contains criminal prohibitions and
provisions for criminal penalties. Section 8(b) of the Act provides that
archaeological resources, vehicles, or equipment involved in a violation
may be subject to forfeiture.
    (b) Section 8(a) of the Act provides for rewards to be made to
persons who furnish information which leads to conviction for a criminal
violation or to assessment of a civil penalty. The Commissioner may
certify to the Secretary of the Treasury that a person is eligible to
receive payment. Officers and employees of Federal, State, or local
government who furnish information or render service in the performance
of their official duties, and persons who have provided information
under Sec. 1104.15(b)(1)(iii) shall not be certified eligible to
receive payment of rewards.



Sec. 1104.17  Confidentiality of archaeological resource information.

    (a) The Commissioner shall not make available to the public, under
subchapter II of chapter 5 of title 5 of the United States Code or any
other provision of law, information concerning the nature and location
of any archaeological resource, with the following exceptions:
    (1) The Commissioner may make information available, provided that
the disclosure will further the purposes of the Act and this part, or
the Act of June 27, 1960, as amended (16 U.S.C. 469-469c), without
risking harm to the archaeological resource or to the site in which it
is located.
    (2) The Commissioner shall make information available, when the
Governor of any State has submitted to the Commissioner a written
request for information, concerning the archaeological resources within
the requesting Governor's State, provided that the request includes:
    (i) The specific archaeological resource or area about which
information is sought;
    (ii) The purpose for which the information is sought; and
    (iii) The Governor's written commitment to adequately protect the
confidentiality of the information.



Sec. 1104.18  Report to the Secretary of the Interior.

    The Commissioner, when requested by the Secretary of the Interior,
shall submit such information as is necessary to enable the Secretary to
comply with section 13 of the Act.

                       PARTS 1105	1199 [RESERVED]

[[Page 355]]



 CHAPTER XII--UNITED STATES INTERNATIONAL DEVELOPMENT COOPERATION AGENCY




  --------------------------------------------------------------------
Part                                                                Page
1200

[Reserved]

1201            Public information..........................         357
1202            Regulations to implement the Privacy Act of
                    1974....................................         357
1203            Employee responsibilities and conduct.......         357
1204-1299

 [Reserved]

[[Page 357]]

                          PARTS 1200 [RESERVED]



PART 1201_PUBLIC INFORMATION--Table of Contents



    Authority: Sec. 621, 22 U.S.C. 2381, as amended; 5 U.S.C. 552.

    Cross Reference: The regulations establishing procedures under the
Freedom of Information Act for the United States International
Development Cooperation Agency are codified in 22 CFR 212.1 through
212.51, prescribed jointly by the United States International
Development Cooperation Agency and the Agency for International
Development.

[45 FR 20790, Mar. 31, 1980]



PART 1202_REGULATIONS TO IMPLEMENT THE PRIVACY ACT OF 1974--Table of
Contents



    Authority: Sec. 621, 22 U.S.C. 2381, as amended; 5 U.S.C. 552a.

    Cross Reference-- The regulations establishing procedures by which
an individual may obtain notification of the existence of agency records
pertaining to that individual, gain access to those records, request an
amendment to those records, and appeal adverse decisions to requests for
amendment or correction of agency records are codified as 22 CFR 215.1
through 215.14, prescribed jointly by the United States International
Development Cooperation Agency and the Agency for International
Development.

[45 FR 20791, Mar. 31, 1980]



PART 1203_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



                      Subpart A_General Provisions

Sec.
1203.735-101 Purpose.
1203.735-102 Definitions.
1203.735-103 Interpretation and advisory service.
1203.735-104 Applicability to detailed employees.
1203.735-105 Disciplinary action.

  Subpart B_Ethical and Other Conduct and Responsibilities of Employees

1203.735-201 General.
1203.735-202 Gifts, entertainment, and favors.
1203.735-203 Gifts from foreign governments.
1203.735-204 Outside employment and other activity.
1203.735-205 Financial interests.
1203.735-206 Economic and financial activities of employees abroad.
1203.735-207 Use of Government property.
1203.735-208 Misuse of information.
1203.735-209 Indebtedness.
1203.735-210 Gambling, betting, and lotteries.
1203.735-211 Activities relating to private organizations and politics.
1203.735-212 Wearing of uniforms.
1203.735-213 Recommendations for employment.
1203.735-214 Transmitting communications and gifts.
1203.735-215 General conduct prejudicial to the Government.
1203.735-216 Miscellaneous statutory provisions.
1203.735-217 Requesting exceptions from certain statutory prohibitions.

  Subpart C_Ethical and Other Conduct and Responsibilities of Special
                          Government Employees

1203.735-301 Conflicts of interest.
1203.735-302 Use of Government employment.
1203.735-303 Use of inside information.
1203.735-304 Coercion.
1203.735-305 Gifts, entertainment, and favors.
1203.735-306 Miscellaneous statutory provisions.

       Subpart D_Statements of Employment and Financial Interests

1203.735-401 Employees required to submit statements.
1203.735-402 Employees not required to submit statements.
1203.735-403 Employee's complaint on filing requirement.
1203.735-404 Time and place of submission, and forms.
1203.735-405 Information required.
1203.735-406 Submission of position description.
1203.735-407 Supplementary statements.
1203.735-408 Review of statements and determination as to conflicts of
          interest.
1203.735-409 Confidentiality of employees' statements.
1203.735-410 Effect of employees' statements on other requirements.
1203.735-411 Disqualification procedures.

    Authority: EO 11222 of May 8, 1965, as amended; 5 CFR 735.104.

    Source: 43 FR 18976, May 2, 1978; 45 FR 18922, Mar. 24, 1980, unless
otherwise noted.

[[Page 358]]



                      Subpart A_General Provisions



Sec. 1203.735-101  Purpose.

    The maintenance of the highest standards of honesty, integrity,
impartiality, and conduct by Government employees and special Government
employees is essential to assure the proper performance of the
Government business and the maintenance of confidence by citizens in
their Government. The avoidance of misconduct and conflicts of interest
on the part of Government employees and special Government employees
through informed judgment is indispensable to the maintenance of these
standards. To accord with these concepts the regulations in this part
prescribe standards of conduct and responsibilities for employees and
special Government employees and require statements reporting employment
and financial interests.

    Note: These regulations are codified in State 3 FAM 620, AID
Handbook 24, and ICA MOA V-A 550.



Sec. 1203.735-102  Definitions.

    (a) Agency means the United States International Development
Cooperation Agency (IDCA).
    (b) Employee means an officer or employee at home or abroad, of an
agency named in paragraph (a) of this section, but does not include a
special Government employee or a member of the Army, Navy, Air Force,
Marine Corps, Coast Guard, National Oceanic and Atmospheric
Administration, or Public Health Service.
    (c) Executive order means Executive Order 11222 of May 8, 1965, as
amended.
    (d) Person means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company, or
any other organization or institution.
    (e) Special Government employee means an officer or employee of an
agency who is retained, designated, appointed, or employed to perform,
with or without compensation, for not to exceed 130 days during any
period of 365 consecutive days, temporary duties either on a full-time
or intermittent basis.
    (f) Member of an employee's family means a spouse, minor child, or
other member of an employee's immediate household. For the purpose of
these regulations member of an employee's immediate or in-law household
means those blood relations who are residents of the employee's
household.
    (g) Counselor means the agency's Counselor on Ethical Conduct and
Conflicts of Interest.



Sec. 1203.735-103  Interpretation and advisory service.

    (a) Counseling services on employee responsibilities and conduct are
available in each agency. These services are to be coordinated by a
Counselor appointed by the agency head. The Counselor for IDCA is the
General Counsel. The Counselor serves as the agency's designee to the
Civil Service Commission on matters covered by the regulations in this
part and is responsible for coordination of the agency's counseling
services under paragraph (b) of this section and for assuring that
counseling and interpretations on questions of conflicts of interest and
other matters covered by these sections are available to deputy
counselors designated under paragraph (b) of this section.
    (b) Each agency head may designate deputy counselors for the
agency's employees and special Government employees. Deputy Counselors
designated under this section must be qualified and in a position to
give authoritative advice and guidance to each employee and special
Government employee who seeks advice and guidance on questions of
conflicts of interest and on other matters covered by the regulations in
this part. A Washington employee or special Government employee should
address any inquiries concerning the regulations in this part to the
Counselor. At missions abroad the chief of each agency's establishment
designates an officer, preferably the legal officer where one is
available, to provide counseling services under the guidance of the
Counselor; a single officer may serve all agencies. An employee or
special Government employee serving abroad should submit inquiries to
the officer designated.
    (c) Each agency shall periodically notify its employees and special
Government employees of the availability of counseling services and how
and when

[[Page 359]]

these services are available. A new employee or special Government
employee shall be notified at the time of entrance on duty.



Sec. 1203.735-104  Applicability to detailed employees.

    All the regulations of subparts A, B, and D of this part are
applicable to an employee of another U.S. Government agency who may be
serving on detail or assignment, formally or informally, on a
reimbursable or nonreimbursable basis through a Participating Agency
Service Agreement or otherwise, with an agency named in Sec. 1203.735-
102(a). However, disciplinary action shall be taken against such an
employee only by the employing agency.



Sec. 1203.735-105  Disciplinary action.

    A violation of the regulations in this part by an employee or
special Government employee may be cause for appropriate disciplinary
action, including separation for cause, which may be in addition to any
penalty prescribed by law.



  Subpart B_Ethical and Other Conduct and Responsibilities of Employees



Sec. 1203.735-201  General.

    (a) Proscribed actions. An employee shall avoid any action, whether
or not specifically prohibited by the regulations in this part, which
might result in, or create the appearance of:
    (1) Using public office for private gain;
    (2) Giving preferential treatment to any person;
    (3) Impeding Government efficiency or economy;
    (4) Losing independence or impartiality;
    (5) Making a Government decision outside official channels; or
    (6) Affecting adversely the confidence of the public in the
integrity of the Government.
    (b) Applicability to members of families of employees. A U.S.
citizen employee shall take care that certain responsibilities placed on
the employee are also observed by members of the employee's family.
These are the restrictions in regard to: Acceptance of gifts (Sec. Sec.
1203.735-202 and 1203.735-203); economic and financial activities abroad
(Sec. 1203.735-206); teaching, lecturing, and writing (Sec. 1203.735-
204(c)); participation in activities of private organizations (Sec.
1203.735-211(c)); and political activities abroad (Sec. 1203.735-
211(g)).



Sec. 1203.735-202  Gifts, entertainment, and favors.

    (a) Acceptance prohibited. Except as provided in paragraphs (b),
(c), and (d) of this section, an employee shall not solicit or accept,
directly or indirectly, any gift, gratuity, favor, entertainment, loan,
or any other thing of monetary value, from a person who:
    (1) Has, or is seeking to obtain, contractual or other business or
financial relations with the employee's agency;
    (2) Conducts operations or activities that are regulated by the
employee's agency;
    (3) Has interests that may be substantially affected by the
performance or nonperformance of the employee's official duty; or
    (4) Appears to be offering the gift with the hope or expectation of
obtaining advantage or preferment in dealing with the U.S. Government
for any purpose.
    (b) Acceptance permitted. The provisions of paragraph (a) of this
section do not apply to:
    (1) Gifts, gratuities, favors, entertainments, loans, or any other
thing of monetary value received on account of close family or personal
relationships when the circumstances make it clear that it is that
relationship rather than the business of the persons concerned which is
the motivating factor;
    (2) Acceptance of loans from banks or other financial institutions
on customary terms to finance proper and usual activities of employees,
such as home mortgage loans;
    (3) Acceptance of unsolicited advertising or promotional material,
such as pens, pencils, note pads, calendars, and other items of nominal
intrinsic value;
    (4) Acceptance of rates and discounts offered to employees as a
class.
    (c) Acceptance permitted for IDCA employees. For IDCA employees the
provisions of paragraph (a) of this section do not apply to: Acceptance
of food and

[[Page 360]]

refreshments of nominal value on infrequent occasions in the ordinary
course of a luncheon or dinner meeting or other meeting or on an
inspection tour where an employee may properly be in attendance.
    (d) Acceptance permitted for AID employees. For AID employees the
provisions of paragraph (a) of this section do not apply in the
following situations:
    (1) Acceptance of food, refreshments, or entertainment of nominal
value on infrequent occasions offered in the ordinary course of
luncheons, dinners, or other meetings and gatherings hosted by foreign
governments or agencies and officials thereof, embassies, and
international organizations, where the primary purpose of the function
is representational or social, rather than the transaction of business.
Where the primary purpose of the function is the transaction of
business, acceptance is not permitted, except if there is justification
and reporting in accordance with paragraph (d)(4) of this section.
    (2) Participation in widely attended lunches, dinners, and similar
gatherings sponsored by industrial, technical, and professional
associations for the discussion of matters of mutual interest to
Government and industry.
    (3) Acceptance of food, refreshments, or entertainment in the
unusual situation where the employee, by virtue of the location of the
person, firm, corporation, or other entity, or the regulations governing
its dining facilities, finds it inconvenient or impracticable not to
accept the offer. Each case of acceptance shall be reported in
accordance with the requirement of paragraph (d)(4) of this section. In
no other case shall employees accept food, refreshments, or
entertainment from private corporations, entities, firms, or individual
contractors at occasions which are other than widely attended functions
whose purposes are unrelated to Agency business.
    (4) In exceptional circumstances where acceptance of food,
refreshments, or entertainment is not authorized by paragraphs (d) (1),
(2), and (3) of this section, but where, in the judgment of the
individual concerned, the Government's interest would be served by such
acceptance directly or indirectly from any foreign government, agency,
or official thereof or a private person, firm, corporation, or other
entity which is engaged or is endeavoring to engage in business
transactions of any sort with AID, an employee may accept the offer:
Provided, That a report of the circumstances, together with the
employee's statement as to how the Government's interests were served,
will be made within 48 hours to the employee's supervisor, or, if the
employee is serving abroad, or on temporary duty abroad, to the Mission
Director.
    (e) Gifts to superiors. An employee shall 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 the employee (5 U.S.C.
7351). However, this paragraph does not prohibit a voluntary gift of
nominal value or donation in a nominal amount made on a special occasion
such as marriage, illness, or retirement.
    (f) Neither this section nor Sec. 1203.735-204 precludes an
employee from receipt of bona fide reimbursement, unless prohibited by
law, for expenses of travel and such other necessary subsistence as is
compatible with this part for which no Government payment or
reimbursement is made. However, this paragraph does not allow an
employee to be reimbursed, or payment to be made on the employee's
behalf, for excessive personal living expenses, gifts, entertainment, or
other personal benefits, nor does it allow an employee to be reimbursed
by a person for travel on official business under agency orders when
reimbursement is proscribed by Decision B-128527 of the Comptroller
General dated March 7, 1967.



Sec. 1203.735-203  Gifts from foreign governments.

    An employee shall not accept a gift, present, decoration, or other
thing from a foreign government unless authorized by Congress as
provided by the Constitution and in 5 U.S.C. 7342, and the regulations
promulgated thereunder pursuant to E.O. 11320, 31 FR 15789. These
regulations are set forth in part 3 of this title (as added, 32 FR 6569,
Apr. 28, 1967), and in 3 FAM 621.

[[Page 361]]



Sec. 1203.735-204  Outside employment and other activity.

    (a) An employee shall not engage in outside employment or other
outside activity not compatible with the full and proper discharge of
the duties and responsibilities of Government employment. Incompatible
activities include but are not limited to:
    (1) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in circumstances in which acceptance
may result in, or create the appearance of, conflicts of interest; or
    (2) Outside employment which tends to impair the employee's mental
or physical capacity to perform Government duties and responsibilities
in an acceptable manner.
    (b) An employee shall not receive any salary or anything of monetary
value from a private source as compensation for the employee's services
to the Government (18 U.S.C. 209).
    (c) Employees are encouraged to engage in teaching, lecturing, and
writing that is not prohibited by law, the Executive order, this part,
or the agency regulations. However, an employee shall not, either for or
without compensation, engage in teaching, lecturing, or writing
including teaching, lecturing, or writing for the purpose of the special
preparation of a person or class of persons for an examination of the
Civil Service Commission or Board of Examiners for the Foreign Service,
that is dependent on information obtained as a result of Government
employment, except when that information has been made available to the
general public or will be made available on request or when the agency
head gives written authorization for use of nonpublic information on the
basis that the use is in the public interest. In addition, an employee
who is a Presidential appointee covered by section 401(a) of the
Executive order shall not receive compensation or anything of monetary
value for any consultation, lecture, discussion, writing, or appearance
the subject matter of which is devoted substantially to the
responsibilities, programs, or operations of the employee's agency, or
which draws substantially on official data or ideas which have not
become part of the body of public information. Employees are referred to
the detailed rules of their agency with respect to clearance and
acceptance of compensation (See AID Handbook 18)
    (d) [Reserved]
    (e) An employee shall not render any services, whether or not
compensated, to any foreign government, state, province, or
semigovernmental agency, or municipality of any foreign government, or
to any international organization of states. However, this shall not
prevent the rendering of such services by employees acting on behalf of
the United States. Nor shall this provision prevent the rendering of
services to an international organization of states when otherwise
consistent with law and when authorized by the appropriate officer. The
appropriate officer for IDCA is the Assistant Director for
Administration.
    (f) [Reserved]
    (g) This section does not preclude an employee from:
    (1) Participation in the activities of national or State political
parties not proscribed by law.
    (2) Participation in the affairs of or acceptance of an award for a
meritorious public contribution or achievement given by a charitable,
religious, professional, social, fraternal, nonprofit educational and
recreational, public service, or civic organization.



Sec. 1203.735-205  Financial interests.

    (a) An employee shall not: (1) Have a direct or indirect financial
interest that conflicts substantially, or appears to conflict
substantially with the employee's Government duties and
responsibilities; or
    (2) Engage in, directly or indirectly, a financial transaction as a
result of, or primarily relying on, information obtained through
Government employment.
    (b) This section does not preclude an employee from having a
financial interest or engaging in financial transactions to the same
extent as a private citizen not employed by the Government so long as it
is not prohibited by law or the regulations in this part.
    (c) Pursuant to the provision of 18 U.S.C. 208(b) the following
described financial interests of an employee are

[[Page 362]]

hereby exempted from the requirements of 18 U.S.C. 208(a) and 208(b)(1)
as being too remote or too inconsequential to affect the integrity of
the services of an employee. The exemption applies to the financial
interests held directly by an employee, by the employee's spouse or
minor child whether individually or jointly with the employee, or by an
employee and any partner or partners as joint assets of the partnership:
    (1) Investments in State and local government bonds; and stocks,
bonds, or policies in a mutual fund, investment company, bank or
insurance company, provided that in the case of a mutual fund,
investment company, or bank, the fair value of such stock or bond
holding does not exceed one percent of the value of the reported assets
of the mutual fund, investment company, or bank. In the case of a mutual
fund or investment company, this exemption applies only where the assets
of the fund or company are diversified; it does not apply where the fund
or company specializes in a particular industry or commodity.
    (2) Interest in an investment club or other group organized for the
purpose of investing in equity or debt securities: Provided, That the
fair value of the interest involved does not exceed $10,000 and that the
interest does not exceed one-fourth of the total assets of the
investment club or group. Where an employee covered by this exemption is
a member of a group organized for the purpose of investing in equity or
debt securities, the interest of the employee in any enterprise in which
the group holds securities shall be based upon the employee's equity
share of the holdings of the group in that enterprise.
    (3) If an employee, or the employee's spouse or minor child has a
present beneficial interest or a vested remainder interest under a
trust, the ownership of stocks, bonds, or other corporate securities
under the trust will be exempt to the same extent as provided in
paragraphs (c)(1) and (2) of this section for the direct ownership of
such securities. The ownership of bonds other than corporate bonds, or
of shares in a mutual fund or regulated investment company, under the
trust will be equally exempt and to the same extent as under paragraphs
(c) (1) and (2) of this section.
    (4) If an employee is an officer, director, trustee, or employee of
an educational institution, or if the employee is negotiating for, or
has an arrangement concerning prospective employment with such an
institution, a direct financial interest which the institution has in
any matter will not itself be exempt, but any financial interest that
the institution may have in the matter through its holdings of
securities issued by business entities will be exempt: Provided, The
employee is not serving as a member of the investment committee of the
institution or is not otherwise advising it on its investment portfolio.
    (5) An employee may continue to participate 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. Such
financial interest in that organization will be exempt, except to the
extent that the welfare or benefit plan is a profit-sharing or stock-
bonus plan and the employee's financial interest thereunder exceeds
$10,000. This exemption extends also to any financial interests that the
organization may have in other business activities.
    (d) Nothing in this part shall be deemed to prohibit an employee
from acting, with or without compensation, as agent or attorney for the
employee's parents, spouse, child, or any person for whom, or for any
estate for which, the employee is serving as guardian, executor,
administrator, trustee, or other personal fiduciary, except in those
matters in which the employee has participated personally and
substantially as a Government employee, through decision, approval,
disapproval, recommendation, the rendering of advice, investigation, or
otherwise, or which are the subject of the employee's official
responsibility, as defined in 18 U.S.C. 202(b): Provided, The head of
the employee's division approves in writing.

[[Page 363]]



Sec. 1203.735-206  Economic and financial activities of employees abroad.

    (a) Prohibitions in any foreign country. A U.S. citizen employee
abroad is specifically prohibited from engaging in the activities listed
below in any foreign country.
    (1) Speculation in currency exchange.
    (2) Transactions at exchange rates differing from local legally
available rates, unless such transactions are duly authorized in advance
by the agency.
    (3) Sales to unauthorized persons (whether at cost or for profit) of
currency acquired at preferential rates through diplomatic or other
restricted arrangements.
    (4) Transactions which entail the use, without official sanction, of
the diplomatic pouch.
    (5) Transfers of funds on behalf of blocked nationals, or otherwise
in violation of U.S. foreign funds and assets control.
    (6) Independent and unsanctioned private transactions which involve
an employee as an individual in violation of applicable control
regulations of foreign governments.
    (7) Acting as an intermediary in the transfer of private funds from
persons in one country to persons in another country, including the
United States.
    (8) Permitting use of one's official title in any private business
transactions or in advertisements for business purposes.
    (b)-(c) [Reserved]
    (d) Business activities of non-U.S. citizen employees. A non-U.S
citizen employee abroad may engage in outside business activities with
the prior approval of the head of the overseas establishment on the
basis of the standards expressed in Sec. 1203.735-204(a).



Sec. 1203.735-207  Use of Government property.

    An employee shall not directly or indirectly use, or allow the use
of Government property of any kind, including property leased to the
Government, for other than officially approved activities. An employee
has a positive duty to protect and conserve Government property,
including equipment, supplies, and other property entrusted or issued to
the employee.



Sec. 1203.735-208  Misuse of information.

    For the purpose of furthering a private interest, an employee shall
not, except as provided in Sec. 1203.735-204(c) directly or indirectly
use, or allow the use of, official information obtained through or in
connection with Government employment which has not been made available
to the general public.



Sec. 1203.735-209  Indebtedness.

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



Sec. 1203.735-210  Gambling, betting, and lotteries.

    An employee shall not participate, while on Government-owned or
leased property or while on duty for the Government, in any gambling
activity including the operation of a gambling device, in conducting a
lottery or pool, in a game for money or property, or in selling or
purchasing a numbers slip or ticket. However, this section does not
preclude activities:
    (a) Necessitated by an employee's law enforcement duties; or
    (b) Under section 3 of Executive Order 10927 and similar agency-
approved activities.



Sec. 1203.735-211  Activities relating to private organizations and
politics.

    (a) Definition. For the purpose of this section, the term private
organization denotes any group of persons or associations organized for
any purpose whatever, except an organization established by the
Government of the United States, or officially participated in by IDCA.

[[Page 364]]

    (b) Participation in activities of employee organizations. An
employee may join or refrain from joining employee organizations or
associations without interference, coercion, restraint, or fear of
discrimination or reprisal.
    (c) Participation in activities of private organizations. In
participating in the program and activities of any private organization,
an employee shall make clear that the employee's agency has no official
connection with such organization and does not necessarily sponsor or
sanction the viewpoints which it may express.
    (d) Legal restrictions on membership in certain organizations. An
employee shall not have membership in any organization that advocates
the overthrow of our constitutional form of Government in the United
States, knowing that such organization so advocates (5 U.S.C. 7311, 18
U.S.C. 1918).
    (e) Private organizations concerned with foreign policy or other
matters of concern to agencies. (1) Limitation on participation. When a
private organization is concerned primarily with foreign policy or
international relations or other matters of concern to an employee's
agency, an employee shall limit connection therewith as follows: Unless
specifically permitted to do so, the employee may not serve as advisor,
officer, director, teacher, sponsor, committee chairman, or in any other
official capacity or permit the employee's name to be used on a
letterhead, in a publication, in an announcement or news story, or at a
public meeting, regardless of whether the employee's official title or
connection is mentioned. The provisions of this section are not intended
to prohibit the normal and active participation of an employee in
professional organizations such as the American Political Science
Association, the American Economic Association, the American Foreign
Service Association, and similar organizations, since such participation
is in the interest of both the employee and the Government. Employees
are expected, however, to exercise discretion in such activities and are
held personally accountable for any improper use of their relationship
with IDCA.
    (2) Request for special permission. Special permission to assume or
continue a connection prohibited by paragraph (e)(1) of this section may
be granted in cases where the public interest will not be adversely
affected. To request such permission, or to determine whether the
provisions are applicable to a particular case, the employee shall
address a memorandum setting forth all of the circumstances to the
appropriate officer. The appropriate officer for IDCA is the Assistant
Director for Administration.
    (3) Application to senior officers. Because of the prominence
resulting from their official positions, chiefs of mission and other
senior officers should recognize the particular bearing of the
provisions of paragraph (e)(1) of this section upon their activities.
They should restrict association with any organizations involving
foreign nations and the United States to simple membership and should
not accept even honorary office in such organizations except with the
specific prior approval as provided in paragraph (e)(2) of this section.
    (f) Private organizations not concerned with foreign policy. When
the purpose and program of the organization do not fall primarily within
the field of foreign policy or international relations, the employee's
activity is limited only to the following extent:
    (1) The employee's official title or connection may be used to
identify the employee, as in a civic association election, but may not
be used on a letterhead, in a publication, or otherwise so as to employ
the prestige of the U.S. Government to enhance that of the organization
or to imply official sponsorship.
    (2) When the employee is a representative of an association
consisting of IDCA employees, or of a group of such employees, the
employee's connection with the agency may be freely used so long as
there is no implication of official sponsorship beyond that which may
have been officially approved.
    (g) Political activities abroad. A U.S. citizen employee shall not
engage in any form of political activity in any foreign country.
    (h) Activities relating to U.S. politics. The law (5 U.S.C. 7324,
formerly the Hatch Act) provides in summary that it is unlawful for any
Federal employee

[[Page 365]]

of the executive branch to use the employee's official authority or
influence for the purpose of interfering with an election or affecting
the result thereof, or to take any active part in political management
or in political campaigns. These restrictions do not in any way affect
the right of a Federal employee (1) to vote as the employee chooses; (2)
to express personal political opinions, except as part of a campaign;
(3) to make or refrain from making contributions to political
organizations, provided contributions are not made in a Federal building
or to another Federal officer or employee (see 18 U.S.C. 602, 603, 607,
and 608); (4) to participate in local, nonpartisan activities.



Sec. 1203.735-212  Wearing of uniforms.

    (a) An employee of the Foreign Service may not wear any uniform
except as may be authorized by law or as a military commander may
require civilians to wear in a theater of military operations (22 U.S.C.
803). When an employee is authorized by law or required by a military
commander of the United States to wear a uniform, care shall be taken
that the uniform is worn only at authorized times and for authorized
purposes.
    (b) Conventional attire worn by chauffeurs, elevator operators, and
other miscellaneous employees are not considered uniforms within the
meaning of this section except that, for ICA, MOA VII 917.2b prohibits
the purchase from Agency funds of uniforms or any item of personal
wearing apparel other than special protective clothing.



Sec. 1203.735-213  Recommendations for employment.

    (a) Making recommendations in official capacity. In general, an
employee shall not, in the employee's official capacity, make any
recommendations in connection with the employment of persons unless the
position concerned are with the Government of the United States and the
recommendations are made in response to an inquiry from a Government
official authorized to employ persons or to investigate applicants for
employment. A principal officer in answer to a letter of inquiry from
outside the U.S. Government concerning a former employee assigned to the
post, may state the length of time the person was employed at the post
and the fact that the former employee performed duties in a satisfactory
manner, if such is the case. Also, an AID Mission Director may provide
names of persons or firms from which a cooperating government may select
an employee or firm to be used in some phase of the AID program.
    (b) Making personal recommendations. An employee may make a personal
recommendation in connection with the employment of any person,
including present or former employees, their spouses and/or members of
their families, except for employment in a position of trust or profit
under the government of the country to which the employee is accredited
or assigned (22 U.S.C. 806(b)): Provided, That the employee does not
divulge any information concerning the person derived from official
sources. When a letter of introduction or recommendation is written by
an employee, precautionary measures should be taken to prevent its being
construed as official correspondence and used by an unscrupulous
individual to impress American or foreign officials. Accordingly,
official stationery should not be used for this purpose. The letter may,
however, show the recommending employee's status as an employee of the
U. S. Government. Every personal letter of recommendation shall contain
a statement clearly indicating that the letter constitutes a personal
recommendation and is not to be construed as an official recommendation
by the Government of the United States.



Sec. 1203.735-214  Transmitting communications and gifts.

    (a) Correspondence. In corresponding with anyone other than the
proper official of the United States with regard to the public affairs
of a foreign government, an employee shall use discretion and judgment
to ensure that neither the United States nor the employee will be
embarrassed or placed in a compromising position (22 U.S.C. 806(a)).
    (b) Communications. An employee shall not act as an agent for the
transmission of communications from private persons or organizations in
foreign countries to the President or to

[[Page 366]]

Federal, State, or municipal officials in the United States. A chief of
mission may, however, accept communications of this nature and forward
them to the Department of State for such further action as may be
appropriate, whenever the chief of mission determines it to be clearly
in the public interest to do so.
    (c) Gifts. An employee shall not act as an agent for the
transmission of gifts from persons or organizations in foreign countries
to the President or to Federal, State, or municipal officials of the
United States. However, principal officers may, according to regulations
prescribed by the President, accept, and forward to the Office of
Protocol of the Department of State, gifts made to the United States or
to any political subdivision thereof by the Government to which they are
accredited or from which they hold exequaturs. Employees shall not,
without the approval of the Secretary of State, transmit gifts from
persons or organizations in the United States to heads or other
officials of foreign states.



Sec. 1203.735-215  General conduct prejudicial to the Government.

    (a) An employee shall not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government.
    (b) An employee abroad is also obligated to obey the laws of the
country in which the employee is present.
    (c) An employee shall observe the requirements of courtesy,
consideration, and promptness in dealing with or serving the public.



Sec. 1203.735-216  Miscellaneous statutory provisions.

    Each employee shall become acquainted with each statute that relates
to the employee's ethical and other conduct as an agency employee of and
of the Government.
    (a) The attention of employees is directed to the following
statutory provisions:
    (1) House Concurrent Resolution 175, 85th Congress, 2d session, 72
Stat. B12, the ``Code of Ethics for Government Service.''
    (2) Chapter 11 of title 18, United States Code, relating to bribery,
graft, and conflicts of interest, as appropriate to the employees
concerned.
    (3) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
    (4) The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918). \1\
---------------------------------------------------------------------------

    \1\ The Courts have stricken from the Code any prohibition against
assertion of the right to strike on the basis that such an assertion is
a protected right under the First Amendment to the Constitution.
---------------------------------------------------------------------------

    (5) The prohibitions against (i) the disclosure of classified
information (18 U.S.C. 798, 50 U.S.C. 783); and (ii) the disclosure of
confidential information (18 U.S.C. 1905).
    (6) The provision relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352).
    (7) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)).
    (8) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
    (9) The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
    (10) The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001).
    (11) The prohibition against mutilating or destroying a public
record (18 U.S.C. 2071).
    (12) The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508).
    (13) The prohibition against (i) embezzlement of Government money or
property (18 U.S.C. 641); (ii) failing to account for public money (18
U.S.C. 643); and (iii) embezzlement of the money or property of another
person in the possession of an employee by reason of the employee's
employment (18 U.S.C. 654).
    (14) The prohibition against unauthorized use of documents relating
to claims from or by the Government (18 U.S.C. 285).
    (15) The prohibition against political activities in subchapter III
of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603,
607, and 608.

[[Page 367]]

    (16) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
    (17) The prohibition against discrimination because of politics,
race, religion, or color (22 U.S.C. 807).
    (18) The prohibition against officers or employees accepting any
honorarium in excess of $2,000 or honoraria aggregating more than
$25,000 in any calendar year (sec. 112, Pub. L. 94-283, 90 Stat. 494 (2
U.S.C. 441i)).
    (b) The attention of consular officers is directed to the following
statutory provisions:
    (1) The provisions relating to the duty to account for fees received
(22 U.S.C. 9, 812, 1194), liability for exaction of excessive fees (22
U.S.C. 1182, 1189), and liability for failure to collect proper fees (22
U.S.C. 1190).
    (2) The provisions relating to liability for failure to give bond
and for embezzlement (22 U.S.C. 1179), liability for embezzlement of
fees or effects of American citizens (22 U.S.C. 1198), and liability for
falsely certifying as to the ownership of property (22 U.S.C. 1200).
    (3) The prohibition against profiting from dealings with discharged
seamen (22 U.S.C. 1187).
    (4) The provision relating to liability for failure to collect the
wages of discharged seamen (46 U.S.C. 683).



Sec. 1203.735-217  Requesting exceptions from certain statutory
prohibitions.

    (a) Any employee desiring a written advance determination that the
prohibitions of 18 U.S.C. 208(a) do not apply will prepare a written
request addressed to an appropriate agency official. For purposes of
this section, the appropriate agency official is: The Deputy Under
Secretary for Management for State, the Administrator for AID, and the
Director for ICA. The request will describe the particular matter giving
rise to the conflict of interest, the nature and extent of the
employee's anticipated participation in the particular matter, and the
exact nature and amount of the financial interest related to the
particular matter.
    (b) The employee will forward the request to the appropriate agency
official through the immediate supervisor and the assistant agency head
in charge of the organizational agency component to which the employee
is assigned, or will be assigned in the case of a new employee. The
assistant agency head will forward the written request to the
appropriate agency official through the agency's Counselor. The
Counselor shall attach a written opinion to the request, prepare a
recommended written determination in final form for signature by the
appropriate agency official, and shall forward all documents to that
official.
    (c) The determination of the appropriate agency official will be
sent to the employee by the Counselor. If the appropriate agency
official grants the requested exception, the original written advance
determination will be sent to the employee. A duplicate original shall
be retained among the appropriate agency records under the control of
the Counselor.



  Subpart C_Ethical and Other Conduct and Responsibilities of Special
                          Government Employees



Sec. 1203.735-301  Conflicts of interest.

    Special Government employees are subject to the conflicts of
interest statutes (18 U.S.C. 202). An explanation of these conflicts of
interest statutes their effects upon special Government employees and
guidelines for obtaining and utilizing the services of special
Government employees are in appendix C of chapter 735 of the Federal
Personnel Manual. A special Government employee shall not have a direct
or indirect financial interest that conflicts substantially, or appears
to conflict substantially, with Government duties and responsibilities.



Sec. 1203.735-302  Use of Government employment.

    A special Government employee shall not use Government employment
for a purpose that is, or gives the appearance of being, motivated by
the desire for private gain for the employee or another person,
particularly one with whom the employee has family, business, or
financial ties.

[[Page 368]]



Sec. 1203.735-303  Use of inside information.

    (a) A special Government employee shall not use inside information
obtained as a result of Government employment for private gain for the
employee or another person either by direct action on the employee's
part or by counsel, recommendation, or suggestion to another person,
particularly one with whom the employee has family, business, or
financial ties. For the purpose of this section, ``inside information''
means information obtained under Government authority which has not
become part of the body of public information.
    (b) A special Government employee may engage in teaching, lecturing,
or writing that is not prohibited by law, Executive Order 11222 or the
restrictions in this part; however, a special Government employee shall
not, either for or without compensation, engage in teaching, lecturing,
or writing that is dependent on information obtained as a result of his
Government employment, except when that information has been made
available to the general public or will be made available, or when the
head of the agency gives written authoritzation for the use of nonpublic
information on the basis that the use is in the public interest. A
special Government employee who wishes to request the agency head to
authorize the use of nonpublic information should submit such request
through the Counselor. The request should contain complete information
concerning the nonpublic information which the employee wishes to
disclose and should contain in addition an indication of the intended
use of such information and how disclosure of it would be in the public
interest.



Sec. 1203.735-304  Coercion.

    A special Government employee shall not use Government employment to
coerce, or give the appearance of coercing, a person to provide
financial benefit to the employee or another person, particularly one
with whom the employee has family, business, or financial ties.



Sec. 1203.735-305  Gifts, entertainment, and favors.

    (a) Except as provided in paragraph (b) of this section, a special
Government employee, while so employed or in connection with Government
employment, shall not receive or solicit from a person having business
with the employee's agency anything of value as a gift, gratuity, loan,
entertainment, or favor for the employee or another person, particularly
one with whom the employee has family, business or financial ties.
    (b) The exceptions to the prohibition against the acceptance of
gifts which have been granted to employees in Sec. 1203.735-202 (b),
(c), and (d) are also applicable to special Government employees.
    (c) A special Government employee shall not accept a gift, present,
decoration, or other thing from a foreign government unless authorized
by Congress as provided by the Constitution and in 5 U.S.C. 7342, and
the regulations promulgated thereunder pursuant to E.O. 11320; 31 FR
15789. These regulations are set forth in part 3 of this title (as
added, 32 FR 6569, April 28, 1967), and in 3 FAM 621.
    (d) A special Government employee shall avoid any action, whether or
not specifically prohibited by these sections on special Government
employees, which might result in, or create the appearance of:
    (1) Using public office for private gain;
    (2) Giving preferential treatment to any person;
    (3) Impeding Government efficiency or economy;
    (4) Losing independence or impartiality;
    (5) Making a Government decision outside official channels; or
    (6) Affecting adversely the confidence of the public in the
integrity of the Government.



Sec. 1203.735-306  Miscellaneous statutory provisions.

    Each special Government employee shall become acquainted with each
statute that relates to the employee's ethical and other conduct as a
special Government employee of an agency and of the Government. The
attention

[[Page 369]]

of special Government employees is directed to the statutes listed in
Sec. 1203.735-216.



       Subpart D_Statements of Employment and Financial Interests



Sec. 1203.735-401  Employees required to submit statements.

    The following employees of IDCA shall submit statements of
employment and financial interests:
    (a) All special Government employees including experts or
consultants serving on a full-time or intermittent basis, except when
waived under Sec. 1203.735-402(c).
    (b) Employees paid at a level of the Executive Schedule in
subchapter II of chapter 53 of title 5, United States Code, except as
provided in Sec. 1203.735-402(b).
    (c) Except as provided in Sec. 1203.735-402, employees classified
at GS-13, FSO-4, FSR-5, FSS-2, AD-13, FC-5, or above, who are in
positions hereby identified either as positions the basic duties of
which impose upon the incumbent the responsibility for a Government
decision or taking a Government action in regard to:
    (1) Contracting or procurement;
    (2) Administering or monitoring grants or subsidies;
    (3) Regulating or auditing private or other non-Federal enterprise;
    (4) Other activities where the decision or action has an economic
impact on the interests of any non-Federal enterprise, or as positions
which have duties and responsibilities which require the incumbent to
report employment and financial interests in order to avoid involvement
in a possible conflict of interest situation and carry out the purpose
of law, Executive order, and the agency's regulations:

                                  State

    Director General; of the Foreign Service and the Director of
Personnel; Director of the Policy Planning Staff; Inspector General;
Director, FSI; Special Assistant to Secretary; Deputy Secretary, Under
Secretaries, or Deputy Under Secretary; Deputy Assistant Secretary and
others at this level or above; Assistant Legal Adviser for Management;
Director, Office of Operations; Office Director; Country Director;
Division Chief in Bureau of Economic and Business Affairs, in the Office
of Operations, (O/OPR), or in the Office of Foreign Buildings; Executive
Director; Deputy Chief of Mission; Principal Officer; Economic
Counselor; Commercial Counselor; Administrative Counselor; Civil Air
Attache; Petroleum Officer; Minerals Officer; Contracting Specialist;
Procurement Specialist; Despatch Agent; Traffic Manager; and Traffic
Management Specialist.

                                   ICA

    Deputy Director, Associate Directors, Directors and Deputy Directors
of Offices or Services, Executive or Special Assistants to the Director;
Chief Inspector; Associate Chief Inspector; Commissioner General, Deputy
Commissioner General, Staff Director (Advisory Commission), Director of
Engineering and Technical Operations; Director of Audio-Visual
Procurement and Production; Country Public Affairs Officer, Deputy
Country Public Affairs Officer, Public Affairs Counselor, Deputy Public
Affairs Counselor, Director or Manager of Regional Service Center, Radio
Relay Station, Radio Program Center or Radio Relay Station Construction
Site, Administrative Officer or Executive Officer at a post abroad,
Administrative Officer, Executive Officer and Business Manager
(occupational codes 301, 340, 341, and 1101, or FAS code 200);
Contracting Specialist and Procurement Specialist (occupational code
1102, or FAS codes 210 and 211); Auditor and Accountant (occupational
code 510, or FAS code 207); General Counsel, Deputy General Counsel, or
Attorney (occupational code 905, or FAS code 512).

                                   AID

    (1) AID/W: Deputy Assistant Administrators, Associate Assistant
Administrators, Deputy Associate Assistant Administrators; Heads and
Deputy Heads of Offices, Staffs, and Divisions; Desk Officers and Deputy
Desk Officers.
    (2) Overseas: Mission Directors, Deputy Directors, Assistant
Directors, AID Representatives, Aid Affairs Officers, Chairman,
Development Assistance Committee; U.S. Representative to Development
Assistance Committee; Development Coordination Officer.
    (3) Any person serving as chief of an operational branch responsible
for housing, loans, guarantees, or other commercial type transactions
with the public.
    (4) In addition, employees in AID/W or overseas whose positions fall
within the following series or position titles (occupational code given
in parenthesis): Economist Series (0110); International Cooperation
Series (0136); Auditor General (0301.21); Supervisory Housing
Development Officer (0301.31); Chief, Housing and Urban Development
(0301.35);

[[Page 370]]

Contract Compliance Specialist (0301.48); Director for Regional
Activities (0340.08); Development Officer (0340.09); Regional
Development Officer (0340.10); Executive Officer (0341.01); Deputy
Executive Officer (0341.02); Regional Executive Officer (0341.03);
Administrative Officer (0341.05); Executive Officer--Administrative
Support (0341.15); Executive Officer, Operations (0341.16); Executive
Officer, Real Property (0341.18); Executive Officer, Personnel
(0341.19); General Services Officer (0342.01); Assistant General
Services Officer (0342.03); Assistant General Services Officer, Property
and Supply (0342.20); Assistant General Services Officer, Procurement
(0342.23); Assistant General Services Officer, Housing (0342.25);
Program Officer (0345.01); Deputy Program Officer (0345.02); Food and
Agriculture Officer (0401.01); Deputy Food and Agriculture Officer
(0401.02); Budget and Accounting Series (0504); Financial Management
Series (0505); Accounting Series (0510); Budget Administration Series
(0560); General Attorney Series (0905); General Business and Industry
Series (1101); Contract and Procurement Series (1102); Property Disposal
Series (1104); Purchasing Series (1105); Trade Specialist Series (1140);
Private Resources Development Series (1150); Financial Analysis Series
(1160); General Investigating Series (1810); Criminal Investigating
Series (1811); Import Specialist Series (1889); General Supply Series
(2001); Supply Program Management Series (2003).



Sec. 1203.735-402  Employees not required to submit statements.

    (a) Employees in positions that meet the criteria in paragraph (c)
of Sec. 1203.735-401 may be excluded from the reporting requirement
when the agency head or designee determines that:
    (1) The duties of the position are such that the likelihood of the
incumbent's involvement in a conflict-of-interest situation is remote;
    (2) The duties of the position are at such a level of responsibility
that the submission of a statement of employment and financial interests
is not necessary because of the degree of supervision and review over
incumbent or the inconsequential effect on the integrity of the
Government.
    (b) A statement of employment and financial interests is not
required by the regulations in this part from an agency head, or a full-
time member of a committee, board, or commission appointed by the
President. These employees are subject to separate reporting
requirements under section 401 of Exective Order 11222.
    (c) Special Government employees not required to submit statements.
An agency head may waive the requirement of this section for the
submission of a statement of employment and financial interest in the
case of a special Government employee who is not a consultant or an
expert when the agency finds that the duties of the position held by
that special Government employee are of a nature and at such a level of
responsibility that the submission of the statement by the incumbent is
not necessary to protect the integrity of the Government. For the
purpose of this paragraph, ``consultant'' and ``expert'' have the
meanings given those terms by chapter 304 of the Federal Personnel
Manual, but do not include a physician, dentist, or allied medical
specialist whose services are procured to provide care and service to
patients.



Sec. 1203.735-403  Employee's complaint on filing requirement.

    Each employee shall have the opportunity for review through agency
grievance procedure of the employee's complaint that the employee's
position has been improperly included within Sec. 1203.735-401 as one
requiring the submission of a statement of employment and financial
interests. Employees are reminded that they may obtain counseling
pursuant to Sec. 1203.735-103 prior to filing a complaint.



Sec. 1203.735-404  Time and place of submission, and forms.

    (a) An employee or special Government employee shall submit a
statement to the Counselor (in the case of a State employee, through the
employee's Bureau) no later than:
    (1) Ninety days after the effective date of this part if the
employee has entered on duty on or before that effective date; or
    (2) At least 10 days prior to entrance on duty, if the employee
enters on duty after that effective date; except that an employee or
special Government employee who enters on duty within 90 days of the
effective date of this part may submit such statement within 90 days
after entrance on duty.
    (b) Only the original of the statement or supplement thereto
required by this

[[Page 371]]

part shall be submitted. The individual submitting a statement should
retain a copy for the individual's own records.



Sec. 1203.735-405  Information required.

    (a) Employees. Employees' statement of employment and financial
interests required by the regulations in this part shall be submitted on
the form, ``Confidential Statement of Employment and Financial Interests
(for use by Government Employees)'', Form OF-106, and shall contain all
the information therein required.
    (b) Special Government employees. All special Government employees
shall submit statements of employment and financial interest on the
form, ``Confidential Statement of Employment and Financial Interests
(for use by Special Government Employees)'', Form AID 4-450 for IDCA,
and shall contain all the information therein required.
    (c) Interests of employee's relatives. The interest of a member of
an employee's family is considered to be an interest of the employee.
The term ``member of an employee's family'' is defined in Sec.
1203.735-102(f).
    (d) Information not known by employees. If any information required
to be included on a statement of employment and financial interests or
supplementary statement, including holdings placed in trust, is not
known to the employee but is known to another person, the employee shall
request that other person to submit information in the employee's
behalf.
    (e) Interests not required to be reported. An employee need not
disclose those financial interests described in Sec. 1203.735-205(c) as
being too remote or too inconsequential to affect the integrity of
employees' services.
    (f) Information not required. The regulations in this part do not
require an employee to submit on a statement of employment and financial
interests or supplementary statement any information relating to the
employee's connection with, or interest in, a professional society or a
charitable, religious, social, fraternal, recreational, public service,
civic, or political organization or a similar organization not conducted
as a business enterprise. For the purpose of this section, educational
and other institutions doing research and development or related work
involving grants or money from or contracts with the Government are
deemed ``business enterprises'' and are required to be included in an
employee's statement of employment and financial interests.



Sec. 1203.735-406  Submission of position description.

    Each Statement of Employment and Financial Interests or annual
supplement thereto must be accompanied by a full description of the
employee's principal governmental duties. The description should be
particularly detailed in regard to those duties which might possibly be
an element in a conflict of interest. If the statement indicates that
the employee has no outside employment or financial interests, the
employee need not submit a description of duties. For a special
Government employee, the employing office shall submit the description.



Sec. 1203.735-407  Supplementary statements.

    (a) Employees, as defined in paragraphs (b) and (c) of Sec.
1203.735-401, shall report changes in, or additions to, the information
contained in their statements of employment and financial interests in
supplementary statements as of June 30 each year. If no changes or
additions occur, a negative report is required.
    (b) All special Government employees, as defined in paragraph (a) of
Sec. 1203.735-401, shall submit a current statement at the time their
appointments are extended. A supplementary report indicating any changes
in, or additions to the information already submitted will be accepted
in lieu of a full submission. If there are no changes or additions, a
negative report is required.
    (c) Notwithstanding the filing of reports required by this section,
each employee shall at all times avoid acquiring a financial interest
that could result, or taking an action that would result, in a violation
of the conflicts-of-interest provisions of section 208 of title 18,
United States Code, or subpart B of this part.
    (d) An employee is also to keep current the employee's description
of principal duties as to changes or additions

[[Page 372]]

which might possibly be an element in a conflict of interest. The
employing office shall submit descriptions of changes in the principal
duties of a special Government employee as they occur.



Sec. 1203.735-408  Review of statements and determination as to
conflicts of interest.

    (a) On the basis of the Statement of Employment and Financial
Interests submitted by each employee or special Government employee, or
on the basis of information received from other sources, the Counselor
shall determine, in the light of the duties which that employee or
special Government employee is or will be performing, whether any
conflicts of interest, real or apparent, are indicated. The Counselor
shall make this determination based on the applicable statutes, the
Executive order, and the applicable regulations of the Civil Service
Commission, and of the agency.
    (b) Where the Counselor's determination in a particular case is that
a conflict of interest, real or apparent, is indicated, the Counselor
shall initiate informal discussions with the employee or special
Government employee concerned. These discussions shall have as their
objectives:
    (1) Providing the individual with a full opportunity to explain the
conflict or appearance of conflict; and
    (2) Arriving at an agreement (acceptable to the Counselor, the
individual and the individual's immediate superior) whereby the conflict
of interest may be removed or avoided. Such an agreement may include,
but is not limited to: (i) Changes in assigned duties; (ii) divestiture
of the financial or employment interest creating the conflict or
apparent conflict; or (iii) disqualification for a particular
assignment.
    (c) Where an acceptable agreement cannot be obtained pursuant to
paragraph (b) of this section, the Counselor shall present findings and
recommendations to the officer designated by the agency head, who shall
decide which remedy is most appropriate to remove or correct that
conflict or apparent conflict. Remedial action under this paragraph may
include disciplinary action, including separation for cause, or any of
the actions enumerated in paragraph (b)(2) of this section and shall be
effective in accordance with applicable laws, Executive orders, and
regulations.
    (d) Written summaries of all agreements and decisions arrived at
pursuant to paragraph (b) or (c) of this section shall be placed in the
Counselor's files. Copies shall also be made available to the employee
or special Government employee concerned.



Sec. 1203.735-409  Confidentiality of employees' statements.

    An agency shall hold each statement of employment and financial
interests, and each supplementary statement, in confidence. To insure
this confidentiality only the Counselor and Deputy Counselors are
authorized to review and retain the statements. The Counselor and Deputy
Counselors are responsible for maintaining the statements in confidence
and shall not allow access to, or allow information to be disclosed
from, a statement except to carry out the purpose of this part. An
agency may not disclose information from a statement except as the Civil
Service Commission or the agency head may determine for good cause
shown.



Sec. 1203.735-410  Effect of employees' statements on other requirements.

    The statements of employment and financial interests and
supplementary statements required for employees are in addition to, and
not in substitution for, or in derogation of, any similar requirement
imposed by law, order, or regulation. The submission of a statement or
supplementary statement by an employee does not permit the employee or
any other person to participate in a matter in which the employee or the
other person's participation is prohibited by law, order, or regulation.
Save with respect to those financial interests excepted from the
conflict of interest prohibitions of 18 U.S.C. 208(a) pursuant to a
written advance determination under Sec. 1203.735-217 or exempted by
the provisions of Sec. 1203.735-205(c), an employee must disqualify
himself or herself from participating in any matter in which the
employee has a financial interest.

[[Page 373]]



Sec. 1203.735-411  Disqualification procedures.

    (a) Where an employee is prohibited from participating in a matter
because of a conflicting financial interest that is not exempt under
Sec. 1203.735-205(c) or has not been specifically excepted by the
appropriate agency official pursuant to Sec. 1203.735-217 in advance of
the employee's participation in the particular matter, the employee
shall conduct himself or herself in accordance with the following
provisions:
    (1) The employee shall promptly disclose the financial interest in
such matter to the employee's immediate superior. The superior will
thereupon relieve the employee of duty and responsibility in the matter.
    (2) In foreign posts, it may be impossible or highly impracticable
for an employee, who has a disqualifying financial interest, to assign
the matter for official action to anyone other than a subordinate. In
this event, the employee must instruct the subordinate to report fully
and directly to the immediate superior to whom the employee himself or
herself would normally report. The employee must concurrently direct
such subordinate to take such action as may be appropriate in the
matter, and without thereafter revealing to the disqualified employee in
any way any aspect of the particular matter.
    (b) Nothing herein precludes the employee from disposing of such
disqualifying financial interest, thereby wholly eliminating the
conflict of interest. In some circumstances, where the employee may not
obtain an exception under Sec. 1203.735-217, or may not disqualify
himself or herself and refer or assign the matter to another employee,
the performance of duty may even require divestiture.
    (c) Where a supervisor has reason to believe that a subordinate
employee may have a conflicting financial interest, the supervisor
should discuss the matter with the employee. If the supervisor finds
that a conflict of interest does exist, the supervisor must relieve the
subordinate employee of duty and responsibility in the particular
matter.
    (d) The obligation to avoid conflicts of interest is upon each
employee. It is a continuing obligation calling for alert vigilance.
    (e) Notwithstanding any other provision of this part to the
contrary, if an employee's holdings rise in value above the amount
exempted by Sec. 1203.735-205(c), then the statutory and regulation
prohibitions apply in a conflict of interest situation.

                       PARTS 1204	1299 [RESERVED]

[[Page 375]]



             CHAPTER XIII--MILLENNIUM CHALLENGE CORPORATION




  --------------------------------------------------------------------
Part                                                                Page
1300            Organization and functions of the Millennium
                    Challenge Corporation...................         377
1304            Freedom of Information Act procedures.......         377

[[Page 377]]



PART 1300_ORGANIZATION AND FUNCTIONS OF THE MILLENNIUM CHALLENGE
CORPORATION--Table of Contents



Sec.
1300.1 Purpose.
1300.2 Organization.
1300.3 Functions.
1300.4 Operations.
1300.5 Quorum and voting requirements.
1300.6 Office location.

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

    Source: 72 FR 49192, Aug. 28, 2007, unless otherwise noted.



Sec. 1300.1  Purpose.

    This part describes the organization, functions and operation of the
Millennium Challenge Corporation (MCC). MCC is a government corporation
(as defined in 5 U.S.C. 103) established by the Millennium Challenge Act
of 2003 (Pub. L. 108-199, 118 Stat. 211.) Information about MCC is
available from its Web site, http://www.mcc.gov.



Sec. 1300.2  Organization.

    (a) MCC's Board consists of: (1) The Secretary of State, the
Secretary of the Treasury, the Administrator of the United States Agency
for International Development, the United States Trade Representative;
and the Chief Executive Officer of the Corporation; and (2) four other
individuals with relevant international experience from the private
sector; appointed by the President with the advice and consent of the
Senate.
    (b) MCC's staff is comprised of the following administrative units:
    (1) The Office of the Chief Executive Officer;
    (2) The Department of Accountability;
    (3) The Department of Administration and Finance;
    (4) The Department of Congressional and Public Affairs;
    (5) The Department of Operations;
    (6) The Department of Policy and International Relations; and
    (7) The Office of the General Counsel.



Sec. 1300.3  Functions.

    (a) MCC provides United States assistance for global development;
and
    (b) Provides such assistance in a manner that promotes economic
growth and the elimination of extreme poverty and strengthens good
governance, economic freedom, and investments in people.



Sec. 1300.4  Operations.

    In exercising its functions, duties, and responsibilities, MCC
utilizes:
    (a) MCC staff, consisting of specialized offices performing
specialized, administrative, legal and financial work for the Board.
    (b) Rules published in the Federal Register and codified in this
title of the Code of Federal Regulations.
    (c) Meetings of the Board of Directors conducted pursuant to the
Government in the Sunshine Act or voting by notation as provided in
section 1300.5(b).



Sec. 1300.5  Quorum and voting requirements.

    (a) Quorum requirements. A majority of the members of the Board
shall constitute a quorum, which shall include at least one private
sector member of the Board.
    (b) Voting. The Board votes on items of business in meetings
conducted pursuant to the Government in the Sunshine Act.



Sec. 1300.6  Office location.

    The principal offices of the Millennium Challenge Corporation are
located at 875 Fifteenth Street, NW., Washington, DC 20005-2221.



PART 1304_FREEDOM OF INFORMATION ACT PROCEDURES--Table of Contents



Sec.
1304.1 General provisions.
1304.2 Definitions.
1304.3 Records available to the public.
1304.4 Requests for records.
1304.5 Responsibility for responding to requests.
1304.6 Records not disclosed.
1304.7 Confidential commercial information.
1304.8 Appeals.
1304.9 Fees.

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

    Source: 73 FR 53686, Sept. 17, 2008, unless otherwise noted.



Sec. 1304.1  General provisions.

    This part contains the regulations the Millennium Challenge
Corporation

[[Page 378]]

(MCC) follows in implementing the Freedom of Information Act (FOIA) (5
U.S.C. 552) as amended. These regulations provide procedures by which
you may obtain access to records compiled, created, and maintained by
MCC, along with the procedures that MCC must follow in response to such
requests for records. These regulations should be read together with the
FOIA, which provides additional information about access to records
maintained by MCC.



Sec. 1304.2  Definitions.

    Agency has the meaning set forth in 5 U.S.C. 552(f)(1).
    Commercial use requester means a requester seeking information for a
use or purpose that furthers the commercial, trade, or profit interests
of himself or the person on whose behalf the request is made, which can
include furthering those interests through litigation. In determining
whether a request properly belongs in this category, the FOIA Officer
shall determine the use to which the requester will put the documents
requested. Where the FOIA Officer has reasonable cause to doubt the use
to which the requester will put the records sought, or where that use is
not clear from the request itself, the FOIA Officer shall contact the
requester for additional clarification before assigning the request to a
specific category.
    Confidential commercial information means records provided to the
government by a submitter that arguably contains material exempt from
disclosure under Exemption 4 of the FOIA, because disclosure could
reasonably be expected to cause substantial competitive harm.
    Direct costs mean those expenditures by MCC actually incurred in
searching for and duplicating records in response to the FOIA request.
These costs include the salary of the employee(s) performing the work
(basic rate of pay plus a percentage of that rate to cover benefits) and
the cost of operating duplicating machinery. Direct costs do not include
overhead expenses, such as the cost of space, heating, or lighting of
the facility in which the records are stored.
    Duplication means the process of making a copy of a record in order
to respond to a FOIA request, including paper copies, microfilm, audio-
video materials, and computer diskettes or other electronic copies.
    Educational institution refers to a preschool, a public or private
elementary or secondary school, an institute of undergraduate higher
education, an institute of graduate higher education, an institute of
professional education, or an institute of vocational education which
operates a program of scholarly research. To qualify for this category,
the requester must show that the request is authorized by and is made
under the auspices of a qualifying institution and that the records are
not sought for a commercial use, but are sought to further scholarly
research.
    FOIA means the Freedom of Information Act, as amended (5 U.S.C.
552).
    FOIA Officer means the MCC employee who is authorized to make
determinations as provided in this part. The mailing address for the
FOIA Officer is: Millennium Challenge Corporation, Attn: FOIA Officer,
875 Fifteenth Street, NW., Washington, DC 20005.
    Non-commercial scientific institution refers to an institution that
is not operated on a ``commercial'' basis as that term is used in
paragraph (a) of this section, and which is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry. To qualify for
this category, the requester must show that the request is authorized by
and is made under the auspices of a qualifying institution and that the
records are not sought for a commercial use, but are sought to further
scholarly research.
    Record means information or documentary material MCC maintains in
any form or format, including an electronic form or format, which MCC:
    (1) Made or received under federal law or in connection with the
transaction of public business;
    (2) Preserved or determined is appropriate for preservation as
evidence of MCC operations or activities or because of the value of the
information it contains; and
    (3) Controls at the time it receives a request.
    Representative of the news media means any person actively gathering
news for an entity that is organized

[[Page 379]]

and operated to publish or broadcast news to the public. The term
``news'' means information that is about current events or that would be
of current interest to the public. For a ``freelance journalist'' to be
regarded as working for a news organization, the requester must
demonstrate a solid basis for expecting publication through that
organization, such as a publication contract. Absent such showing, the
requester may provide documentation establishing the requester's past
publication record. To qualify for this category, the requester must not
be seeking the requested records for a commercial use. However, a
request for records supporting a news-dissemination function shall not
be considered to be for a commercial use.
    Requester means any person, including an individual, corporation,
firm, organization, or other entity, who makes a request to MCC under
FOIA for records.
    Review means the process of examining a record to determine whether
all or part of the record may be withheld, and includes redacting or
otherwise processing the record for disclosure to a requester. It does
not include time spent:
    (1) Resolving legal or policy issues regarding the application of
exemptions to a record; or
    (2) At the administrative appeal level, unless MCC determines that
the exemption under which it withheld records does not apply and the
records are reviewed again to determine whether a different exemption
may apply.
    Search means the time spent locating records responsive to a
request, manually or by electronic means, including page-by-page or
line-by-line identification of responsive material within a record.
    Submitter means any person or entity which provides information
directly or indirectly to MCC. The term includes, but is not limited to,
corporations, state governments and foreign governments.
    Working day means a Federal workday that does not include Saturdays,
Sundays, or Federal holidays.



Sec. 1304.3  Records available to the public.

    (a) General. (1) It is the policy of MCC to respond promptly to all
FOIA requests.
    (2) MCC may disclose records that were previously published or
disclosed or are customarily furnished to the public in the course of
the performance of official duties without complying with this part.
These records include, but are not limited to, the annual report that
MCC submits to Congress pursuant to section 613(a) of the Millennium
Challenge Act of 2003 (22 U.S.C. 7701), press releases, MCC forms, and
materials published in the Federal Register. MCC should first determine
whether the information requested is already available on its Web site,
which contains information readily accessible to the public. In such an
event, MCC will contact the requesting party, either orally or in
writing, to advise the individual of the availability of the information
on the public Web site. MCC should document this request and the manner
in which it handled the file. Where MCC makes the determination that the
information requested is not already publicly accessible, MCC should
adhere to the procedures outlined in this part for processing a FOIA
request and any administrative appeals received.
    (b) Public Reading room. (1) Records that are required to be
maintained by MCC shall be available for public inspection and copying
at 875 Fifteenth Street, NW., Washington, DC 20005. Reading room records
created on or after November 1, 1996 shall be made available
electronically via the Web site at http://www.mcc.gov.
    (2) MCC shall assess fees for searching, reviewing, or duplicating
reading room records in accordance with Sec. 1304.9.



Sec. 1304.4  Requests for records.

    (a) Request requirements. Requests for access to, or copies of, MCC
records shall be in writing and addressed to the FOIA Officer. Each
request shall include the following:
    (1) A description of the requested record that provides sufficient
detail to enable MCC to locate the record with a reasonable amount of
effort;

[[Page 380]]

    (2) The requestor's full name, mailing address, and a telephone
number where the requester can be reached during normal business hours;
    (3) A statement that the request is made pursuant to FOIA; and
    (4) At the discretion of the requestor, a dollar limit on the fees
MCC may incur to respond to the request for records. MCC shall not
exceed such limit.
    (b) Incomplete Requests. If a request does not meet all of the
requirements of paragraph (a) of this section, the FOIA Officer may
advise the requester that additional information is needed. If the
requester submits a corrected request, the FOIA Officer shall treat the
corrected request as a new request.



Sec. 1304.5  Responsibility for responding to requests.

    (a) General. In determining which records are responsive to a
request, MCC ordinarily will include only records in its possession as
of the date it begins its search for records. If any other date is used,
the FOIA Officer shall inform the requester of that date.
    (b) Authority to grant or deny requests. The FOIA Officer shall make
initial determinations either to grant or deny in whole or in part a
request for records. When the FOIA Officer denies the request in whole
or in part, the FOIA Officer shall notify the requester of the denial,
the grounds for the denial, and the procedures for appeal of the denial
under Sec. 1304.8.
    (c) Consultations and referrals. When a requested record has been
created by another Federal Government agency, that record shall be
referred to the originating agency for direct response to the requester.
The requester shall be informed of the referral. As this is not a denial
of a FOIA request, no appeal rights are afforded to the requester. When
a requested record is identified as containing information originating
with another Federal Government agency, the record shall be referred to
the originating agency for review and recommendation on disclosure.
    (d) Timing and deadlines. (1) The FOIA Officer ordinarily shall
respond to requests according to their order of receipt.
    (2) The FOIA Officer may use multi-track processing in responding to
requests. This process entails separating simple requesters that require
rather limited review from more lengthy and complex requests. Requests
in each track are then processed according to paragraph (d)(1) of this
section in their respective track.
    (3) The FOIA Officer may provide requesters in the slower track an
opportunity to limit the scope of their requests in order to decrease
the processing time required. The FOIA Officer may provide such an
opportunity by contacting the requester by letter or telephone.
    (4) The FOIA Officer shall make an initial determination regarding
access to the requested information and notify the requester within
twenty (20) working days after receipt of the request. This 20 day
period may be extended if unusual circumstances arise. If an extension
is necessary, the FOIA Officer shall promptly notify the requester of
the extension, briefly providing the reasons for the extension, the date
by which a determination is expected, and providing the requester with
the opportunity to modify the request so that the FOIA Officer may
process it in accordance with the 20 day period. Unusual circumstances
warranting extension are:
    (i) 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;
    (ii) The need to search for, collect, and appropriately examine a
lengthy amount of records which are demanded in a single request; or
    (iii) The need for consultation with another agency having a
substantial interest in the determination of the request, which
consultation shall be conducted with all practicable speed.
    (iv) If the FOIA Officer has a reasonable basis to conclude that a
requester or group of requesters has divided a request into a series of
requests on a single subject or related subject to avoid fees, the
requests may be aggregated and fees charged accordingly. Multiple
requests involving unrelated matters will not be aggregated.

[[Page 381]]

    (5) If no initial determination has been made at the end of the 20
day period provided for in paragraph (d)(4) of this section, including
any extension, the requester may appeal the action to the FOIA Appeals
Officer.
    (e) Expedited processing of request. The FOIA Officer must determine
whether to grant a request for expedited processing within 10 calendar
days of its receipt. Requests will receive expedited processing if one
of the following listed compelling reasons is met:
    (1) The requester can establish that failure to receive the records
quickly could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual; or
    (2) The requester is primarily engaged in disseminating information
and can demonstrate that an urgency to inform the public concerning
actual or alleged Federal Government activity exists.
    (f) Providing responsive records. The FOIA Officer shall provide one
copy of a record to a requester in any form or format requested if the
record is readily reproducible by MCC in that form or format by regular
U.S. mail to the address indicated in the request, unless other
arrangements are made. At the option of the requester and upon the
requester's agreement to pay fees in accordance with Sec. 1304.9, the
FOIA Officer shall provide copies by facsimile transmission or other
express delivery methods.



Sec. 1304.6  Records not disclosed.

    (a) Records exempt from disclosure. Except as otherwise provided in
this part, MCC shall not disclose records that are:
    (1) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and are in fact properly classified pursuant to such
Executive order.
    (2) Related solely to the MCC's internal personnel rules and
practices.
    (3) Specifically exempted from disclosure by a statute other than
FOIA if such statute requires the record to be withheld from the public
in such a manner as to leave no discretion on the issue, establishes
particular criteria for withholding, or refers to particular types of
records to be withheld.
    (4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential.
    (5) Inter- or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation with MCC.
    (6) Personnel, medical, or similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.
    (7) Compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information:
    (i) Could reasonably be expected to interfere with enforcement
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority, any private institution, or a Bank, which furnished
information on a confidential basis, and, in the case of a record
compiled by criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national
security 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.

[[Page 382]]

    (b) Reasonably segregable portions. (1) MCC shall provide a
requester with any reasonably segregable portion of a record after
deleting the portions that are exempt from disclosure under paragraph
(a) of this section.
    (2) MCC shall make a reasonable effort to estimate the volume of
removed information and provide that information to the requester unless
providing the estimate would harm an interest protected by the exemption
under which the removal is made.
    (3) MCC shall indicate the estimated volume of removed information
on the released portion of the record unless providing the estimate
would harm an interest protected by the exemption under which the
removal is made. If technically feasible, MCC shall make the indication
at the place in the record where the removal is made.
    (c) Public interest. MCC may disclose records it has authority to
withhold under paragraph (a) of this section upon a determination that
disclosure would be in the public interest.



Sec. 1304.7  Confidential commercial information.

    (a) Notice to submitters. The FOIA Officer shall, to the extent
permitted by law, provide a submitter who provides confidential
commercial information to the FOIA Officer, with prompt notice of a FOIA
request or administrative appeal encompassing the confidential
commercial information if the Commission may be required to disclose the
information under the FOIA. Such notice shall either describe the exact
nature of the information requested or provide copies of the records or
portions thereof containing the confidential commercial information. The
FOIA Officer shall also notify the requester that notice and an
opportunity to object has been given to the submitter.
    (b) Where notice is required. Notice shall be given to a submitter
when:
    (1) The information has been designated by the submitter as
confidential commercial information protected from disclosure.
Submitters of confidential commercial information shall use good faith
efforts to designated either at the time of submission or a reasonable
time thereafter, those portions of their submissions they deem protected
from disclosure under Exemption 4 of the FOIA because disclosure could
reasonably be expected to cause substantial competitive harm. Such
designation shall be deemed to have expired ten years after the date of
submission, unless the requester provides reasonable justification for a
designation period of greater duration; or
    (2) The FOIA Officer has reason to believe that the information may
be protected from disclosure under Exemption 4 of the FOIA.
    (c) Opportunity to object to disclosure. The FOIA Officer shall
afford a submitter a reasonable period of time to provide the FOIA
Officer with a detailed written statement of any objection to
disclosure. The statement shall specify all grounds for withholding any
of the information under any exemption of the FOIA, and if Exemption 4
applies, shall demonstrate the reasons the submitter believes the
information to be confidential commercial information that is exempt
from disclosure. Whenever possible, the submitter's claim of
confidentiality shall be supported by a statement or certification by an
officer or authorized representative of the submitter. In the event a
submitter fails to respond to the notice in the time specified, the
submitter will be considered to have no objection to the disclosure of
the information. Information provided by the submitter that is received
after the disclosure decision has been made will not be considered.
Information provided by a submitter pursuant to this paragraph may
itself be subject to disclosure under the FOIA.
    (d) Notice of intent to disclose. The FOIA Officer shall carefully
consider a submitter's objections and specific grounds for nondisclosure
prior to determining whether to disclose the information requested.
Whenever the FOIA Officer determines that disclosure is appropriate, the
FOIA Officer shall, within a reasonable number of days prior to
disclosure, provide the submitter with written notice of the intent to
disclose which shall include a statement of the reasons for which the
submitter's objections were overruled, a description of the information
to be disclosed, and a specific disclosure

[[Page 383]]

date. The FOIA Officer shall also notify the requester that the
requested records will be made available.
    (e) Notice of lawsuit. If the requester files a lawsuit seeking to
compel disclosure of confidential commercial information, the FOIA
Officer shall promptly notify the submitter of this action. If a
submitter files a lawsuit seeking to prevent disclosure of confidential
commercial information, the FOIA Officer shall notify the requester.
    (f) Exceptions to the notice requirements under this section. The
notice requirements under paragraphs (a) and (b) of this section shall
not apply if:
    (1) The FOIA Officer determines that the information should not be
disclosed pursuant to Exemption 4 and/or any other exemption of the
FOIA;
    (2) The information lawfully has been published or officially made
available to the public;
    (3) Disclosure of the information is required by law (other than the
FOIA);
    (4) The information requested is not designated by the submitter as
exempt from disclosure in accordance with this part, when the submitter
had the opportunity to do so at the time of submission of the
information or within a reasonable time thereafter, unless the agency
has substantial reason to believe that disclosure of the information
would result in competitive harm; or
    (5) The designation made by the submitter in accordance with this
part appears obviously frivolous. When the FOIA Officer determines that
a submitter was frivolous in designating information as confidential,
the FOIA Officer must provide the submitter with written notice of any
final administrative disclosure date, but no opportunity to object to
disclosure will be offered.



Sec. 1304.8  Appeals.

    (a) Right of appeal. The requester has the right to appeal to the
FOIA Appeals Officer any adverse determination.
    (b) Notice of appeal--(1) Timing for appeal. An appeal must be
received no later than thirty (30) working days after notification of
denial of access to records or after the time limit for response by the
FOIA Officer has expired. Prior to submitting an appeal any outstanding
fees related to FOIA requests must be paid in full.
    (2) Method of appeal. An appeal shall be initiated by filing a
written notice of appeal. The notice shall be accompanied by copies of
the original request and initial denial of access to records. To
expedite the appellate process and give the requester an opportunity to
present his or her arguments, the notice should contain a brief
statement of the reasons why the requester believes the initial denial
of access to records was in error. The appeal shall be addressed to the
Millennium Challenge Corporation, Attn: FOIA Appeals Officer, 875
Fifteenth Street, NW., Washington, DC 20005.
    (c) Final agency determinations. The FOIA Appeals Officer shall
issue a final written determination, stating the basis for his or her
decision, within twenty (20) working days after receipt of a notice of
appeal. If the determination is to provide access to the requested
records, the FOIA Officer shall make those records immediately available
to the requester. If the determination upholds the denial of access to
the requested records, the FOIA Appeals Officer shall notify the
requester of the determination.



Sec. 1304.9  Fees.

    (a) General. Fees pursuant to the FOIA shall be assessed according
to the schedule contained in paragraph (b) of this section for services
rendered by MCC in response to requests for records under this part.
MCC's fee practices are governed by the FOIA and by the Office of
Management and Budget's Uniform Freedom of Information Act Fee Schedule
and Guidelines. All fees shall be charged to the requester, except where
the charging of fees is limited under paragraph (d) of this section or
where a waiver or reduction of fees is granted under paragraph (c) of
this section. Payment of fees should be in U.S. Dollars in the form of
either a check or bank draft drawn on a bank in the United States or a
money order. Payment should be made payable to the Treasury of the
United States and mailed to the Millennium Challenge Corporation, 875
Fifteenth Street, NW., Washington, DC 20005.

[[Page 384]]

    (b) Charges for responding to FOIA requests. The following fees
shall be assessed in responding to requests for records submitted under
this part, unless a waiver or reduction of fees has been granted
pursuant to paragraph (c) of this section:
    (1) Duplications. The FOIA Officer shall charge $0.20 per page for
copies of documents up to 8\1/2\x14. For copies prepared by computer,
the FOIA Officer will charge actual costs of production of the computer
printouts, including operator time. For other methods of reproduction,
the FOIA Officer shall charge the actual costs of producing the
documents.
    (2) Searches--(i) Manual searches. Search fees will be assessed at
the rate of $25.30 per hour. Charges for search time less than a full
hour will be in increments of quarter hours.
    (ii) Computer searches. The FOIA Officer will charge the actual
direct costs of conducting computer searches. These direct costs shall
include the cost of operating the central processing unit for that
portion of operating time that is directly attributable to searching for
requested records, as well as the costs of operator/programmer salary
apportionable to the search. MCC is not required to alter or develop
programming to conduct searches.
    (3) Review fees. Review fees shall be assessed only with respect to
those requesters who seek records for a commercial use under paragraph
(d)(1) of this section. Review fees shall be assessed at the rate of
$43.63 per hour. Review fees shall be assessed only for the initial
record review, for example, review undertaken when the FOIA Officer
analyzes the applicability of a particular exemption to a particular
record or portion thereof at the initial request level. No charge shall
be assessed at the administrative appeal level of an exemption already
applied.
    (c) Statutory waiver. Documents shall be furnished without charge or
at a charge below that listed in paragraph (b) of this section where it
is determined, based upon information provided by a requester or
otherwise made known to the FOIA Officer, that disclosure of the
requested information is in the public interest. Disclosure is in the
public interest if it is likely to contribute significantly to public
understanding of government operations and is not primarily for
commercial purposes. Requests for a waiver or reduction of fees shall be
considered on a case-by-case basis. In order to determine whether the
fee waiver requirement is met, the FOIA Officer shall consider the
following six factors:
    (1) The subject of the request. Whether the subject of the requested
records concerns the operations or activities of the government;
    (2) The informative value of the information to be disclosed.
Whether disclosure is likely to contribute to an understanding of
government operations or activities;
    (3) The contribution to an understanding of the subject by the
general public likely to result from disclosure. Whether disclosure of
the requested information will contribute to public understanding;
    (4) The significance of the contribution to public understanding.
Whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities;
    (5) The existence and magnitude of commercial interest. Whether the
requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
    (6) The primary interest in disclosure. Whether the magnitude of the
identified commercial interest of the requester is sufficiently large,
in comparison with the public interest in disclosure, that disclosure is
primarily in the commercial interest of the requester.
    (d) Types of requesters. There are four categories of FOIA
requesters: Commercial use requesters; educational and non-commercial
scientific institutional requesters; representatives of the news media;
and all other requesters. These terms are defined in Sec. 1304.2. The
following specific levels of fees are prescribed for each of these
categories:
    (1) Commercial use requesters. The FOIA Officer shall charge
commercial use requesters the full direct costs of searching for,
reviewing, and duplicating requested records.
    (2) Educational and non-commercial scientific institution
requesters. The FOIA Officer shall charge educational and

[[Page 385]]

non-commercial scientific institution requesters for document
duplication only, except that the first 100 pages of paper copies shall
be provided without charge.
    (3) News media requesters. The FOIA Officer shall charge news media
requesters for document duplication costs only, except that the first
100 pages of paper copies shall be provided without charge.
    (4) All other requesters. The FOIA Officer shall charge requesters
who do not fall into any of the categories in paragraphs (d)(1) through
(3) of this section fees which recover the full reasonable direct costs
incurred for searching for and reproducing records if that total cost
exceeds $14.99, except that the first 100 pages of duplication and the
first two hours of manual search time shall not be charged.
    (e) Charges for unsuccessful searches. If the requester has been
notified of the estimated cost of the search time and has been advised
specifically that the requested records may not exist or may be withheld
as exempt, fees may be charged.
    (f) Nonpayment of fees. The FOIA Officer may assess interest charges
on an unpaid bill, accrued under previous FOIA request(s), starting the
thirty-first (31st) day following the day on which the bill was sent to
the requester. Interest will be at the rate prescribed in 31 U.S.C.
3717. MCC will require the requester to pay the full amount owed plus
any applicable interest as provided above, and to make an advance
payment of the full amount of the remaining estimated fee before MCC
will begin to process a new request or continue processing a then-
pending request from the requester. The administrative response time
limits prescribed in subsection (a)(6) of the FOIA will begin only after
MCC has received fee payments described in this section.
    (g) Aggregating requests. The requester or a group of requesters may
not submit multiple requests at the same time, each seeking portions of
a document or documents solely in order to avoid payment of fees. When
the FOIA Officer reasonably believes that a requester is attempting to
divide a request into a series of requests to evade an assessment of
fees, the FOIA Officer may aggregate such request and charge
accordingly.
    (h) Advance payment of fees. Fees may be paid upon provision of the
requested records, except that payment will be required prior to that
time if the requester has previously failed to pay fees or if the FOIA
Officer determines the total fee will exceed $250.00. When payment is
required in advance of the processing of a request, the time limits
prescribed in Sec. 1304.5 shall not be deemed to begin until the FOIA
Officer has received payment of the assessed fee. Where it is
anticipated that the cost of providing the requested record will exceed
$25.00 but fall below $250.00 after the free duplication and search time
has been calculated, MCC may, in its discretion may require either:
    (1) An advance deposit of the entire estimated charges; or
    (2) Written confirmation of the requester's willingness to pay such
charges.

[[Page 387]]



   CHAPTER 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




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

                         SUBCHAPTER A [RESERVED]
                    SUBCHAPTER B--GENERAL PROVISIONS
Part                                                                Page
1400-1410

[Reserved]

1411            Availability of official information........         389
1413            Open meetings...............................         395
1414            Ex parte communications.....................         397
SUBCHAPTER C--FOREIGN SERVICE LABOR RELATIONS BOARD AND GENERAL COUNSEL
                OF THE FEDERAL LABOR RELATIONS AUTHORITY
1420            Purpose and scope...........................         401
1421            Meaning of terms as used in this subchapter.         401
1422            Representation proceedings..................         403
1423            Unfair labor practice proceedings...........         414
1424            Expedited review of negotiability issues....         424
1425            Review of implementation dispute actions....         426
1427            General statements of policy or guidance....         426
1428            Enforcement of Assistant Secretary standards
                    of conduct decisions and orders.........         427
1429            Miscellaneous and general requirements......         428
          SUBCHAPTER D--FOREIGN SERVICE IMPASSE DISPUTES PANEL
1470            General.....................................         434
1471            Procedures of the panel.....................         434
1472-1499

[Reserved]

[[Page 388]]

Appendix A to Chapter XIV--Current addresses and geographic
  jurisdictions.............................................         437
Appendix B to Chapter XIV--Memorandum describing the
  authority and assigned responsibilities of the General
  Counsel of the Federal Labor Relations Authority under the
  Foreign Service Labor-Management Relations Statute........         438

[[Page 389]]



                         SUBCHAPTER A [RESERVED]





                     SUBCHAPTER B_GENERAL PROVISIONS



                         PARTS 0	1410 [RESERVED]



PART 1411_AVAILABILITY OF OFFICIAL INFORMATION--Table of Contents



Sec.
1411.1 Purpose and scope.
1411.2 Delegation of authority.
1411.3 Information policy.
1411.4 Procedure for obtaining information.
1411.5 Identification of information requested.
1411.6 Time limits for processing requests.
1411.7 Appeal from denial of request.
1411.8 Extension of time limits.
1411.9 Effect of failure to meet time limits.
1411.10 Fees.
1411.11 Compliance with subpoenas.
1411.12 Annual report.

    Authority: 5 U.S.C. 552.

    Source: 46 FR 45854, Sept. 15, 1981, unless otherwise noted.



Sec. 1411.1  Purpose and scope.

    This part contains the regulations of the Foreign Service Labor
Relations Board (the Board), the General Counsel of the Federal Labor
Relations Authority (the General Counsel) and the Foreign Service
Impasse Disputes Panel (the Panel) providing for public access to
information from the Board, the General Counsel or the Panel. These
regulations implement the Freedom of Information Act, as amended, 5
U.S.C. 552, and the policy of the Board, the General Counsel and the
Panel to disseminate information on matters of interest to the public
and to disclose to members of the public on request such information
contained in records insofar as is compatible with the discharge of
their responsibilities, consistent with applicable law.



Sec. 1411.2  Delegation of authority.

    (a) Foreign Service Labor Relations Board/General Counsel of the
Federal Labor Relations Authority. Regional Directors of the Federal
Labor Relations Authority, the Freedom of Information Officer of the
Office of the General Counsel, Washington, DC, and the Solicitor of the
Federal Labor Relations Authority are delegated the exclusive authority
to act upon all requests for information, documents and records which
are received from any person or organization under Sec. 1411.4(a).
    (b) Foreign Service Impasse Disputes Panel. The Executive Director
of the Federal Service Impasses Panel is delegated the exclusive
authority to act upon all requests for information, documents and
records which are received from any person or organization under Sec.
1411.4(b).



Sec. 1411.3  Information policy.

    (a) Foreign Service Labor Relations Board/General Counsel of the
Federal Labor Relations Authority. (1) It is the policy of the Foreign
Service Labor Relations Board and the General Counsel of the Federal
Labor Relations Authority to make available for public inspection and
copying: (i) Final decisions and orders of the Board and administrative
rulings of the General Counsel; (ii) statements of policy and
interpretations which have been adopted by the Board or by the General
Counsel and are not published in the Federal Register; and (iii)
administrative staff manuals and instructions to staff that affect a
member of the public (except those establishing internal operating
rules, guidelines, and procedures for the investigation, trial, and
settlement of cases). Any person may examine and copy items in
paragraphs (a)(1) (i) through (iii) of this section at each regional
office of the Authority and at the offices of the Authority and the
General Counsel, respectively, in Washington, DC, under conditions
prescribed by the Board and the General Counsel, respectively, and at
reasonable times during normal working hours so long as it does not
interfere with the efficient operations of the Authority, the Board and
the General Counsel. To the extent required to prevent a clearly
unwarranted invasion of personal privacy, identifying details may be
deleted and, in each case, the justification for the deletion shall be
fully explained in writing.

[[Page 390]]

    (2) It is the policy of the Board and the General Counsel to make
promptly available for public inspection and copying, upon request by
any person, other records where the request reasonably describes such
records and otherwise conforms with the rules provided herein.
    (b) Foreign Service Impasse Disputes Panel. (1) It is the policy of
the Foreign Service Impasse Disputes Panel to make available for public
inspection and copying: (i) Procedural determinations of the Panel; (ii)
factfinding and arbitration reports; (iii) final decisions and orders of
the Panel; (iv) statements of policy and interpretations which have been
adopted by the Panel and are not published in the Federal Register; and
(v) administrative staff manuals and instructions to staff that affect a
member of the public. Any person may examine and copy items in
paragraphs (b)(1)(i) through (v) of this section at the offices of the
Federal Service Impasses Panel in Washington, DC, under conditions
prescribed by the Panel, and at reasonable times during normal working
hours so long as it does not interfere with the efficient operations of
the Federal Service Impasses Panel and the Panel. To the extent required
to prevent a clearly unwarranted invasion of personal privacy,
identifying details may be deleted and, in each case, the justification
for the deletion shall be fully explained in writing.
    (2) It is the policy of the Panel to make promptly available for
public inspection and copying, upon request by any person, other records
where the request reasonably describes such records and otherwise
conforms with the rules provided herein.
    (c) The Board, the General Counsel and the Panel shall maintain and
make available for public inspection and copying the current indexes and
supplements thereto which are required by 5 U.S.C. 552(a)(2) and, as
appropriate, a record of the final votes of each member of the Board and
of the Panel in every agency proceeding. Any person may examine and copy
such document or record of the Board, the General Counsel or the Panel
at the offices of the Authority, the General Counsel, or the Federal
Service Impasses Panel, as appropriate, in Washington, DC, under
conditions prescribed by the Board, the General Counsel or the Panel at
reasonable times during normal working hours so long as it does not
interfere with the efficient operations of the Authority, the Board, the
General Counsel, the Federal Service Impasses Panel, or the Panel.
    (d) The Board, the General Counsel or the Panel may decline to
disclose any matters exempted from the disclosure requirements in 5
U.S.C. 552(b), particularly those that are:
    (1)(i) Specifically authorized under criteria established by an
executive order to be kept secret in the interest of national defense or
foreign policy and (ii) are in fact properly classified pursuant to such
executive order;
    (2) Related solely to internal personnel rules and practices of the
Authority, the General Counsel or the Federal Service Impasses Panel;
    (3) Specifically exempted from disclosure by statute (other than 5
U.S.C. 552(b)): Provided, That such statute:
    (i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
    (ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
    (5) Interagency or intra-agency memoranda or letters which would not
be available by law to a party other than an agency in litigation with
the agency;
    (6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy; or
    (7) Investigatory records compiled for law enforcement purposes, but
only to the extent that the production of such records would:
    (i) Interfere with an enforcement proceeding;
    (ii) Deprive a person of a right to a fair trial or an impartial
adjudication;
    (iii) Constitute an unwarranted invasion of personal privacy;
    (iv) Disclose the identity of a confidential source and, in the case
of a

[[Page 391]]

record compiled by a criminal law enforcement authority in the course of
a criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, confidential information furnished
only by the confidential source;
    (v) Disclose investigative techniques and procedures; or
    (vi) Endanger the life or physical safety of law enforcement
personnel.
    (e)(1) The formal documents constituting the record in a case or
proceeding are matters of official record and, until destroyed pursuant
to applicable statutory authority, are available to the public for
inspection and copying at the appropriate regional office of the
Authority, or the offices of the Authority, the General Counsel or the
Federal Service Impasses Panel in Washington, DC, as appropriate, under
conditions prescribed by the Authority, the General Counsel or the
Federal Service Impasses Panel at reasonable times during normal working
hours so long as it does not interfere with the efficient operations of
the Authority, the General Counsel or the Federal Service Impasses
Panel.
    (2) The Board, the General Counsel or the Panel, as appropriate,
shall certify copies of the formal documents upon request made a
reasonable time in advance of need and payment of lawfully prescribed
costs.
    (f)(1) Copies of forms prescribed by the Board for the filing of
charges and petitions may be obtained without charge from any regional
office of the Authority.
    (2) Copies of forms prescribed by the Panel for the filing of
requests may be obtained without charge from the offices of the Federal
Service Impasses Panel in Washington, DC.



Sec. 1411.4  Procedure for obtaining information.

    (a) Foreign Service Labor Relations Board/General Counsel of the
Federal Labor Relations Authority. Any person who desires to inspect or
copy any records, documents or other information of the Board or the
General Counsel, covered by this part, other than those specified in
paragraphs (a) (1) and (c) of Sec. 1411.3, shall submit a written
request to that effect as follows:
    (1) If the request is for records, documents or other information in
a regional office of the Authority, it should be made to the appropriate
Regional Director;
    (2) If the request is for records, documents or other information in
the Office of the General Counsel and located in Washington, DC, it
should be made to the Freedom of Information Officer, Office of the
General Counsel, Washington, DC; and
    (3) If the request is for records, documents or other information in
the offices of the Authority in Washington, DC, it should be made to the
Solicitor of the Authority, Washington, DC.
    (b) Foreign Service Impasse Disputes Panel. Any person who desires
to inspect or copy any records, documents or other information of the
Panel covered by this part, other than those specified in paragraphs (b)
(1) and (c) of Sec. 1411.3, shall submit a written request to that
effect to the Executive Director, Federal Service Impasses Panel,
Washington, DC.
    (c) All requests under this part should be clearly and prominently
identified as a request for information under the Freedom of Information
Act and, if submitted by mail or otherwise submitted in an envelope or
other cover, should be clearly identified as such on the envelope or
other cover. If a request does not comply with the provisions of this
paragraph, it shall not be deemed received by the appropriate Regional
Director, the Freedom of Information Officer of the Office of the
General Counsel, the Solicitor of the Authority, or the Executive
Director of the Federal Service Impasses Panel, as appropriate, until
the time it is actually received by such person.



Sec. 1411.5  Identification of information requested.

    (a) Each request under this part should reasonbaly describe the
records being sought in a way that they can be identified and located. A
request should include all pertinent details that will help identify the
records sought.
    (b) If the description is insufficient, the officer processing the
request will

[[Page 392]]

so notify the person making the request and indicate the additional
information needed. Every reasonable effort shall be made to assist in
the identification and location of the record sought.
    (c) Upon receipt of a request for records, the appropriate Regional
Director, the Freedom of Information Officer of the Office of the
General Counsel, the Solicitor of the Authority, or the Executive
Director of the Federal Service Impasses Panel, as appropriate, shall
enter it in a public log. The log shall state the date and time
received, the name and address of the person making the request, the
nature of the records requested, the action taken on the request, the
date of the determination letter sent pursuant to paragraphs (b) and (c)
of Sec. 1411.6, the date(s) any records are subsequently furnished, the
number of staff-hours and grade levels of persons who spent time
responding to the request, and the payment requested and received.



Sec. 1411.6  Time limits for processing requests.

    (a) All time limits established pursuant to this section shall begin
as of the time at which a request for records is logged in by the
appropriate Regional Director, the Freedom of Information Officer of the
Office of the General Counsel, the Solicitor of the Authority, or the
Executive Director of the Federal Service Impasses Panel, as
appropriate, processing the request pursuant to paragraph (c) of Sec.
1411.5. An oral request for records shall not begin any time
requirement. A written request for records sent to other than the
appropriate officer will be forwarded to that officer by the receiving
officer, but in that event the applicable time limit for response set
forth in paragraph (b) of this section shall begin upon the request
being logged in as required by paragraph (c) of Sec. 1411.5.
    (b) Except as provided in Sec. 1411.8, the appropriate Regional
Director, the Freedom of Information Officer of the Office of the
General Council, the Solicitor of the Authority, or the Executive
Director of the Federal Service Impasses Panel, as appropriate, shall,
within ten (10) working days following receipt of the request, respond
in writing to the requester, determining whether, or the extent to
which, the request shall be complied with.
    (1) If all the records requested have been located and a final
determination has been made with respect to disclosure of all of the
records requested, the response shall so state.
    (2) If all of the records have not been located or a final
determination has not been made with respect to disclosure of all the
records requested, the response shall state the extent to which the
records involved shall be disclosed pursuant to the rules established in
this part.
    (3) If the request is expected to involve an assessed fee in excess
of $25.00, the response shall specify or estimate the fee involved and
shall require prepayment of any charges in accordance with the
provisions of paragraph (a) of Sec. 1411.10 before the records are made
available.
    (4) Whenever possible, the response relating to a request for
records that involves a fee of less than $25.00 shall be accompanied by
the requested records. Where this is not possible, the records shall be
forwarded as soon as possible thereafter, consistent with other
obligations of the Board, the General Counsel or the Panel.
    (c) If any request for records is denied in whole or in part, the
response required by paragraph (b) of this section shall notify the
requester of the denial. Such denial shall specify the reason therefor,
set forth the name and title or position of the person responsible for
the denial, and notify the person making the request of the right to
appeal the denial under the provisions of Sec. 1411.7.



Sec. 1411.7  Appeal from denial of request.

    (a) Foreign Service Labor Relations Board/General Counsel of the
Federal Labor Relations Authority. (1) Whenever any request for records
is denied, a written appeal may be filed within thirty (30) days after
the requester receives notification that the request has been denied or
after the requester receives any records being made available, in the
event of partial denial. If the denial was made by a Regional Director
or by the Freedom of Information Officer of the Office of the General

[[Page 393]]

Counsel, the appeal shall be filed with the General Counsel in
Washington, DC. If the denial was made by the Solicitor of the
Authority, the appeal shall be filed with the Chairperson of the Board
in Washington, DC.
    (2) The Chairperson of the Board or the General Counsel, as
appropriate, shall, within twenty (20) working days from the time of
receipt of the appeal, except as provided in Sec. 1411.8, make a
determination on the appeal and respond in writing to the requester,
determining whether, or the extent to which, the request shall be
complied with.
    (i) If the determination is to comply with the request and the
request is expected to involve an assessed fee in excess of $25.00, the
determination shall specify or estimate the fee involved and shall
require prepayment of any charges due in accordance with the provisions
of paragraph (a) of Sec. 1411.10 before the records are made available.
    (ii) Whenever possible, the determination relating to a request for
records that involves a fee of less than $25.00 shall be accompanied by
the requested records. Where this is not possible, the records shall be
forwarded as soon as possible thereafter, consistent with other
obligations of the Board or the General Counsel.
    (b) Foreign Service Impasse Disputes Panel. (1) Whenever any request
for records is denied by the Executive Director of the Federal Service
Impasses Panel, a written appeal may be filed with the Chairperson of
the Panel within thirty (30) days after the requester receives
notification that the request has been denied or after the requester
receives any records being made available, in the event of partial
denial.
    (2) The Chairperson of the Panel, within twenty (20) working days
from the time of receipt of the appeal, except as provided in Sec.
1411.8, shall make a determination on the appeal and respond in writing
to the requester, determining whether, or the extent to which, the
request shall be complied with.
    (i) If the determination is to comply with the request and the
request is expected to involve an assessed fee in excess of $25.00, the
determination shall specify or estimate the fee involved and shall
require prepayment of any charges due in accordance with the provisions
of paragraph (a) of Sec. 1411.10 before the records are made available.
    (ii) Whenever possible, the determination relating to a request for
records that involves a fee of less than $25.00 shall be accompanied by
the requested records. Where this is not possible, the records shall be
forwarded as soon as possible thereafter, consistent with other
obligations of the Panel.
    (c) If on appeal the denial of the request for records is upheld in
whole or in part by the Chairperson of the Board, the General Counsel,
or the Chairperson of the Panel, as appropriate, the person making the
request shall be notified of the reasons for the determination, the name
and title or position of the person responsible for the denial, and the
provisions for judicial review of that determination under 5 U.S.C.
552(a)(4). Even though no appeal is filed from a denial in whole or in
part of a request for records by the person making the request, the
Chairperson of the Board, the General Counsel or the Chairperson of the
Panel, as appropriate, may, without regard to the time limit for filing
of an appeal, sua sponte initiate consideration of a denial under this
appeal procedure by written notification to the person making the
request. In such event, the time limit for making the determination
shall commence with the issuance of such notification.



Sec. 1411.8  Extension of time limits.

    In unusual circumstances as specified in this section, the time
limits prescribed with respect to initial determinations or
determinations on appeal may be extended by written notice from the
officer handling the request (either initial or on appeal) to the person
making such request setting forth the reasons for such extension and the
date on which a determination is expected to be dispatched. No such
notice shall specify a date that would result in a total extension of
more than ten (10) working days. As used in this section, ``unusual
circumstances'' means, but only to the extent reasonably necessary to
the proper processing of the particular request:

[[Page 394]]

    (a) 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;
    (b) The need to search for, collect and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
    (c) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject matter interest therein.



Sec. 1411.9  Effect of failure to meet time limits.

    Failure by the Board, the General Counsel or the Federal Service
Impasses Panel either to deny or grant any request under this part
within the time limits prescribed by the Freedom of Information Act, as
amended, 5 U.S.C. 552, and these regulations shall be deemed to be an
exhaustion of the administrative remedies available to the person making
this request.



Sec. 1411.10  Fees.

    Persons requesting records from the Board, the General Counsel or
the Panel shall be subject to a charge of fees for the direct cost of
document search and duplication in accordance with the following
schedules, procedures and conditions:
    (a) The following fees shall be charged for disclosure of any record
pursuant to this part:
    (1) Copying of records. Ten cents per copy of each page.
    (2) Clerical searches. $1.25 for each one-quarter hour spent by
clerical personnel searching for and producing a requested record,
including time spent copying any record.
    (3) Nonclerical searches. $2.50 for each one-quarter hour spent by
professional or managerial personnel searching for and producing a
requested record, including time spent copying any record.
    (4) Forwarding material to destination. Postage, insurance and
special fees will be charged on an actual cost basis.
    (b) All charges may be waived or reduced whenever it is in the
public interest to do so.
    (c) Requests for copies of transcripts of hearings should be made to
the official hearing reporter. However, a person may request a copy of a
transcript of a hearing from the Board, the Panel or the General
Counsel, as appropriate. In such instance, the Board, the Panel or the
General Counsel, as appropriate, may, by agreement with the person
making the request, make arrangements with commercial firms for required
services to be charged directly to the requester.
    (d) No charge shall be made for the time spent in resolving legal or
policy issues or in examining records for the purpose of deleting
nondisclosable portions thereof.
    (e) Payment of fees shall be made by check or money order payable to
the U.S. Treasury.



Sec. 1411.11  Compliance with subpoenas.

    No member of the Board or the Panel, or the General Counsel, or
employee of the Authority, the Federal Service Impasses Panel, or the
General Counsel shall produce or present any files, documents, reports,
memoranda, or records of the Board, the Panel or the General Counsel, or
testify in behalf of any party to any cause pending in any arbitration
or in any court or before the Board or the Panel, or any other board,
commission, or administrative agency of the United States, territory, or
the District of Columbia with respect to any information, facts, or
other matter to their knowledge in their official capacity or with
respect to the contents of any files, documents, reports, memoranda, or
records of the Board, the Panel or the General Counsel, whether in
answer to a subpoena, subpoena duces tecum, or otherwise, without the
written consent of the Board, the Panel or the General Counsel, as
appropriate. Whenever any subpoena, the purpose for which is to adduce
testimony or require the production of records as described in this
section, shall have been served on any member of the Board or of the
Panel or employee of the Authority, the Federal Service Impasses Panel
or the General

[[Page 395]]

Counsel, such person will, unless otherwise expressly directed by the
Board, the Panel or the General Counsel, as appropriate, and as provided
by law, move pursuant to the applicable procedure to have such subpoena
invalidated on the ground that the evidence sought is privileged against
disclosure by this rule.



Sec. 1411.12  Annual report.

    On or before March 1 of each calendar year, the Executive Director
of the Authority shall submit a report of the activities of the Board,
the General Counsel and the Panel with regard to public information
requests during the preceding calendar year to the Speaker of the House
of Representatives and the President of the Senate for referral to the
appropriate committees of the Congress. The report shall include for
such calendar year all information required by 5 U.S.C. 552(d) and such
other information as indicates the efforts of the Board, the General
Counsel and the Panel to administer fully the provisions of the Freedom
of Information Act, as amended.



PART 1413_OPEN MEETINGS--Table of Contents



Sec.
1413.1 Purpose and scope.
1413.2 Public observation of meetings.
1413.3 Definition of meeting.
1413.4 Closing of meetings; reasons therefor.
1413.5 Action necessary to close meeting; record of votes.
1413.6 Notice of meetings; public announcement and publication.
1413.7 Transcripts, recordings or minutes of closed meeting; public
          availability; retention.

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

    Source: 46 FR 45858, Sept. 15, 1981, unless otherwise noted.



Sec. 1413.1  Purpose and scope.

    This part contains the regulations of the Foreign Service Labor
Relations Board implementing the Government in the Sunshine Act, 5
U.S.C. 552b.



Sec. 1413.2  Public observation of meetings.

    Every portion of every meeting of the Board shall be open to public
observation, except as provided in Sec. 1413.4, and Board members shall
not jointly conduct or dispose of agency business other than in
accordance with the provisions of this part.



Sec. 1413.3  Definition of meeting.

    For purposes of this part, meeting shall mean the deliberations of
at least two (2) members of the Board where such deliberations determine
or result in the joint conduct or disposition of official agency
business, but does not include deliberations to determine whether a
meeting should be closed to public observation in accordance with the
provisions of this part.



Sec. 1413.4  Closing of meetings; reasons therefor.

    (a) Except where the Board determines that the public interest
requires otherwise, meetings, or portions thereof, shall not be open to
public observation where the deliberations concern the issuance of a
subpoena, the Board participation in a civil action or proceeding or an
arbitration, or the initiation, conduct or disposition by the Board of
particular cases of formal agency adjudication pursuant to the
procedures in 5 U.S.C. 554 or otherwise involving a determination on the
record after opportunity for a hearing, or any court proceedings
collateral or ancillary thereto.
    (b) Meetings, or portions thereof, may also be closed by the Board,
except where it determines that the public interest requires otherwise,
when the deliberations concern matters or information falling within the
reasons for closing meetings specified in 5 U.S.C. 552b(c)(1) (secret
matters concerning national defense or foreign policy); (c)(2) (internal
personnel rules and practices); (c)(3) (matters specifically exempted
from disclosure by statute); (c)(4) (privileged or confidential trade
secrets and commercial or financial information); (c)(5) (matters of
alleged criminal conduct or formal censure); (c)(6) (personal
information where disclosure would cause a clearly unwarranted invasion
of personal privacy); (c)(7) (certain materials or information from
investigatory files compiled for law enforcement purposes); or (c)(9)(B)
(disclosure would significantly frustrate implementation of a proposed
agency action).

[[Page 396]]



Sec. 1413.5  Action necessary to close meeting; record of votes.

    A meeting shall be closed to public observation under Sec. 1413.4,
only when a majority of the members of the Board who will participate in
the meeting vote to take such action.
    (a) When the meeting deliberations concern matters specified in
Sec. 1413.4(a), the Board members shall vote at the beginning of the
meeting, or portion thereof, on whether to close such meeting, or
portion thereof, to public observation and on whether the public
interest requires that a meeting which may properly be closed should
nevertheless be open to public observation. A record of such vote,
reflecting the vote of each member of the Board, shall be kept and made
available to the public at the earliest practicable time.
    (b) When the meeting deliberations concern matters specified in
Sec. 1413.4(b), the Board shall vote on whether to close such meeting,
or portion thereof, to public observation, and on whether there is a
public interest which requires that a meeting which may properly be
closed should nevertheless be open to public observation. The vote shall
be taken at a time sufficient to permit inclusion of information
concerning the open or closed status of the meeting in the public
announcement thereof. A single vote may be taken with respect to a
series of meetings at which the deliberations will concern the same
particular matters where such subsequent meetings are scheduled to be
held within thirty (30) days after the initial meeting. A record of such
vote, reflecting the vote of each member of the Board, shall be kept and
made available for the public within one (1) day after the vote is
taken.
    (c) Whenever any person whose interests may be directly affected by
deliberations during a meeting, or a portion thereof, requests that the
Board close that meeting, or portion thereof, to public observation for
any of the reasons specified in 5 U.S.C. 552b(c)(5) (matters of alleged
criminal conduct or formal censure), (c)(6) (personal information where
disclosure would cause a clearly unwarranted invasion of personal
privacy), or (c)(7) (certain materials or information from investigatory
files compiled for law enforcement purposes), the Board members
participating in the meeting, upon request of any one of its members,
shall vote on whether to close such meeting, or a portion thereof, for
that reason. A record of such vote, reflecting the vote of each member
of the Board participating in the meeting, shall be kept and made
available to the public within one (1) day after the vote is taken.
    (d) After public announcement of a meeting as provided in Sec.
1413.6, a meeting, or portion thereof, announced as closed may be
opened, or a meeting, or portion thereof, announced as open may be
closed only if a majority of the members of the Board who will
participate in the meeting determine by a recorded vote that Board
business so requires and that an earlier announcement of the change was
not possible. The change made and the vote of each member on the change
shall be announced publicly at the earliest practicable time.
    (e) Before a meeting may be closed pursuant to Sec. 1413.4, the
Solicitor of the Authority shall certify that in the Solicitor's opinion
the meeting may properly be closed to public observation. The
certification shall set forth each applicable exemptive provision for
such closing. Such certification shall be retained by the agency and
made publicly available as soon as practicable.



Sec. 1413.6  Notice of meetings; public announcement and publication.

    (a) A public announcement setting forth the time, place and subject
matter of meetings, or portions thereof, closed to public observation
pursuant to the provisions of Sec. 1413.4(a), shall be made at the
earliest practicable time.
    (b) Except for meetings closed to public observation pursuant to the
provisions of Sec. 1413.4(a), the agency shall make public announcement
of each meeting to be held at least seven (7) days before the scheduled
date of the meeting. The announcement shall specify the time, place and
subject matter of the meeting, whether it is to be open to public
observation or closed, and the name, address, and phone number of an
agency official designated to respond to requests for information about
the meeting. The seven (7) day

[[Page 397]]

period for advance notice may be shortened only upon a determination by
a majority of the members of the Board who will participate in the
meeting that agency business requires that such meeting be called at an
earlier date, in which event the public announcements shall be made at
the earliest practicable time. A record of the vote to schedule a
meeting at an earlier date shall be kept and made available to the
public.
    (c) Within one (1) day after a vote to close a meeting, or any
portion thereof, pursuant to the provisions of Sec. 1413.4(b), the
agency shall make publicly available a full written explanation of its
action closing the meeting, or portion thereof, together with a list of
all persons expected to attend the meeting and their affiliation.
    (d) If after public announcement required by paragraph (b) of this
section has been made, the time and place of the meeting are changed, a
public announcement shall be made at the earliest practicable time. The
subject matter of the meeting may be changed after the public
announcement only if a majority of the members of the Board who will
participate in the meeting determine that agency business so requires
and that no earlier announcement of the change was possible. When such a
change in subject matter is approved, a public announcement of the
change shall be made at the earliest practicable time. A record of the
vote to change the subject matter of the meeting shall be kept and made
available to the public.
    (e) All announcements or changes thereto issued pursuant to the
provisions of paragraphs (b) and (d) of this section or pursuant to the
provisions of Sec. 1413.5(d) shall be submitted for publication in the
Federal Register immediately following their release to the public.
    (f) Announcements of meetings made pursuant to the provisions of
this section shall be made publicly available by the Executive Director
of the Authority.



Sec. 1413.7  Transcripts, recordings or minutes of closed meeting;
public availability; retention.

    (a) For every meeting, or portion thereof, closed under the
provisions of Sec. 1413.4, the presiding officer shall prepare a
statement setting forth the time and place of the meeting and the
persons present, which statement shall be retained by the agency. For
each such meeting, or portion thereof, there shall also be maintained a
complete transcript or electronic recording of the proceedings, except
that for meetings closed pursuant to Sec. 1413.4(a), the Board may, in
lieu of a transcript or electronic recording, maintain a set of minutes
fully and accurately summarizing any action taken, the reasons therefor
and views thereon, documents considered and the members' vote on each
roll-call vote.
    (b) The agency shall make promptly available to the public copies of
transcripts, recordings or minutes maintained as provided in accordance
with paragraph (a) of this section, except to the extent the items
therein contain information which the agency determines may be withheld
pursuant to the provisions of 5 U.S.C. 552b(c). Copies of transcripts or
minutes, or transcriptions of electronic recordings including the
indentification of speakers, shall to the extent determined to be
publicly available, be furnished to any person, subject to the payment
of duplication costs in accordance with the schedule of fees set forth
in Sec. 1411.10 of this subchapter and the actual cost of
transcription.
    (c) The agency shall maintain a complete verbatim copy of the
transcript, a complete copy of the minutes, or a complete electronic
recording of each meeting, or portion of a meeting, closed to the
public, for a period of at least two (2) years after such meeting or
until one (1) year after the conclusion of any agency proceeding with
respect to which the meeting or portion was held whichever occurs later.



PART 1414_EX PARTE COMMUNICATIONS--Table of Contents



Sec.
1414.1 Purpose and scope.
1414.2 Unauthorized communications.

[[Page 398]]

1414.3 Definitions.
1414.4 Duration of prohibition.
1414.5 Communications prohibited.
1414.6 Communications not prohibited.
1414.7 Solicitation of prohibited communications.
1414.8 Reporting of prohibited communications; penalties.
1414.9 Penalties and enforcement.

    Authority: 22 U.S.C. 4107(c).

    Source: 46 FR 45859, Sept. 15, 1981, unless otherwise noted.



Sec. 1414.1  Purpose and scope.

    This part contains the regulations of the Foreign Service Labor
Relations Board relating to ex parte communications.



Sec. 1414.2  Unauthorized communications.

    (a) No interested person outside this agency shall, in any Board
proceeding subject to 5 U.S.C. 557(a), make or knowingly cause to be
made any prohibited ex parte communication to any Board member or
Authority employee who is or may reasonably be expected to be involved
in the decisional process of the proceeding.
    (b) No Board member or Authority employee who is or may reasonably
be expected to be involved in the decisional process of the proceeding
relevant to the merits of the proceeding shall: (1) Request any
prohibited ex parte communications; or (2) make or knowingly cause to be
made any prohibited ex parte communications about the proceeding to any
interested person outside this agency relevant to the merits of the
proceeding.



Sec. 1414.3  Definitions.

    When used in this part:
    (a) The term person outside this agency, to whom the prohibitions
apply, shall include any individual outside the Board or the Authority,
labor organization, agency, or other entity, or an agent thereof, and
the General Counsel or his representative when prosecuting an unfair
labor practice proceeding before the Board pursuant to 22 U.S.C. 4116.
    (b) The term ex parte communication means an oral or written
communication not on the public record with respect to which reasonable
prior notice to all parties is not given, subject however, to the
provisions of Sec. Sec. 1414.5 and 1414.6.



Sec. 1414.4  Duration of prohibition.

    Unless otherwise provided by specific order of the Board entered in
the proceeding, the prohibition of Sec. 1414.2 shall be applicable in
any Board proceeding subject to 5 U.S.C. 557(a) beginning at the time of
which the proceeding is noticed for hearing, unless the person
responsible for the communication has knowledge that it will be noticed,
in which case the prohibitions shall apply beginning at the time of such
person's acquisition of such knowledge.



Sec. 1414.5  Communications prohibited.

    Except as provided in Sec. 1414.6, ex parte communications
prohibited by Sec. 1414.2 shall include:
    (a) Such communications, when written, if copies thereof are not
contemporaneously served by the communicator on all parties to the
proceeding in accordance with the provisions of part 1429 of this
chapter; and
    (b) Such communications, when oral, unless advance notice thereof is
given by the communicator to all parties in the proceeding and adequate
opportunity afforded to them to be present.



Sec. 1414.6  Communications not prohibited.

    Ex parte communications prohibited by Sec. 1414.2 shall not
include:
    (a) Oral or written communications which relate solely to matters
which the Hearing Officer, Regional Director, Administrative Law Judge,
General Counsel or member of the Board is authorized by law or Board
rules to entertain or dispose of on an ex parte basis;
    (b) Oral or written requests for information solely with respect to
the status of a proceeding;
    (c) Oral or written communications which all the parties to the
proceeding agree, or which the responsible official formally rules, may
be made on an ex parte basis;
    (d) Oral or written communications proposing settlement or an
agreement for disposition of any or all issues in the proceeding;

[[Page 399]]

    (e) Oral or written communications which concern matters of general
significance to the field of labor-management relations or
administrative practice and which are not specifically related to any
agency proceeding subject to 5 U.S.C. 557(a); or
    (f) Oral or written communications from the General Counsel to the
Board when the General Counsel is acting on behalf of the Board under 22
U.S.C. 4109(d).



Sec. 1414.7  Solicitation of prohibited communications.

    No person shall knowingly and willfully solicit the making of an
unauthorized ex parte communication by any other person.



Sec. 1414.8  Reporting of prohibited communications; penalties.

    Any Board member or Authority employee who is or may reasonably be
expected to be involved in the decisional process of the proceeding
relevant to the merits of the proceeding to whom a prohibited oral ex
parte communication is attempted to be made, shall refuse to listen to
the communication, inform the communicator of this rule, and advise such
person that if the person has anything to say it should be said in
writing with copies to all parties. Any such Board member or Authority
employee who is or may reasonably be expected to be involved in the
decisional process of the proceeding relevant to the merits of the
proceeding who receives, or who makes or knowingly causes to be made, an
unauthorized ex parte communication, shall place or cause to be placed
on the public record of the proceeding: (a) The communication, if it was
written; (b) a memorandum stating the substance of the communication, if
it was oral; (c) all written responses to the prohibited communication;
and (d) memoranda stating the substance of all oral responses to the
prohibited communication. The Executive Director of the Authority, if
the proceeding is then pending before the Board, the Administrative Law
Judge, if the proceeding is then pending before any such judge, or the
Regional Director, if the proceeding is then pending before a Hearing
Officer or the Regional Director, shall serve copies of all such
materials placed on the public record of the proceeding on all other
parties to the proceeding and on the attorneys of record for the
parties. Within ten (10) days after the mailing of such copies, any
party may file with the Executive Director of the Authority,
Administrative Law Judge, or Regional Director serving the
communication, as appropriate, and serve on all other parties, a
statement setting forth facts or contentions to rebut those contained in
the prohibited communication. All such responses shall be placed in the
public record of the proceeding, and provision may be made for any
further action, including reopening of the record, which may be required
under the circumstances. No action taken pursuant to this provision
shall constitute a waiver of the power of the Board to impose an
appropriate penalty under Sec. 1414.9



Sec. 1414.9  Penalties and enforcement.

    (a) Where the nature and circumstances of a prohibited communication
made by or caused to be made by a party to the proceeding are such that
the interests of justice and statutory policy may require remedial
action, the Board, Administrative Law Judge, or Regional Director, as
appropriate, may issue to the party making the communication a notice to
show cause, returnable before the Board, Administrative Law Judge, or
Regional Director, within a stated period not less than seven (7) days
from the date thereof, why the Board, Administrative Law Judge, or
Regional Director should not determine that the interests of justice and
statutory policy require that the claim or interest in the proceeding of
a party who knowingly makes a prohibited communication or knowingly
causes a prohibited communication to be made, should be dismissed,
denied, disregarded or otherwise adversely affected on account of such
violation.
    (b) Upon notice and hearing, the Board may censure, suspend or
revoke the privilege of practice before the agency of any person who
knowingly and willfully makes or solicits the making of a prohibited ex
parte communication. However, before the Board

[[Page 400]]

institutes formal proceedings under this section, it shall first advise
the person or persons concerned in writing that it proposes to take such
action and that they may show cause, within a period to be stated in
such written advice, but not less than seven (7) days from the date
thereof, why it should not take such action.
    (c) The Board may censure, or, to the extent permitted by law,
suspend, dismiss, or institute proceedings for the dismissal of, any
Board agent who knowingly and willfully violates the prohibitions and
requirements of this rule.

[[Page 401]]



 SUBCHAPTER C_FOREIGN SERVICE LABOR RELATIONS BOARD AND GENERAL COUNSEL
                OF THE FEDERAL LABOR RELATIONS AUTHORITY





PART 1420_PURPOSE AND SCOPE--Table of Contents





Sec. 1420.1  Purpose and scope.

    The regulations contained in this subchapter are designed to
implement the provisions of the Foreign Service Labor-Management
Relations Statute. They prescribe the procedures and basic principles or
criteria under which the Foreign Service Labor Relations Board or the
General Counsel of the Federal Labor Relations Authority, as applicable,
will:
    (a) Supervise or conduct elections and determine whether a labor
organization has been selected as an exclusive representative by a
majority of the employees who cast valid ballots and otherwise
administer the provisions of the Statute relating to the according of
exclusive recognition to a labor organization;
    (b) Resolve complaints of alleged unfair labor practices;
    (c) Resolve issues relating to the obligation to bargain in good
faith;
    (d) Resolve disputes concerning the effects, the interpretation, or
a claim of breach of collective bargaining agreement, in accord with 22
U.S.C. 4114; and
    (e) Take any action considered necessary to administer effectively
the provisions of the Foreign Service Labor-Management Relations
Statute.

(Authority: 22 U.S.C. 4107(c))

[46 FR 45861, Sept. 15, 1981]



PART 1421_MEANING OF TERMS AS USED IN THIS SUBCHAPTER--Table of Contents



Sec.
1421.1 Foreign Service Labor-Management Relations Statute.
1421.2 Terms defined in section 1002 of the Foreign Service Act of 1980
          (22 U.S.C. 4102).
1421.3 Exclusive recognition; Unfair labor practices.
1421.4 Department.
1421.5 Regional Director.
1421.6 Executive Director.
1421.7 Hearing Officer.
1421.8 Administrative law judge.
1421.9 Chief Administrative Law Judge.
1421.10 Secretary.
1421.11 Party.
1421.12 Intervenor.
1421.13 Certification.
1421.14 Bargaining unit.
1421.15 Secret ballot.
1421.16 Showing of interest.
1421.17 Grievance Board.
1421.18 Regular and substantially equivalent employment.

    Authority: 22 U.S.C. 4107(c).

    Source: 46 FR 45861, Sept. 15, 1981, unless otherwise noted.



Sec. 1421.1  Foreign Service Labor-Management Relations Statute.

    The term Foreign Service Labor-Management Relations Statute means
chapter 10 of title 1 of the Foreign Service Act of 1980, codified as
chapter 41 of title 22 of United States Code.



Sec. 1421.2  Terms defined in section 1002 of the Foreign Service Act
of 1980 (22 U.S.C. 4102).

    (a) The terms Authority, Board, collective bargaining, collective
bargaining agreement conditions of employment, confidential employee,
dues, exclusive representative, General Counsel, labor organization,
management official, Panel, and person, as used herein shall have the
meaning set forth in 22 U.S.C. 4102.
    (b) The term Assistant Secretary means the Assistant Secretary of
Labor for Labor-Management Relations.



Sec. 1421.3  Exclusive recognition; Unfair labor practices.

    (a) Exclusive Recognition has the meaning as set forth in 22 U.S.C.
4111; and
    (b) Unfair labor practices has the meaning as set forth in 22 U.S.C.
4115.



Sec. 1421.4  Department.

    Department means the Department of State, except that with reference
to the exercise of functions under this Act

[[Page 402]]

with respect to another agency authorized by law to utilize the Foreign
Service personnel system, such term means that other agency.



Sec. 1421.5  Regional Director.

    Regional Director means the Director of a region of the Authority
with geographical boundaries as fixed by the Authority.



Sec. 1421.6  Executive Director.

    Executive Director means the Executive Director of the Authority.



Sec. 1421.7  Hearing Officer.

    Hearing Officer means the individual designated to conduct a hearing
involving a question concerning the appropriateness of a unit or such
other matters as may be assigned.



Sec. 1421.8  Administrative law judge.

    Administrative law judge means the Chief Administrative Law Judge or
any administrative law judge designated by the Chief Administrative Law
Judge to conduct a hearing in cases under 22 U.S.C. 4115, and such other
matters as may be assigned.



Sec. 1421.9  Chief Administrative Law Judge.

    Chief Administrative Law Judge means the Chief Administrative Law
Judge of the Authority.



Sec. 1421.10  Secretary.

    Secretary means the Secretary of State, except that (subject to 22
U.S.C. 3921) with reference to the exercise of functions under the
Foreign Service Act of 1980 with respect to any agency authorized by law
to utilize the Foreign Service personnel system, such term means the
head of that agency.



Sec. 1421.11  Party.

    Party means (a) any person: (1) Filing a charge, petition, or
request; (2) named in a charge, complaint, petition, or request; (3)
whose intervention in a proceeding has been permitted or directed by the
Board; (4) who participated as a party (i) in a matter that was decided
by an agency head under 22 U.S.C. 4105 or (ii) in a matter where action
by the Grievance Board was taken; and (b) the General Counsel, or the
General Counsel's designated representative, in appropriate proceedings.



Sec. 1421.12  Intervenor.

    Intervenor means a party in a proceeding whose intervention has been
permitted or directed by the Authority, its agents or representatives.



Sec. 1421.13  Certification.

    Certification means the determination by the Board, its agents or
representatives, of the results of an election.



Sec. 1421.14  Bargaining unit.

    Bargaining unit has the meaning as set forth in 22 U.S.C. 4112 for
the purpose of exclusive recognition under 22 U.S.C. 4111, and for
purposes of allotments to representatives under 22 U.S.C. 4118.



Sec. 1421.15  Secret ballot.

    Secret ballot means the expression by ballot, voting machine or
otherwise, but in no event by proxy, of a choice with respect to any
election or vote taken upon any matter, which is cast in such a manner
that the person expressing such choice cannot be identified with the
choice expressed, except in that instance in which any determinative
challenged ballot is opened.



Sec. 1421.16  Showing of interest.

    Showing of interest means evidence of membership in a labor
organization; employees' signed and dated authorization cards or
petitions authorizing a labor organization to represent them for
purposes of exclusive recognition; allotment of dues forms executed by
an employee and the labor organization's authorized official; current
dues records; and existing or recently expired agreement; current
exclusive recognition or certification; employees' signed and dated
petitions or cards indicating that they no longer desire to be
represented for the purposes of exclusive recognition by the currently
recognized or certified labor organization; or other evidence approved
by the Authority.

[[Page 403]]



Sec. 1421.17  Grievance Board.

    Grievance Board means the Foreign Service Grievance Board
established under 22 U.S.C. 4135.



Sec. 1421.18  Regular and substantially equivalent employment.

    Regular and substantially equivalent employment means employment
that entails substantially the same amount of work, rate of pay, hours,
working conditions, location of work, and seniority rights if any, of an
employee prior to the cessation of employment in a Department because of
any unfair labor practice under 22 U.S.C. 4115.



PART 1422_REPRESENTATION PROCEEDINGS--Table of Contents



Sec.
1422.1 Who may file petitions.
1422.2 Contents of petition; filing and service of petition; challenges
          to petition.
1422.3 Timeliness of petition.
1422.4 Investigation of petition and posting of notice of petition;
          action by Regional Director.
1422.5 Intervention.
1422.6 Withdrawal, dismissal or deferral of petitions; consolidation of
          cases; denial of intervention; review of action by Regional
          Director.
1422.7 Agreement for consent election.
1422.8 Notice of hearing; contents; attachments; procedures.
1422.9 Conduct of hearing.
1422.10 Motions.
1422.11 Rights of the parties.
1422.12 Duties and powers of the Hearing Officer.
1422.13 Objections to conduct of hearing.
1422.14 Filing of briefs.
1422.15 Transfer of case to the Board; contents of record.
1422.16 Decision.
1422.17 Election procedure; request for authorized representation
          election observers.
1422.18 Challenged ballots.
1422.19 Tally of ballots.
1422.20 Certification; objections to election; determination on
          objections and challenged ballots.
1422.21 Preferential voting.
1422.22 Inconclusive elections.

    Authority: 22 U.S.C. 4107.

    Source: 46 FR 45862, Sept. 15, 1981, unless otherwise noted.



Sec. 1422.1  Who may file petitions.

    (a) A petition for exclusive recognition may be filed by a labor
organization requesting an election to determine whether it should be
recognized as the exclusive representative of employees of the
Department in the unit described in 22 U.S.C. 4112 or should replace
another labor organization as the exclusive representative of employees
in such unit.
    (b) A petition for any election to determine if a labor organization
should cease to be the exclusive representative because it does not
represent a majority of employees in the unit described in 22 U.S.C.
4112 may be filed by an employee or employees or an individual acting on
behalf of any employee(s).
    (c) A petition seeking to clarify a matter relating to
representation may be filed by the Department where the Department has a
good faith doubt, based on objective considerations, that the currently
recognized or certified labor organization represents a majority of the
employees in the unit described in 22 U.S.C. 4112.
    (d) A petition for clarification of the unit described in 22 U.S.C.
4112 or for amendment of recognition or certification may be filed by
the Department or by a labor organization which is currently recognized
by the Department as the exclusive representative.
    (e) A petition for determination of eligibility for dues allotment
may be filed by a labor organization in accordance with 22 U.S.C.
4118(c).



Sec. 1422.2  Contents of petition; filing and service of petition;
challenges to petition.

    (a) Petition for exclusive recognition. A petition by a labor
organization for exclusive recognition shall be submitted on a form
prescribed by the Board and shall contain the following:
    (1) The name of the Department, its address, telephone number, and
the persons to contact and their titles, if known;
    (2) A description of the unit described in 22 U.S.C. 4112. Such
description shall indicate the classifications of employees sought to be
included and those sought to be excluded and the approximate number of
employees in the unit;

[[Page 404]]

    (3) Name, address, and telephone number of the recognized or
certified representative, if any, and the date of such recognition or
certification and the expiration date of any applicable agreement, if
known to the peititioner;
    (4) Names, addresses, and telephone numbers of any other interested
labor organizations, if known to the petitioner;
    (5) Name and affiliation, if any, of the petitioner and its address
and telephone number;
    (6) A statement that the petitioner has submitted to the Department
and to the Assistant Secretary a roster of its officers and
representatives, a copy of its constitution and bylaws, and a statement
of its objectives;
    (7) A declaration by such person signing the petition, under the
penalties of the Criminal Code (18 U.S.C. 1001), that its contents are
true and correct to the best of such person's knowledge and belief;
    (8) The signature of the petitioner's representative, including such
person's title and telephone number; and
    (9) The petition shall be accompanied by a showing of interest of
not less than thirty percent (30%) of the employees in the unit
described in 22 U.S.C. 4112 and an alphabetical list of names
constituting such showing.
    (b) Department petition seeking clarification of a matter relating
to representation; employee petition for an election to determine
whether a labor organization should cease to be an exclusive
representative. (1) A petition by the Department shall be submitted on a
form prescribed by the Board and shall contain the information set forth
in paragraph (a) of this section, except paragraphs (a) (6), and (9),
and a statement that the Department has a good faith doubt, based on
objective considerations, that the currently recognized or certified
labor organization represents a majority of the employees in the unit
described in 22 U.S.C. 4112. Attached to the petition shall be a
detailed explanation of the reasons supporting the good faith doubt.
    (2) A petition by any employee or employees or an individual acting
on behalf of any employee(s) shall contain the information set forth in
paragraph (a) of this section, except paragraphs (a) (6) and (9), and it
shall be accompanied by a showing of interest of not less than thirty
percent (30%) of the employees in the unit indicating that the employees
no longer desire to be represented for the purposes of exclusive
recognition by the currently recognized or certified labor organization
and an alphabetical list of names constituting such showing.
    (c) Petition for clarification of unit or for amendment of
recognition or certification. A petition for clarification of unit or
for amendment of recognition or certification shall be submitted on a
form prescribed by the Board and shall contain the information required
by paragraph (a) of this section, except paragraphs (a) (2), (6) and
(9), and shall set forth:
    (1) A description of the unit and the date of recognition or
certification;
    (2) The proposed clarification or amendment of the recognition or
certification; and
    (3) A statement of reasons why the proposed clarification or
amendment is requested.
    (d) Petition for determination of eligibility for dues allotment. A
petition for determination of eligibility for dues allotment in the unit
may be filed if there is no exclusive representative. The petition shall
be submitted on a form prescribed by the Board and shall contain the
information required in paragraphs (a) (1), (4), (5), (6), (7), and (8)
of this section, and shall set forth:
    (1) A description of the unit described in 22 U.S.C. 4112. Such
description shall indicate the classifications of employees sought to be
included and those sought to be excluded and the approximate number of
employees in the unit; and
    (2) The petition shall be accompanied by a showing of membership in
the petitioner of not less than ten percent (10%) of the employees in
the unit and an alphabetical list of names constituting such showing.
    (e) Filing and service of petition and copies. (1) A petition for
exclusive recognition, for an election to determine if a labor
organization should cease to be the exclusive representative, for
clarification of unit, for amendment of

[[Page 405]]

recognition or certification, or for determination of eligibility for
dues allotment, filed pursuant to paragraphs (a), (b), (c), or (d) of
this section respectively, shall be filed with the Regional Director for
the region in which the unit exists, or, if the claimed unit exists in
two or more regions, the petition shall be filed with the Regional
Director for the region in which the affected employees are located.
    (2) An original and four (4) copies of a petition shall be filed,
together with a statement of any other relevant facts and of all
correspondence relating to the question concerning representation.
    (3) Copies of the petition together with any attachments shall be
served by the petitioner on all known interested parties, and a written
statement of such service shall be filed with the Regional Director:
Provided, however, That the showing of interest or the showing of
membership submitted with a petition filed pursuant to paragraphs (a),
(b)(2), (d), or (h) of this section shall not furnished to any other
person.
    (f) Adequacy and validity of showing of interest or showing of
membership. (1) The Regional Director shall determine the adequacy of
the showing of interest or the showing of membership administratively,
and such determination shall not be subject to collateral attack at a
unit or representation hearing. If the petition is dismissed or the
intervention sought pursuant to Sec. 1422.5 is denied, a request for
review of such dismissal or denial may be filed with the Board in
accordance with the procedures set forth in Sec. 1422.6(d).
    (2) Any party challenging the validity of any showing of interest or
showing of membership of a petitioner, or a cross-petitioner filing
pursuant to Sec. 1422.5(b), or of a labor organization seeking to
intervene pursuant to Sec. 1422.5, must file its challenge with the
Regional Director, with respect to the petitioner or a cross-petitioner,
within twenty (20) days after the initial date of posting of the notice
of petition as provided in Sec. 1422.4(a), and with respect to any
labor organization seeking to intervene, within twenty (20) days of
service of a copy of the request for intervention on the challenging
party. The challenge shall be supported with evidence including signed
statements of employees and any other written evidence. The Regional
Director shall investigate the challenge and thereafter shall take such
action as the Regional Director deems appropriate which shall be final
and not subject to review by the Board, unless the petition is dismissed
or the intervention is denied on the basis of the challenge. Such
request for review shall be filed with the Board in accordance with the
procedures set forth in Sec. 1422.6(d).
    (g) Challenge to status of a labor organization. Any party
challenging the status of a labor organization under chapter 41 of title
22 of the United States Code must file its challenge with the Regional
Director and support the challenge with evidence. With respect to the
petitioner or a cross-petitioner filing pursuant to Sec. 1422.5(b),
such a challenge must be filed within twenty (20) days after the initial
date of posting of the notice of petition as provided in Sec.
1422.4(a), and with respect to a labor organization seeking to intervene
pursuant to Sec. 1422.5, within twenty (20) days after service of a
copy of the request for intervention on the challenging party. The
Regional Director shall investigate the challenge and thereafter shall
take such action as the Regional Director deems appropriate, which shall
be subject to review by the Board. Such request for review shall be
filed with the Board in accordance with the procedures set forth in
Sec. 1422.6(d).



Sec. 1422.3  Timeliness of petition.

    (a) When there is no certified exclusive representative of the
employees, a petition will be considered timely filed provided a valid
election has not been held within the preceding twelve (12) month period
in the unit described in 22 U.S.C. 4112.
    (b) When there is a certified exclusive representative of the
employees, a petition will not be considered timely if filed within
twenty-four (24) months after the certification as the exclusive
representative of employees in unit described in 22 U.S.C. 4112, unless
a signed and dated collective bargaining agreement covering the unit has
been entered into in which case paragraphs

[[Page 406]]

(c) and (d) of this section shall be applicable.
    (c) When a collective bargaining agreement covering the unit
described in 22 U.S.C. 4112 has been signed and dated by the Department
and the incumbent exclusive representative, a petition for exclusive
recognition or other election petition will not be considered timely if
filed during the period of review by the Secretary as set forth in 22
U.S.C. 4113(f), absent unusual circumstances.
    (d) A petition for exclusive recognition or other election petition
will be considered timely when filed as follows:
    (1) Not more than one hundred and five (105) days and not less than
(60) days prior to the expiration date of a collective bargaining
agreement having a term of three (3) years or less from the date it
became effective.
    (2) Not more than one hundred and five (105) days and not less than
sixty (60) days prior to the expiration of the initial three (3) year
period of a collective bargaining agreement having a term of more than
three (3) years from the date it became effective, and any time after
the expiration of the initial three (3) year period of such a collective
bargaining agreement; and
    (3) Any time when unusual circumstances exist which substantially
affect the unit or the majority representation.
    (e) When a collective bargaining agreement having a term of three
(3) years or less is in effect between the Department and the incumbent
exclusive representative, and a petition has been filed challenging the
representation status of the incumbent exclusive representative and the
petition is subsequently withdrawn or dismissed less than sixty (60)
days prior to the expiration date of that collective bargaining
agreement, or any time thereafter, the Department and incumbent
exclusive representative shall be afforded a ninety (90) day period from
the date the withdrawal is approved or the petition is dismissed free
from rival claim within which to consummate a collective bargaining
agreement: Provided, however, That the provisions of this paragraph
shall not be applicable when any other petition is pending which has
been filed pursuant to paragraph (d)(1) of this section.
    (f) When an extension of a collective bargaining agreement having a
term of three (3) years or less has been signed more than sixty (60)
days before its expiration date, such extension shall not serve as a
basis for the denial of a petition submitted in accordance with the time
limitations provided herein.
    (g) Collective bargaining agreements which go into effect
automatically pursuant to 22 U.S.C. 4113(f) and which do not contain the
date on which the agreement became effective shall not constitute a bar
to an election petition.
    (h) A petitioner who withdraws a petition after the issuance of a
notice of hearing or after the approval of an agreement for an election,
shall be barred from filing another petition for the unit described in
22 U.S.C. 4112 for six (6) months, unless a withdrawal request has been
received by the Regional Director not later than three (3) days before
the date of the hearing.
    (i) The time limits set forth in this section shall not apply to a
petition for clarification of unit or for amendment of recognition or
certification, or to a petition for dues allotment.



Sec. 1422.4  Investigation of petition and posting of notice of
petition; action by Regional Director.

    (a) Upon the request of the Regional Director, after the filing of a
petition, the Department shall post copies of a notice to all employees
in places where notices are normally posted affecting the employees in
the unit described in 22 U.S.C. 4112.
    (b) Such notice shall set forth:
    (1) The name of the petitioner;
    (2) The description of the unit;
    (3) If appropriate, the proposed clarification of unit or the
proposed amendment of recognition or certification; and
    (4) A statement that all interested parties are to advise the
Regional Director in writing of their interest and position within
twenty (20) days after the date of posting of such notice: Provided,
however, That the notice in a petition for determination of eligibility

[[Page 407]]

for dues allotment shall contain the information required in paragraphs
(a) (1), (2), and (4) of this section.
    (c) The notice shall remain posted for a period of twenty (20) days.
The notice shall be posted conspicuously and shall not be covered by
other material, altered or defaced.
    (d) The Department shall furnish the Regional Director and all known
interested parties with the following:
    (1) Names, addresses and telephone numbers of all labor
organizations known to represent any of the employees in the unit
described in 22 U.S.C. 4112;
    (2) A copy of all relevant correspondence;
    (3) A copy of existing or recently expired agreement(s) covering any
of the employees described in the petition;
    (4) A current alphabetized list of employees included in the unit,
together with their job classifications; and
    (5) A current alphabetized list of employees described in the
petition as excluded from the unit, together with their job
classifications.
    (e) The parties are expected to meet as soon as possible after the
expiration of the twenty (20) day posting period of the notice of
petition as provided in paragraph (a) of this section and use their best
efforts to secure agreement on the unit.
    (f) The Regional Director shall make such investigation as the
Regional Director deems necessary and thereafter shall take action which
may consist of the following, as appropriate:
    (1) Approve an agreement for consent election in the unit as
provided under Sec. 1422.7;
    (2) Approve a withdrawal request;
    (3) Dismiss the petition; or
    (4) Issue a notice of hearing.
    (g) In processing a petition for clarification of unit or for
amendment of recognition or certification, or dues allotment, where
appropriate, the Regional Director shall prepare and serve a report and
findings upon all parties to the proceedings and shall state therein,
among other pertinent matters, the Regional Director's conclusions and
the action contemplated. A party may file with the Board a request for
review of such action of the Regional Director in accordance with the
procedures set forth in Sec. 1422.6(d). If no request for review is
filed, or if one is filed and denied, the Regional Director shall take
such action as may be appropriate, which may include issuing a
clarification of unit or an amendment of recognition or certification,
or determination of eligibility for dues allotment.
    (h) A determination by the Regional Director to issue a notice of
hearing shall not be subject to review by the Board.



Sec. 1422.5  Intervention.

    (a) No labor organization will be permitted to intervene in any
proceeding involving a petition filed pursuant to Sec. 1422.2 (a) or
(b) unless it has submitted to the Regional Director a showing of
interest of ten percent (10%) or more of the employees in the unit
described in 22 U.S.C. 4112 together with an alphabetical list of names
constituting such showing, or has submitted a current or recently
expired agreement with the Department covering any of the employees
involved, or has submitted evidence that it is currently recognized or
certified exclusive representative of any of the employees involved:
Provided, however, That an incumbent exclusive representative shall be
deemed to be an intervenor in the proceeding unless it serves on the
Regional Director a written disclaimer of any representation interest
for the employees involved: Provided, further, That any such incumbent
exclusive representative that declines to sign an agreement for consent
election because of a disagreement on the matters contained in Sec.
1422.7(c) as decided by the Regional Director, or fails to appear at a
hearing held pursuant to Sec. 1422.9, shall be denied its status as an
intervenor.
    (b) No labor organization may participate to any extent in any
representation proceeding unless it has notified the Regional Director
in writing, accompanied by its showing of interest as specified in
paragraph (a) of this section, of its desire to intervene within twenty
(20) days after the initial date of posting of the notice of petition as
provided in Sec. 1422.4(a), unless good

[[Page 408]]

cause is shown for extending the period. A copy of the request for
intervention filed with the Regional Director, excluding the showing of
interest, shall be served on all known interested parties, and a written
statement of such service should be filed with the Regional Director:
Provided, however, That an incumbent exclusive representative shall be
deemed to be an intervenor in the proceeding in accordance with
paragraph (a) of this section.
    (c) Any labor organization seeking to intervene in a proceeding
involving a petition for determination of eligibility for dues allotment
filed pursuant to Sec. 1422.2(d) may intervene solely on the basis it
claims to be the exclusive representative of some or all the employees
specified in the petition and shall submit to the Regional Director a
current or recently expired agreement with the Department covering any
of the employees involved, or evidence that it is the currently
recognized or certified exclusive representative of any of the employees
involved.
    (d) Any labor organization seeking to intervene must submit to the
Regional Director a statement that it has submitted to the Department
and to the Assistant Secretary a roster of its officers and
representatives, a copy of its constitution and bylaws, and a statement
of its objectives.
    (e) The Regional Director may grant intervention to a labor
organization in a proceeding involving a petition for clarification of
unit or a petition for amendment of recognition or certification filed
pursuant to Sec. 1422.2(c), or a petition for determination of
eligibility for dues allotment filed pursuant to Sec. 1422.2(d), based
on a showing that the proposed clarification, amendment or dues
allotment affects that labor organizations's existing exclusively
recognized unit(s) in that it would cover one or more employees who are
included in such unit(s).



Sec. 1422.6  Withdrawal, dismissal or deferral of petitions;
consolidation of cases; denial of intervention; review of action by

Regional Director.

    (a) If the Regional Director determines, after such investigation as
the Regional Director deems necessary, that the petition has not been
timely filed, the unit is not as described in 22 U.S.C. 4114, the
petitioner has not made a sufficient showing of interest, the petition
is not otherwise actionable, or an intervention is not appropriate, the
Regional Director may request the petitioner or intervenor to withdraw
the petition or the request for intervention. In the absence of such
withdrawal within a reasonable period of time, the Regional Director may
dismiss the petition or deny the request for intervention.
    (b) If the Regional Director determines, after investigation, that a
valid issue has been raised by a challenge under Sec. 1422.2 (f) or
(g), the Regional Director may take action which may consist of the
following, as appropriate:
    (1) Request the petitioner or intervenor to withdraw the petition or
the request for intervention;
    (2) Dismiss the petition and/or deny the request for intervention if
a withdrawal request is not submitted within a reasonable period of
time;
    (3) Defer action on the petition or request for intervention until
such time as issues raised by the challenges have been resolved pursuant
to this part; or
    (4) Consolidate such issues with the representation matter for
resolution of all issues.
    (c) If the Regional Director dismisses the petition and/or denies
the request for intervention, the Regional Director shall serve on the
petitioner or the party requesting intervention a written statement of
the grounds for the dismissal or the denial, and serve a copy of such
statement on the Department, and on the petitioner and any intervenors,
as appropriate.
    (d) The petitioner or party requesting intervention may obtain a
review of such dismissal and/or denial by filing a request for review
with the Board within twenty-five (25) days after service of the notice
of such action. Copies of the request for review shall be served on the
Regional Director and the other parties, and a statement of service
shall be filed with the request for review. Requests for extensions of
time shall be in writing and received by the Board not later than five
(5) days before the date the request for review is due. The request for
review shall contain a complete statement setting

[[Page 409]]

forth facts and reasons upon which the request is based. Any party may
file an opposition to a request for review with the Board within ten
(10) days after service of the request for review. Copies of the
opposition to the request for review shall be served on the Regional
Director and the other parties, and a statement of service shall be
filed with the opposition to the request for review. The Board may issue
a decision or ruling affirming or reversing the Regional Director in
whole or in part or making any other disposition of the matter as it
deems appropriate.



Sec. 1422.7  Agreement for consent election.

    (a) All parties desiring to participate in an election being
conducted pursuant to this section or Sec. 1422.16, including
intervenors who have met the requirements of Sec. 1422.5, must sign an
agreement providing for such an election on a form prescribed by the
Board. An original and one (1) copy of the agreement shall be filed with
the Regional Director.
    (b) The Department, a petitioner, and any intervenors who have
complied with the requirements set forth in Sec. 1422.5 may agree that
a secret ballot election shall be conducted among the employees in the
unit to determine whether the employees desire to be represented for
purposes of exclusive recognition by any or none of the labor
organizations involved.
    (c) The parties shall agree on the eligibility period for
participation in the election, the date(s), hour(s), and place(s) of the
election, the designations on the ballot and other related election
procedures.
    (d) In the event that the parties cannot agree on the matters
contained in paragraph (c) of this section, the Regional Director,
acting on behalf of the Board, shall decide these matters without
prejudice to the right of a party to file objections to the procedural
conduct of the election under Sec. 1422.20(b).
    (e) If the Regional Director approves the agreement, the election
shall be conducted by the Department, as appropriate, under the
supervision of the Regional Director, in accordance with Sec. 1422.17.
    (f) Any qualified intervenor who refuses to sign an agreement for an
election may express its objections to the agreement in writing to the
Regional Director. The Regional Director, after careful consideration of
such objections, may approve the agreement or take such other action as
the Regional Director deems appropriate.



Sec. 1422.8  Notice of hearing; contents; attachments; procedures.

    (a) The Regional Director may cause a notice of hearing to be issued
involving any matters related to the petition.
    (b) The notice of hearing shall be served on all interested parties
and shall include:
    (1) The name of the Department, petitioner, and intervenors, if any;
    (2) A statement of the time and place of the hearing, which shall be
not less than twenty (20) days after service of the notice of hearing,
except in extraordinary circumstances;
    (3) A statement of the nature of the hearing; and
    (4) A statement of the authority and jurisdiction under which the
hearing is to be held.
    (c) A copy of the petition shall be attached to the notice of
hearing.
    (d) Hearings on matters related to the petition pursuant to
paragraph (a) of this section shall be conducted by a Hearing Officer in
accordance with Sec. Sec. 1422.9 through 1422.15.



Sec. 1422.9  Conduct of hearing.

    (a) Hearings shall be conducted by a Hearing Officer and shall be
open to the public unless otherwise ordered by the Hearing Officer. At
any time another Hearing Officer may be substituted for the Hearing
Officer previously presiding. It shall be the duty of the Hearing
Officer to inquire fully into all matters in issue and the Hearing
Officer shall obtain a full and complete record upon which the Board can
make an appropriate decision. An official reporter shall make the only
official transcript of such proceedings. Copies of the official
transcript may be examined in the appropriate regional office during
normal working hours. Requests by parties for copies of transcripts
should be made to the official hearing reporter.

[[Page 410]]

    (b) Hearings under this section are considered investigatory and not
adversary. Their purpose is to develop a full and complete factual
record. The rules of relevancy and materiality are paramount; there are
no burdens of proof and the technical rules of evidence do not apply.



Sec. 1422.10  Motions.

    (a) General. (1) A motion shall state briefly the order or relief
sought and the grounds for the motion: Provided, however, That a motion
to intervene will not be entertained by the Hearing Officer.
Intervention will be permitted only to those who have met the
requirements of Sec. 1422.5.
    (2) A motion prior to, and after a hearing and any response thereto,
shall be made in writing. A response shall be filed within five (5) days
after service of the motion. An original and two (2) copies of such
motion and any response thereto shall be filed and copies shall be
served on the parties and the Regional Director. A statement of such
service shall be filed with the original.
    (3) During a hearing a motion may be made and responded to orally on
the record.
    (4) The right to make motions, or to make objections to rulings on
motions, shall not be deemed waived by participation in the proceeding.
    (5) All motions, rulings, and orders shall become part of the
record.
    (b) Filing of motions. (1) Motions and responses thereto prior to a
hearing shall be filed with the Regional Director. During the hearing
motions shall be made to the Hearing Officer.
    (2) After the transfer of the case to the Board, except as otherwise
provided, motions and responses thereto shall be filed with the Board:
Provided, That following the close of a hearing, motions to correct the
transcript should be filed with the Hearing Officer within ten (10) days
after the transcript is received in the regional office.
    (c) Rulings on motions. (1) Regional Directors may rule on all
motions filed with them, or they may refer them to the Hearing Officer.
A ruling by a Regional Director granting a motion to dismiss a petition
may be reviewed by the Board upon the filing by the petitioner of a
request for review pursuant to Sec. 1422.6(d).
    (2) Hearing Officers shall rule, either orally on the record or in
writing, on all motions made at the hearing or referred to them, except
that a motion to dismiss a petition shall be referred for appropriate
action at such time as the record is considered by the Regional Director
or the Board. Rulings by a Hearing Officer reduced to writing shall be
served on the parties.
    (3) The Board shall consider the rulings by the Regional Director
and the Hearing Officer when the case is transferred to it for decision.



Sec. 1422.11  Rights of the parties.

    (a) A party shall have the right to appear at any hearing in person,
by counsel, or by other representative, and to examine and cross-examine
witnesses, and to introduce into the record documentary or other
relevant evidence. Two (2) copies of documentary evidence shall be
submitted and a copy furnished to each of the other parties.
Stipulations of fact may be introduced in evidence with respect to any
issue.
    (b) A party shall be entitled, upon request, to a reasonable period
at the close of the hearing for oral argument, which shall be included
in the stenographic report of the hearing. Such oral argument shall not
preclude a party from filing a brief under Sec. 1422.14.



Sec. 1422.12  Duties and powers of the Hearing Officer.

    It shall be the duty of Hearing Officers to inquire fully into the
facts as they relate to the matters before them. With respect to cases
assigned to them between the time they are designated and the transfer
of the case to the Board, Hearing Officers shall have the authority to:
    (a) Grant requests for subpenas pursuant to Sec. 1429.7 of this
subchapter;
    (b) Rule upon offers of proof and receive relevant evidence and
stipulations of fact;
    (c) Take or cause depositions or interrogatories to be taken
whenever the ends of justice would be served thereby;
    (d) Limit lines of questioning or testimony which are immaterial,
irrelevant or unduly repetitious;

[[Page 411]]

    (e) Regulate the course of the hearing and, if appropriate, exclude
from the hearing persons who engage in misconduct;
    (f) Strike all related testimony of witnesses refusing to answer any
questions ruled to be proper;
    (g) Hold conferences for the settlement or simplification of the
issues by consent of the parties or upon the Hearing Officer's own
motion;
    (h) Dispose of procedural requests, motions, or similar matters,
which shall be made part of the record of the proceedings, including
motions referred to the Hearing Officer by the Regional Director and
motions to amend petitions;
    (i) Call and examine and cross-examine witnesses and introduce into
the record documentary or other evidence;
    (j) Request the parties at any time during the hearing to state
their respective positions concerning any issue in the case or theory in
support thereof;
    (k) Continue the hearing from day-to-day, or adjourn it to a later
date or to a different place, by announcement thereof at the hearing or
by other appropriate notice;
    (l) Rule on motions to correct the transcript which are received
within ten (10) days after the transcript is received in the regional
office; and
    (m) Take any other action necessary under this section and not
prohibited by the regulations in this subchapter.



Sec. 1422.13  Objections to conduct of hearing.

    Any objection to the introduction of evidence may be stated orally
or in writing and shall be accompanied by a short statement of the
grounds of such objection, and be included in the record. No such
objection shall be deemed waived by further participation in the
hearing. Automatic exceptions will be allowed to all adverse rulings.



Sec. 1422.14  Filing of briefs.

    A party desiring to file a brief with the Board shall file the
original and three (3) copies within thirty (30) days from the close of
the hearing. Copies thereof shall be served on all other parties to the
proceeding. Requests for additional time in which to file a brief under
authority of this section shall be made to the Regional Director, in
writing, and copies thereof shall be served on the other parties and a
statement of such service shall be filed with the Regional Director.
Requests for extension of time shall be in writing and received not
later than five (5) days before the date such briefs are due. No reply
brief may be filed in any proceeding except by special permission of the
Board.



Sec. 1422.15  Transfer of case to the Board; contents of record.

    Upon the close of the hearing the case is transferred automatically
to the Board. The record of the proceeding shall include the petition,
notice of hearing, service sheet, motions, rulings, orders, official
transcript of the hearing with any corrections thereto, stipulations,
objections, depositions, interrogatories, exhibits, documentary
evidence, and any briefs or other documents submitted by the parties.



Sec. 1422.16  Decision.

    The Board will issue a decision directing an election or dismissing
the petition, or making other disposition of the matters before it.



Sec. 1422.17  Election procedure; request for authorized representation
election observers.

    This section governs all elections conducted under the supervision
of the Regional Director pursuant to Sec. 1422.7 or Sec. 1422.16. The
Regional Director may conduct elections in unusual circumstances in
accordance with terms and conditions set forth in the notice of
election.
    (a) Appropriate notices of election shall be posted by the
Department. Such notices shall set forth the details and procedures for
the election, the unit described in 22 U.S.C. 4112, the eligibility
period, the date(s), hour(s) and place(s) of the election and shall
contain a sample ballot.
    (b) The reproduction of any document purporting to be a copy of the
official ballot, other than one completely unaltered in form and content
and clearly marked ``sample'' on its face,

[[Page 412]]

which suggests either directly or indirectly to employees that the Board
endorses a particular choice, may constitute grounds for setting aside
an election upon objections properly filed.
    (c) All elections shall be by secret ballot. An exclusive
representative shall be chosen by a majority of the valid ballots cast.
    (d) Whenever two or more labor organizations are included as choices
in an election, any intervening labor organization may request the
Regional Director to remove its name from the ballot. The request must
be in writing and received not later than seven (7) days before the date
of the election. Such request shall be subject to the approval of the
Regional Director whose decision shall be final.
    (e) In a proceeding involving an election to determine if a labor
organization should cease to be the exclusive representative filed by
the Department or any employee or employees or an individual acting on
behalf of any employee(s) under Sec. 1422.2(b), an organization
currently recognized or certified may not have its name removed from the
ballot without having served the written request submitted pursuant to
paragraph (d) of this section on all parties. Such request shall contain
an express disclaimer of any representation interest among the employees
in the unit.
    (f) Any party may be represented at the polling place(s) by
observers of its own selection, subject to such limitations as the
Regional Director may prescribe.
    (g) A party's request to the Regional Director for named observers
shall be in writing and filed with the Regional Director not less than
fifteen (15) days prior to an election to be supervised or conducted
pursuant to this part. The request shall name and identify the
authorized representation election observers sought, and state the
reasons therefor. Copies thereof shall be served on the other parties
and a written statement of such service shall be filed with the Regional
Director. Within five (5) days after service of a copy of the request, a
party may file objections to the request with the Regional Director and
state the reasons therefor. Copies thereof shall be served on the other
parties and a written statement of such service shall be filed with the
Regional Director. The Regional Director shall rule upon the request not
later than five (5) days prior to the date of the election. However, for
good cause shown by a party, or on the Regional Director's own motion,
the Regional Director may vary the time limits prescribed in this
paragraph.



Sec. 1422.18  Challenged ballots.

    Any party or the representative of the Board may challenge, for good
cause, the eligibility of any person to participate in the election. The
ballots of such challenged persons shall be impounded.



Sec. 1422.19  Tally of ballots.

    Upon the conclusion of the election, the Regional Director shall
cause to be furnished to the parties a tally of ballots.



Sec. 1422.20  Certification; objections to election; determination on
objections and challenged ballots.

    (a) The Regional Director shall issue to the parties a certification
of results of the election or a certification of representative, where
appropriate: Provided, however, That no objections are filed within the
time limit set forth below; the challenged ballots are insufficient in
number to affect the results of the election; and no rerun election is
to be held.
    (b) Within twenty (20) days after the tally of ballots has been
furnished, a party may file objections to the procedural conduct of the
election, or to conduct which may have improperly affected the results
of the election, setting forth a clear and concise statement of the
reasons therefor. The objecting party shall bear the burden of proof at
all stages of the proceeding regarding all matters raised in its
objections. An original and two (2) copies of the objections shall be
filed with the Regional Director and copies shall be served on the
parties. A statement of such service shall be filed with the Regional
Director. Such filing must be timely whether or not the challenged
ballots are sufficient in number to affect the results of the election.
Within

[[Page 413]]

ten (10) days after the filing of the objections, unless an extension of
time has been granted by the Regional Director, the objecting party
shall file with the Regional Director evidence, including signed
statements, documents and other material supporting the objections.
    (c) If objections are filed or challenged ballots are sufficient in
number to affect the results of the election, the Regional Director
shall investigate the objections or challenged ballots, or both.
    (d) When the Regional Director determines that no relevant question
of fact exists, the Regional Director (1) shall find whether improper
conduct occurred of such a nature as to warrant the setting aside of the
election and, if so, indicate an intention to set aside the election, or
(2) shall rule on determinative challenged ballots, if any, or both. The
Regional Director shall issue a report and findings on objections and/or
challenged ballots which shall be served upon all parties to the
proceeding. Such report and findings shall state therein any additional
pertinent matters such as an intent to rerun the election or count
ballots at a specified date, time, and place, and if appropriate, that
the Regional Director will cause to be issued a revised tally of
ballots.
    (e) When the Regional Director determines that no relevant question
of fact exists, but that a substantial question of interpretation or
policy exists, the Regional Director shall notify the parties in the
report and findings and transfer the case to the Board in accordance
with of this subchapter.
    (f) Any party aggrieved by the findings of a Regional Director with
respect to objections to an election or challenged ballots may obtain a
review of such action by the Board by following the procedure set forth
in Sec. 1422.6(d) of this subchapter: Provided, however, That a
determination by the Regional Director to issue a notice of hearing
shall not be subject to review by the Board.
    (g) Where it appears to the Regional Director that the objections or
challenged ballots raise any relevant question of fact which may have
affected the results of the election, the Regional Director shall cause
to be issued a notice of hearing. Hearings shall be conducted and
decisions issued by Administrative Law Judges and exceptions and related
submissions filed with the Board in accordance with Sec. Sec. 1423.14
through 1423.28 of this subchapter excluding Sec. 1423.18 and Sec.
1423.19(j), with the following exceptions:
    (1) The Administrative Law Judge may not recommend remedial action
to be taken or notices to be posted, as provided under Sec. 1423.26(a);
and
    (2) Reference to ``charge, complaint'' in Sec. 1423.26(b) shall be
read as ``report and findings of the Regional Director.''
    (h) At a hearing conducted pursuant to paragraph (g) of this section
the party filing the objections shall have the burden of proving all
matters alleged in its objections by a preponderance of the evidence.
With respect to challenged ballots, no burden of proof is imposed on any
party.
    (i) The Board shall take action which may consist of the following,
as appropriate:
    (1) Issue a decision adopting, modifying, or rejecting the
Administrative Law Judge's decision;
    (2) Issue a decision in any case involving a substantial question of
interpretation or policy transferred pursuant to paragraph (e) of this
section; or
    (3) Issue a ruling with respect to a request for review filed
pursuant to paragraph (f) of this section affirming or reversing, in
whole or in part, the Regional Director's findings, or make such other
disposition as may be appropriate.



Sec. 1422.21  Preferential voting.

    In any election in which more than two choices are on the ballot and
no choice receives a majority of first preferences the Board shall
distribute to the two choices having the most first preferences the
preferences as between those two of the other valid ballots cast. The
choice receiving a majority of preferences shall be declared the winner.
A labor organization which is declared the winner of the election shall
be certified by the Board as the exclusive representative.

[[Page 414]]



Sec. 1422.22  Inconclusive elections.

    (a) An inconclusive election is one in which none of the choices on
the ballot is declared the winner. If there are no challenged ballots
that would affect the results of the election, the Regional Director may
declare the election a nullity and may order another election providing
for a selection from among the choices afforded in the previous ballot.
    (b) Only one further election pursuant to this section may be held.



PART 1423_UNFAIR LABOR PRACTICE PROCEEDINGS--Table of Contents



Sec.
1423.1 Applicability of this part.
1423.2 Informal proceedings.
1423.3 Who may file charges.
1423.4 Contents of the charge; supporting evidence and documents.
1423.5 Selection of the unfair labor practice procedure or the
          negotiability procedure.
1423.6 Filing and service of copies.
1423.7 Investigation of charges.
1423.8 Amendment of charges.
1423.9 Action by the Regional Director.
1423.10 Determination not to issue complaint; review of action by the
          Regional Director.
1423.11 Settlement or adjustment of issues.
1423.12 Issuance and contents of the complaint.
1423.13 Answer to the complaint; extension of time for filing;
          amendment.
1423.14 Conduct of hearing.
1423.15 Intervention.
1423.16 Rights of parties.
1423.17 Rules of evidence.
1423.18 Burden of proof before the Administrative Law Judge.
1423.19 Duties and powers of the Administrative Law Judge.
1423.20 Unavailability of Administrative Law Judges.
1423.21 Objection to conduct of hearing.
1423.22 Motions.
1423.23 Waiver of objections.
1423.24 Oral argument at the hearing.
1423.25 Filing of brief.
1423.26 Transmittal of the Administrative Law Judge's decision to the
          Board; exceptions.
1423.27 Contents of exceptions to the Administrative Law Judge's
          decision.
1423.28 Briefs in support of exceptions; oppositions to exceptions;
          cross-exceptions.
1423.29 Action by the Board.
1423.30 Compliance with decisions and orders of the Board.
1423.31 Backpay proceedings.

    Authority: 22 U.S.C. 4107.

    Source: 46 FR 45868, Sept. 15, 1981, unless otherwise noted.



Sec. 1423.1  Applicability of this part.

    This part is applicable to any charge of alleged unfair labor
practices filed with the Board on or after February 15, 1981.



Sec. 1423.2  Informal proceedings.

    (a) The purposes and policies of the Foreign Service Labor-
Management Relations Statute can best be achieved by the cooperative
efforts of all persons covered by the program. To this end, it shall be
the policy of the Board and the General Counsel to encourage all persons
alleging unfair labor practices and persons against whom such
allegations are made to meet and, in good faith, attempt to resolve such
matters prior to the filing of unfair labor practice charges with the
Board.
    (b) In furtherance of the policy referred to in paragraph (a) of
this section, and noting the six (6) month period of limitation set
forth in 22 U.S.C. 4116(d), it shall be the policy of the Board and the
General Counsel to encourage the informal resolution of unfair labor
practice allegations subsequent to the filing of a charge and prior to
the issuance of a complaint by the Regional Director.



Sec. 1423.3  Who may file charges.

    The Department or labor organization may be charged by any person
with having engaged in or engaging in any unfair labor practice
prohibited under 22 U.S.C. 4115.



Sec. 1423.4  Contents of the charge; supporting evidence and documents.

    (a) A charge alleging a violation of 22 U.S.C. 4115 shall be
submitted on forms prescribed by the Board and shall contain the
following:
    (1) The name, address and telephone number of the person(s) making
the charge;
    (2) The name, address and telephone number of the Department or
labor organization against whom the charge is made;
    (3) A clear and concise statement of the facts constituting the
alleged unfair labor practice, a statement of the

[[Page 415]]

section(s) and subsection(s) of chapter 41 of title 22 of the United
States Code alleged to have been violated, and the date and place of
occurrence of the particular acts; and
    (4) A statement of any other procedure invoked involving the subject
matter of the charge and the results, if any, including whether the
subject matter raised in the charge (i) has been raised previously in a
grievance procedure; (ii) has been referred to the Foreign Service
Impasse Disputes Panel or the Foreign Service Grievance Board for
consideration or action; or (iii) involves a negotiability issue raised
by the charging party in a petition pending before the Board pursuant to
part 1424 of this subchapter.
    (b) Such charge shall be in writing and signed and shall contain a
declaration by the person signing the charge, under the penalties of the
Criminal Code (18 U.S.C. 1001), that its contents are true and correct
to the best of that person's knowledge and belief.
    (c) When filing a charge, the charging party shall submit to the
Regional Director any supporting evidence and documents.



Sec. 1423.5  Selection of the unfair labor practice procedure or the
negotiability procedure.

    (a) Where a labor organization files an unfair labor practice charge
pursuant to this part which involves a negotiability issue, and the
labor organization also files pursuant to part 1424 of this subchapter a
petition for review of the same negotiability issue, the Board and the
General Counsel ordinarily will not process the unfair labor practice
charge and the petition for review simultaneously.
    (b) Under such circumstances, the labor organization must select
under which procedure to proceed. Upon selection of one procedure,
further action under the other procedure will ordinarily be suspended.
Such selection must be made regardless of whether the unfair labor
practice charge or the petition for review of a negotiability issue is
filed first. Notification of this selection must be made in writing at
the time that both procedures have been invoked, and must be served on
the Board, the appropriate Regional Director and all parties to both the
unfair labor practice case and the negotiability case.
    (c) Cases which solely involve an agency's allegation that the duty
to bargain in good faith does not extend to the matter proposed to be
bargained and which do not involve actual or contemplated changes in
conditions of employment may only be filed under part 1424 of this
subchapter.



Sec. 1423.6  Filing and service of copies.

    (a) An original and four (4) copies of the charge together with one
copy for each additional charged party named shall be filed with the
Regional Director for the region in which the alleged unfair labor
practice has occurred or is occurring. A charge alleging that an unfair
labor practice has occurred or is occurring in two or more regions may
be filed with the Regional Director for any such region.
    (b) Upon the filing of a charge, the charging party shall be
responsible for the service of a copy of the charge (without the
supporting evidence and documents) upon the person(s) against whom the
charge is made, and for filing a written statement of such service with
the Regional Director. The Regional Director will, as a matter of
course, cause a copy of such charge to be served on the person(s)
against whom the charge is made, but shall not be deemed to assume
responsibility for such service.



Sec. 1423.7  Investigation of charges.

    (a) The Regional Director, on behalf of the General Counsel, shall
conduct such investigation of the charge as the Regional Director deems
necessary.
    (b) During the course of the investigation all parties involved will
have an opportunity to present their evidence and views to the Regional
Director.
    (c) In connection with the investigation of charges, all persons are
expected to cooperate fully with the Regional Director.
    (d) The purposes and policies of the Foreign Service Labor-
Management Relations Statute can best be achieved by the full
cooperation of all parties involved and the voluntary submission of all
potentially relevant information

[[Page 416]]

from all potential sources during the course of the investigation. To
this end, it shall be the policy of the Board and the General Counsel to
protect the identity of individuals and the substance of the statements
and information they submit or which is obtained during the
investigation as a means of assuring the Board's and the General
Counsel's continuing ability to obtain all relevant information.



Sec. 1423.8  Amendment of charges.

    Prior to the issuance of a complaint, the charging party may amend
the charge in accordance with the requirements set forth in Sec.
1423.6.



Sec. 1423.9  Action by the Regional Director.

    (a) The Regional Director shall take action which may consist of the
following, as appropriate:
    (1) Approve a request to withdraw a charge;
    (2) Refuse to issue a complaint;
    (3) Approve a written settlement agreement in accordance with the
provisions of Sec. 1423.11;
    (4) Issue a complaint;
    (5) Upon agreement of all parties, transfer to the Board for
decision, after issuance of a complaint, a stipulation of facts in
accordance with the provisions of Sec. 1429.1(a) this subchapter; or
    (6) Withdraw a complaint.
    (b) Parties may request the General Counsel to seek appropriate
temporary relief (including a restraining order) under 22 U.S.C.
4109(d). The General Counsel will initiate and prosecute injunctive
proceedings under 22 U.S.C. 4109(d) only upon approval of the Board. A
determination by the General Counsel not to seek approval of the Board
for such temporary relief is final and may not be applied to the Board.
    (c) Upon a determination to issue a complaint, whenever it is deemed
advisable by the Board to seek appropriate temporary relief (including a
restraining order) under 22 U.S.C. 4109(d), the Regional Attorney or
other designated agent of the Board to whom the matter has been referred
will make application for appropriate temporary relief (including a
restraining order) in the United States District Court for the District
of Columbia. Such temporary relief will not be sought unless the record
establishes probable cause that an unfair labor practice is being
committed, or if such temporary relief will interfere with the ability
of the Department to carry out its essential functions.
    (d) Whenever temporary relief has been obtained pursuant to 22
U.S.C. 4109(d) and thereafter the Administrative Law Judge hearing the
complaint, upon which the determination to seek such temporary relief
was predicated, recommends dismissal of such complaint, in whole or in
part, the Regional Attorney or other designated agent of the Board
handling the case for the Board shall inform the United States District
Court for the District of Columbia of the possible change in
circumstances arising out of the decision of the Administrative Law
Judge.



Sec. 1423.10  Determination not to issue complaint; review of action by
the Regional Director.

    (a) If the Regional Director determines that the charge has not been
timely filed, that the charge fails to state an unfair labor practice,
or for other appropriate reasons, the Regional Director may request the
charging party to withdraw the charge, and in the absence of such
withdrawal within a reasonable time, decline to issue a complaint.
    (b) If the Regional Director determines not to issue a complaint on
a charge which is not withdrawn, the Regional Director shall provide the
parties with a written statement of the reasons for not issuing a
complaint.
    (c) The charging party may obtain a review of the Regional
Director's decision not to issue a complaint by filing an appeal with
the General Counsel within twenty-five (25) days after service of the
Regional Director's decision. The appeal shall contain a complete
statement setting forth the facts and reasons upon which it is based. A
copy of the appeal shall also be filed with the Regional Director. In
addition, the charging party should notify all other parties of the fact
that an appeal has been taken, but any failure to give such notice shall
not affect the validity of the appeal.

[[Page 417]]

    (d) A request for extension of time to file an appeal shall be in
writing and received by the General Counsel not later than five (5) days
before the date the appeal is due. The charging party should notify the
Regional Director and all other parties that it has requested an
extension of time in which to file an appeal, but any failure to give
such notice shall not affect the validity of its request for an
extension of time to file an appeal.
    (e) The General Counsel may sustain the Regional Director's refusal
to issue or re-issue a complaint, stating the grounds of affirmance, or
may direct the Regional Director to take further action. The General
Counsel's decision shall be served on all the parties. The decision of
the General Counsel shall be final.



Sec. 1423.11  Settlement or adjustment of issues.

                        general settlement policy

    (a) At any stage of a proceeding prior to hearing, where time, the
nature of the proceeding, and the public interest permit, all interested
parties shall have the opportunity to submit to the Regional Director
with whom the charge was filed, for consideration, all facts and
arguments concerning offers of settlement, or proposals of adjustment.

                    precomplaint informal settlements

    (b)(1) Prior to the issuance of any complaint or the taking of other
formal action, the Regional Director will afford the charging party and
the respondent a reasonable period of time in which to enter into an
informal settlement agreement to be approved by the Regional Director.
Upon approval by the Regional Director and compliance with the terms of
the informal settlement agreement, no further action shall be taken in
the case. If the respondent fails to perform its obligations under the
informal settlement agreement, the Regional Director may determine to
institute further proceedings.
    (2) In the event that the charging party fails or refuses to become
a party to an informal settlement agreement offered by the respondent,
if the Regional Director concludes that the offered settlement will
effectuate the policies of the Foreign Service Labor-Management
Relations Statute, the agreement shall be between the respondent and the
Regional Director and the latter shall decline to issue a complaint. The
charging party may obtain a review of the Regional Director's action by
filing an appeal with the General Counsel in accordance with Sec.
1423.10(c). The General Counsel shall take action on such appeal as set
forth in Sec. 1423.10(e).

                    post complaint settlement policy

    (c) Consistent with the policy reflected in paragraph (a) of this
section, even after the issuance of a complaint, the Board favors the
settlement of issues. Such settlements may be either informal or formal.
Informal settlement agreements shall be accomplished as provided in
paragraph (b) of this section. Formal settlement agreements are subject
to the approval of the Board. In such formal settlement agreements, the
parties shall agree to waive their right to a hearing and agree further
that the Board may issue an order requiring the respondent to take
action appropriate to the terms of the settlement. Ordinarily the formal
settlement agreement also contains the respondent's consent to the Board
application for the entry of a decree by the United States Court of
Appeals for the District of Columbia enforcing the Board's order.

              post complaint--prehearing formal settlements

    (d)(1) If, after issuance of a complaint but before opening of the
hearing, the charging party and the respondent enter into a formal
settlement agreement, and such agreement is accepted by the Regional
Director, the formal settlement agreement shall be submitted to the
Board for approval.
    (2) If, after issuance of a complaint but before opening of the
hearing, the charging party fails or refuses to become a party to a
formal settlement agreement offered by the respondent, and the Regional
Director concludes

[[Page 418]]

that the offered settlement will effectuate the policies of the Foreign
Service Labor-Management Relations Statute, the agreement shall be
between the respondent and the Regional Director. The charging party
will be so informed and provided a brief written statement by the
Regional Director of the reasons therefor. The formal settlement
agreement together with the charging party's objections, if any, and the
Regional Director's written statements, shall be submitted to the Board
for approval. The Board may approve or disapprove any formal settlement
agreement or return the case to the Regional Director for other
appropriate action.

             post complaint--prehearing informal settlements

    (3) After the issuance of a complaint but before opening of the
hearing, if the Regional Director concludes that it will effectuate the
policies of the Foreign Service Labor-Management Relations Statute, the
Regional Director may withdraw the complaint and approve an informal
settlement agreement pursuant to paragraph (b) of this section.

          informal settlements after the opening of the hearing

    (e)(1) After issuance of a complaint and after opening of the
hearing, if the Regional Director concludes that it will effectuate the
policies of the Foreign Service Labor-Management Relations Statute, the
Regional Director may request the Administrative Law Judge for
permission to withdraw the complaint and, having been granted such
permission to withdraw the complaint, may approve an informal settlement
pursuant to paragraph (b) of this section.

           formal settlements after the opening of the hearing

    (2) If, after issuance of a complaint and after opening of the
hearing, the parties enter into a formal settlement agreement, the
Regional Director may request the Administrative Law Judge to approve
such formal settlement agreement, and upon such approval, to transmit
the agreement to the Board for approval.
    (3) If the charging party fails or refuses to become a party to a
formal settlement agreement offered by the respondent, and the Regional
Director concludes that the offered settlement will effectuate the
policies of the Foreign Service Labor-Management Relations Statute, the
agreement shall be between the respondent and the Regional Director.
After the charging party is given an opportunity to state on the record
or in writing the reasons for opposing the formal settlement, the
Regional Director may request the Administrative Law Judge to approve
such formal settlement agreement, and upon such approval, to transmit
the agreement to the Board for approval. The Board may approve or
disapprove any formal settlement agreement or return the case to the
Administrative Law Judge for another appropriate action.



Sec. 1423.12  Issuance and contents of the complaint.

    (a) After a charge is filed, if it appears to the Regional Director
that formal proceedings in respect thereto should be instituted, the
Regional Director shall issue and cause to be served on all other
parties a formal complaint: Provided, however, That a determination by a
Regional Director to issue a complaint shall not be subject to review.
    (b) The complaint shall include:
    (1) Notice of the charge;
    (2) Notice that a hearing will be held before an Adminsitrative Law
Judge;
    (3) Notice of the time and place fixed for the hearing which shall
not be earlier than five (5) days after service of the complaint;
    (4) A statement of the nature of the hearing;
    (5) A clear and concise statement of the facts upon which assertion
of jurisdiction by the Board is predicated;
    (6) A reference to the particular sections of chapter 41 of title 22
of the United States Code and the rules and regulations involved; and
    (7) A clear and concise description of the acts which are claimed to
constitute unfair labor practices, including, where known, the
approximate

[[Page 419]]

dates and places of such acts and the names of respondent's agents or
other representatives by whom committed.
    (c) The Chief Administrative Law Judge may, upon such judge's own
motion or upon proper cause shown by any other party, extend the date of
the hearing or may change the place at which it is to be held.
    (d) A complaint may be amended, upon such terms as may be deemed
just, prior to the hearing, by the Regional Director issuing the
complaint; at the hearing and until the case has been transmitted to the
Board pursuant to Sec. 1423.26, upon motion by the Administrative Law
Judge designated to conduct the hearing; and after the case has been
transmitted to the Board pursuant to Sec. 1423.26, upon motion by the
Board at any time prior to the issuance of an order based thereon by the
Board.
    (e) Any such complaint may be withdrawn before the hearing by the
Regional Director.



Sec. 1423.13  Answer to the complaint; extension of time for filing;
amendment.

    (a) Except in extraordinary circumstances as determined by the
Regional Director, within twenty (20) days after the complaint is served
upon the respondent, the respondent shall file the original and four (4)
copies of the answer thereto, signed by the respondent or its
representative, with the Regional Director who issued the complaint. The
respondent shall serve a copy of the answer on the Chief Administrative
Law Judge and on all other parties.
    (b) The answer: (1) Shall specifically admit, deny, or explain each
of the allegations of the complaint unless the respondent is without
knowledge, in which case the answer shall so state; or (2) Shall state
that the respondent admits all of the allegations in the complaint.
Failure to file an answer or to plead specifically to or explain any
allegation shall constitute an admission of such allegation and shall be
so found by the Board, unless good cause to the contrary is shown.
    (c) Upon the Regional Director's own motion or upon proper cause
shown by any other party, the Regional Director issuing the complaint
may by written order extend the time within which the answer shall be
filed.
    (d) The answer may be amended by the respondent at any time prior to
the hearing. During the hearing or subsequent thereto, the answer may be
amended in any case where the complaint has been amended, within such
period as may be fixed by the Administrative Law Judge or the Board.
Whether or not the complaint has been amended, the answer may, in the
discretion of the Administrative Law Judge or the Board, upon motion, be
amended upon such terms and within such periods as may be fixed by the
Administrative Law Judge or the Board.



Sec. 1423.14  Conduct of hearing.

    (a) Hearings shall be conducted not earlier than five (5) days after
the date on which the complaint is served. The hearing shall be open to
the public unless otherwise ordered by the Administrative Law Judge. A
substitute Administrative Law Judge may be designated at any time to
take the place of the Administrative Law Judge previously designated to
conduct the hearing. Such hearing shall, to the extent practicable, be
conducted in accordance with the provisions of subchapter II of chapter
5 of title 5 of the United States Code, except that the parties shall
not be bound by the rules of evidence, whether statutory, common law, or
adopted by a court.
    (b) An official reporter shall make the only official transcript of
such proceedings. Copies of the official transcript may be examined in
the appropriate regional office during normal working hours. Requests by
parties for copies of transcripts should be made to the official hearing
reporter.



Sec. 1423.15  Intervention.

    Any person involved and desiring to intervene in any proceeding
pursuant to this part shall file a motion in accordance with the
procedures set forth in Sec. 1423.22. The motion shall state the
grounds upon which such person claims involvement.



Sec. 1423.16  Rights of parties.

    A party shall have the right to appear at any hearing in person, by
counsel, or by other representative, and to

[[Page 420]]

examine and cross-examine witnesses, and to introduce into the record
documentary or other relevant evidence, and to submit rebuttal evidence,
except that the participation of any party shall be limited to the
extent prescribed by the Administrative Law Judge. Two (2) copies of
documentary evidence shall be submitted and a copy furnished to each of
the other parties. Stipulations of fact may be introduced in evidence
with respect to any issue.



Sec. 1423.17  Rules of evidence.

    The parties shall not be bound by the rules of evidence, whether
statutory, common law, or adopted by court. Any evidence may be
received, except that an Administrative Law Judge may exclude any
evidence which is immaterial, irrelevant, unduly repetitious or
customarily privileged.



Sec. 1423.18  Burden of proof before the Administrative Law Judge.

    The General Counsel shall have the responsibility of presenting the
evidence in support of the complaint and shall have the burden of
proving the allegations of the complaint by a preponderance of the
evidence.



Sec. 1423.19  Duties and powers of the Administrative Law Judge.

    It shall be the duty of the Administrative Law Judge to inquire
fully into the facts as they relate to the matter before such judge.
Subject to the rules and regulations of the Board and the General
Counsel, an Administrative Law Judge presiding at a hearing may:
    (a) Grant requests for subpoenas pursuant to Sec. 1429.7 of this
subchapter;
    (b) Rule upon petitions to revoke subpoenas pursuant to Sec. 1429.7
of this subchapter;
    (c) Administer oaths and affirmations;
    (d) Take or order the taking of a deposition whenever the ends of
justice would be served thereby;
    (e) Order responses to written interrogatories whenever the ends of
justice would be served thereby unless it would interfere with the
Board's and the General Counsel's policy of protecting the personal
privacy and confidentiality of sources of information as set forth in
Sec. 1423.7(d);
    (f) Call, examine and cross-examine witnesses and introduce into the
record documentary or other evidence;
    (g) Rule upon offers of proof and receive relevant evidence and
stipulations of fact with respect to any issue;
    (h) Limit lines of questioning or testimony which are immaterial,
irrelevant, unduly repetitious, or customarily privileged;
    (i) Regulate the course of the hearing and, if appropriate, exclude
from the hearing persons who engage in contemptuous conduct and strike
all related testimony of witnesses refusing to answer any questions
ruled to be proper;
    (j) Hold conferences for the settlement or simplification of the
issues by consent of the parties or upon the judge's own motion;
    (k) Dispose of procedural requests, motions, or similar matters,
including motions referred to the Administrative Law Judge by the
Regional Director and motions for summary judgment or to amend
pleadings; dismiss complaints or portions thereof; order hearings
reopened; and, upon motion, order proceedings consolidated or severed
prior to issuance of the Administrative Law Judge's decision;
    (l) Request the parties at any time during the hearing to state
their respective positions concerning any issue in the case or theory in
support thereof;
    (m) Continue the hearing from day-to-day or adjourn it to a later
date or to a different place, by announcement thereof at the hearing or
by other appropriate notice;
    (n) Prepare, serve and transmit the decision pursuant to Sec.
1423.26;
    (o) Take official notice of any material fact not appearing in
evidence in the record, which is among the traditional matters of
judicial notice: Provided, however, That the parties shall be given
adequate notice, at the hearing or by reference in the Administrative
Law Judge's decision of the matters so noticed, and shall be given
adequate opportunity to show the contrary;
    (p) Approve requests for withdrawal of complaints based on informal
settlements occurring after the opening of the hearing pursuant to Sec.
1423.11(e)(1),

[[Page 421]]

and transmit formal settlement agreements to the Board for approval
pursuant to Sec. 1423.11(e) (2) and (3);
    (q) Grant or deny requests made at the hearing to intervene and to
present testimony;
    (r) Correct or approve proposed corrections of the official
transcript when deemed necessary;
    (s) Sequester witnesses where appropriate; and
    (t) Take any other action deemed necessary under the foregoing and
not prohibited by the regulations in this subchapter.



Sec. 1423.20  Unavailability of Administrative Law Judges.

    In the event the Administrative Law Judge designated to conduct the
hearing becomes unavailable, the Chief Administrative Law Judge shall
designate another Administrative Law Judge for the purpose of further
hearing or issuance of a decision on the record as made, or both.



Sec. 1423.21  Objection to conduct of hearing.

    (a) Any objection with respect to the conduct of the hearing,
including any objection to the introduction of evidence, may be stated
orally or in writing accompanied by a short statement of the grounds for
such objection, and included in the record. No such objection shall be
deemed waived by further participation in the hearing. Such objection
shall not stay the conduct of the hearing.
    (b) Formal exceptions to adverse rulings are unnecessary. Automatic
exceptions will be allowed to all adverse rulings. Except by special
permission of the Board, and in view of Sec. 1429.11 of this
subchapter, rulings by the Administrative Law Judge shall not be
appealed prior to the transmittal of the case to the Board, but shall be
considered by the Board only upon the filing of exceptions to the
Administrative Law Judge's decision in accordance with Sec. 1423.27. In
the discretion of the Administrative Law Judge, the hearing may be
continued or adjourned pending any such request for special permission
to appeal.



Sec. 1423.22  Motions.

    (a) Filing of Motions. (1) Motions made prior to a hearing and any
response thereto shall be made in writing and filed with the Regional
Director: Provided, however, That after the issuance of a complaint by
the Regional Director any motion to postpone the hearing should be filed
with the Chief Administrative Law Judge at least five (5) days prior to
the opening of the scheduled hearing. Motions made after the hearing
opens and prior to the transmittal of the case to the Board shall be
made in writing to the Administrative Law Judge or orally on the record.
After the transmittal of the case to the Board, motions and any response
thereto shall be filed in writing with the Board: Provided, however,
That a motion to correct the transcript shall be filed with the
Administrative Law Judge.
    (2) A response to a motion shall be filed within five (5) days after
service of the motion, unless otherwise directed.
    (3) An original and two (2) copies of the motions and responses
shall be filed, and copies shall be served on the parties. A statement
of such service shall accompany the original.
    (b) Rulings on motions. (1) Regional Directors may rule on all
motions filed with them before the hearing, or they may refer them to
the Chief Administrative Law Judge.
    (2) Except by special permission of the Board, and in view of Sec.
1429.11 of this subchapter, rulings by the Regional Director shall not
be appealed prior to the transmittal of the case to the Board, but shall
be considered by the Board when the case is transmitted to it for
decision.
    (3) Administrative Law Judges may rule on motions referred to them
prior to the hearing and on motions filed after the beginning of the
hearing and before the transmittal of the case to the Board. Such
motions may be ruled upon by the Chief Administrative Law Judge in the
absence of an Administrative Law Judge.
    (4) Except by special permission of the Board, and in view of Sec.
1429.11 of this subchapter, rulings by Administrative Law Judges shall
not be appealed prior to the transmittal of the case to

[[Page 422]]

the Board, but shall be considered by the Board when the case is
transmitted to it for decision. In the discretion of the Administrative
Law Judge, the hearing may be continued or adjourned pending any such
request for special permission to appeal.



Sec. 1423.23  Waiver of objections.

    Any objection not made before an Administrative Law Judge shall be
deemed waived.



Sec. 1423.24  Oral argument at the hearing.

    Any party shall be entitled, upon request, to a reasonable period
prior to the close of the hearing for oral argument, which shall be
included in the official transcript of the hearing.



Sec. 1423.25  Filing of brief.

    Any party desiring to submit a brief to the Administrative Law Judge
shall file the original and two (2) copies within a reasonable time
fixed by the Administrative Law Judge, but not in excess of thirty (30)
days from the close of the hearing. Copies of any brief shall be served
on all other parties to the proceeding and a statement of such service
shall be filed with the Administrative Law Judge. Requests for
additional time to file a brief shall be made to the Chief
Administrative Law Judge, in writing, and copies thereof shall be served
on the other parties. A statement of such service shall be furnished.
Requests for extension of time shall be received not later than five (5)
days before the date such briefs are due. No reply brief may be filed
except by special permission of the Administrative Law Judge.



Sec. 1423.26  Transmittal of the Administrative Law Judge's decision
to the Board; exceptions.

    (a) After the close of the hearing, and the receipt of brief, if
any, the Administrative Law Judge shall prepare the decision
expeditiously. The Administrative Law Judge shall prepare a decision
even when the parties enter into a stipulation of fact at the hearing.
The decision shall contain findings of fact, conclusions, and the
reasons or basis therefor including credibility determinations, and
conclusions as to the disposition of the case including, where
appropriate, the remedial action to be taken and notices to be posted.
    (b) The Administrative Law Judge shall cause the decision to be
served promptly on all parties to the proceeding. Thereafter, the
Administrative Law Judge shall transmit the case to the Board including
the judge's decision and the record. The record shall include the
charge, complaint, service sheet, answer, motions, rulings, orders,
official transcript of the hearing, stipulations, objections,
depositions, interrogatories, exhibits, documentary evidence and any
briefs or other documents submitted by the parties.
    (c) An original and three (3) copies of any exception to the
Administrative Law Judge's decision and briefs in support of exceptions
may be filed by any party with the Board within twenty-five (25) days
after service of the decision: Provided, however, That the Board may for
good cause shown extend the time for filing such exceptions. Requests
for additional time in which to file exceptions shall be in writing, and
copies thereof shall be served on the other parties. Requests for
extension of time must be received no later than five (5) days before
the date the exceptions are due. Copies of such exceptions and any
supporting briefs shall be served on all other parties, and a statement
of such service shall be furnished to the Board.



Sec. 1423.27  Contents of exceptions to the Administrative Law Judge's
decision.

    (a) Exceptions to an Administrative Law Judge's decision shall:
    (1) Set forth specifically the questions upon which exceptions are
taken;
    (2) Identify that part of the Administrative Law Judge's decision to
which objection is made; and
    (3) Designate by precise citation of page the portions of the record
relied on, state the grounds for the exceptions, and include the
citation of authorities unless set forth in a supporting brief.
    (b) Any exception to a ruling, finding or conclusion which is not
specifically urged shall be deemed to have been waived. Any exception
which fails to

[[Page 423]]

comply with the foregoing requirements may be disregarded.



Sec. 1423.28  Briefs in support of exceptions; oppositions to
exceptions; cross-exceptions.

    (a) Any brief in support of exceptions shall contain only matters
included within the scope of the exceptions and shall contain, in the
order indicated, the following:
    (1) A concise statement of the case containing all that is material
to the consideration of the questions presented;
    (2) A specification of the questions involved and to be argued; and
    (3) The argument, presenting clearly the points of fact and law
relied on in support of the position taken on each question, with
specific page reference to the transcript and the legal or other
material relied on.
    (b) Any party may file an opposition to exceptions and cross-
exceptions and a supporting brief with the Board within ten (10) days
after service of any exceptions to an Administrative Law Judge's
decision. Copies of the opposition to exceptions and the cross-
exceptions and any supporting briefs shall be served on all other
parties, and a statement of service shall be filed with the opposition
to exceptions and cross-exceptions and any supporting briefs.



Sec. 1423.29  Action by the Board.

    (a) After considering the Administrative Law Judge's decision, the
record, and any exceptions and related submissions filed, the Board
shall issue its decision affirming or reversing the Administrative Law
Judge, in whole, or in part, or making such other disposition of the
matter as it deems appropriate: Provided, however, That unless
exceptions are filed which are timely and in accordance with Sec.
1423.27, the Board may, at its discretion, adopt without discussion the
decision of the Administrative Law Judge, in which event the findings
and conclusions of the Administrative Law Judge, as contained in such
decision shall, upon appropriate notice to the parties, automatically
become the decision of the Board.
    (b) Upon finding a violation, the Board shall issue an order:
    (1) To cease and desist from any such unfair labor practice in which
the Department or labor organization is engaged;
    (2) Requiring the parties to renegotiate a collective bargaining
agreement in accordance with the order of the Board and requiring that
the agreement, as amended, be given retroactive effect;
    (3) Requiring reinstatement of an employee with backpay in
accordance with 5 U.S.C. 5596; or
    (4) Including any combination of the actions described in paragraphs
(b) (1) through (3) of this section or such other action as will carry
out the purpose of the Foreign Service Labor-Management Relations
Statute.
    (c) Upon finding no violation, the Board shall dismiss the
complaint.



Sec. 1423.30  Compliance with decisions and orders of the Board.

    When remedial action is ordered, the respondent shall report to the
appropriate Regional Director within a specified period that the
required remedial action has been effected. When the General Counsel
finds that the required remedial action has not been effected, the
General Counsel shall take such action as may be appropriate, including
referral to the Board for enforcement.



Sec. 1423.31  Backpay proceedings.

    After the entry of a Board order directing payment of backpay, or
the entry of a court decree enforcing such order, if it appears to the
Regional Director that a controversy exists between the Board and a
respondent which cannot be resolved without a formal proceeding, the
Regional Director may issue and serve on all parties a backpay
specification accompanied by a notice of hearing or a notice of hearing
without a specification. The respondent shall, within twenty (20) days
after the service of a backpay specification accompanied by a notice of
hearing, file an answer thereto in accordance with Sec. 1423.13 with
the Regional Director issuing such specification. No answer need be
filed by the respondent to a notice of hearing issued without a
specification. After the issuance of a notice of hearing, with or
without a backpay specification, the

[[Page 424]]

procedures provided in Sec. Sec. 1423.14 to 1423.29, inclusive, shall
be followed insofar as applicable.



PART 1424_EXPEDITED REVIEW OF NEGOTIABILITY ISSUES--Table of Contents



Sec.
1424.1 Conditions governing review.
1424.2 Who may file a petition.
1424.3 Time limits for filing.
1424.4 Content of petition; service.
1424.5 Selection of the unfair labor practice procedure or the
          negotiability procedure.
1424.6 Position of the Department; time limits for filing; service.
1424.7 Response of the exclusive representative; time limits for filing;
          service.
1424.8 Additional submissions to the Board.
1424.9 Hearing.
1424.10 Board decision and order; compliance.

    Authority: 22 U.S.C. 4107(c).

    Source: 46 FR 45873, Sept. 15, 1981, unless otherwise noted.



Sec. 1424.1  Conditions governing review.

    Pursuant to the authority contained in 22 U.S.C. 4107 (a)(3) and
(c)(1) the Board will consider a direct appeal concerning whether a
matter proposed to be bargained is within the obligation to bargain
under the Foreign Service Act of 1980 as follows: If the Department is
involved in collective bargaining with an exclusive representative and
alleges that the duty to bargain in good faith does not extend to any
matter proposed to be bargained because, as proposed, the matter is
inconsistent with applicable law, rule or regulation the exclusive
representative may appeal the allegation to the Board when it disagrees
with Department's allegation that the matter as proposed to be bargained
is inconsistent with applicable law, rule or regulation.



Sec. 1424.2  Who may file a petition.

    A petition for review of a negotiability issue may be filed by the
exclusive representative which is a party to the negotiations.



Sec. 1424.3  Time limits for filing.

    (a) The time limit for filing an appeal under this part is fifteen
(15) days from the Department's allegation, which was requested in
writing by the exclusive representative, is served on the exclusive
representative. The Department shall make the allegation in writing and
serve a copy on the exclusive representative: Provided, however, That
review of a negotiability issue may be requested by the exclusive
representative under this part without a prior written allegation by the
Department if a written allegation has not been served upon the
exclusive representative within ten (10) days after the date of receipt
by any Department bargaining representative at the negotiations of a
written request for such allegation.



Sec. 1424.4  Content of petition; service.

    (a) A petition for review shall be dated and shall contain the
following:
    (1) A statement setting forth the matter proposed to be bargained as
submitted to the Department;
    (2) A copy of all pertinent material, including the Department's
allegation in writing that the matter, as proposed, is not within the
duty to bargain in good faith, and other relevant documentary material;
and
    (3) Notification by the petitioning labor organization whether the
negotiability issue is also involved in an unfair labor parctice charge
filed by such labor organization under part 1423 of this subchapter and
pending before the General Counsel.
    (b) A copy of the petition including all attachments thereto shall
be served on the Secretary and on the principal Department bargaining
representative at the negotiations.



Sec. 1424.5  Selection of the unfair labor practice procedure or the
negotiability procedure.

    Where a labor organization files an unfair labor practice charge
pursuant to part 1423 of this subchapter which involves a negotiability
issue, and the labor organization also files pursuant to this part a
petition for review of the same negotiability issue, the Board and the
General Counsel ordinarily will not process the unfair labor practice
charge and the petition for review simultaneously. Under such
circumstances, the labor organization must select under which procedure
to proceed. Upon selection of one procedure, further action under the
other

[[Page 425]]

procedure will ordinarily be suspended. Such selection must be made
regardless of whether the unfair labor practice charge or the petition
for review of a negotiability issue is filed first. Notification of this
selection must be made in writing at the time that both procedures have
been invoked, and must be served on the Board, the appropriate Regional
Director and all parties to both the unfair labor practice case and the
negotiability case. Cases which solely involve the Department's
allegation that the duty bargain in good faith does not extend to the
matter proposed to be bargained and which do not involve actual or
contemplated changes in conditions of employment may only be filed under
this part.



Sec. 1424.6  Position of the Department; time limits for filing; service.

    (a) Within thirty (30) days after the date of receipt by the
Secretary of a copy of the petition for review of a negotiability issue
the Department shall file a statement--
    (1) Withdrawing the allegation that the duty to bargain in good
faith does not extend to the matter proposed to be bargained; or
    (2) Setting forth in full its position on any matters relevant to
the petition which it wishes the Board to consider in reaching its
decision, including a full and detailed statement of its reasons
supporting the allegation. The statement shall cite the section of any
law, rule or regulation relied upon as a basis for the allegation.
    (b) A copy of the Department's statement of position including all
attachments thereto shall be served on the exclusive representative.



Sec. 1424.7  Response of the exclusive representative; time limits for
filing; service.

    (a) Within fifteen (15) days after the date of receipt by an
exclusive representative of a copy of the Department's statement of
position the exclusive representative shall file a full and detailed
response stating its position and reasons for disagreeing with the
Department's allegation that the matter, as proposed to be bargained, is
inconsistent with applicable law or rule or regulation.
    (b) A copy of the response of the exclusive representative including
all attachments thereto shall be served on the Secretary and on the
Department's representative of record in the proceedings before the
Board.



Sec. 1424.8  Additional submissions to the Board.

    The Board will not consider any submission filed by any party,
whether supplemental or responsive in nature, other than those
authorized under Sec. Sec. 1424.2 through 1424.7 unless such submission
is requested by the Board; or unless, upon written request by any party,
a copy of which is served on all other parties, the Board in its
discretion grants permission to file such submission.



Sec. 1424.9  Hearing.

    A hearing may be held, in the discretion of the Board, before a
determination is made under 22 U.S.C. 4107(a)(3). If a hearing is held,
it shall be expedited to the extent practicable and shall not include
the General Counsel as a party.



Sec. 1424.10  Board decision and order; compliance.

    (a) Subject to the requirements of this part the Board shall
expedite proceedings under this part to the extent practicable and shall
issue to the exclusive representative and to the Department a written
decision on the allegation and specific reasons therefor at the earliest
practicable date.
    (b) If the Board finds that the duty to bargain extends to the
matter proposed to be bargained, the decision of the Board shall include
an order that the Department shall upon request (or as otherwise agreed
to by the parties) bargain concerning such matter. If the Board finds
that the duty to bargain does not extend to the matter proposed to be
bargained, the Board shall so state and issue an order dismissing the
petition for review of the negotiability issue. If the Board finds that
the duty to bargain extends to the matter proposed to be bargained only
at the election of the Department, the Board shall so state and issue an
order dismissing the petition for review of the negotiability issue.

[[Page 426]]

    (c) When an order is issued as provided in paragraph (b) of this
section, the Department or exclusive representative shall report to the
appropriate Regional Director within a specified period failure to
comply with an order that the Department shall upon request (or as
otherwise agreed to by the parties) bargain concerning the disputed
matter. If the Board finds such a failure to comply with its order, the
Board shall take whatever action it deems necessary, including
enforcement under 22 U.S.C. 4109(b).



PART 1425_REVIEW OF IMPLEMENTATION DISPUTE ACTIONS--Table of Contents



Sec.
1425.1 Who may file an exception; time limits for filing; opposition;
          service.
1425.2 Content of exception.
1425.3 Grounds for review.
1425.4 Board decision.

    Authority: 22 U.S.C. 4107(c).

    Source: 46 FR 45875, Sept. 15, 1981, unless otherwise noted.



Sec. 1425.1  Who may file an exception; time limits for filing;
opposition; service.

    (a) Either party to an appeal to the Foreign Service Grievance Board
under the provisions of 22 U.S.C. 4114 may file an exception to the
action of the Foreign Service Grievance Board taken pursuant to the
appeal.
    (b) The time limit for filing an exception to a Foreign Service
Grievance Board action is thirty (30) days after such action is
communicated to the parties.
    (c) An opposition to the exception may be filed by a party within
thirty (30) days after the date of service of the exception.
    (d) A copy of the exception and any opposition shall be served on
the other party.



Sec. 1425.2  Content of exception.

    An exception must be a dated, self-contained document which sets
forth in full:
    (a) A statement of the grounds on which review is requested;
    (b) Evidence or rulings bearing on the issues before the Board;
    (c) Arguments in support of the stated grounds, together with
specific reference to the pertinent documents and citations of
authorities; and
    (d) A legible copy of the decision or other document representing
the action taken by the Foreign Service Grievance Board, together with
legible copies of other pertinent documents pertaining to the action.



Sec. 1425.3  Grounds for review.

    The Board will review an action of the Foreign Service Grievance
Board to which an exception has been filed to determine if it is
deficient--
    (a) Because it is contrary to any law, rule, or regulation; or
    (b) On other grounds similar to those applied by Federal courts in
private sector labor-management relations.



Sec. 1425.4  Board decision.

    The Board shall issue its decision taking such action and making
such recommendations concerning the Foreign Service Grievance Board
action as it considers necessary, consistent with applicable laws,
rules, and regulations.



PART 1427_GENERAL STATEMENTS OF POLICY OR GUIDANCE--Table of Contents



Sec.
1427.1 Scope.
1427.2 Requests for general statements of policy or guidance.
1427.3 Content of request.
1427.4 Submissions from interested parties.
1427.5 Standards governing issuance of general statements of policy or
          guidance.

    Authority: 22 U.S.C. 4107(c).

    Source: 46 FR 45875, Sept. 15, 1981, unless otherwise noted.



Sec. 1427.1  Scope.

    This part sets forth procedures under which requests may be
submitted to the Board seeking the issuance of general statements of
policy or guidance under 22 U.S.C. 4107(c)(2)(F).



Sec. 1427.2  Requests for general statements of policy or guidance.

    (a) The head of the Department (or designee), the national president
of a labor organization (or designee), or the president of a labor
organization not affiliated with a national organization

[[Page 427]]

(or designee) may separately or jointly ask the Board for a general
statement of policy or guidance. The head of any lawful association not
qualified as a labor organization may also ask the Board for such a
statement provided the request is not in conflict with the provisions of
the Foreign Service Labor-Management Relations Statute.
    (b) The Board ordinarily will not consider a request related to any
matter pending before the Board, General Counsel, Panel or Assistant
Secretary.



Sec. 1427.3  Content of request.

    (a) A request for a general statement of policy or guidance shall be
in writing and must contain:
    (1) A concise statement of the question with respect to which a
general statement of policy or guidance is requested together with
background information necessary to an understanding of the question;
    (2) A statement of the standards under Sec. 1427.5 upon which the
request is based;
    (3) A full and detailed statement of the position or positions of
the requesting party or parties
    (4) Identification of any cases or other proceedings known to bear
on the question which are pending under the Foreign Service Labor-
Management Statute.
    (5) Identification of other known interested parties.
    (b) A copy of each document also shall be served on all known
interested parties, including the General Counsel, the Panel, and the
Assistant Secretary, where appropriate.



Sec. 1427.4  Submissions from interested parties.

    Prior to issuance of a general statement of policy or guidance the
Board, as it deems appropriate, will afford an opportunity to interested
parties to express their views orally or in writing.



Sec. 1427.5  Standards governing issuance of general statements of
policy or guidance.

    In deciding whether to issue a general statement of policy or
guidance, the Board shall consider:
    (a) Whether the question presented can more appropriately be
resolved by other means;
    (b) Where other means are available, whether a Board statement would
prevent the proliferation of cases involving the same or similar
question;
    (c) Whether the resolution of the question presented would have
general applicability under the Foreign Service Labor-Management
Relations Statute.
    (d) Whether the question currently confronts parties in the context
of a labor-management relationship;
    (e) Whether the question is presented jointly by the parties
involved; and
    (f) Whether the issuance by the Board of a general statement of
policy or guidance on the question would promote constructive and
cooperative labor-management relationships in the Foreign Service and
would otherwise promote the purposes of the Foreign Service Labor-
Management Relations Statute.



PART 1428_ENFORCEMENT OF ASSISTANT SECRETARY STANDARDS OF CONDUCT
DECISIONS AND ORDERS--Table of Contents



Sec.
1428.1 Scope.
1428.2 Petitions for enforcement.
1428.3 Board decision.

    Authority: 22 U.S.C. 4107(c).

    Source: 46 FR 45875, Sept. 15, 1981, unless otherwise noted.



Sec. 1428.1  Scope.

    This part sets forth procedures under which the Board, pursuant to
22 U.S.C. 4107(a)(5) enforce decisions and orders of the Assistant
Secretary in standards of conduct matters arising under 5 U.S.C. 7120.



Sec. 1428.2  Petitions for enforcement.

    (a) The Assistant Secretary may petition the Board to enforce any
Assistant Secretary decision and order in a standards of conduct case
arising under 22 U.S.C. 4117. The Assistant Secretary shall transfer to
the Board the record in the case, including a copy of the transcript if
any, exhibits, briefs, and other documents filed with the Assistant
Secretary. A copy of the petition

[[Page 428]]

for enforcement shall be served on the labor organization against which
such order applies.
    (b) An opposition to Board enforcement of any such Assistant
Secretary decision and order may be filed by the labor organization
against which such order applies twenty (20) days from the date of
service of the petition, unless the Board, upon good cause shown by the
Assistant Secretary, sets a shorter time for filing such position. A
copy of the opposition to enforcement shall be served on the Assistant
Secretary.



Sec. 1428.3  Board decision.

    (a) A decision and order of the Assistant Secretary shall be
enforced unless it is arbitrary and capricious or based upon manifest
disregard of the law.
    (b) The Board shall issue its decision on the case enforcing,
enforcing as modified, refusing to enforce, or remanding the decision
and order of the Assistant Secretary.



PART 1429_MISCELLANEOUS AND GENERAL REQUIREMENTS--Table of Contents



                         Subpart A_Miscellaneous

Sec.
1429.1 Transfer of cases to the Board.
1429.2 Transfer and consolidation of cases.
1429.3 Transfer of record.
1429.4 Referral of policy questions to the Board.
1429.5 Matters not previously presented; official notice.
1429.6 Oral argument.
1429.7 Subpoenas.
1429.8 Stay of action taken by Grievance Board; requests.
1429.9 Amicus curiae.
1429.10 Advisory opinions.
1429.11 Interlocutory appeals.
1429.12 Service of process and papers by the Board.
1429.13 Official time.
1429.14 Witness fees.
1429.15 Board requests for advisory opinions.
1429.16 General remedial authority.

                     Subpart B_General Requirements

1429.21 Computation of time for filing papers.
1429.22 Additional time after service by mail.
1429.23 Extension; waiver.
1429.24 Place and method of filing; acknowledgement.
1429.25 Number of copies.
1429.26 Other documents.
1429.27 Service; statement of service.
1429.28 Petitions for amendment of regulations.

    Authority: 22 U.S.C. 4107(c).

    Source: 46 FR 45876, Sept. 15, 1981, unless otherwise noted.



                         Subpart A_Miscellaneous



Sec. 1429.1  Transfer of cases to the Board.

    (a) In any representation case under part 1422 of this subchapter in
which the Regional Director determines, based upon a stipulation by the
parties, that no material issue of fact exists, the Regional Director
may transfer the case to the Board; and the Board may decide the case on
the basis of the papers alone after having allowed twenty-five (25) days
for the filing of briefs. In any unfair labor practice case under part
1423 of this subchapter in which, after the issuance of a complaint, the
Regional Director determines, based upon a stipulation by the parties,
that no material issue of fact exists, the Regional Director may upon
agreement of all parties transfer the case to the Board; and the Board
shall decide the case on the basis of the case papers alone after having
allowed twenty-five (25) days for the filing of briefs. The Board may
remand any such case to the Regional Director if it determines that a
material question of fact does exist. Orders of transfer and remand
shall be served on all parties.
    (b) In any case under parts 1422 and 1423 of this subchapter in
which it appears to the Regional Director that the proceedings raise
questions which should be decided by the Board, the Regional Director
may, at any time, issue an order transferring the case to the Board for
decision or other appropriate action. Such an order shall be served on
the parties.



Sec. 1429.2  Transfer and consolidation of cases.

    In any matter arising pursuant to parts 1422 and 1423 of this
subchapter, whenever it appears necessary in order to effectuate the
purposes of the Foreign Service Labor-Management Relations Statute or to
avoid unnecessary costs or delay, Regional Directors may

[[Page 429]]

consolidate cases within their own region or may transfer such cases to
any other region, for the purpose of investigation or consolidation with
any proceedings which may have been instituted in, or transferred to,
such region.



Sec. 1429.3  Transfer of record.

    In any case under part 1425 of this subchapter, upon request by the
Board, the parties jointly shall transfer the record in the case,
including a copy of the transcript, if any, exhibits, briefs and other
documents filed with the Grievance Board, to the Board.



Sec. 1429.4  Referral of policy questions to the Board.

    Notwithstanding the procedures set forth in this subchapter, the
General Counsel, the Assistant Secretary, or the Panel may refer for
review and decision or general ruling by the Board any case involving a
major policy issue that arises in a proceeding before any of them. Any
such referral shall be in writing and a copy of such referral shall be
served on all parties to the proceeding. Before decision or general
ruling, the Board shall obtain the views of the parties and other
interested persons, orally or in writing, as it deems necessary and
appropriate.



Sec. 1429.5  Matters not previously presented; official notice.

    The Board will not consider evidence offered by a party, or any
issue, which was not presented in the proceedings before the Regional
Director, Hearing Officer, Administrative Law Judge, or Grievance Board.
The Board may, however, take official notice of such matters as would be
proper.



Sec. 1429.6  Oral argument.

    The Board or the General Counsel, in their discretion, may request
or permit oral argument in any matter arising under this subchapter
under such circumstances and conditions as they deem appropriate.



Sec. 1429.7  Subpoenas.

    (a) Any member of the Board, the General Counsel, any Administrative
Law Judge appointed by the Board under 5 U.S.C. 3105, and any Regional
Director, Hearing Officer, or other employee of the Board designated by
the Board may issue subpoenas requiring the attendance and testimony of
witnesses and the production of documentary or other evidence. However,
no subpoena shall be issued under this section which requires the
disclosure of intramanagement guidance, advice, counsel, or training
within an agency or between an agency and the Office of Personnel
Management.
    (b) Where the parties are in agreement that the appearance of
witnesses or the production of documents is necessary, and such
witnesses agree to appear, no such subpoena need be sought.
    (c) A request for a subpoena by any person, as defined in 22 U.S.C.
4102 shall be in writing and filed with the Regional Director, in
proceedings arising under parts 1422 and 1423 of this subchapter, or
filed with the Board, in proceedings arising under parts 1424 and 1425
of this subchapter, not less than fifteen (15) days prior to the opening
of a hearing, or with the appropriate presiding official(s) during the
hearing.
    (d) All requests shall name and identify the witnesses or documents
sought, and state the reasons therefor. The Board, General Counsel,
Administrative Law Judge, Regional Director, Hearing Officer, or any
other employee of the Board designated by the Board, as appropriate,
shall grant the request upon the determination that the testimony or
documents appear to be necessary to the matters under investigation and
the request describes with sufficient particularity the documents
sought. Service of an approved subpoena is the responsibility of the
party on whose behalf the subpoena was issued. The subpoena shall show
on its face the name and address of the party on whose behalf the
subpoena was issued.
    (e) Any person served with a subpoena who does not intend to comply,
shall, within five (5) days after the date of service of the subpoena
upon such person, petition in writing to revoke the subpoena. A copy of
any petition to revoke a subpoena shall be served on the party on whose
behalf the subpoena was issued. Such petition to revoke, if made prior
to the hearing, and a written statement of service, shall be filed with
the Regional Director, who may

[[Page 430]]

refer the petition to the Board, General Counsel, Administrative Law
Judge, Hearing Officer, or any other employee of the Board designated by
the Board, as appropriate, for ruling. A petition to revoke a subpoena
filed during the hearing, and a written statement of service, shall be
filed with the appropriate presiding official(s). The Regional Director,
or the appropriate presiding official(s) will, as a matter of course,
cause a copy of the petition to revoke to be served on the party on
whose behalf the subpoena was issued, but shall not be deemed to assume
responsibility for such service. The Board, General Counsel,
Administrative Law Judge, Regional Director, Hearing Officer, or any
other employee of the Board designated by the Board, as appropriate,
shall revoke the subpoena if the evidence the production of which is
required does not relate to any matter under investigation or in
question in the proceedings, or the subpoena does not describe with
sufficient particularity the evidence the production of which is
required, or if for any other reason sufficient in law the subpoena is
invalid. The Board, General Counsel, Administrative Law Judge, Regional
Director, Hearing Officer, or any other employee of the Board designated
by the Board, as appropriate, shall make a simple statement of
procedural or other ground for the ruling on the petition to revoke. The
petition to revoke, any answer thereto, and any ruling thereon shall not
become part of the official record except upon the request of the party
aggrieved by the ruling.
    (f) Upon the failure of any person to comply with a subpoena issued,
upon the request of the party on whose behalf the subpoena was issued,
the General Counsel shall, on behalf of such party, institute
proceedings in the appropriate district court for the enforcement
thereof, unless, in the judgment of the General Counsel, the enforcement
of such subpoena would be inconsistent with law and the policies of the
Foreign Service Labor-Management Relations Statute. The General Counsel
shall not be deemed thereby to have assumed responsibility for the
effective prosecution of the same before the court thereafter.



Sec. 1429.8  Stay of action taken by Grievance Board; requests.

    (a) A request for a stay shall be entertained only in conjunction
with and as a part of an exception to an action taken by the Grievance
Board under part 1425 of this subchapter. The filing of an exception
shall not itself operate as a stay of the action involved in the
proceedings.
    (b) A timely request for a stay of an action taken by the Grievance
Board to which an exception has been filed shall operate as a temporary
stay of the award. Such temporary stay shall be deemed effective from
the date of the action and shall remain in effect until the Board issues
its decision and order on the exception, or the Board or its designee
otherwise acts with respect to the request for the stay.
    (c) A request for a stay of an action taken by the Grievance Board
will be granted only where it appears, based upon the facts and
circumstances presented, that:
    (1) There is a strong likelihood of success on the merits of the
appeal; and
    (2) A careful balancing of all the equities, including the public
interest, warrants issuance of a stay.



Sec. 1429.9  Amicus curiae.

    Upon petition of an interested person, a copy of which petition
shall be served on the parties, and as the Board deems appropriate, the
Board may grant permission for the presentation of written and/or oral
argument at any stage of the proceedings by an amicus curiae and the
parties shall be notified of such action by the Board.



Sec. 1429.10  Advisory opinions.

    The Board and the General Counsel will not issue advisory opinions.



Sec. 1429.11  Interlocutory appeals.

    The Board and the General Counsel ordinarily will not consider
interlocutory appeals.



Sec. 1429.12  Service of process and papers by the Board.

    (a) Methods of service. Notices of hearings, reports and findings,
decisions of

[[Page 431]]

Administrative Law Judges, complaints, written rulings on motions,
decisions and orders, and all other papers required by this subchapter
to be issued by the Board, the General Counsel, Regional Directors,
Hearing Officers and Administrative Law Judges, shall be served
personally or by certified mail or by telegraph.
    (b) Upon whom served. All papers required to be served under
paragraph (a) of this section shall be served upon all counsel of record
or other designated representative(s) of parties, and upon parties not
so represented. Service upon such counsel or representative shall
constitute service upon the party, but a copy also shall be transmitted
to the party.
    (c) Proof of service. Proof of service shall be the verified return
by the individual serving the papers setting forth the manner of such
service, the return post office receipt, or the return telegraph
receipt. When service is by mail, the date of service shall be the day
when the matter served is deposited in the United States mail. When
service is to be made to an addressee outside the United States, the
date of service shall be the date received, as evidenced by official
receipt.



Sec. 1429.13  Official time.

    If the participation of any employee in any phase of any proceeding
before the Board, including the investigation of unfair labor practice
charges and representation petitions and the participation in hearings
and representation elections, is deemed necessary by the Board, the
General Counsel, any Administrative Law Judge, Regional Director,
Hearing Officer, or other agent of the Board designated by the Board,
such employee shall be granted official time for such participation,
including necessary travel time, as occurs during the employee's regular
work hours and when the employee would otherwise be in a work or paid
leave status. In addition, necessary transportation and per diem
expenses shall be paid by the Department.



Sec. 1429.14  Witness Fees.

    (a) Witnesses (whether appearing voluntarily, or under a subpoena)
shall be paid the fee and mileage allowances which are paid subpoenaed
witnesses in the courts of the United States: Provided, That any witness
who is employed by the Federal Government shall not be entitled to
receive witness fees in addition to compensation received pursuant to
Sec. 1429.13.
    (b) Witness fees and mileage allowances shall be paid by the party
at whose instance the witnesses appear, except when the witness receives
compensation pursuant to (the preceding section).



Sec. 1429.15  Board requests for advisory opinions.

    (a) Whenever the Board, pursuant to section 1007(c)(2)(f) of the
Foreign Service Act of 1980 (22 U.S.C. 4107) requests an advisory
opinion from the Director of the Office of Personnel Management
concerning the proper interpretation of rules, regulations, or policy
directives issued by that Office in connection with any matter before
the Board, a copy of such request, and any response thereto, shall be
served upon the parties in the matter.
    (b) The parties shall have fifteen (15) days from the date of
service a copy of the response of the Office of Personnel Management to
file with the Board comments on that response which the parties wish the
Board to consider before reaching a decision in the matter. Such
comments shall be in writing and copies shall be served upon the parties
in the manner and upon the Office of Personnel Management.



Sec. 1429.16  General remedial authority.

    The Board shall take any actions which are necessary and appropriate
to administer effectively the provisions of chapter 41 of title 22 of
the United States Code.



                     Subpart B_General Requirements



Sec. 1429.21  Computation of time for filing papers.

    In computing any period of time prescribed by or allowed by this
subchapter, except in agreement bar situations described in Sec.
1422.3(c) of this subchapter, the day of the act, event, or default from
or after which the designated period of time begins to run, shall not be
included. The last day of

[[Page 432]]

the period so computed is to be included unless it is a Saturday,
Sunday, or a Federal legal holiday in which event the period shall run
until the end of the next day which is neither a Saturday, Sunday, or a
Federal legal holiday: Provided, however, In agreement bar situations
described in Sec. 1422.3 (c) and (d), if the sixtieth (60th) day prior
to the expiration date of an agreement falls on Saturday, Sunday or a
Federal legal holiday, a petition, to be timely, must be received by the
close of business of the last official workday preceding the sixtieth
(60th) day. When the period of time prescribed or allowed is seven (7)
days or less, intermediate Saturdays, Sundays, and Federal legal
holidays shall be excluded from the computations. When this subchapter
requires the filing of any paper, such document must be received by the
Board or the officer or agent designated to receive such matter before
the close of business on the last day of the time limit, if any, for
such filing or extension of time that may have been granted.



Sec. 1429.22  Additional time after service by mail.

    Whenever a party has the right or is required to do some act
pursuant to this subchapter within a prescribed period after service of
a notice or other paper upon such party, and the notice or paper is
served on such party by mail, five (5) days shall be added to the
prescribed period.



Sec. 1429.23  Extension; waiver.

    (a) Except as provided in paragraph (d) of this section, the Board
or General Counsel, or their designated representatives, as appropriate,
may extend any time limit provided in this subchapter for good cause
shown, and shall notify the parties of any such extension. Requests for
extensions of time shall be filed in writing no later than five (5) days
before the established time limit for filing, shall state the position
of the other parties on the request for extension, and shall be served
on the other parties.
    (b) Except as provided in paragraph (d) of this section, the Board
or General Counsel, or their designated representatives, as appropriate,
may waive any expired time limit in this subchapter in extraordinary
circumstances. Request for a waiver of time limits shall state the
position of the other parties and shall be served on the other parties.
    (c) The time limits established in this subchapter may not be
extended or waived in any manner other than that described in this
subchapter.
    (d) The time limits prescribed by 22 U.S.C. 4114(c) may not be
waived.



Sec. 1429.24  Place and method of filing; acknowledgement.

    (a) A document submitted to the Board pursuant to this subchapter
shall be filed with the Board at the address set forth in appendix A to
this chapter XIV.
    (b) A document submitted to the General Counsel pursuant to this
subchapter shall be filed with the General Counsel at the address set
forth in appendix A.
    (c) A document submitted to a Regional Director pursuant to this
subchapter shall be filed with the appropriate regional office, as set
forth in appendix A.
    (d) A document submitted to an Administrative Law Judge pursuant to
this subchapter shall be filed with the appropriate Administrative Law
Judge, as set forth in appendix A.
    (e) All documents filed pursuant to paragraphs (a), (b), (c) and (d)
of this section shall be filed by certified mail or in person, or if the
filing party is outside the United States, by the most appropriate
available means.
    (f) All matters filed under paragraphs (a), (b), (c) and (d) of this
section shall be printed, typed, or otherwise legibly duplicated: Carbon
copies of typewritten matter will be accepted if they are clearly
legible.
    (g) Documents in any proceedings under this subchapter, including
correspondence, shall show the title of the proceeding and the case
number, if any.
    (h) The original of each document required to be filed under this
subchapter shall be signed by the party or by an attorney or
representative of record for the party, or by an officer of the party,
and shall contain the address and telephone number of the person signing
it.

[[Page 433]]

    (i) A return postal receipt may serve as acknowledgement of receipt
by the Board, General Counsel, Administrative Law Judge, Regional
Director, or Hearing Officer, as appropriate. The receiving officer will
otherwise acknowledge receipt of documents filed only when the filing
party so requests and includes an extra copy of the document or its
transmittal letter which the receiving office will date stamp upon
receipt and return. If return is to be made by mail, the filing party
shall include a self-addressed, stamped envelope for the purpose.



Sec. 1429.25  Number of copies.

    Unless otherwise provided by the Board or the General Counsel, or
their designated representatives, as appropriate, or under this
subchapter, any document or paper filed with the Board, General Counsel,
Administrative Law Judge, Regional Director, or Hearing Officer, as
appropriate, under this subchapter, together with any enclosure filed
therewith, shall be submitted in an original and four (4) copies. A
clean copy capable of being used as an original for purposes such as
further reproduction may be substituted for the original.



Sec. 1429.26  Other documents.

    (a) The Board or the General Counsel, or their designated
representatives, as appropriate, may in their discretion grant leave to
file other documents as they deem appropriate.
    (b) A copy of such other documents shall be served on the other
parties.



Sec. 1429.27  Service; statement of service.

    (a) Except as provided in Sec. 1423.10 (c) and (d), any party
filing a document as provided in this subchapter is responsible for
serving a copy upon all counsel of record or other designated
representative(s) of parties, upon parties not so represented, and upon
any interested person who has been granted permission by the Board
pursuant to Sec. 1429.9 to present written and/or oral argument as
amicus curiae. Service upon such counsel or representative shall
constitute service upon the party, but a copy also shall be transmitted
to the party.
    (b) Service of any document or paper under this subchapter, by any
party, including documents and papers served by one party on another,
shall be made by certified mail or in person. A return post office
receipt or other written receipt executed by the party or person served
shall be proof of service.
    (c) A signed and dated statement of service shall be submitted at
the time of filing. The statement of service shall include the names of
the parties and persons served, their addresses, the date of service,
the nature of the document served, and the manner in which service was
made.
    (d) The date of service or date served shall be in the day when the
matter served is deposited in the U.S. mail or is delivered in person.
When service is to be made to an addressee outside the United States,
the date of service shall be the date received, as evidenced by official
receipt.



Sec. 1429.28  Petitions for amendment of regulations.

    Any interested person may petition the Board or General Counsel in
writing for amendments to any portion of these regulations. Such
petition shall identify the portion of the regulations involved and
provide the specific language of the proposed amendment together with a
statement of grounds in support of such petition.

[[Page 434]]



           SUBCHAPTER D_FOREIGN SERVICE IMPASSE DISPUTES PANEL





PART 1470_GENERAL--Table of Contents



                            Subpart A_Purpose

Sec.
1470.1 Purpose.

                          Subpart B_Definitions

1470.2 Definitions.

    Authority: 22 U.S.C. 4107(c), 4110.

    Source: 46 FR 45879, Sept. 15, 1981, unless otherwise noted.



                            Subpart A_Purpose



Sec. 1470.1  Purpose.

    The regulations contained in this subchapter are intended to
implement the provisions of section 4110 of title 22 of the United
States Code. They prescribed procedures and methods which the Foreign
Service Impasse Disputes Panel may utilize in the resolution of
negotiation impasses.



                          Subpart B_Definitions



Sec. 1470.2  Definitions.

    (a) The term Department as used herein shall have the meaning set
forth in 22 U.S.C. 3902 and 4103, and Sec. 1421.4 of subchapter C of
these regulations.
    (b) The terms labor organization, and conditions of employment as
used herein shall have the meanings set forth in 22 U.S.C. 4102.
    (c) The term Executive Director means the Executive Director of the
Federal Service Impasse Panel as defined in 5 U.S.C. 7119(c).
    (d) The terms designated representative or designee of the Panel
means a Panel member, a staff member, or other individual designated by
the Panel to act on its behalf pursuant to 22 U.S.C. 4110(c)(1).
    (e) The term hearing means a factfinding hearing, arbitration
hearing, or any other hearing procedure deemed necessary to accomplish
the purposes of 22 U.S.C. 4110.
    (f) The term impasse means that point in the negotiation of a
collective bargaining agreement at which the parties are deadlocked,
notwithstanding their efforts to reach agreement by direct negotiations
and other voluntary arrangements, if any.
    (g) The term Panel means the Foreign Service Impasse Disputes Panel
described in 22 U.S.C. 4110(a) or a quorum thereof.
    (h) The term party means the Department or the labor organization
participating in the negotiation of a collective bargaining agreement.
    (i) The term quorum means three (3) or more members of the Panel.
    (j) The term voluntary arrangements means any appropriate technique,
not inconsistent with the provisions of 22 U.S.C. 4110, used by the
parties to assist in the negotiation of a collective bargaining
agreement.



PART 1471_PROCEDURES OF THE PANEL--Table of Contents



Sec.
1471.1 Request for Panel consideration.
1471.2 Content of request.
1471.3 Where to file.
1471.4 Copies and service.
1471.5 Investigation of request; Panel recommendation and assistance.
1471.6 Preliminary hearing procedures.
1471.7 Conduct of hearing and prehearing conference.
1471.8 Report and recommendations.
1471.9 Duties of each party following receipt of recommendations.
1471.10 Final action by the Panel.

Appendix A to Chapter XIV--Current Addresses and Geographic
          Jurisdictions
Appendix B to Chapter XIV--Memorandum Describing the Authority and
          Assigned Responsibilities of the General Counsel of the
          Federal Labor Relations Authority Under the Foreign Service
          Labor-Management Relations Statute

    Authority: 22 U.S.C. 4107(c), 4110.

    Source: 46 FR 45879, Sept. 15, 1981, unless otherwise noted.



Sec. 1471.1  Request for Panel consideration.

    If direct negotiations and other voluntary arrangements for
settlement, if

[[Page 435]]

any, fail to resolve a negotiation impasse:
    (a) Either party, or the parties jointly, may request the Panel to
consider the matter by filing a request as hereinafter provided; or
    (b) The Panel may, pursuant to 22 U.S.C. 4110(a), undertake
consideration of the matter upon request of the Executive Director.



Sec. 1471.2  Content of request.

    A request from a party or parties to the Panel for consideration of
an impasse must be in writing and include the following information:
    (a) Identification of the parties and individuals authorized to act
on their behalf;
    (b) Statement of issues at impasse and the summary of positions of
the initiating party or parties with respect to those issues; and
    (c) Number, length, and dates of negotiation sessions held,
including the nature and extent of all other voluntary arrangements
utilized.



Sec. 1471.3  Where to file.

    Requests to the Panel provided for in this part, and inquiries or
correspondence on the status of impasses or other related matters,
should be directed to the Executive Director, Federal Service Impasses
Panel, Suite 209, 1730 K Street NW., Washington, D.C. 20006.



Sec. 1471.4  Copies and service.

    Any party submitting a request for Panel consideration of an impasse
and any party submitting a response to such requests shall file an
original and one copy with the Panel, shall serve a copy promptly on the
other party to the dispute, and shall file a statement of such service
with the Executive Director. When the Panel acts on a request from the
Executive Director, it will notify the parties to the dispute.



Sec. 1471.5  Investigation of request; Panel recommendation and assistance.

    Upon receipt of a request for consideration of an impasse, the Panel
or its designee will promptly conduct an investigation. After due
consideration, the Panel shall either:
    (a) Decline to assert jurisdiction in the event that it finds that
no impasse exists or that there is other good cause for not asserting
jurisdiction, in whole or in part, and so advise the parties in writing,
stating its reasons; or
    (b) Recommend to the parties procedures, including but not limited
to arbitration, for the resolution of the impasse and/or assist them in
resolving the impasse through whatever methods and procedures the Panel
considers appropriate.



Sec. 1471.6  Preliminary hearing procedures.

    When the Panel determines that a hearing is necessary under Sec.
1471.5 it will:
    (a) Appoint one or more of its designees to conduct such hearing;
and
    (b) Issue and serve upon each of the parties a notice of hearing and
a notice of prehearing conference, if any. The notice will state (1) the
names of the parties to the dispute; (2) the date, time, place, type,
and purpose of the hearing; (3) the date, time, place, and purpose of
the prehearing conference, if any; (4) the name of the designated
representative appointed by the Panel; and (5) the issues to be
resolved.



Sec. 1471.7  Conduct of hearing and prehearing conference.

    (a) A designated representative of the Panel, when so appointed to
conduct a hearing, shall have the authority on behalf of the Panel to:
    (1) Administer oaths, take the testimony or deposition of any person
under oath, receive other evidence, and issue subpoenas;
    (2) Conduct the hearing in open or in closed session at the
discretion of the designated representative for good cause shown;
    (3) Rule on motions and requests for appearance of witnesses and the
production of records;
    (4) Designate the date on which posthearing briefs, if any, shall be
submitted (an original and one (1) copy of each brief, accompanied by a
statement of service, shall be submitted to the designated
representative of the Panel with a copy to the other party); and
    (5) Determine all procedural matters concerning the hearing,
including the length of sessions, conduct of persons

[[Page 436]]

in attendance, recesses, continuances, and adjournments; and take any
other appropriated procedural action which, in the judgment of the
designated representative, will promote the purpose and objectives of
the hearing.
    (b) A prehearing conference may be conducted by the designated
representative of the Panel in order to:
    (1) Inform the parties of the purpose of the hearing and the
procedures under which it will take place;
    (2) Explore the possibilities of obtaining stipulations of fact;
    (3) Clarify the positions of the parties with respect to the issues
to be heard; and
    (4) Discuss any other relevant matters which will assist the parties
in the resolution of the dispute.
    (c) An official reporter shall make the only official transcript of
a hearing. Copies of the official transcript may be examined and copied
at the Office of the Executive Director in accordance with part 1411 of
this chapter.



Sec. 1471.8  Report and recommendations.

    (a) When a report is issued after a hearing conducted pursuant to
Sec. Sec. 1471.6 and 1471.7, it normally shall be in writing and, when
authorized by the Panel, shall contain recommendations.
    (b) A report of the designated representative containing
recommendations shall be submitted to the parties, with two (2) copies
to the Executive Director, within a period normally not to exceed thirty
(30) calendar days after receipt of the transcript or briefs, if any.
    (c) A report of the designated representative not containing
recommendations shall be submitted to the Panel with a copy to each
party within a period normally not to exceed thirty (30) calendar days
after receipt of the transcript or briefs, if any. The Panel shall then
take whatever action it may consider appropriate or necessary to resolve
the impasse.



Sec. 1471.9  Duties of each party following receipt of recommendations.

    (a) Within thirty (30) days after receipt of a report containing
recommendations of the Panel or its designated representative, each
party shall, after conferring with the other, either:
    (1) Accept the recommendations and so notify the Executive Director;
or
    (2) Reach a settlement of all unresolved issues and submit a written
settlement statement to the Executive Director; or
    (3) Submit a written statement to the Executive Director setting
forth the reasons for not accepting the recommendations and for not
reaching a settlement of all unresolved issues.
    (b) A reasonable extension of time may be authorized by the
Executive Director for good cause shown when requested in writing by
either party prior to the expiration of the time limits.
    (c) All papers submitted to the Executive Director under this
section shall be filed in duplicate, along with a statement of service
showing that a copy has been served on the other party to the dispute.



Sec. 1471.10  Final action by the Panel.

    (a) If the parties do not arrive at a settlement as a result of or
during action taken under Sec. Sec. 1471.5(a)(2), 1471.6, 1471.7,
1471.8, and 1471.9, the Panel may take whatever action is necessary and
not inconsistent with 22 U.S.C. 4110 to resolve the impasse, including
but not limited to methods and procedures which the Panel considers
appropriate, such as directing the parties to accept a factfinder's
recommendations, ordering binding arbitration conducted according to
whatever procedure the Panel deems suitable, and rendering a binding
decision.
    (b) In preparation for taking such final action, the Panel may hold
hearings, administer oaths, take the testimony or deposition of any
person under oath, and issue subpoenas as provided in 22 U.S.C.
4110(c)(2), or it may appoint or designate one or more individuals
pursuant to 22 U.S.C. 4110(c)(1) to exercise such authority on its
behalf.
    (c) When the exercise of authority under this section requires the
holding of a hearing, the procedure contained in Sec. 1471.7 shall
apply.
    (d) Notice of any final action of the Panel shall be promptly served
upon the parties, and the action shall be binding on such parties during
the

[[Page 437]]

term of the agreement, unless they agree otherwise.
    (e) All papers submitted to the Executive Director under this
section shall be filed in duplicate, along with a statement of service
showing that a copy has been served on the other party to the dispute.



    Sec. Appendix A to Chapter XIV--Current Addresses and Geographic
                              Jurisdictions

    (a) The Office address of the Board is as follows:

1900 E Street, NW., Room 7469, Washington, DC 20424. Telephone: Office
of Executive Director, FTS--254-9595; Commercial--(202) 254-9595. Office
of Operations, FTS--254-7362; Commercial--(202) 254-7362

    (b) The Office address of the General Counsel is as follows:

1900 E Street, NW., Room 7469, Washington, DC 20424. Telephone: FTS--
632-6264; Commercial--(202) 632-6264

    (c) The Office address of the Chief Administrative Law Judge is as
follows:

1111 20th Street, NW., Room 416, Washington, DC 20036. Telephone: FTS--
653-7375; Commercial--(202) 653-7375

    (d) The Office addresses of Regional Directors of the Authority are
as follows:

    (1) Boston Regional Office, 441 Stuart Street, 9th Floor, Boston, MA
02116. Telephone: FTS--223-0920; Commercial--(617) 223-0920
    (2) New York Regional Office, 26 Federal Plaza, Room 241, New York,
NY 10278. Telephone: FTS--264-4934; Commercial--(212) 264-4934
(i) Philadelphia Sub-Regional Office, 325 Chestnut Street, Mall
Building, Room 5000, Philadelphia, PA 19106. Telephone: FTS--597-1527;
Commercial--(215) 597-1527
    (3) Washington Regional Office, 1133 15th Street, NW., Suite 300,
Washington, DC 20005. Telephone: FTS--653-8452; Commercial--(202) 653-
8452
    (4) Atlanta Regional Office, 1776 Peachtree Street, NW., Suite 501,
North Wing, Atlanta, GA 30309. Telephone: FTS--257-2324; Commercial--
(404) 881-2324 or 881-2325
    (5) Chicago Regional Office, 175 W. Jackson Blvd., Suite 1359-A,
Chicago, IL 60604. Telephone: FTS--886-3468 or 886-3469; Commercial--
(312) 353-6306
(i) Cleveland Sub-Regional Office, 1301 Superior Avenue, Suite 230,
Cleveland, OH 44114. Telephone: FTS--293-2114; Commercial--(216) 522-
2114
    (6) Dallas Regional Office, Downtown Post Office Station, Bryan and
Ervay Streets, P.O. Box 2640, Dallas, TX 75221. Telephone: FTS--729-
4996; Commercial--(214) 767-4996
    (7) Kansas City Regional Office, City Center Square, 1100 Main
Street, Suite 680, Kansas City, MO 64105. Telephone: FTS--758-2199;
Commercial--(816) 374-2199
(i) Denver Sub-Regional Office, 1531 Stout Street, Suite 301, Denver, CO
80202. Telephone: FTS--327-5224; Commercial--(303) 837-5224
    (8) Los Angeles Regional Office, 350 So. Figueroa Street, 10th
Floor, World Trade Center, Los Angeles, CA 90071. Telephone: FTS--798-
3805; Commercial--(213) 688-3805
(i) Honolulu Sub-Regional Office, Room 3206, 300 Alamoana Blvd.,
Honolulu, Hawaii 96850. Telephone: FTS--556-0220 through San Francisco
FTS Operator; Commercial--(808) 546-8355
    (9) San Francisco Regional Office, 530 Bush Street, Room 542, San
Francisco, CA 94108. Telephone: FTS--556-8105; Commercial--(415) 556-
8105

    (e) The Office address of the Panel is as follows:

1730 K Street, NW., Suite 209, Washington, DC 20006. Telephone: FTS--
653-7078; Commercial--(202) 653-7078

    (f) The geographic jurisdictions of the Regional Directors of the
Authority, are as follows:


         State or other locality                  Regional office

Alabama                                    Atlanta
Alaska                                     San Francisco
Arizona                                    Los Angeles
Arkansas                                   Dallas
California                                 Los Angeles/San Francisco \1\
Colorado                                   Kansas City
Connecticut                                Boston
Delaware                                   New York
District of Columbia                       Washington, DC
Florida                                    Atlanta
Georgia                                    Atlanta
Hawaii and all land and water areas west   Los Angeles
 of the continents of North and South
 America (except coastal islands) to
 long. 90\1/4\E
Idaho                                      San Francisco
Illinois                                   Chicago
Indiana                                    Chicago
Iowa                                       Kansas City
Kansas                                     Kansas City
Kentucky                                   Atlanta
Louisiana                                  Dallas
Maine                                      Boston

[[Page 438]]


Maryland                                   Washington, DC
Massachusetts                              Boston
Michigan                                   Chicago
Minnesota                                  Chicago
Mississippi                                Atlanta
Missouri                                   Kansas City
Montana                                    Kansas City
Nebraska                                   Kansas City
Nevada                                     San Francisco
New Hampshire                              Boston
New Jersey                                 New York
New Mexico                                 Dallas
New York                                   Boston/New York \2\
North Carolina                             Atlanta
North Dakota                               Kansas City
Ohio                                       Chicago
Oklahoma                                   Dallas
Oregon                                     San Francisco
Pennsylvania                               New York
Puerto Rico                                New York
Rhode Island                               Boston
South Carolina                             Atlanta
South Dakota                               Kansas City
Tennessee                                  Atlanta
Texas                                      Dallas
Utah                                       Kansas City
Vermont                                    Boston
Virginia                                   Washington, DC/Atlanta \3\
Washington                                 San Francisco
West Virginia                              Washington, DC
Wisconsin                                  Chicago
Wyoming                                    Kansas City
Virgin Islands                             New York
Panama/Limited FLRA jurisdiction           Dallas
All land and water areas east of the       Washington
 continents of North and South America to
 long. 90\1/4\E, except the Virgin
 Islands, Panama (limited FLRA
 jurisdiction), Puerto Rico and coastal
 islands

\1\ San Francisco includes the following California counties: Monterey,
  Kings, Tulare, Inyo, and all counties north thereof. All counties in
  California south thereof are within the Los Angeles jurisdiction.
\2\ New York includes the following counties: Ulster, Sullivan, Greene,
  Columbia and all counties south thereof. All counties in New York
  state north thereof are in the jurisdiction of Boston.
\3\ Washington, DC includes the following counties in Virginia:
  Alexandria, Fairfax, Fauquier, Loudoun and Prince William. All other
  counties within Virginia are in the jurisdiction of Atlanta.


[46 FR 45881, Sept. 15, 1981]



Sec. Appendix B to Chapter XIV--Memorandum Describing the Authority and
 Assigned Responsibilities of the General Counsel of the Federal Labor
Relations Authority Under the Foreign Service Labor-Management Relations
                                 Statute

    The statutory authority and responsibility of the General Counsel of
the Federal Labor Relations Board are stated in section 4108 subsections
(1), (2) and (3), of the Foreign Service Labor-Management Relations
Statute as follows:

              Section 4108 Functions of the General Counsel

    The General Counsel may--
    (A) investigate alleged unfair labor practices under this chapter,
    (B) file and prosecute complaints under this chapter, and
    (C) exercise such other powers of the Board as the Board may
prescribe.
    This memorandum is intended to describe the statutory authority and
set forth the prescribed duties and authority of the General Counsel of
the Federal Labor Relations Authority under the Foreign Service Statute,
effective February 15, 1981.
    I. Case handling-- A. Unfair labor practice cases. The General
Counsel has full and final authority and responsibility, on behalf of
the Board, to accept and investigate charges filed, to enter into and
approve the informal settlement of charges, to approve withdrawal
requests, to dismiss charges, to determine matters concerning the
consolidation and severance of cases before complaint issues, to issue
complaints and notices of hearing, to appear before Administrative Law
Judges in hearings on complaints and prosecute as provided in the
Board's and the General Counsel's rules and regulations, and to initiate
and prosecute injunction proceedings as provided for in section 4109(d)
of the Foreign Service Statute. After issuance of the Administrative Law
Judge's decision, the General Counsel may file exceptions and briefs and
appear before the Board in oral argument, subject to the Board's and the
General Counsel's rules and regulations.
    B. Compliance actions (injunction proceedings). The General Counsel
is authorized and responsible, on behalf of the Board, to seek and
effect compliance with the Board's orders and make such compliance
reports to the Board as it may from time to time require.

On behalf of the Board, the General Counsel will, in full accordance
with the directions of the Board, initiate and prosecute injunction
proceedings as provided in section 4109(d) of the Foreign Service
Statute: Provided however, That the General Counsel will initiate

[[Page 439]]

and conduct injunction proceedings under section 4109(d) of the Foreign
Service Statute only upon approval of the Board.
    C. Representation cases. The General Counsel is authorized and has
responsibility, on behalf of the Board, to receive and process, in
accordance with the decisions of the Board and with such instructions
and rules and regulations as may be issued by the Board from time to
time, all petitions filed pursuant to sections 4111 and 4118(c) of the
Foreign Service Statute. The General Counsel is also authorized and has
responsibility to supervise or conduct elections pursuant to section
4111 of the Foreign Service Statute and to enter into consent election
agreements in accordance with section 4111(g) of the Foreign Service
Statute.

The authority and responsibility of the General Counsel in
representation cases shall extend, in accordance with the rules and
regulations of the Board and the General Counsel, to all phases of the
investigation through the conclusion of the hearing (if a hearing should
be necessary to resolve disputed issues), but all matters involving
decisional action after such hearings are reserved by the Board to
itself. In the event a direction of election should issue by the Board,
the authority and responsibility of the General Counsel, as herein
prescribed, shall attach to the conduct of the ordered election, the
initial determination of the validity of challenges and objections to
the conduct of the election and other similar matters, except that if
appeals shall be taken from the General Counsel's action on the validity
of challenges and objections, such appeals will be directed to and
decided by the Board in accordance with its procedural requirements. If
challenged ballots would not affect the election results and if no
objections are filed within five days after the conduct of the Board-
directed election under the provisions of section 4111 of the Foreign
Service Statute, the General Counsel is authorized and has
responsibility, on behalf of the Board, to certify to the parties the
results of the election in accordance with regulations prescribed by the
Board and the General Counsel.

Appeals from the refusal of the General Counsel to issue a notice of
hearing, from the conclusions contained in a report and findings issued
by the General Counsel, or from the dismissal by the General Counsel of
any petition, will be directed to and decided by the Board, in
accordance with its procedural requirements.

In processing election petitions filed pursuant to section 4111 of the
Foreign Service Statute and petitions filed pursuant to section 4118(c)
of the Foreign Service Statute, the General Counsel is authorized to
conduct an appropriate investigation as to the authenticity of the
prescribed showing of interest and, upon making a determination to
proceed, where appropriate, to supervise or conduct a secret ballot
election or certify the validity of a petition for determination of
eligibility for dues allotment. After an election, if there are no
challenges or objections which require a hearing by the Board, the
General Counsel shall certify the results thereof, with appropriate
copies lodged in the Washington, DC, files of the Board.
    II. Liaison with other governmental agencies. The General Counsel is
authorized and has responsibility, on behalf of the Board, to maintain
appropriate and adequate liaison and arrangements with the Office of the
Assistant Secretary of Labor for Labor-Management Relations with
reference to the financial and other reports required to be filed with
the Assistant Secretary pursuant to section 4117 of the Foreign Service
Statute and the availability to the Board and the General Counsel of the
contents thereof. The General Counsel is authorized and has
responsibility, on behalf of the Board, to maintain appropriate and
adequate liaison with the Foreign Service Grievance Board with respect
to functions which may be performed by the Foreign Service Grievance
Board.
    III. To the extent that the above-described duties, powers and
authority rest by statute with the Board, the foregoing statement
constitutes a prescription and assignment of such duties, powers and
authority, whether or not so specified.

[46 FR 45882, Sept. 15, 1981]

                       PARTS 1472	1499 [RESERVED]

[[Page 441]]



               CHAPTER XV--AFRICAN DEVELOPMENT FOUNDATION




  --------------------------------------------------------------------
Part                                                                Page
1500            Sunshine regulations........................         443
1501            Organization................................         445
1502            Availability of records.....................         447
1503            Official seal...............................         449
1504            Employee responsibilities and conduct.......         451
1506            Collection of claims........................         451
1507            Rules safeguarding personal information.....         453
1508            Governmentwide debarment and suspension
                    (nonprocurement)........................         458
1509            Governmentwide requirements for drug-free
                    workplace (financial assistance)........         481
1510            Enforcement of nondiscrimination on the
                    basis of handicap in programs or
                    activities conducted by the African
                    Development Foundation..................         487
1511-1599

[Reserved]

[[Page 443]]



PART 1500_SUNSHINE REGULATIONS--Table of Contents



Sec.
1500.1 Purpose and scope.
1500.2 Policy.
1500.3 Definitions.
1500.4 Open meetings.
1500.5 Grounds on which meetings may be closed.
1500.6 Procedure for announcing meetings.
1500.7 Procedure for closing meetings.
1500.8 Changing the time and place of, and reconsideration of opening or
          closing a meeting.
1500.9 Transcripts, recording of closed meetings.

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

    Source: 48 FR 55842, Dec. 16, 1983, unless otherwise noted.



Sec. 1500.1  Purpose and scope.

    The purpose of this part is to effectuate the provisions of the
Government in the Sunshine Act. These procedures apply to meetings of
the Board of Directors of the African Development Foundation.



Sec. 1500.2  Policy.

    It is the policy of the African Development Foundation to provide
the public with the fullest practical information regarding its
decision-making process, while protecting the rights of individuals and
the ability of the Foundation to carry out its responsibilities.



Sec. 1500.3  Definitions.

    As used in this part:
    Board or Board of Directors means the collegial body that conducts
the business of the African Development Foundation as specified in title
V, section 507 of the International Security and Development Cooperation
Act of 1980, Pub. L. 96-533 (22 U.S.C. 290 h-5).
    Meeting means the deliberations of a quorum of the Directors of the
Foundation required to take action on behalf of the Foundation where
such deliberations determine or result in the joint conduct or
disposition of official Foundation business, but does not apply to
deliberations to take action to open or close a meeting. (See Sec.
1500.5.)
    Member means an individual who belongs to the ADF Board of
Directors.
    Public Observation means attendance at any meeting but does not
include participation, or attempted participation, in such meeting in
any manner.



Sec. 1500.4  Open meetings.

    (a) Members shall not jointly conduct or dispose of Foundation
business other than in accordance with these procedures. Every portion
of every meeting of the Board of Directors shall be open to public
observation, subject to the exceptions provided in Sec. 1500.5.
    (b) The Secretary of the Foundation shall be responsible for
assuring that ample space, sufficient visibility, and adequate acoustics
are provided for public observation of meetings of the Board of
Directors.



Sec. 1500.5  Grounds on which meetings may be closed.

    (a) The Foundation shall open every portion of every meeting of the
Foundation for public observation, except where the Foundation
determines that such portion or portions of its meeting or the
disclosure of such information is likely to:
    (1) Disclose matters that are:
    (i) Specifically authorized under criteria established by an
executive order to be kept secret in the interests of national defense
on foreign policy, and
    (ii) In fact properly classified pursuant to such executive order;
    (2) Relate solely to the internal personnel rules and practice of
the Foundation;
    (3) Disclose matters specifically exempted from disclosure by
statute, provided that such statute:
    (i) Requires that the matters be withheld from the public in such
manner as to leave no discretion on the issue, or
    (ii) Has established practical criteria for withholding or refers to
particular types of matters to be withheld;
    (4) Disclose trade secrets and commercial or financial information
which has been obtained from a person and is privileged or confidential;
    (5) Involve accusing any person of a crime, or formally censuring
any person;
    (6) Disclose information of a personal nature where disclosure would
constitute a clearly unwarrented invasion of personal privacy;
    (7) Disclose investigatory records compiled for law enforcement
purposes,

[[Page 444]]

or information which if written would be contained in such records, but
only to the extent that the production of such records or information
would:
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to fair trial or an impartial
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement
personnel;
    (8) Disclose information the premature disclosure of which would be
likely to significantly frustrate implementation of a proposed agency
action. This shall not apply in any instance where the Foundation has
already disclosed to the public the content or nature of its proposed
action or where the Foundation is required by law to make such
disclosure on its own initiative prior to taking final Foundation action
on such proposal;
    (9) Specifically concern the Foundation's issuance of a subpoena;
the Foundation's participation in a civil action or proceeding, or an
arbitration; or an action in a foreign court or international tribunal;
or the initiation, conduct, or disposition by the Foundation of a
particular case of formal agency adjudication pursuant to the procedures
in section 554 of title 5 of the United States Code, or otherwise
involving a determination on the record after an opportunity for a
hearing.
    (b) Meetings of the Board of Directors shall not be closed pursuant
to paragraph (a) of this section when the Foundation finds that the
public interest requires that they be open.



Sec. 1500.6  Procedure for announcing meetings.

    (a) In the case of each meeting of the Board of Directors, the
Foundation shall make public, at least one week before the meeting, the
following information:
    (1) Time of the meeting;
    (2) Place of the meeting;
    (3) Subject matter of the meeting;
    (4) Whether the meeting or parts thereof are to be open or closed to
the public; and
    (5) The name and telephone number of the person designated by the
Board to respond to requests for information about the meeting.
    (b) The period of one week for the public announcement required by
paragraph (a) of this section may be reduced if a majority of the Board
of Directors of the Foundation determines by a recorded vote that the
Foundation requires that such a meeting be called at an earlier date, in
which case the Foundation shall make public announcement of the time,
place, and subject matter of such meeting, and whether open or closed to
the public, at the earliest practicable time.
    (c) Immediately following the public announcement, the Foundation
shall publish the announcement in the Federal Register.
    (d) The earliest practicable time, as used in this subsection, means
as soon as possible, which should not be later than the commencement of
the meeting or portion in question.
    (e) The Secretary of the Foundation shall use reasonable means to
assure that the public is fully informed by the public announcements
required by this section. Such public announcements may be made by
posting notices in the public areas of the Foundation's headquarters and
mailing notices to the persons on a list maintained for those who want
to receive such announcements.



Sec. 1500.7  Procedure for closing meetings.

    (a) Action to close a meeting or a portion thereof, pursuant to the
exemptions set forth in Sec. 1500.5, shall be taken only when:
    (1) A majority of the membership of the Foundation's Board of
Directors votes to take such action. That vote shall determine whether
or not any portion or portions of a meeting or portions of a series of
meetings may be

[[Page 445]]

closed to public, obervation for any of the reasons provided in Sec.
1500.5 and whether or not the public interest nevertheless requires that
portion of the meeting or meetings remain open. A single vote may be
taken with respect to a series of meetings, a portion or portions of
which are proposed to be closed to the public, or with respect to any
information concerning such series of meetings, so long as each meeting
in such series involves the same particular matters and is scheduled to
be held no more than thirty days after the initial meeting in such
series. The vote of each Board member participating in such vote shall
be recorded, and no proxies shall be allowed.
    (2) Whenever any person whose interests may be directly affected by
a portion of a meeting requests that the Foundation close such portion
to the public for any of the reasons referred to in Sec. 1500.5 (a)
(5), (6), or (7), the Foundation, upon request of any one of its Board
members, shall take a recorded vote whether to close such portion of the
meeting.
    (b) Within one day of any vote taken, the Foundation shall make
publicly available a written copy of such vote, reflecting the vote of
each member on the question, and a full written explanation of the
action to close a portion of or the entire meeting, together with a list
of persons expected to attend the meeting and their affiliations.
    (c) For every closed meeting, the General Counsel of the Foundation
shall publicly certify prior to a Board of Directors' vote on closing
the meeting that, in his or her opinion, the meeting may be closed to
the public, and shall state each relevant exemptive provision. A copy of
such certification, together with a statement from the presiding officer
of the meeting setting forth the time and place of the meeting and the
persons present, shall be retained by the Foundation.



Sec. 1500.8  Changing the time and place of, and reconsideration of
opening or closing a meeting.

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



Sec. 1500.9  Transcripts, recording of closed meetings.

    (a) The Foundation shall maintain a complete transcript or
electronic recording adequate to record fully the proceedings of each
meeting, or portion of a meeting, closed to the public.
    (b) The Foundation, after review by the General Counsel, shall make
promptly available to the public in a place easily accessible to the
public the transcript or electronic recording of the discussion of any
item on the agenda, or any item of the testimony of any witness received
at the Board meeting, except for such item or items of discussion or
testimony as the Foundation determines to contain information which may
be withheld under Sec. 1500.5. Copies of such transcript, or a
transcription of such recording, disclosing the identify of each
speaker, shall be furnished to any person at the actual cost of
duplication or transcription. The Foundation shall maintain a complete
verbatim copy of the transcript or a complete electronic recording of
each meeting, or portion of a meeting, closed to the public, for a
period of at least two years after such meeting, or until one year after
the conclusion of any Foundation proceeding with respect to which the
meeting or portion was held, whichever occurs later.



PART 1501_ORGANIZATION--Table of Contents



                Substantive Rule of General Applicability

Sec.
1501.1 Introduction.
1501.2 Background.
1501.3 Description of central organization and location of offices.

[[Page 446]]

1501.4 Availability of information pertaining to Foundation operations.
1501.5 Substantive rules of general applicability.

    Authority: 22 U.S.C. 290h; 5 U.S.C. 552.

    Source: 50 FR 18861, May 3, 1985, unless otherwise noted.

                Substantive Rule of General Applicability



Sec. 1501.1  Introduction.

    The regulations of this part are issued pursuant to the provisions
of the Freedom of Information Act, 5 U.S,C. 552.



Sec. 1501.2  Background.

    (a) The African Development Foundation (``ADF'') is a wholly-owned
corporation of the United States Government, created by the African
Development Foundation Act (title V, Pub. L. 96-533, 94 Stat. 3151 (22
U.S.C. 290h)). It is a non-profit, non-stock issuing, tax-exempt
corporation, and is subject to title I of the Government Corporation
Control Act (31 U.S.C. 9101 et seq.).
    (b) The primary function of ADF is to extend financial assistance in
the form of grants, loans and loan guarantees to African private and
public entities to support self-help activities at the local level in
African countries, and to fund development research by Africans.
Priority shall be given to projects which community groups undertake to
foster their own development and which involve maximum feasible
participation of the poor. The maximum assistance which may be extended
for a single project is $250,000.



Sec. 1501.3  Description of central organization and location of
offices.

    (a) The management of ADF is vested in a Board of Directors
(hereinafter referred to as the ``Board'') consisting of a Chairperson,
a Vice Chairperson and five other members appointed by the President, by
and with the advice and consent of the Senate. Five of the members are
appointed from private life and two from among the officers and
employees of agencies of the United States concerned with African
affairs. The Board establishes policy for the Foundation and is
responsible for its management.
    (b) The Board is required to appoint a President of the Foundation
upon such terms as it may determine. The President has responsibility
for directing the day to day activities of the Foundation. He is
assisted by a Vice President, a Congressional liaison officer, a Public
Affairs officer, a General Counsel, and the following staff units:
    (1) Office of Administration and Finance. This office is responsible
for the management of the administrative, budgeting, financial and
personnel activities of the Foundation.
    (2) Office of Research and Evaluation. This office is responsible
for evaluating, or assisting grantees to evaluate, ADF funded projects;
for monitoring evaluations and analyses of grassroots projects conducted
by other funding or research organizations; and for identifying and
providing assistance to indigenous researchers in Africa working in
development projects at the local level.
    (3) Office of Program and Field Operations. This office is
responsible for identifying, reviewing and monitoring projects funded by
the Foundation.
    (c) The Board is also required to establish an Advisory Council made
up of individuals knowledgeable about development activities in Africa,
and to consult with the Council at least once each year. The Council
shall have not more than 25 members appointed for a period of two years
with an option to be reappointed for an additional year.
    (d) The Board of Directors and the aforementioned officers, together
with the other employees of the Foundation, constitute the central
organization of ADF, and are located and function at ADF headquarters,
1724 Massachusetts Avenue NW., Suite 200, Washington, DC 20036. It is
anticipated that in the future a field organization will be established
with offices in selected cities in Africa, but this has not yet
occurred.



Sec. 1501.4  Availability of information pertaining to Foundation
operations.

    Rules of procedure and forms used for the funding of ADF projects
may be obtained upon application to the Office of Program and Field
Operations at ADF

[[Page 447]]

headquarters, 1724 Massachusetts Avenue NW., Suite 200, Washington, DC
20036.



Sec. 1501.5  Substantive rules of general applicability.

    ADF's regulations published under the provisions of the
Administrative Procedure Act are found in chapter XV of title 22 of the
Code of Federal Regulations and the Federal Register. These regulations
are supplemented from time to time by amendments appearing initially in
the Federal Register.



PART 1502_AVAILABILITY OF RECORDS--Table of Contents



Sec.
1502.1 Introduction.
1502.2 Definitions.
1502.3 Access to Foundation records.
1502.4 Written requests.
1502.5 Records available at the Foundation.
1502.6 Records of other departments and agencies.
1502.7 Fees.
1502.8 Exemptions.
1502.9 Processing of requests.
1502.10 Judicial review.

    Authority: 5 U.S.C. 552 and 22 U.S.C. 290h-4.

    Source: 50 FR 28933, July 17, 1985, unless otherwise noted.



Sec. 1502.1  Introduction.

    (a) It is the policy of the African Development Foundation that
information about its operations, procedures, and records be freely
available to the public in accordance with the provisions of the Freedom
of Information Act.
    (b) The Foundation will make the fullest possible disclosure of its
information and identifiable records consistent with the provisions of
the Act and the regulations in this part.
    (c) The Director of Administration and Finance (A&F) shall be
responsible for the Foundation's compliance with the processing
requirements of the Freedom of Information Act.



Sec. 1502.2  Definitions.

    As used in this part, the following words have the meanings set
forth below:
    (a) Act means the Act of June 5, 1967, sometimes referred to as the
``Freedom of Information Act'' or the Public Information Section of the
Administrative Procedure Act, as amended, Pub. L. 90-23, 81 Stat. 54,
codified at 5 U.S.C. 552.
    (b) Foundation means the African Development Foundation.
    (c) President means the President of the Foundation.
    (d) Record(s) includes all books, papers, or other documentary
materials made or received by the Foundation in connection with the
transaction of its business which have been preserved or are appropriate
for preservation by the Foundation as evidence of its organization,
functions, policies, decisions, procedures, operations, or other
activities, or because of the informational value of the data contained
therein. Library or other material acquired and preserved solely for
reference or exhibition purposes, and stocks of publications and other
documents provided by the Foundation to the public in the normal course
of doing business are not included within the definition of the word
``records.'' The latter will continue to be made available to the public
without charge.



Sec. 1502.3  Access to Foundation records.

    Any person desiring to have access to Foundation records may call or
apply in person between the hours of 10 a.m. and 4 p.m. on weekdays
(holidays excluded) at the Foundation offices at 1724 Massachusetts
Avenue, NW., Suite 200, Washington, DC 20036. Requests for access should
be made to the Director of A&F, at the Foundation offices. If request is
made for copies of any record, the Office of A&F will assist the person
making such request in seeing that such copies are provided according to
the rules in this part.



Sec. 1502.4  Written requests.

    In order to facilitate the processing of written requests, every
petitioner should:
    (a) Address his or her request to: Director, Administration and
Finance Division, African Development Foundation, 1724 Massachusetts
Avenue, NW., Suite 200, Washington, DC 20036.


[[Page 448]]



Both the envelope and the request itself should be clearly marked:
``Freedom of Information Act Request.''
    (b) Identify the desired record by name, title, author, a brief
description, or number, and date, as applicable. The identification
should be specific enough so that a record can be identified and found
without unreasonably burdening or disrupting the operations of the
Foundation. Blanket requests or requests for ``the entire file of'' or
``all matters relating to'' a specified subject will not be accepted. If
the Foundation determines that a request does not reasonably describe
the records sought, the requestor shall be advised what additional
information is needed or informed why the request is insufficient.
    (c) Include a check or money order to the order of the ``African
Development Foundation'' covering the appropriate search and copying
fees, or a request for determination of the fee and a promise to pay any
amount over $3.00 in connection with the FOIA request.



Sec. 1502.5  Records available at the Foundation.

    The Administration and Finance Division will make available for
public inspection and copying, to the extent not authorized to be
withheld, the following works or classes of information:
    (a) A copy of Foundation regulations, including those published in
title 22 of the Code of Federal Regulations or of any other title of the
Code.
    (b) Statements of policy and interpretations which have been adopted
by the Foundation and which are not published in the Federal Register.
    (c) Administrative staff manuals and instructions to staff that
affect a member of the public;
    (d) Any indexes providing identifying information regarding any
record described in paragraphs (b) and (c) of this section.
    (e) Brochures and other printed materials describing the
Foundation's activities.



Sec. 1502.6  Records of other departments and agencies.

    Requests for records which have been originated by, or are primarily
the concerns of, another U.S. Department or Agency will be forwarded to
the particular department or agency involved, and the petitioner so
notified. In response to requests for records or publications published
by the Government Printing Office or other government printing activity,
the Foundation will refer the petitioner to the appropriate sales office
and refund any fee payments which accompanied the request.



Sec. 1502.7  Fees.

    (a) When charged. Fees shall be charged in accordance with the
schedules contained in paragraph (b) of this section for services
rendered in responding to requests for Foundation records under this
sub-part unless the Director of A&F determines that such charges, or a
portion thereof, are not in the public interest because furnishing the
information primarily benefits the general public. Fees shall also not
be charged where they would amount, in the aggregate, for a request or
series of related requests, to less than $3. Ordinarily, fees shall not
be charged if the records requested are not found, or if located, are
withheld as exempt.
    (b) Services charged for and amount charged. For the services listed
below expended in locating or making available records or copies
thereof, the following charges shall be assessed:
    (1) Copies. For copies $.10 per copy of each page.
    (2) Clerical searches. For each one quarter hour spent by clerical
personnel in excess of the first quarter hour in searching for and
producing requested records, $2.30.
    (3) Non-routine, non-clerical searches. Where the task of
determining which records fall within a request and collecting them
requires the time of professional or managerial personnel, and where the
time required is substantial, for each one quarter hour spent in excess
of the first quarter hour, $5.40. No charge shall be made for the time
spent in resolving legal or policy issues affecting access to records of
known contents.
    (4) Other charges. When a response to a request requires services or
materials other than those described in paragraphs (b) (1) through (3)
of this section, the direct cost of such services to the Foundation may
be charged, providing the requestor has been given an

[[Page 449]]

estimate of such cost before it is incurred.
    (c) Revision of schedule. The fee schedule will be revised from time
to time, without notice, to assure recovery of actual costs of rendering
information services to any person. The revised schedule will be
available without charge.



Sec. 1502.8  Exemptions.

    The following categories are examples of records which, if
maintained by the Foundation, may be exempted from disclosure under 5
U.S.C. 552(b):
    (a) Records specifically required by executive order to be exempt
from disclosure in the interest of the national defense or foreign
policy which properly classified pursuant to such executive order;
    (b) Records related solely to the internal personnel rules and
practices of the Foundation;
    (c) Records specifically exempted from disclosure by statute (other
than 5 U.S.C. 552b), providing that such statute (1) requires that the
matter be withheld from the public in such a manner as to leave no
discretion, or (2) establishes criteria for withholding or refers to
particular types of matters to be withheld;
    (d) Trade secrets and commercial or financial information obtained
from any person which is privileged or confidential;
    (e) Interagency or intra-agency memoranda or letters which would not
be available by law to a private party in litigation with the
Foundation;
    (f) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
    (g) Investigatory files (including security investigation files and
files concerning the conduct of employees) compiled for law enforcement
purposes, except to the extent available by law to a private party.


The Foundation will not honor requests for exempt records or
information.



Sec. 1502.9  Processing of requests.

    (a) Processing. A person who has made a written request for records
which meets the requirements of Sec. 1502.4 shall be informed by the
Director of A&F within ten working days of receipt of the Foundation's
decision whether to deny or grant access to the records.
    (b) Denials. If the Director of A&F, with the concurrence of the
General Counsel, denies a request for records, the requestor will be
informed of the name and title of the official responsible for the
denial, the reasons for it, and the right to appeal the decision to the
President of the Foundation within 15 working days of receipt of the
denial. The President shall determine any appeal within 20 days of
receipt and notify the requestor within the time period of the decision.
If the decision is to uphold the denial, the requestor will be informed
of the reasons for the decision and of the right to a judicial review of
the decision in the federal courts.
    (c) Extension of time. Where it is reasonably necessary to the
proper processing of requests, the time required to respond to an FOIA
request or an appeal may be extended for an additional 10 working days
upon written notification to the requestor providing the reasons for the
extension.



Sec. 1502.10  Judicial review.

    On complaint, the district court of the United States in the
district in which the complainant resides, or has his/her principal
place of business, or in which the agency records are situated, or in
the District of Columbia, has jurisdiction to enjoin the Foundation from
withholding Foundation records, and to order the production of any
agency records improperly withheld from the complainant (5 U.S.C.
552(a)(4)(B)).



PART 1503_OFFICIAL SEAL--Table of Contents



Sec.
1503.1 Authority.
1503.2 Description.
1503.3 Custody and authorization to affix.

    Authority: Pub. L. 95-533, 94 Stat. 3131 (22 U.S.C. 290h 4(2)(3)).

    Source: 50 FR 18634, May 2, 1985, unless otherwise noted.



Sec. 1503.1  Authority.

    Pursuant to section 506(a)(3) of Pub. L. 96-533, the African
Development

[[Page 450]]

Foundation official seal and design thereof, which accompanies and is
made part of this document, is hereby adopted, approved, and judicially
noticed.



Sec. 1503.2  Description.

    The official seal of the African Development Foundation is described
as follows:
    (a) Forming an outer circle is a ring of type in dark blue capital
letters spelling the words ``AFRICAN DEVELOPMENT FOUNDATION--UNITED
STATES OF AMERICA;''
    (b) Within that circle is an inner circle with the stylized letters
ADF in dark blue superimposed on a light grey background.
    (c) The official seal of the African Development Foundation when
reproduced in black and white and when embossed, is as it appears below.
[GRAPHIC] [TIFF OMITTED] TC13OC91.009



Sec. 1503.3  Custody and authorization to affix.

    (a) The seal is the official emblem of the African Development
Foundation and its use is therefore permitted only as provided in this
part.
    (b) The seal shall be kept in the custody of the General Counsel, or
any other person he authorizes, and should be affixed by him, the
Chairman of the Board of Directors, or the President of the African
Development Foundation to authenticate records of the Foundation and for
other official purposes. The General Counsel may redelegate and
authorize redelegation of this authority.
    (c) The President of the African Development Foundation shall
designate and prescribe by internal written delegation and policies the
use of the seal for other publication and display purposes and those
Foundation officials authorized to affix the seal for these purposes.
    (d) Use by any person or organization outside of the Foundation may
be made only with the Foundation's prior written approval. Such request
must be made in writing to the General Counsel.

[[Page 451]]



PART 1504_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



    Authority: 5 U.S.C. 7301.

    Source: 61 FR 6507, Feb. 21, 1996, unless otherwise noted.



Sec. 1504.1  Cross-references to employee ethical conduct standards
and financial disclosure regulations.

    Directors and other employees of the African Development Foundation
are subject to the Standards of Ethical Conduct for Employees of the
Executive Branch at 5 CFR part 2635, and the executive branch financial
disclosure regulations at 5 CFR part 2634.



PART 1506_COLLECTION OF CLAIMS--Table of Contents



Sec.
1506.1 Purpose.
1506.2 Applicability of Federal Claims Collection Standards.
1506.3 Subdivision of claims.
1506.4 Late payment, penalty and administrative charges.
1506.5 Demand for payment.
1506.6 Collection by offset.
1506.7 Disclosures to consumer reporting agencies and contracts with
          collection agencies.

    Authority: 31 U.S.C. 3711, and 4 CFR parts 101 through 105.

    Source: 53 FR 5567, Feb. 25, 1988, unless otherwise noted.



Sec. 1506.1  Purpose.

    These regulations prescribe the procedures to be used by the African
Development Foundation (ADF) in the collection of claims owed to the
African Development Foundation and to the United States.



Sec. 1506.2  Applicability of Federal Claims Collection Standards.

    Except as otherwise provided by law, the African Development
Foundation will conduct administrative actions to collect claims
(including offset, compromise, suspension, termination, disclosure and
referral) in accordance with the Federal Claim Collection Standards
(``FCCS'') of the General Accounting Office and Department of Justice, 4
CFR parts 101-105.



Sec. 1506.3  Subdivision of claims.

    A debtor's liability arising from a particular contract or
transaction shall be considered a single claim for purposes of the
monetary ceilings of the FCCS.



Sec. 1506.4  Late payment, penalty and administrative charges.

    (a) Except as otherwise provided by statute, loan agreement or
contract, the African Development Foundation will assess:
    (1) Late payment charges (interest) on unpaid claims at the prompt
payment interest rate established by the Secretary of the Treasury as
the current value of funds to the United States Treasury.
    (2) Penalty charges at 6 percent a year on any portion of a claim
that is delinquent for more than 90 days.
    (3) Administrative charges to cover the costs of processing and
calculating delinquent claims.
    (b) Late payment charges shall be computed from the date of mailing
or hand delivery of the notice of the claim and interest requirements.
    (c) Waiver. (1) Late payment charges are waived on any claim or any
portion of a claim which is paid within 30 days after the date on which
late payment charges begin to accrue.
    (2) The 30 day period may be extended on a case-by-case basis if it
is determined that an extension is appropriate.
    (3) The African Development Foundation may waive late payment,
penalty and administrative charges under the FCCS criteria for the
compromise of claims (4 CFR part 103), or upon a determination that
collection of the charges would be against equity and good conscience or
not in the best interest of the United States, including for example:
    (i) Pending consideration of a request for reconsideration,
administrative review or waiver under a permissive statute,
    (ii) If repayment of the full amount of the debt is made after the
date upon which interest and other charges become payable and the
estimated costs of recovering the residual balance exceeds the amount
owed, or

[[Page 452]]

    (iii) If collection of interest or other charges would jeopardize
collection of the principal of the claim.



Sec. 1506.5  Demand for payment.

    (a) A total of three progressively stronger written demands at
approximately 30-day intervals will normally be made, unless a response
or other information indicates that additional written demands would
either be unnecessary or futile. When necessary to protect the
Government's interest, written demand may be preceded by other
appropriate actions under the Federal Claims Collection Standards,
including immediate referral for litigation and/or offset.
    (b) The initial written demand for payment shall inform the debtor
of:
    (1) The basis for the claim;
    (2) The amount of the claim;
    (3) The date when payment is due, 30 days, from date of mailing or
hand delivery of the intial demand for payment;
    (4) The provision for late payment (interest), penalty and
administrative charges, if payment is not received by the due date.



Sec. 1506.6  Collection by offset.

    (a) Collection by administrative offset will be undertaken only on
claims which are liquidated or certain in amount. Offset will be used
whenever feasible and not otherwise prohibited. Offset is not required
to be used in every instance and consideration should be given to the
debtor's financial condition and the impact of offset on Foundation
activities.
    (b) The procedures for offset in this part do not apply to the
offset of Federal salaries under 5 U.S.C. 5514.
    (c) Before offset is made, the Foundation will provide the debtor
with written notice informing the debtor of:
    (1) The nature and amount of the claim;
    (2) The intent of the Foundation to collect by administrative
offset, including asking the assistance of the other Federal agencies to
help in the offset whenever possible, if the debtor has not made payment
by the payment due date or has not made an arrangement for payment by
the payment due data;
    (3) The right of the debtor to inspect and copy the records of the
Foundation related to the claim;
    (4) The right of the debtor to a review of the claim within the
Foundation. If the claim is disputed in full or part, the debtor shall
respond to the demand in writing by making a request to the billing
office for a review of the claim within the Foundation by the payment
due date stated in the notice. The debtor's written response shall state
the basis for the dispute. If only part of the claim is disputed, the
undisputed portion must be paid by the date stated in the notice to
avoid late payment, penalty and administrative charges. If the African
Development Foundation later sustains or amends its determination, it
shall notify the debtor of its intent to collect the claim, with any
adjustments based on the debtor's response, by administrative offset,
unless payment is received within 30 days of the mailing of the
notification of its decision following a review of the claim.
    (5) The right of the debtor to offer to make a written agreement to
repay the amount of the claim.
    (6) The notice of offset need not include the requirements of
paragraph (c) (3), (4) or (5) of this section if the debtor has been
informed of the requirements at an earlier stage in the administrative
proceedings, e.g., if they were included in a final contracting
officer's decision.
    (d) The African Development Foundation will promptly make requests
for offset to other agences known to be holding funds payable to a
debtor and, when appropriate, place the name of the debtor on the ``List
of Contractors Indebted to the United States.'' The African Development
Foundation will provide instructions to the collecting agency for the
transfer of funds.
    (e) The African Development Foundation will promptly process
requests for offset from other agencies and transfer funds to the
requesting Foundation upon receipt of the written certification required
by Sec. 102.3 of the FCCS.



Sec. 1506.7  Disclosure to consumer reporting agencies and contracts
with collection agencies.

    (a) The African Development Foundation may disclose delinquent
debts,

[[Page 453]]

other than delinquent debts of current Federal employees, to consumer
reporting agencies in accordance with 31 U.S.C. 3711(f) and the FCCS.
    (b) The African Development Foundation may enter into contracts with
collection agencies in accordance with 31 U.S.C. 3718 and the FCCS.



PART 1507_RULES SAFEGUARDING PERSONAL INFORMATION--Table of Contents



Sec.
1507.1 Purpose.
1507.2 General policies.
1507.3 Definitions.
1507.4 Conditions of disclosure.
1507.5 Accounting for disclosure of records.
1507.6 Access to records.
1507.7 Contents of record systems.
1507.8 Fees.
1507.9 Judicial review.
1507.10 Exemptions.
1507.11 Mailing list.
1507.12 Criminal penalties.
1507.13 Reports.

    Authority: 5 U.S.C. 522a.

    Source: 53 FR 40411, Oct. 17, 1988, unless otherwise noted.



Sec. 1507.1  Purpose.

    The purpose of this part is to set forth the basic policies of the
African Development Foundation (``the Foundation'' or ``ADF'') governing
the maintenance of systems of records containing personal information as
defined in the Privacy Act of 1974 (5 U.S.C. 552a).



Sec. 1507.2  General policies.

    It is the policy of the Foundation to safeguard the right of privacy
of any individual as to whom the Foundation maintains personal
information in any records system, and to provide such individuals with
appropriate and complete access to such records, including adequate
opportunity to correct any errors in said records. It is further the
policy of the Foundation to maintain its records in such a fashion that
the information contained therein is, and remains, material and relevant
to the purposes for which it is collected. Information in such records
will be collected, maintained, used or disseminated in a manner that
assures that such action is for a necessary and lawful purpose, and that
adequate safeguards are provided to prevent misuse of such information.
Exemptions from records requirements provided in 5 U.S.C. 552a will be
permitted only where an important public policy need for such exemptions
has been determined pursuant to specific statutory authority.



Sec. 1507.3  Definitions.

    (a) Record means any document, collection, or grouping of
information about an individual maintained by the Foundation, including
but not limited to information regarding education, financial
transactions, medical history, criminal or employment history, or any
other personal information which contains the name or personal
identification number, symbol, photograph, or other identifying
particular assigned to such individual, such as a finger or voiceprint.
    (b) System of Records means a group of any records under the control
of the Foundation from which information is retrieved by use of the name
of an individual or by some identifying particular assigned to the
individual.
    (c) Routine Use means, with respect to the disclosure of a record,
the use of such record for a purpose which is compatible with the
purpose for which it was collected.
    (d) The term Foundation means the African Development Foundation or
any component thereof.
    (e) The term individual means any citizen of the United States or an
alien lawfully admitted to permanent residence.
    (f) The term maintain includes the maintenance, collection, use or
dissemination of any record.
    (g) The term Act means the Privacy Act of 1974 (5 U.S.C. 552a) as
amended from time to time.



Sec. 1507.4  Conditions of disclosure.

    The Foundation will not disclose any record contained in a system of
records by any means of communication to any person or any other agency
except by written request or prior written consent of the individual to
whom the record pertains or his or her agent or attorney, unless such
disclosure is:
    (a) To those officers and employees of the Foundation who have a
need for

[[Page 454]]

the records in the official performance of their duties;
    (b) Required under the Freedom of Information Act (5 U.S.C. 552);
    (c) For a routine use of the record compatible with the purpose for
which it was collected;
    (d) To the Bureau of the Census for purpose of planning or carrying
out a census or survey or related activity pursuant to title 13, United
States Code;
    (e) To a recipient who has provided the Foundation 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 to a form that is not individually identifiable;
    (f) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the
Administrator of General Services, or designee, to determine whether the
record has such value;
    (g) 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 Foundation specifying the particular portion
desired and the law enforcement activity for which the record is sought;
    (h) To a person, pursuant to a showing of compelling circumstances
affecting the health or safety of an individual, if, promptly following
such disclosure, notification is transmitted to the last known address
of the individual to whom the record pertains;
    (i) To either House of Congress, or, to the extent of matters within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
    (j) To the Comptroller General, or any authorized representative, in
the course of the performance of the duties of the General Accounting
Office; or
    (k) Pursuant to the order of a court of competent jurisdiction. If
any record disclosed under compulsory legal process is subsequently made
public by the court which issued it, the Foundation must make a
reasonable effort to notify the individual to whom the record pertains
of such disclosure.
    (l) To consumer reporting agencies as defined in 31 U.S.C. 370(a)(3)
in accordance with 31 U.S.C. 3711, and under contracts for collection
services as authorized in 31 U.S.C. 3718.



Sec. 1507.5  Accounting for disclosure of records.

    (a) With respect to each system of records under ADF control, the
Foundation will keep an accurate accounting of routine disclosures,
except those made to employees of the Foundation in the normal course of
duties or pursuant to the provisions of the Freedom of Information Act.
Such accounting shall contain the following:
    (1) The date, nature and purpose of each disclosure, and the name
and address of the person or agency to whom the disclosure is made:
    (2) Sufficient information to permit the construction of a listing
of all disclosures at appropriate periodic intervals; and
    (3) The justification or basis upon which any release was made
including any written documentation required.
    (b) The Foundation will retain the accounting made under this
section for at least 5 years or the life of the record, whichever is
longer, after the disclosure for which the accounting is made.
    (c) Except for disclosure made under paragraph (g) of Sec. 1503.3,
the Foundation will make the accounting under paragraph (a) of this
section available to the individual named in the record at his or her
request.
    (d) The Foundation will inform any person or other agency about any
correction or notation of dispute made by the agency of any record that
has been disclosed to the person or agency if an accounting of the
disclosure was made.



Sec. 1507.6  Access to records.

    (a) Except as otherwise provided by law or regulation, any
individual, upon request made either in writing or in person during
regular business hours, shall be provided access to his or her

[[Page 455]]

record or to any information pertaining to him or her which is contained
in a system of records maintained by the Foundation. The individual will
be permitted to review the record and have a copy made of all or any
portion thereof in a form comprehensible to him or her. Nothing in 5
U.S.C. 552a, however, allows an individual access to any information
compiled in reasonable anticipation of a civil action or proceeding.
    (b) An individual will be notified, upon request, if any Foundation
system of records contains a record pertaining to him or her. Such
request may be made in person during regular business hours, or in
writing over the signature of the person making the request. Individuals
requesting the information will be required to identify themselves by
providing their names, addresses, and a signature. If they are
requesting disclosure in person, they are also required to show an
identification card, such as a drivers license, containing a photo and a
sample signature. If the request is received through the mail, the
Foundation may request such information as may be necessary to assure
that the requesting individual is properly identified. This may include
a requirement that the request be notarized with a notation that the
notary received an acknowledgement of identity from the requester.
    (c) A record may be disclosed to a representative of the person to
whom a record relates when the representative is authorized in writing
by such person to have access.
    (d) Requests for access to or copies of records should contain, at a
minimum, identifying information needed to locate any given record, and
a brief description of the item or items of information required. If the
individual wishes access to specific documents, the request should
identify or describe, as nearly as possible, such documents. The request
should be made to the Director, Administration and Finance, African
Development Foundation, 1625 Massachusetts Avenue NW., Suite 600,
Washington, DC 20036. Personal contacts should normally be made during
the regular duty hours of the officer concerned, which are 8:30 a.m. to
5:00 p.m. Monday through Friday.
    (e) A request made in person will be promptly complied with if the
records sought are in the immediate custody of the Foundation. Mail or
personal requests for documents which are not in the immediate custody
of ADF or which are otherwise not immediately available, will be
acknowledged within ten working days of receipt, and the records will be
provided as promptly thereafter as possible.
    (f) Special procedures may be established by the President of the
Foundation governing the disclosure to an individual of his or her
medical records, including psychological records.
    (g) Any individual may request the Director, Administration and
Finance, to amend any Foundation record pertaining to him or her. Not
later than 10 working days after the date of receipt of such request,
the Director, Administration and Finance, or his/her designee, will
acknowledge such receipt in writing. Promptly after acknowledging
receipt of a request, the Director, Administration and Finance or his/
her designee will:
    (1) Correct any portion of the record which the individual believes
is not accurate, relevant, timely, or complete; or
    (2) Inform the individual of the Foundation's refusal to amend the
record in accordance with the request, the reason for the refusal, the
procedures by which the individual may request a review of that refusal
by the President of the Foundation, or his/her designee, and the name
and address of such official; or
    (3) Refer the request to the agency that has control of and
maintains the record when the record requested is not the property of
the Foundation, but of the controlling agency.
    (h) Any individual who disagrees with the refusal of the Director,
Administration and Finance to amend his or her record may request a
review of that refusal. Such request for review must be made within 30
days after receipt by the requester of the initial refusal to amend. The
President of the Foundation, or designee, will complete such review not
later than 30 working days from the date on which the individual
requests such review, and make a final determination, unless for good

[[Page 456]]

cause shown, the President or designee extends such 30-day period and
notifies the requester in writing that additional time is required to
complete the review. If, after review, the President or designee refuses
to amend the record in accordance with the request, the individual will
be advised of the right to file with the Foundation a concise statement
setting forth the reasons for his or her disagreement with the refusal,
and also advised of the provisions in the Act for judicial review of the
President's determination.
    (i) In any disclosure containing information about which the
individual has filed a statement under paragraph (g) of this section,
the Foundation will clearly note any part of the record which is
disputed and provide copies of the statement and, if the Foundation
deems it appropriate, copies of a concise statement of the Foundation's
reasons for not making the amendment requested, to persons or other
agencies to whom the disputed record has been disclosed.



Sec. 1507.7  Contents of records systems.

    (a) The Foundation will maintain in its records only such
information about an individual as is accurate, relevant, and necessary
to accomplish the purpose for which it was acquired as authorized by
statute or Executive Order.
    (b) The Foundation will collect information, to the greatest extent
practicable, directly from the individual to whom the record pertains
when the information may result in adverse determinations about the
individual's rights, benefits and privileges under Federal programs.
    (c) The Foundation will inform each individual whom it asks to
supply information on any form which it uses to collect the information,
or on a separate form that can be retained by the individual, of:
    (1) The authority which authorizes the solicitation of the
information and whether provision of such information is mandatory or
voluntary;
    (2) The purpose or purposes for which the information is intended to
be used;
    (3) The routine uses which may be made of the information, as
published pursuant to paragraph (d) of this section; and
    (4) The effects on the individual, if any, of not providing all or
any part of the requested information.
    (d) Subject to the provisions of paragraph (k) of this section, the
Foundation will publish in the Federal Register, at least a notice of
the existence and character of its sytem(s) of records upon
establishment or revision. This notice will include:
    (1) The name and location of the system or systems;
    (2) The categories of individuals on whom records are maintained in
the system or systems;
    (3) The categories of records maintained in the system or sytems;
    (4) Each routine use of the records contained in the system or
systems, including the categories of users, and the purpose of such use;
    (5) The policies and practices of the Foundation regarding storage,
retrievability, access controls, retention, and disposal of the record;
    (6) The title and business address of the Foundation official or
officials responsible for the system or systems of records;
    (7) The Foundation's procedures whereby an individual can be
notified at his or her request if the system or systems of records
contains a record pertaining to him or her;
    (8) The Foundation's procedures whereby an individual can be
notified at him or her request how he or she can gain access to any
record pertaining to him or her contained in the system or systems of
records, and how he or she can contest its content; and
    (9) The categories of sources of records in the system or systems.
    (e) All records used by the Foundation in making any determination
about any individual will be maintained with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination.
    (f) Before disseminating any record about an individual to any
person other than an agency or pursuant to 5 U.S.C. 552, the Foundation
will make reasonable efforts to assure that such records are accurate,
complete, timely, and relevant for Foundation purposes.

[[Page 457]]

    (g) The Foundation will maintain no record describing how any
individual exercises rights guaranteed by the First Amendment of the
Constitution of the United States unless 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) The Foundation will establish rules of conduct for persons
involved in the design, development, operation, or maintenance of any
system of records, or in maintaining any record. Each such person will
be instructed regarding such rules and the requirements of 5 U.S.C.
552a. The instruction will include any other rules and procedures
adopted pursuant to 5 U.S.C. 552a, and the penalties provided for
noncompliance.
    (i) The Foundation will establish appropriate administrative,
technical, and physical safeguards to insure the security and
confidentiality of records and to protect against any anticipated
threats or hazards to their security or integrity which could result in
substantial harm, embarrassment, inconvenience, or unfairness to any
individual on whom information is maintained.
    (j) At least 30 days prior to the publication of the notice in the
Federal Register regarding the routine use of the records contained in
the Foundation's system or systems of records, including the categories
of users and the purpose of such use pursuant to paragraph (d) of this
section, the Foundation will also:
    (1) Publish a notice in the Federal Register of any new or revised
use of the information in the system or systems maintained by the
Foundation; and
    (2) Provide an opportunity for interested persons to submit written
data, views, or arguments to the Foundation.



Sec. 1507.8  Fees.

    Fees to be charged, if any, to any individual for making copies of
his or her record will be as follows:
    (a) Photocopy reproductions from all types of copying processes,
each reproduction image, $0.10 per page.
    (b) Where the Foundation undertakes to perform for an individual
making a request, or for any other person, services which are very
clearly not required to be performed under section 552a, title 5, United
States Code, either voluntarily or because such services are required by
some other law (e.g., the formal certification of records as true
copies, attestation under the seal of the Foundation, etc.), the
question of charging fees for such services will be determined by the
Director of Administration and Finance, in light of the Federal user
charge statute (31 U.S.C. 483a), and any other applicable law.
    (c) No fees shall be charged for search time expended by the
Foundation to produce a record.



Sec. 1507.9  Judicial review.

    Any person may file a complaint against the Foundation in the
appropriate U.S. district court, as provided in 5 U.S.C. 552a(g),
whenever the Foundation:
    (a) Makes a determination not to amend an individual's record in
accordance with his or her request, or fails to make such review in
conformity with that section; or
    (b) Refuses to comply with an individual's request; or
    (c) Fails to maintain any record concerning an individual with such
accuracy, relevance, timeliness, and completeness as is necessary to
assure fairness in any determination relating to the qualifications,
character, rights or opportunities of, or benefits to the individual
that may be made on the basis of such record, and consequently a
determination is made which is adverse to the individual; or
    (d) Fails to comply with any other provision of 5 U.S.C. 552a, or
any Foundation regulation promulgated thereunder, in any such a way as
to have an adverse effect on an individual.



Sec. 1507.10  Exemptions.

    No Foundation system or systems of records, as such, are exempted
from the provisions of 5 U.S.C. 552a, as permitted under certain
conditions by 5 U.S.C. 552a (j) and (k).

[[Page 458]]



Sec. 1507.11  Mailing list.

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



Sec. 1507.12  Criminal penalties.

    Section 552a(e), title 5, United States Code, provides that:
    (a) Any officer or employee of the Foundation, who, by virtue of his
or her employment or official position, has possession of, or access to,
Foundation records which contain individually identifiable information,
the disclosure of which is prohibited by 5 U.S.C. 552a, 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, shall be guilty of a misdemeanor and fined not
more than $5,000.
    (b) Any officer or employee of the Foundation who willfully
maintains a system of records without meeting the notice requirements of
5 U.S.C. 552a(e)(4) shall be guilty of a misdemeanor and fined not more
than $5,000.
    (c) Any person who knowingly and willfully requests or obtains any
record concerning an individual from the Foundation under false
pretenses shall be guilty of a misdemeanor and fined not more than
$5,000.



Sec. 1507.13  Reports.

    (a) The Foundation shall provide to Congress and the Office of
Management and Budget advance notice of any proposal to establish or
alter any system or records as defined herein. This report will be
submitted in accordance with guidelines provided by the Office of
Management and Budget.
    (b) If at any time Foundation system or systems of records is
determined to be exempt from the application of 5 U.S.C. 552a in
accordance with the provisions of 5 U.S.C. 552a (j) and (k), the records
contained in such system or systems will be separately listed and
reported to the Office of Management and Budget in accordance with the
then prevailing guidelines and instructions of that office.



PART 1508_GOVERNMENTWIDE DEBARMENT AND SUSPENSION
(NONPROCUREMENT)--Table of Contents



Sec.
1508.25 How is this part organized?
1508.50 How is this part written?
1508.75 Do terms in this part have special meanings?

                            Subpart A_General

1508.100 What does this part do?
1508.105 Does this part apply to me?
1508.110 What is the purpose of the nonprocurement debarment and
          suspension system?
1508.115 How does an exclusion restrict a person's involvement in
          covered transactions?
1508.120 May we grant an exception to let an excluded person participate
          in a covered transaction?
1508.125 Does an exclusion under the nonprocurement system affect a
          person's eligibility for Federal procurement contracts?
1508.130 Does exclusion under the Federal procurement system affect a
          person's eligibility to participate in nonprocurement
          transactions?
1508.135 May the African Development Foundation exclude a person who is
          not currently participating in a nonprocurement transaction?
1508.140 How do I know if a person is excluded?
1508.145 Does this part address persons who are disqualified, as well as
          those who are excluded from nonprocurement transactions?

                     Subpart B_Covered Transactions

1508.200 What is a covered transaction?
1508.205 Why is it important to know if a particular transaction is a
          covered transaction?
1508.210 Which nonprocurement transactions are covered transactions?
1508.215 Which nonprocurement transactions are not covered transactions?
1508.220 Are any procurement contracts included as covered transactions?
1508.225 How do I know if a transaction in which I may participate is a
          covered transaction?

[[Page 459]]

    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons

1508.300 What must I do before I enter into a covered transaction with
          another person at the next lower tier?
1508.305 May I enter into a covered transaction with an excluded or
          disqualified person?
1508.310 What must I do if a Federal agency excludes a person with whom
          I am already doing business in a covered transaction?
1508.315 May I use the services of an excluded person as a principal
          under a covered transaction?
1508.320 Must I verify that principals of my covered transactions are
          eligible to participate?
1508.325 What happens if I do business with an excluded person in a
          covered transaction?
1508.330 What requirements must I pass down to persons at lower tiers
          with whom I intend to do business?

            Disclosing Information--Primary Tier Participants

1508.335 What information must I provide before entering into a covered
          transaction with the African Development Foundation?
1508.340 If I disclose unfavorable information required under Sec.
          1508.335, will I be prevented from participating in the
          transaction?
1508.345 What happens if I fail to disclose the information required
          under Sec. 1508.335?
1508.350 What must I do if I learn of the information required under
          Sec. 1508.335 after entering into a covered transaction with
          the African Development Foundation?

             Disclosing Information--Lower Tier Participants

1508.355 What information must I provide to a higher tier participant
          before entering into a covered transaction with that
          participant?
1508.360 What happens if I fail to disclose the information required
          under Sec. 1508.355?
1508.365 What must I do if I learn of information required under Sec.
          1508.355 after entering into a covered transaction with a
          higher tier participant?

   Subpart D_Responsibilities of ADF Officials Regarding Transactions

1508.400 May I enter into a transaction with an excluded or disqualified
          person?
1508.405 May I enter into a covered transaction with a participant if a
          principal of the transaction is excluded?
1508.410 May I approve a participant's use of the services of an
          excluded person?
1508.415 What must I do if a Federal agency excludes the participant or
          a principal after I enter into a covered transaction?
1508.420 May I approve a transaction with an excluded or disqualified
          person at a lower tier?
1508.425 When do I check to see if a person is excluded or disqualified?
1508.430 How do I check to see if a person is excluded or disqualified?
1508.435 What must I require of a primary tier participant?
1508.440 What method do I use to communicate those requirements to
          participants?
1508.445 What action may I take if a primary tier participant knowingly
          does business with an excluded or disqualified person?
1508.450 What action may I take if a primary tier participant fails to
          disclose the information required under Sec. 1508.335?
1508.455 What may I do if a lower tier participant fails to disclose the
          information required under Sec. 1508.355 to the next higher
          tier?

                 Subpart E_Excluded Parties List System

1508.500 What is the purpose of the Excluded Parties List System (EPLS)?
1508.505 Who uses the EPLS?
1508.510 Who maintains the EPLS?
1508.515 What specific information is in the EPLS?
1508.520 Who places the information into the EPLS?
1508.525 Whom do I ask if I have questions about a person in the EPLS?
1508.530 Where can I find the EPLS?

   Subpart F_General Principles Relating to Suspension and Debarment
                                 Actions

1508.600 How do suspension and debarment actions start?
1508.605 How does suspension differ from debarment?
1508.610 What procedures does the African Development Foundation use in
          suspension and debarment actions?
1508.615 How does the African Development Foundation notify a person of
          a suspension and debarment action?
1508.620 Do Federal agencies coordinate suspension and debarment
          actions?
1508.625 What is the scope of a suspension or debarment action?
1508.630 May the African Development Foundation impute the conduct of
          one person to another?
1508.635 May the African Development Foundation settle a debarment or
          suspension action?

[[Page 460]]

1508.640 May a settlement include a voluntary exclusion?
1508.645 Do other Federal agencies know if the African Development
          Foundation agrees to a voluntary exclusion?

                          Subpart G_Suspension

1508.700 When may the suspending official issue a suspension?
1508.705 What does the suspending official consider in issuing a
          suspension?
1508.710 When does a suspension take effect?
1508.715 What notice does the suspending official give me if I am
          suspended?
1508.720 How may I contest a suspension?
1508.725 How much time do I have to contest a suspension?
1508.730 What information must I provide to the suspending official if I
          contest a suspension?
1508.735 Under what conditions do I get an additional opportunity to
          challenge the facts on which the suspension is based?
1508.740 Are suspension proceedings formal?
1508.745 How is fact-finding conducted?
1508.750 What does the suspending official consider in deciding whether
          to continue or terminate my suspension?
1508.755 When will I know whether the suspension is continued or
          terminated?
1508.760 How long may my suspension last?

                           Subpart H_Debarment

1508.800 What are the causes for debarment?
1508.805 What notice does the debarring official give me if I am
          proposed for debarment?
1508.810 When does a debarment take effect?
1508.815 How may I contest a proposed debarment?
1508.820 How much time do I have to contest a proposed debarment?
1508.825 What information must I provide to the debarring official if I
          contest a proposed debarment?
1508.830 Under what conditions do I get an additional opportunity to
          challenge the facts on which the proposed debarment is based?
1508.835 Are debarment proceedings formal?
1508.840 How is fact-finding conducted?
1508.845 What does the debarring official consider in deciding whether
          to debar me?
1508.850 What is the standard of proof in a debarment action?
1508.855 Who has the burden of proof in a debarment action?
1508.860 What factors may influence the debarring official's decision?
1508.865 How long may my debarment last?
1508.870 When do I know if the debarring official debars me?
1508.875 May I ask the debarring official to reconsider a decision to
          debar me?
1508.880 What factors may influence the debarring official during
          reconsideration?
1508.885 May the debarring official extend a debarment?

                          Subpart I_Definitions

1508.900 Adequate evidence.
1508.905 Affiliate.
1508.910 Agency.
1508.915 Agent or representative.
1508.920 Civil judgment.
1508.925 Conviction.
1508.930 Debarment.
1508.935 Debarring official.
1508.940 Disqualified.
1508.945 Excluded or exclusion.
1508.950 Excluded Parties List System.
1508.955 Indictment.
1508.960 Ineligible or ineligibility.
1508.965 Legal proceedings.
1508.970 Nonprocurement transaction.
1508.975 Notice.
1508.980 Participant.
1508.985 Person.
1508.990 Preponderance of the evidence.
1508.995 Principal.
1508.1000 Respondent.
1508.1005 State.
1508.1010 Suspending official.
1508.1015 Suspension.
1508.1020 Voluntary exclusion or voluntarily excluded.

Subpart J [Reserved]

Appendix to Part 1508--Covered Transactions

    Authority: Sec. 2455, Pub.L. 103-355, 108 Stat. 3327; E.O. 12549,
3CFR, 1986 Comp., p.89; E.O. 12689, 3CFR, 1989 Comp., p. 235.

    Source: 68 FR 66590, 66592, Nov. 26, 2003, unless otherwise noted.



Sec. 1508.25  How is this part organized?

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

------------------------------------------------------------------------
       In subpart . . .        You will find provisions related to . . .
------------------------------------------------------------------------
A............................  general information about this rule.
B............................  the types of ADF transactions that are
                                covered by the Governmentwide
                                nonprocurement suspension and debarment
                                system.
C............................  the responsibilities of persons who
                                participate in covered transactions.
D............................  the responsibilities of ADF officials who
                                are authorized to enter into covered
                                transactions.

[[Page 461]]


E............................  the responsibilities of Federal agencies
                                for the Excluded Parties List System
                                (Disseminated by the General Services
                                Administration).
F............................  the general principles governing
                                suspension, debarment, voluntary
                                exclusion and settlement.
G............................  suspension actions.
H............................  debarment actions.
I............................  definitions of terms used in this part.
J............................  [Reserved]
------------------------------------------------------------------------

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

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



Sec. 1508.50  How is this part written?

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



Sec. 1508.75  Do terms in this part have special meanings?

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



                            Subpart A_General



Sec. 1508.100  What does this part do?

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



Sec. 1508.105  Does this part apply to me?

    Portions of this part (see table at Sec. 1508.25(b)) apply to you
if you are a(n)--
    (a) Person who has been, is, or may reasonably be expected to be, a
participant or principal in a covered transaction;
    (b) Respondent (a person against whom the African Development
Foundation has initiated a debarment or suspension action);
    (c) ADF debarring or suspending official; or

[[Page 462]]

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



Sec. 1508.110  What is the purpose of the nonprocurement debarment and
suspension system?

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



Sec. 1508.115  How does an exclusion restrict a person's involvement
in covered transactions?

    With the exceptions stated in Sec. Sec. 1508.120, 1508.315, and
1508.420, a person who is excluded by the African Development Foundation
or any other Federal agency may not:
    (a) Be a participant in a(n) ADF transaction that is a covered
transaction under subpart B of this part;
    (b) Be a participant in a transaction of any other Federal agency
that is a covered transaction under that agency's regulation for
debarment and suspension; or
    (c) Act as a principal of a person participating in one of those
covered transactions.



Sec. 1508.120  May we grant an exception to let an excluded person
participate in a covered transaction?

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



Sec. 1508.125  Does an exclusion under the nonprocurement system
affect a person's eligibility for Federal procurement contracts?

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



Sec. 1508.130  Does exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement

transactions?

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



Sec. 1508.135  May the African Development Foundation exclude a person
who is not currently participating in a nonprocurement transaction?

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



Sec. 1508.140  How do I know if a person is excluded?

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



Sec. 1508.145  Does this part address persons who are disqualified,
as well as those who are excluded from nonprocurement transactions?

    Except if provided for in Subpart J of this part, this part--

[[Page 463]]

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



                     Subpart B_Covered Transactions



Sec. 1508.200  What is a covered transaction?

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



Sec. 1508.205  Why is it important if a particular transaction is a
covered transaction?

    The importance of a covered transaction depends upon who you are.
    (a) As a participant in the transaction, you have the
responsibilities laid out in Subpart C of this part. Those include
responsibilities to the person or Federal agency at the next higher tier
from whom you received the transaction, if any. They also include
responsibilities if you subsequently enter into other covered
transactions with persons at the next lower tier.
    (b) As a Federal official who enters into a primary tier
transaction, you have the responsibilities laid out in subpart D of this
part.
    (c) As an excluded person, you may not be a participant or principal
in the transaction unless--
    (1) The person who entered into the transaction with you allows you
to continue your involvement in a transaction that predates your
exclusion, as permitted under Sec. 1508.310 or Sec. 1508.415; or
    (2) A(n) ADF official obtains an exception from the ADF President to
allow you to be involved in the transaction, as permitted under Sec.
1508.120.



Sec. 1508.210  Which nonprocurement transactions are covered
transactions?

    All nonprocurement transactions, as defined in Sec. 1508.970, are
covered transactions unless listed in Sec. 1508.215. (See appendix to
this part.)



Sec. 1508.215  Which nonprocurement transactions are not covered
transactions?

    The following types of nonprocurement transactions are not covered
transactions:
    (a) A direct award to--
    (1) A foreign government or foreign governmental entity;
    (2) A public international organization;
    (3) An entity owned (in whole or in part) or controlled by a foreign
government; or
    (4) Any other entity consisting wholly or partially of one or more
foreign governments or foreign governmental entities.
    (b) A benefit to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted). For example, if
a person receives social security benefits under the Supplemental
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et
seq., those benefits are not covered transactions and, therefore, are
not affected if the person is excluded.
    (c) Federal employment.
    (d) A transaction that the African Development Foundation needs to
respond to a national or agency-recognized emergency or disaster.

[[Page 464]]

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



Sec. 1508.220  Are any procurement contracts included as covered
transactions?

    (a) Covered transactions under this part--
    (1) Do not include any procurement contracts awarded directly by a
Federal agency; but
    (2) Do include some procurement contracts awarded by non-Federal
participants in nonprocurement covered transactions (see appendix to
this part).
    (b) Specifically, a contract for goods or services is a covered
transaction if any of the following applies:
    (1) The contract is awarded by a participant in a nonprocurement
transaction that is covered under Sec. 1508.210, and the amount of the
contract is expected to equal or exceed $25,000.
    (2) The contract requires the consent of a(n) ADF official. In that
case, the contract, regardless of the amount, always is a covered
transaction, and it does not matter who awarded it. For example, it
could be a subcontract awarded by a contractor at a tier below a
nonprocurement transaction, as shown in the appendix to this part.
    (3) The contract is for federally-required audit services.



Sec. 1508.225  How do I know if a transaction in which I may
participate is a covered transaction?

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



    Subpart C_Responsibilities of Participants Regarding Transactions

                    Doing Business With Other Persons



Sec. 1508.300  What must I do before I enter into a covered transaction
with another person at the next lower tier?

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



Sec. 1508.305  May I enter into a covered transaction with an excluded
or disqualified person?

    (a) You as a participant may not enter into a covered transaction
with an excluded person, unless the African Development Foundation
grants an exception under Sec. 1508.120.
    (b) You may not enter into any transaction with a person who is
disqualified from that transaction, unless you have obtained an
exception under the disqualifying statute, Executive order, or
regulation.



Sec. 1508.310  What must I do if a Federal agency excludes a person
with whom I am already doing business in a covered transaction?

    (a) You as a participant may continue covered transactions with an
excluded person if the transactions were in existence when the agency
excluded the person. However, you are not required to continue the
transactions, and you may consider termination. You should make a
decision about whether to terminate and the type of termination action,
if any, only after a thorough review to ensure that the action is proper
and appropriate.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, unless the African
Development Foundation grants an exception under Sec. 1508.120.

[[Page 465]]



Sec. 1508.315  May I use the services of an excluded person as a
principal under a covered transaction?

    (a) You as a participant may continue to use the services of an
excluded person as a principal under a covered transaction if you were
using the services of that person in the transaction before the person
was excluded. However, you are not required to continue using that
person's services as a principal. You should make a decision about
whether to discontinue that person's services only after a thorough
review to ensure that the action is proper and appropriate.
    (b) You may not begin to use the services of an excluded person as a
principal under a covered transaction unless the African Development
Foundation grants an exception under Sec. 1508.120.



Sec. 1508.320  Must I verify that principals of my covered
transactions are eligible to participate?

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



Sec. 1508.325  What happens if I do business with an excluded person
in a covered transaction?

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



Sec. 1508.330  What requirements must I pass down to persons at lower
tiers with whom I intend to do business?

    Before entering into a covered transaction with a participant at the
next lower tier, you must require that participant to--
    (a) Comply with this subpart as a condition of participation in the
transaction. You may do so using any method(s), unless Sec. 1508.440
requires you to use specific methods.
    (b) Pass the requirement to comply with this subpart to each person
with whom the participant enters into a covered transaction at the next
lower tier.

            Disclosing Information--Primary Tier Participants



Sec. 1508.335  What information must I provide before entering into a
covered transaction with the African Development Foundation?

    Before you enter into a covered transaction at the primary tier, you
as the participant must notify the ADF office that is entering into the
transaction with you, if you know that you or any of the principals for
that covered transaction:
    (a) Are presently excluded or disqualified;
    (b) Have been convicted within the preceding three years of any of
the offenses listed in Sec. 1508.800(a) or had a civil judgment
rendered against you for one of those offenses within that time period;
    (c) Are presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with
commission of any of the offenses listed in Sec. 1508.800(a); or
    (d) Have had one or more public transactions (Federal, State, or
local) terminated within the preceding three years for cause or default.



Sec. 1508.340  If I disclose unfavorable information required under
Sec. 1508.335, will I be prevented from participating in the

transaction?

    As a primary tier participant, your disclosure of unfavorable
information about yourself or a principal under Sec. 1508.335 will not
necessarily cause us to deny your participation in the covered
transaction. We will consider the information when we determine whether
to enter into the covered transaction. We also will consider any
additional information or explanation that you elect to submit with the
disclosed information.



Sec. 1508.345  What happens if I fail to disclose information required
under Sec. 1508.335?

    If we later determine that you failed to disclose information under
Sec. 1508.335 that you knew at the time you entered into the covered
transaction, we may--

[[Page 466]]

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



Sec. 1508.350  What must I do if I learn of information required under
Sec. 1508.335 after entering into a covered transaction with the

African Development Foundation?

    At any time after you enter into a covered transaction, you must
give immediate written notice to the ADF office with which you entered
into the transaction if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec.
1508.335; or
    (b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. 1508.335.

             Disclosing Information--Lower Tier Participants



Sec. 1508.355  What information must I provide to a higher tier
participant before entering into a covered transaction with that

participant?

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



Sec. 1508.360  What happens if I fail to disclose the information
required under Sec. 1508.355?

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



Sec. 1508.365  What must I do if I learn of information required under
Sec. 1508.355 after entering into a covered transaction with a higher

tier participant?

    At any time after you enter into a lower tier covered transaction
with a person at a higher tier, you must provide immediate written
notice to that person if you learn either that--
    (a) You failed to disclose information earlier, as required by Sec.
1508.355; or
    (b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. 1508.355.



   Subpart D_Responsibilities of ADF Officials Regarding Transactions



Sec. 1508.400  May I enter into a transaction with an excluded or
disqualified person?

    (a) You as an agency official may not enter into a covered
transaction with an excluded person unless you obtain an exception under
Sec. 1508.120.
    (b) You may not enter into any transaction with a person who is
disqualified from that transaction, unless you obtain a waiver or
exception under the statute, Executive order, or regulation that is the
basis for the person's disqualification.



Sec. 1508.405  May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?

    As an agency official, you may not enter into a covered transaction
with a participant if you know that a principal of the transaction is
excluded, unless you obtain an exception under Sec. 1508.120.



Sec. 1508.410  May I approve a participant's use of the services of
an excluded person?

    After entering into a covered transaction with a participant, you as
an agency official may not approve a participant's use of an excluded
person as a principal under that transaction, unless you obtain an
exception under Sec. 1508.120.



Sec. 1508.415  What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?

    (a) You as an agency official may continue covered transactions with
an excluded person, or under which an excluded person is a principal, if
the transactions were in existence when the person was excluded. You are
not required to continue the transactions, however, and you may consider
termination. You should make a decision

[[Page 467]]

about whether to terminate and the type of termination action, if any,
only after a thorough review to ensure that the action is proper.
    (b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an
excluded person is a principal, unless you obtain an exception under
Sec. 1508.120.



Sec. 1508.420  May I approve a transaction with an excluded or
disqualified person at a lower tier?

    If a transaction at a lower tier is subject to your approval, you as
an agency official may not approve--
    (a) A covered transaction with a person who is currently excluded,
unless you obtain an exception under Sec. 1508.120; or
    (b) A transaction with a person who is disqualified from that
transaction, unless you obtain a waiver or exception under the statute,
Executive order, or regulation that is the basis for the person's
disqualification.



Sec. 1508.425  When do I check to see if a person is excluded or
disqualified?

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



Sec. 1508.430  How do I check to see if a person is excluded or
disqualified?

    You check to see if a person is excluded or disqualified in two
ways:
    (a) You as an agency official must check the EPLS when you take any
action listed in Sec. 1508.425.
    (b) You must review information that a participant gives you, as
required by Sec. 1508.335, about its status or the status of the
principals of a transaction.



Sec. 1508.435  What must I require of a primary tier participant?

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



Sec. 1508.440  What method do I use to communicate those requirements
to participants?

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



Sec. 1508.445  What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?

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



Sec. 1508.450  What action may I take if a primary tier participant
fails to disclose the information required under Sec. 1508.335?

    If you as an agency official determine that a participant failed to
disclose information, as required by Sec. 1508.335, at the time it
entered into a covered transaction with you, you may--
    (a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or
    (b) Pursue any other available remedies, including suspension and
debarment.

[[Page 468]]



Sec. 1508.455  What may I do if a lower tier participant fails to
disclose the information required under Sec. 1508.355 to the next

higher tier?

    If you as an agency official determine that a lower tier participant
failed to disclose information, as required by Sec. 1508.355, at the
time it entered into a covered transaction with a participant at the
next higher tier, you may pursue any remedies available to you,
including the initiation of a suspension or debarment action.



                 Subpart E_Excluded Parties List System



Sec. 1508.500  What is the purpose of the Excluded Parties List System
(EPLS)?

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



Sec. 1508.505  Who uses the EPLS?

    (a) Federal agency officials use the EPLS to determine whether to
enter into a transaction with a person, as required under Sec.
1508.430.
    (b) Participants also may, but are not required to, use the EPLS to
determine if--
    (1) Principals of their transactions are excluded or disqualified,
as required under Sec. 1508.320; or
    (2) Persons with whom they are entering into covered transactions at
the next lower tier are excluded or disqualified.
    (c) The EPLS is available to the general public.



Sec. 1508.510  Who maintains the EPLS?

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



Sec. 1508.515  What specific information is in the EPLS?

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



Sec. 1508.520  Who places the information into the EPLS?

    Federal officials who take actions to exclude persons under this
part or officials who are responsible for identifying disqualified
persons must enter the following information about those persons into
the EPLS:
    (a) Information required by Sec. 1508.515(a);
    (b) The Taxpayer Identification Number (TIN) of the excluded or
disqualified person, including the social security number (SSN) for an
individual, if the number is available and may be disclosed under law;
    (c) Information about an excluded or disqualified person, generally
within five working days, after--
    (1) Taking an exclusion action;
    (2) Modifying or rescinding an exclusion action;
    (3) Finding that a person is disqualified; or
    (4) Finding that there has been a change in the status of a person
who is listed as disqualified.

[[Page 469]]



Sec. 1508.525  Whom do I ask if I have questions about a person in the
EPLS?

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



Sec. 1508.530  Where can I find the EPLS?

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



   Subpart F_General Principles Relating to Suspension and Debarment
                                 Actions



Sec. 1508.600  How do suspension and debarment actions start?

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



Sec. 1508.605  How does suspension differ from debarment?

    Suspension differs from debarment in that--

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



Sec. 1508.610  What procedures does the African Development Foundation
use in suspension and debarment actions?

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



Sec. 1508.615  How does the African Development Foundation notify a
person of a suspension or debarment action?

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



Sec. 1508.620  Do Federal agencies coordinate suspension and debarment
actions?

    Yes, when more than one Federal agency has an interest in a
suspension

[[Page 470]]

or debarment, the agencies may consider designating one agency as the
lead agency for making the decision. Agencies are encouraged to
establish methods and procedures for coordinating their suspension and
debarment actions.



Sec. 1508.625  What is the scope of a suspension or debarment?

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



Sec. 1508.630  May the African Development Foundation impute conduct
of one person to another?

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



Sec. 1508.635  May the African Development Foundation settle a
debarment or suspension action?

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



Sec. 1508.640  May a settlement include a voluntary exclusion?

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



Sec. 1508.645  Do other Federal agencies know if the African
Development Foundation agrees to a voluntary exclusion?

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



                          Subpart G_Suspension



Sec. 1508.700  When may the suspending official issue a suspension?

    Suspension is a serious action. Using the procedures of this subpart
and subpart F of this part, the suspending official may impose
suspension only when that official determines that--

[[Page 471]]

    (a) There exists an indictment for, or other adequate evidence to
suspect, an offense listed under Sec. 1508.800(a), or
    (b) There exists adequate evidence to suspect any other cause for
debarment listed under Sec. 1508.800(b) through (d); and
    (c) Immediate action is necessary to protect the public interest.



Sec. 1508.705  What does the suspending official consider in issuing a
suspension?

    (a) In determining the adequacy of the evidence to support the
suspension, the suspending official considers how much information is
available, how credible it is given the circumstances, whether or not
important allegations are corroborated, and what inferences can
reasonably be drawn as a result. During this assessment, the suspending
official may examine the basic documents, including grants, cooperative
agreements, loan authorizations, contracts, and other relevant
documents.
    (b) An indictment, conviction, civil judgment, or other official
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of
suspension actions.
    (c) In deciding whether immediate action is needed to protect the
public interest, the suspending official has wide discretion. For
example, the suspending official may infer the necessity for immediate
action to protect the public interest either from the nature of the
circumstances giving rise to a cause for suspension or from potential
business relationships or involvement with a program of the Federal
Government.



Sec. 1508.710  When does a suspension take effect?

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



Sec. 1508.715  What notice does the suspending official give me if I am
suspended?

    After deciding to suspend you, the suspending official promptly
sends you a Notice of Suspension advising you--
    (a) That you have been suspended;
    (b) That your suspension is based on--
    (1) An indictment;
    (2) A conviction;
    (3) Other adequate evidence that you have committed irregularities
which seriously reflect on the propriety of further Federal Government
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on
notice without disclosing the Federal Government's evidence;
    (d) Of the cause(s) upon which we relied under Sec. 1508.700 for
imposing suspension;
    (e) That your suspension is for a temporary period pending the
completion of an investigation or resulting legal or debarment
proceedings;
    (f) Of the applicable provisions of this subpart, Subpart F of this
part, and any other ADF procedures governing suspension decision making;
and
    (g) Of the governmentwide effect of your suspension from procurement
and nonprocurement programs and activities.



Sec. 1508.720  How may I contest a suspension?

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



Sec. 1508.725  How much time do I have to contest a suspension?

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

[[Page 472]]

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



Sec. 1508.730  What information must I provide to the suspending
official if I contest a suspension?

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



Sec. 1508.735  Under what conditions do I get an additional
opportunity to challenge the facts on which the suspension is based?

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



Sec. 1508.740  Are suspension proceedings formal?

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



Sec. 1508.745  How is fact-finding conducted?

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

[[Page 473]]

of the transcribed record, you may purchase it.



Sec. 1508.750  What does the suspending official consider in deciding
whether to continue or terminate my suspension?

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



Sec. 1508.755  When will I know whether the suspension is continued or
terminated?

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



Sec. 1508.760  How long may my suspension last?

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



                           Subpart H_Debarment



Sec. 1508.800  What are the causes for debarment?

    We may debar a person for--
    (a) Conviction of or civil judgment for--
    (1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, tax
evasion, receiving stolen property, making false claims, or obstruction
of justice; or
    (4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects your
present responsibility;
    (b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of an agency program, such as--
    (1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction;
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before
October 1, 1988, or a procurement debarment by any Federal agency taken
pursuant

[[Page 474]]

to 48 CFR part 9, subpart 9.4, before August 25, 1995;
    (2) Knowingly doing business with an ineligible person, except as
permitted under Sec. 1508.120;
    (3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion
agreement entered into under Sec. 1508.640 or of any settlement of a
debarment or suspension action; or
    (5) Violation of the provisions of the Drug-Free Workplace Act of
1988 (41 U.S.C. 701); or
    (d) Any other cause of so serious or compelling a nature that it
affects your present responsibility.



Sec. 1508.805  What notice does the debarring official give me if I am
proposed for debarment?

    After consideration of the causes in Sec. 1508.800 of this subpart,
if the debarring official proposes to debar you, the official sends you
a Notice of Proposed Debarment, pursuant to Sec. 1508.615, advising
you--
    (a) That the debarring official is considering debarring you;
    (b) Of the reasons for proposing to debar you in terms sufficient to
put you on notice of the conduct or transactions upon which the proposed
debarment is based;
    (c) Of the cause(s) under Sec. 1508.800 upon which the debarring
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, Subpart F of this
part, and any other ADF procedures governing debarment; and
    (e) Of the governmentwide effect of a debarment from procurement and
nonprocurement programs and activities.



Sec. 1508.810  When does a debarment take effect?

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



Sec. 1508.815  How may I contest a proposed debarment?

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



Sec. 1508.820  How much time do I have to contest a proposed debarment?

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



Sec. 1508.825  What information must I provide to the debarring
official if I contest a proposed debarment?

    (a) In addition to any information and argument in opposition, as a
respondent your submission to the debarring official must identify--
    (1) Specific facts that contradict the statements contained in the
Notice of Proposed Debarment. Include any information about any of the
factors listed in Sec. 1508.860. A general denial is insufficient to
raise a genuine dispute over facts material to the debarment;
    (2) All existing, proposed, or prior exclusions under regulations
implementing E.O. 12549 and all similar actions taken by Federal, State,
or local

[[Page 475]]

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



Sec. 1508.830  Under what conditions do I get an additional opportunity
to challenge the facts on which a proposed debarment is based?

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



Sec. 1508.835  Are debarment proceedings formal?

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



Sec. 1508.840  How is fact-finding conducted?

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



Sec. 1508.845  What does the debarring official consider in deciding
whether to debar me?

    (a) The debarring official may debar you for any of the causes in
Sec. 1508.800. However, the official need not debar you even if a cause
for debarment exists. The official may consider the seriousness of your
acts or omissions and the mitigating or aggravating factors set forth at
Sec. 1508.860.
    (b) The debarring official bases the decision on all information
contained in the official record. The record includes--
    (1) All information in support of the debarring official's proposed
debarment;
    (2) Any further information and argument presented in support of, or
in opposition to, the proposed debarment; and
    (3) Any transcribed record of fact-finding proceedings.
    (c) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may reject
any resultant findings, in whole or in part, only after specifically
determining them to be arbitrary, capricious, or clearly erroneous.

[[Page 476]]



Sec. 1508.850  What is the standard of proof in a debarment action?

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



Sec. 1508.855  Who has the burden of proof in a debarment action?

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



Sec. 1508.860  What factors may influence the debarring official's
decision?

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

[[Page 477]]

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



Sec. 1508.865  How long may my debarment last?

    (a) If the debarring official decides to debar you, your period of
debarment will be based on the seriousness of the cause(s) upon which
your debarment is based. Generally, debarment should not exceed three
years. However, if circumstances warrant, the debarring official may
impose a longer period of debarment.
    (b) In determining the period of debarment, the debarring official
may consider the factors in Sec. 1508.860. If a suspension has preceded
your debarment, the debarring official must consider the time you were
suspended.
    (c) If the debarment is for a violation of the provisions of the
Drug-Free Workplace Act of 1988, your period of debarment may not exceed
five years.



Sec. 1508.870  When do I know if the debarring official debars me?

    (a) The debarring official must make a written decision whether to
debar within 45 days of closing the official record. The official record
closes upon the debarring official's receipt of final submissions,
information and findings of fact, if any. The debarring official may
extend that period for good cause.
    (b) The debarring official sends you written notice, pursuant to
Sec. 1508.615 that the official decided, either--
    (1) Not to debar you; or
    (2) To debar you. In this event, the notice:
    (i) Refers to the Notice of Proposed Debarment;
    (ii) Specifies the reasons for your debarment;
    (iii) States the period of your debarment, including the effective
dates; and
    (iv) Advises you that your debarment is effective for covered
transactions and contracts that are subject to the Federal Acquisition
Regulation (48 CFR chapter 1), throughout the executive branch of the
Federal Government unless an agency head or an authorized designee
grants an exception.



Sec. 1508.875  May I ask the debarring official to reconsider a
decision to debar me?

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



Sec. 1508.880  What factors may influence the debarring official
during reconsideration?

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



Sec. 1508.885  May the debarring official extend a debarment?

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

[[Page 478]]



                          Subpart I_Definitions



Sec. 1508.900  Adequate evidence.

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



Sec. 1508.905  Affiliate.

    Persons are affiliates of each other if, directly or indirectly,
either one controls or has the power to control the other or a third
person controls or has the power to control both. The ways we use to
determine control include, but are not limited to--
    (a) Interlocking management or ownership;
    (b) Identity of interests among family members;
    (c) Shared facilities and equipment;
    (d) Common use of employees; or
    (e) A business entity which has been organized following the
exclusion of a person which has the same or similar management,
ownership, or principal employees as the excluded person.



Sec. 1508.910  Agency.

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



Sec. 1508.915  Agent or representative.

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



Sec. 1508.920  Civil judgment.

    Civil judgment means the disposition of a civil action by any court
of competent jurisdiction, whether by verdict, decision, settlement,
stipulation, other disposition which creates a civil liability for the
complained of wrongful acts, or a final determination of liability under
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).



Sec. 1508.925  Conviction.

    Conviction means--
    (a) A judgment or any other determination of guilt of a criminal
offense by any court of competent jurisdiction, whether entered upon a
verdict or plea, including a plea of nolo contendere; or
    (b) Any other resolution that is the functional equivalent of a
judgment, including probation before judgment and deferred prosecution.
A disposition without the participation of the court is the functional
equivalent of a judgment only if it includes an admission of guilt.



Sec. 1508.930  Debarment.

    Debarment means an action taken by a debarring official under
subpart H of this part to exclude a person from participating in covered
transactions and transactions covered under the Federal Acquisition
Regulation (48 CFR chapter 1). A person so excluded is debarred.



Sec. 1508.935  Debarring official.

    (a) Debarring official means an agency official who is authorized to
impose debarment. A debarring official is either--
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 1508.940  Disqualified.

    Disqualified means that a person is prohibited from participating in
specified Federal procurement or nonprocurement transactions as required
under a statute, Executive order (other than Executive Orders 12549 and
12689) or other authority. Examples of disqualifications include persons
prohibited under--
    (a) The Davis-Bacon Act (40 U.S.C. 276(a));
    (b) The equal employment opportunity acts and Executive orders; or
    (c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C.
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).



Sec. 1508.945  Excluded or exclusion.

    Excluded or exclusion means--
    (a) That a person or commodity is prohibited from being a
participant in

[[Page 479]]

covered transactions, whether the person has been suspended; debarred;
proposed for debarment under 48 CFR part 9, subpart 9.4; voluntarily
excluded; or
    (b) The act of excluding a person.



Sec. 1508.950  Excluded Parties List System

    Excluded Parties List System (EPLS) means the list maintained and
disseminated by the General Services Administration (GSA) containing the
names and other information about persons who are ineligible. The EPLS
system includes the printed version entitled, ``List of Parties Excluded
or Disqualified from Federal Procurement and Nonprocurement Programs,''
so long as published.



Sec. 1508.955  Indictment.

    Indictment means an indictment for a criminal offense. A
presentment, information, or other filing by a competent authority
charging a criminal offense shall be given the same effect as an
indictment.



Sec. 1508.960  Ineligible or ineligibility.

    Ineligible or ineligibility means that a person or commodity is
prohibited from covered transactions because of an exclusion or
disqualification.



Sec. 1508.965  Legal proceedings.

    Legal proceedings means any criminal proceeding or any civil
judicial proceeding, including a proceeding under the Program Fraud
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal
Government or a State or local government or quasi-governmental
authority is a party. The term also includes appeals from those
proceedings.



Sec. 1508.970  Nonprocurement transaction.

    (a) Nonprocurement transaction means any transaction, regardless of
type (except procurement contracts), including, but not limited to the
following:
    (1) Grants.
    (2) Cooperative agreements.
    (3) Scholarships.
    (4) Fellowships.
    (5) Contracts of assistance.
    (6) Loans.
    (7) Loan guarantees.
    (8) Subsidies.
    (9) Insurances.
    (10) Payments for specified uses.
    (11) Donation agreements.
    (b) A nonprocurement transaction at any tier does not require the
transfer of Federal funds.



Sec. 1508.975  Notice.

    Notice means a written communication served in person, sent by
certified mail or its equivalent, or sent electronically by e-mail or
facsimile. (See Sec. 1508. 615.)



Sec. 1508.980  Participant.

    Participant means any person who submits a proposal for or who
enters into a covered transaction, including an agent or representative
of a participant.



Sec. 1508.985  Person.

    Person means any individual, corporation, partnership, association,
unit of government, or legal entity, however organized.



Sec. 1508.990  Preponderance of the evidence.

    Preponderance of the evidence means proof by information that,
compared with information opposing it, leads to the conclusion that the
fact at issue is more probably true than not.



Sec. 1508.995  Principal.

    Principal means--
    (a) An officer, director, owner, partner, principal investigator, or
other person within a participant with management or supervisory
responsibilities related to a covered transaction; or
    (b) A consultant or other person, whether or not employed by the
participant or paid with Federal funds, who--
    (1) Is in a position to handle Federal funds;
    (2) Is in a position to influence or control the use of those funds;
or,
    (3) Occupies a technical or professional position capable of
substantially influencing the development or outcome of an activity
required to perform the covered transaction.



Sec. 1508.1000  Respondent.

    Respondent means a person against whom an agency has initiated a
debarment or suspension action.

[[Page 480]]



Sec. 1508.1005  State.

    (a) State means--
    (1) Any of the states of the United States;
    (2) The District of Columbia;
    (3) The Commonwealth of Puerto Rico;
    (4) Any territory or possession of the United States; or
    (5) Any agency or instrumentality of a state.
    (b) For purposes of this part, State does not include institutions
of higher education, hospitals, or units of local government.



Sec. 1508.1010  Suspending official.

    (a) Suspending official means an agency official who is authorized
to impose suspension. The suspending official is either:
    (1) The agency head; or
    (2) An official designated by the agency head.
    (b) [Reserved]



Sec. 1508.1015  Suspension.

    Suspension is an action taken by a suspending official under subpart
G of this part that immediately prohibits a person from participating in
covered transactions and transactions covered under the Federal
Acquisition Regulation (48 CFR chapter 1) for a temporary period,
pending completion of an agency investigation and any judicial or
administrative proceedings that may ensue. A person so excluded is
suspended.



Sec. 1508.1020  Voluntary exclusion or voluntarily excluded.

    (a) Voluntary exclusion means a person's agreement to be excluded
under the terms of a settlement between the person and one or more
agencies. Voluntary exclusion must have governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has agreed
to a voluntary exclusion.

Subpart J [Reserved]

[[Page 481]]



            Sec. Appendix to Part 1508--Covered Transactions
[GRAPHIC] [TIFF OMITTED] TR26NO03.000



PART 1509_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
1509.100 What does this part do?
1509.105 Does this part apply to me?
1509.110 Are any of my Federal assistance awards exempt from this part?
1509.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

1509.200 What must I do to comply with this part?
1509.205 What must I include in my drug-free workplace statement?
1509.210 To whom must I distribute my drug-free workplace statement?
1509.215 What must I include in my drug-free awareness program?
1509.220 By when must I publish my drug-free workplace statement and
          establish my drug-free awareness program?
1509.225 What actions must I take concerning employees who are convicted
          of drug violations in the workplace?
1509.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

1509.300 What must I do to comply with this part if I am an individual
          recipient?
1509.301 [Reserved]

[[Page 482]]

          Subpart D_Responsibilities of ADF Awarding Officials

1509.400 What are my responsibilities as an ADF awarding official?

           Subpart E_Violations of This Part and Consequences

1509.500 How are violations of this part determined for recipients other
          than individuals?
1509.505 How are violations of this part determined for recipients who
          are individuals?
1509.510 What actions will the Federal Government take against a
          recipient determined to have violated this part?
1509.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

1509.605 Award.
1509.610 Controlled substance.
1509.615 Conviction.
1509.620 Cooperative agreement.
1509.625 Criminal drug statute.
1509.630 Debarment.
1509.635 Drug-free workplace.
1509.640 Employee.
1509.645 Federal agency or agency.
1509.650 Grant.
1509.655 Individual.
1509.660 Recipient.
1509.665 State.
1509.670 Suspension.

    Authority: 41 U.S.C. 701 et seq.

    Source: 68 FR 66592, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 1509.100  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. 1509.105  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 African Development
Foundation; or
    (2) A(n) ADF awarding official. (See definitions of award and
recipient in Sec. Sec. 1509.605 and 1509.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
            If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an            A, B and E.
 individual.
(2) A recipient who is an individual...  A, C and E.
(3) A(n) ADF awarding official.........  A, D and E.
------------------------------------------------------------------------



Sec. 1509.110  Are any of my Federal assistance awards exempt from this
part?

    This part does not apply to any award that the ADF President
determines that the application of this part would be inconsistent with
the international obligations of the United States or the laws or
regulations of a foreign government.



Sec. 1509.115  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. 1509. 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. 1509.200  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

[[Page 483]]

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. 1509.205
through 1509.220); and
    (2) Take actions concerning employees who are convicted of violating
drug statutes in the workplace (see Sec. 1509.225).
    (b) Second, you must identify all known workplaces under your
Federal awards (see Sec. 1509.230).



Sec. 1509.205  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. 1509.210  To whom must I distribute my drug-free workplace
statement?

    You must require that a copy of the statement described in Sec.
1509.205 be given to each employee who will be engaged in the
performance of any Federal award.



Sec. 1509.215  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. 1509.220  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. 1509.205 and an ongoing awareness
program as described in Sec. 1509.215, 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  must have the policy statement
 is less than 30 days.                    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  must have the policy statement
 is 30 days or more.                      and program in place within 30
                                          days after award.
(c) You believe there are extraordinary  may ask the ADF awarding
 circumstances that will require more     official to give you more time
 than 30 days for you to publish the      to do so. The amount of
 policy statement and establish the       additional time, if any, to be
 awareness program.                       given is at the discretion of
                                          the awarding official.
------------------------------------------------------------------------



Sec. 1509.225  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. 1509.205(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;

[[Page 484]]

    (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. 1509.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each ADF award. A
failure to do so is a violation of your drug-free workplace
requirements. You may identify the workplaces--
    (1) To the ADF 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 ADF 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 ADF 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 ADF awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 1509.300  What must I do to comply with this part if I am an
individual recipient?

    As a condition of receiving a(n) ADF 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 ADF awarding official or other designee for each award
that you currently have, unless Sec. 1509.301 or the award document
designates a central point for the receipt of the notices. When notice
is made to a central point, it must include the identification number(s)
of each affected award.



Sec. 1509.301  [Reserved]



          Subpart D_Responsibilities of ADF Awarding Officials



Sec. 1509.400  What are my responsibilities as a(n) ADF awarding
official?

    As a(n) ADF 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. 1509.500  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

[[Page 485]]

this part if the ADF President 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. 1509.505  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 ADF President 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. 1509.510  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. 1509.500 or Sec. 1509.505, the African Development
Foundation may take one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 22 CFR part 1508,
for a period not to exceed five years.



Sec. 1509.515  Are there any exceptions to those actions?

    The ADF President 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 ADF President 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. 1509.605  Award.

    Award means an award of financial assistance by the African
Development Foundation or other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or
not the grant is exempted from coverage under the Governmentwide rule
[Agency-specific CFR citation] 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).
    (c) Notwithstanding paragraph (a)(2) of this section, this paragraph
is not applicable for ADF.



Sec. 1509.610  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. 1509.615  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. 1509.620  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

[[Page 486]]

Sec. 1509.650), 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. 1509.625  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. 1509.630  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. 1509.635  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. 1509.640  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. 1509.645  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. 1509.650  Grant.

    Grant means an award of financial assistance that, consistent with
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value
to the recipient to carry out a public purpose of support or stimulation
authorized by a law of the United States, rather than to acquire
property or services for the Federal Government's direct benefit or use;
and
    (b) In which substantial involvement is not expected between the
Federal agency and the recipient when carrying out the activity
contemplated by the award.



Sec. 1509.655  Individual.

    Individual means a natural person.



Sec. 1509.660  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. 1509.665  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. 1509.670  Suspension.

    Suspension means an action taken by a Federal agency that
immediately

[[Page 487]]

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 1510_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE AFRICAN DEVELOPMENT

FOUNDATION--Table of Contents



Sec.
1510.101 Purpose.
1510.102 Application.
1510.103 Definitions.
1510.104-1510.109 [Reserved]
1510.110 Self-evaluation.
1510.111 Notice.
1510.112-1510.129 [Reserved]
1510.130 General prohibitions against discrimination.
1510.131-1510.139 [Reserved]
1510.140 Employment.
1510.141-1510.148 [Reserved]
1510.149 Program accessibility: Discrimination prohibited.
1510.150 Program accessibility: Existing facilities.
1510.151 Program accessibility: New construction and alterations.
1510.152-1510.159 [Reserved]
1510.160 Communications.
1510.161-1510.169 [Reserved]
1510.170 Compliance procedures.
1510.171-1510.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 53 FR 25883, 25885, July 8, 1988, unless otherwise noted.



Sec. 1510.101  Purpose.

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



Sec. 1510.102  Application.

    This regulation (Sec. Sec. 1510.101-1510.170) applies to all
programs or activities conducted by the agency, except for programs or
activities conducted outside the United States that do not involve
individuals with handicaps in the United States.



Sec. 1510.103  Definitions.

    For purposes of this regulation, the term--
    Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
    Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.

[[Page 488]]

    Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
    Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
    Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alcoholism.
    (2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive education services from the agency;
    (2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
    (3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
    (4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this regulation by Sec. 1510.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this regulation, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
    Substantial impairment means a significant loss of the integrity of
finished

[[Page 489]]

materials, design quality, or special character resulting from a
permanent alteration.



Sec. Sec. 1510.104-1510.109  [Reserved]



Sec. 1510.110  Self-evaluation.

    (a) The agency shall, by September 6, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this regulation and, to the extent modification
of any such policies and practices is required, the agency shall proceed
to make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following completion
of the self-evaluation, maintain on file and make available for public
inspection:
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 1510.111  Notice.

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



Sec. Sec. 1510.112-1510.129  [Reserved]



Sec. 1510.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
    (3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.

[[Page 490]]

    (4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
    (5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this regulation.
    (c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this regulation.
    (d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.



Sec. Sec. 1510.131-1510.139  [Reserved]



Sec. 1510.140  Employment.

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



Sec. Sec. 1510.141-1510.148  [Reserved]



Sec. 1510.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1510.150, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.



Sec. 1510.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
    (1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1510.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for

[[Page 491]]

reaching that conclusion. If an action would result in such an
alteration or such burdens, the agency shall take any other action that
would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with handicaps receive the benefits
and services of the program or activity.
    (b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with handicaps. The agency is
not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of
Sec. 1510.150(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to individuals
with handicaps. In cases where a physical alteration to an historic
property is not required because of Sec. 1510.150(a) (2) or (3),
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the
obligations established under this section by November 7, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by September 6, 1991, but in any event as expeditiously as
possible.
    (d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by March 6, 1989, a transition plan setting forth
the steps necessary to complete such changes. The agency shall provide
an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
    (2) Describe in detail the methods that will be used to make the
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the
plan.



Sec. 1510.151  Program accessibility: New construction and alterations.

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

[[Page 492]]

apply to buildings covered by this section.



Sec. Sec. 1510.152-1510.159  [Reserved]



Sec. 1510.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
    (2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
    (c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1510.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with handicaps receive the benefits and
services of the program or activity.



Sec. Sec. 1510.161-1510.169  [Reserved]



Sec. 1510.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
    (c) The Personnel Officer, Office of Administration and Finance,
shall be responsible for coordinating implementation of this section.
Complaints may be sent to Personnel Officer, Office of Administration
and Finance, African Development Foundation, 1625 Massachusetts Avenue,
NW., Suite 600, Washington, DC, 20036.
    (d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.

[[Page 493]]

    (e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
    (f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 1510.170(g). The agency may
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of
the agency.
    (j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.

[53 FR 25883, 25885, July 8, 1988, as amended at 53 FR 25883, July 8,
1988]



Sec. Sec. 1510.171-1510.999  [Reserved]

                       PARTS 1511	1599 [RESERVED]

[[Page 495]]



         CHAPTER XVI--JAPAN-UNITED STATES FRIENDSHIP COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
1600            Enforcement of nondiscrimination on the
                    basis of handicap in programs or
                    activities conducted by the Japan-United
                    States Friendship Commission............         497
1601-1699

[Reserved]

[[Page 497]]



PART 1600_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE JAPAN-UNITED STATES

FRIENDSHIP COMMISSION--Table of Contents



Sec.
1600.101 Purpose.
1600.102 Application.
1600.103 Definitions.
1600.104-1600.109 [Reserved]
1600.110 Self-evaluation.
1600.111 Notice.
1600.112-1600.129 [Reserved]
1600.130 General prohibitions against discrimination.
1600.131-1600.139 [Reserved]
1600.140 Employment.
1600.141-1600.148 [Reserved]
1600.149 Program accessibility: Discrimination prohibited.
1600.150 Program accessibility: Existing facilities.
1600.151 Program accessibility: New construction and alterations.
1600.152-1600.159 [Reserved]
1600.160 Communications.
1600.161-1600.169 [Reserved]
1600.170 Compliance procedures.
1600.171-1600.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22891, 22896, June 23, 1986, unless otherwise noted.



Sec. 1600.101  Purpose.

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



Sec. 1600.102  Application.

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



Sec. 1600.103  Definitions.

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

[[Page 498]]

to, such diseases and conditions as orthopedic, visual, speech, and
hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, and drug addiction and alocoholism.
    (2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
    Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education
services provided by the agency, a handicapped person who is a member of
a class of persons otherwise entitled by statute, regulation, or agency
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can acheive the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
    (4) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by Sec. 1600.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.



Sec. Sec. 1600.104-1600.109  [Reserved]



Sec. 1600.110  Self-evaluation.

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

[[Page 499]]

    (2) A description of any modifications made.



Sec. 1600.111  Notice.

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



Sec. Sec. 1600.112-1600.129  [Reserved]



Sec. 1600.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
    (3) The agency may not, directly or through contractual or other
arrangments, utilize criteria or methods of administration the purpose
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification
program in a manner that subjects qualified handicapped persons to
discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified handicapped persons to discrimination on
the basis of handicap. However, the programs or activities of entities
that are licensed or certified by the agency

[[Page 500]]

are not, themselves, covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive order to a different
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.



Sec. Sec. 1600.131-1600.139  [Reserved]



Sec. 1600.140  Employment.

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



Sec. Sec. 1600.141-1600.148  [Reserved]



Sec. 1600.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1600.150, no qualified
handicapped person shall, because the agency's facilities are
inaccessible to or unusable by handicapped persons, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.



Sec. 1600.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not--
    (1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1600.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
    (b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by handicapped persons. The agency is not
required to make structural changes in existing facilities where other
methods are effective in achieving compliance with this section. The
agency, in making alterations to existing buildings, shall meet
accessibility requirements

[[Page 501]]

to the extent compelled by the Architectural Barriers Act of 1968, as
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In
choosing among available methods for meeting the requirements of this
section, the agency shall give priority to those methods that offer
programs and activities to qualified handicapped persons in the most
integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of
Sec. 1600.150(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to handicapped
persons. In cases where a physical alteration to an historic property is
not required because of Sec. 1600.150(a)(2) or (a)(3), alternative
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
    (ii) Assigning persons to guide handicapped persons into or through
portions of historic properties that cannot otherwise be made
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the
obligations established under this section by October 21, 1986, except
that where structural changes in facilities are undertaken, such changes
shall be made by August 22, 1989, but in any event as expeditiously as
possible.
    (d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by February 23, 1987, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to handicapped
persons;
    (2) Describe in detail the methods that will be used to make the
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the
plan.



Sec. 1600.151  Program accessibility: New construction and alterations.

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



Sec. Sec. 1600.152-1600.159  [Reserved]



Sec. 1600.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
    (ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
    (2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf person (TDD's) or
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including
persons

[[Page 502]]

with impaired vision or hearing, can obtain information as to the
existence and location of accessible services, activities, and
facilities.
    (c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and adminstrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1600.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, handicapped persons receive the benefits and services
of the program or activity.



Sec. Sec. 1600.161-1600.169  [Reserved]



Sec. 1600.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
    (c) The Executive Director, Japan-U.S. Friendship Commission, shall
be responsible for coordinating implementation of this section.
Complaints may be sent to Executive Director, Japan-U.S. Friendship
Commission, 1200 Pennsylvania Avenue, NW., Washington, DC 20004.
    (d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
    (f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 1600.170(g). The agency may
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of
the agency.
    (j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt

[[Page 503]]

of the request. If the head of the agency determines that additional
information is needed from the complainant, he or she shall have 60 days
from the date of receipt of the additional information to make his or
her determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.

[51 FR 22891, 22896, June 23, 1986, as amended at 51 FR 22891, June 23,
1986]



Sec. Sec. 1600.171-1600.999  [Reserved]

                       PARTS 1601	1699 [RESERVED]

[[Page 505]]



             CHAPTER XVII--UNITED STATES INSTITUTE OF PEACE




  --------------------------------------------------------------------
Part                                                                Page
1700

[Reserved]

1701            Enforcement of nondiscrimination on the
                    basis of handicap in programs or
                    activities conducted by the United
                    States Institute of Peace...............         507
1702-1799

[Reserved]

[[Page 507]]

                          PART 1700 [RESERVED]



PART 1701_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE UNITED STATES INSTITUTE

OF PEACE--Table of Contents



Sec.
1701.101 Purpose.
1701.102 Application.
1701.103 Definitions.
1701.104-1701.109 [Reserved]
1701.110 Self-evaluation.
1701.111 Notice.
1701.112-1701.129 [Reserved]
1701.130 General prohibitions against discrimination.
1701.131-1701.139 [Reserved]
1701.140 Employment.
1701.141-1701.148 [Reserved]
1701.149 Program accessibility: Discrimination prohibited.
1701.150 Program accessibility: Existing facilities.
1701.151 Program accessibility: New construction and alterations.
1701.152-1701.159 [Reserved]
1701.160 Communications.
1701.161-1702.169 [Reserved]
1701.170 Compliance procedures.
1701.171-1701.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 58 FR 57697, 57699, Oct. 26, 1993, unless otherwise noted.



Sec. 1701.101  Purpose.

    The purpose of this part is to implement the spirit of 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 various Executive
agencies. Although the USIP does not believe that Congress contemplated
coverage of independent Federal institutions, such as the USIP, it has
chosen to promulgate this part.

[58 FR 57697, Oct. 26, 1993]



Sec. 1701.102  Application.

    This part (Sec. Sec. 1701.101-1701.170) applies to all programs or
activities conducted by the agency, except for programs or activities
conducted outside the United States that do not involve individuals with
handicaps in the United States.



Sec. 1701.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, 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 (TTD's), interpreters, notetakers, written
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
    Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
    Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
    Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a

[[Page 508]]

record of such an impairment, or is regarded as having such an
impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ``physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
HIV disease (whether symptomatic or asymptomatic), and drug addiction
and alcoholism.
    (2) Major life activities include functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive education services from the agency;
    (2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
    (3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
    (4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1614.203(a)(6), which is made
applicable to this part by Sec. 1701.140.
    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. As used in
this part, section 504 applies only to programs or activities conducted
by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.



Sec. Sec. 1701.104-1701.109  [Reserved]



Sec. 1701.110  Self-evaluation.

    (a) The agency shall, by November 28, 1994, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part and, to the extent modification of
any such policies and practices is required, the agency shall proceed to
make the necessary modifications.

[[Page 509]]

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



Sec. 1701.111  Notice.

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



Sec. Sec. 1701.112-1701.129  [Reserved]



Sec. 1701.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in according equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are no
separate or different, despite the existence of permissibly separate or
different programs or activities.
    (3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
    (5) The agency, in the selection of procurement contractors, may not
use

[[Page 510]]

criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this part.
    (d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.



Sec. Sec. 1701.131-1701.139  [Reserved]



Sec. 1701.140  Employment.

    No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1614, shall apply to employment in federally conducted
programs or activities.



Sec. Sec. 1701.141-1701.148  [Reserved]



Sec. 1701.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1701.150, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.



Sec. 1701.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
    (1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1701.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that result in such an
alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
    (b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing

[[Page 511]]

facilities and construction of new facilities, use of accessible rolling
stock, or any other methods that result in making its programs or
activities readily accessible to and usable by individuals with
handicaps. The agency is not required to make structural changes in
existing facilities where other methods are effective in achieving
compliance with this section. The agency, in making alterations to
existing buildings, shall meet accessibility requirements to the extent
compelled by the Architectural Barriers Act of 1968, as amended (42
U.S.C. 4151-4157), and any regulations implementing it. In choosing
among available methods for meeting the requirements of this section,
the agency shall give priority to those methods that offer programs and
activities to qualified individuals with handicaps in the most
integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of
Sec. 1701.150(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to individuals
with handicaps. In cases where a physical alteration to an historic
property is not required because of Sec. 1701.150(a)(2) or (a)(3),
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the
obligations established under this section by January 24, 1994, except
that where structural changes in facilities are undertaken, such changes
shall be made by November 26, 1996, but in any event as expeditiously as
possible.
    (d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by May 26, 1994, a transition plan setting forth
the steps necessary to complete such changes. The agency shall provide
an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
    (2) Describe in detail the methods that will be used to make the
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the
plan.



Sec. 1701.151  Program accessibility: New construction and alterations.

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



Sec. Sec. 1701.152-1701.159  [Reserved]



Sec. 1701.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the
agency shall

[[Page 512]]

give primary consideration to the requests of the individual with
handicaps.
    (ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
    (2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
    (c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1701.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with handicaps receive the benefits and
services of the program or activity.



Sec. Sec. 1701.161-1701.169  [Reserved]



Sec. 1701.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
    (c) The Director for Administration, United States Institute of
Peace, shall be responsible for coordinating implementation of this
section. Complaints may be sent to Director of Administration at the
following address: 1550 M Street, NW., suite 700, Washington, DC 20005.
    (d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
    (f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.

[[Page 513]]

    (h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 1701.170(g). The agency may
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of
the agency.
    (j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.

[58 FR 57697, 57699, Oct. 26, 1993, as amended at 58 FR 57697, Oct. 26,
1993]



Sec. Sec. 1701.171-1701.999  [Reserved]

                       PARTS 1702	1799 [RESERVED]

[[Page 515]]



                              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 517]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2014)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        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 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      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 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      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)

[[Page 518]]

       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)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

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

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)
        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)

[[Page 519]]

    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         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)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      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)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)

[[Page 520]]

    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
     XCVII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        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)

[[Page 521]]

      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)
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)

[[Page 522]]

        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 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--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)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      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)

[[Page 523]]

               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--1199)
         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)

[[Page 524]]

                    Title 16--Commercial Practices

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

             Title 17--Commodity and Securities Exchanges

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

          Title 18--Conservation of Power and Water Resources

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

                       Title 19--Customs Duties

         I  U.S. 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  U.S. 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  Office of Workers' Compensation Programs, 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)

[[Page 525]]

                       Title 21--Food and Drugs

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

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium 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)

[[Page 526]]

        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       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)

[[Page 527]]

        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--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        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)

[[Page 528]]

      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 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)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)

[[Page 529]]

         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        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 Improvement, 
                Department of Education (Parts 700--799)[Reserved]
            Subtitle C--Regulations Relating to Education
        XI  National Institute for Literacy (Parts 1100--1199)
       XII  National Council on Disability (Parts 1200--1299)

[[Page 530]]

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       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)

[[Page 531]]

       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 A--Federal Procurement Regulations System 
                [Note]
            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)
   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)
  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)
  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--599)

[[Page 532]]

         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 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       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)

[[Page 533]]

       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        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  Health and Human Services (Parts 300--399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)

[[Page 534]]

        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)

[[Page 535]]

         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 (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 537]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2014)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     22, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  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
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, 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
  National Institute of Food and Agriculture      7, XXXIV
  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

[[Page 538]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
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
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
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
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  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
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       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 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 Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, 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    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I

[[Page 539]]

Defense Contract Audit Agency                     32, I
Defense Department                                2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  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
  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          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 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                    2, LVIII; 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                             2, IX; 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                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99

[[Page 540]]

  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                       5, XXXVII; 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                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
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
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
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

[[Page 541]]

Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  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; 8, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  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 Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V

[[Page 542]]

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, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department                               2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Bureau of Ocean Energy Management, Regulation,  30, II
       and Enforcement
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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 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, XXVIII; 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
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI

[[Page 543]]

  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
  Office of Workers' Compensation Programs        20, VII
  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 Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
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   2, XXII; 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              5, LXXXVI; 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; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture        7, XXXIV
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
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 544]]

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, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
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                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
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                                       2, XXXVII; 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, 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
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
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

[[Page 545]]

Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 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 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
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; 47, IV; 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                   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
  Financial Crimes Enforcement Network            31, X
  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
U.S. Copyright Office                             37, II

[[Page 546]]

Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 547]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2009 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, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.fdsys.gov. For changes to this volume of the CFR 
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The 
``List of CFR Sections Affected 1986-2000'' is available at 
www.fdsys.gov.

                                  2009

22 CFR
                                                                   74 FR
                                                                    Page
Chapter V
510.1 (c) revised...................................................7562

                                2010	2012

                       (No regulations published)

                                  2013

22 CFR
                                                                   78 FR
                                                                    Page
Chapter V
502 Added; interim.................................................39585
502.3 (b) introductory text amended................................67026
502.4 Revised......................................................67026
502.5 Revised......................................................67026
502.6 (b)(2) amended...............................................67026

                                  2014

   (Regulations published from January 1, 2014 through April 1, 2014)

22 CFR
                                                                   79 FR
                                                                    Page
Chapter VII
706 Revised.........................................................8608
707 Revised.........................................................8614
713.2 Revised.......................................................8619
713.3 Revised.......................................................8619
713.5 Revised.......................................................8619
713.10 Heading revised..............................................8619


                                  [all]