[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2018 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          
          
          Title 29

Labor


________________________

Parts 0 to 99

                         Revised as of July 1, 2018

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2018
                    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.................................................       v

  Title 29:
          SUBTITLE A--Office of the Secretary of Labor               3
  Finding Aids:
      Table of CFR Titles and Chapters........................     773
      Alphabetical List of Agencies Appearing in the CFR......     793
      List of CFR Sections Affected...........................     803

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 29 CFR 0.735-1 
                       refers to title 29, part 
                       0, section 735-1.

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2018), 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 
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instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

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

[[Page vi]]

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

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 
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to materials already published elsewhere. For an incorporation to be 
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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 
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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 vii]]

    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 
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the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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    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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register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
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of the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register
    July 1, 2018.







[[Page ix]]



                               THIS TITLE

    Title 29--Labor is composed of nine volumes. The parts in these 
volumes are arranged in the following order: Parts 0-99, parts 100-499, 
parts 500-899, parts 900-1899, part 1900-Sec.  1910.999, part 1910.1000-
end of part 1910, parts 1911-1925, part 1926, and part 1927 to end. The 
contents of these volumes represent all current regulations codified 
under this title as of July 1, 2018.

    The OMB control numbers for title 29 CFR part 1910 appear in Sec.  
1910.8. For the convenience of the user, Sec.  1910.8 appears in the 
Finding Aids section of the volume containing Sec.  1910.1000 to the 
end.

    For this volume, Susannah C. Hurley was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                             TITLE 29--LABOR




                   (This book contains parts 0 to 99)

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

SUBTITLE A--Office of the Secretary of Labor................           0

[[Page 3]]

              Subtitle A--Office of the Secretary of Labor

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

Part                                                                Page
0               Ethics and conduct of Department of Labor 
                    employees...............................           7
1               Procedures for predetermination of wage 
                    rates...................................           9
2               General regulations.........................          17
3               Contractors and subcontractors on public 
                    building or public work financed in 
                    whole or in part by loans or grants from 
                    the United States.......................          29
4               Labor standards for Federal service 
                    contracts...............................          33
5               Labor standards provisions applicable to 
                    contracts covering federally financed 
                    and assisted construction (also labor 
                    standards provisions applicable to 
                    nonconstruction contracts subject to the 
                    Contract Work Hours and Safety Standards 
                    Act)....................................         113
6               Rules of practice for administrative 
                    proceedings enforcing labor standards in 
                    Federal and federally assisted 
                    construction contracts and Federal 
                    service contracts.......................         140
7               Practice before the Administrative Review 
                    Board with regard to Federal and 
                    federally assisted construction 
                    contracts...............................         151
8               Practice before the Administrative Review 
                    Board with regard to Federal service 
                    contracts...............................         155
9               Nondisplacement of qualified workers under 
                    service contracts.......................         159
10              Establishing a minimum wage for contractors.         177
11              Department of Labor National Environmental 
                    Policy Act (NEPA) compliance procedures.         196
12              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         203
13              Establishing paid sick leave for Federal 
                    contractors.............................         203

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14              Security regulations........................         230
15              Administrative claims under the Federal Tort 
                    Claims Act and related statutes.........         234
16              Equal Access to Justice Act.................         247
17              Intergovernmental review of Department of 
                    Labor programs and activities...........         253
18              Rules of practice and procedure for 
                    administrative hearings before the 
                    Office of Administrative Law Judges.....         257
19              Right to Financial Privacy Act..............         314
20              Federal claims collection...................         316
21              Protection of human subjects (Eff. 7-
                    19[dash]18).............................         344
22              Program Fraud Civil Remedies Act of 1986....         362
24              Procedures for the handling of retaliation 
                    complaints under the employee protection 
                    provisions of six environmental statutes 
                    and section 211 of the Energy 
                    Reorganization Act Of 1974, as amended..         378
25              Rules for the nomination of arbitrators 
                    under section 11 of Executive Order 
                    10988...................................         389
29              Labor standards for the registration of 
                    apprenticeship programs.................         392
30              Equal employment opportunity in 
                    apprenticeship..........................         408
31              Nondiscrimination in federally assisted 
                    programs of the Department of Labor--
                    effectuation of Title VI of the Civil 
                    Rights Act of 1964......................         427
32              Nondiscrimination on the basis of handicap 
                    in programs or activities receiving 
                    Federal financial assistance............         437
33              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Labor................................         454
34              Implementation of the nondiscrimination and 
                    equal opportunity requirements of the 
                    Job Training Partnership Act of 1982, as 
                    amended (JTPA)..........................         461
35              Nondiscrimination on the basis of age in 
                    programs or activities receiving Federal 
                    financial assistance from the Department 
                    of Labor................................         487
36              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         502
37              Implementation of the nondiscrimination and 
                    equal opportunity provisions of the 
                    Workforce Investment Act of 1998 (WIA)..         519

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38              Implementation of the Nondiscrimination and 
                    Equal Opportunity Provisions of the 
                    Workforce Innovation and Opportunity Act         559
42              Coordinated enforcement.....................         616
44              Process for electing State agency employment 
                    statistics representatives for 
                    consultations with Department of Labor..         622
70              Production or disclosure of information or 
                    materials...............................         623
71              Protection of individual privacy and access 
                    to records under the Privacy Act of 1974         640
75              Department of Labor review and certification 
                    procedures for rural industrialization 
                    loan and grant programs under the 
                    Consolidated Farm and Rural Development 
                    Act of 1972.............................         661
90              Certification of eligibility to apply for 
                    worker adjustment assistance............         664
93              New restrictions on lobbying................         673
94              Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         685
95              Grants and agreements with institutions of 
                    higher education, hospitals, and other 
                    non-profit organizations, and with 
                    commercial organizations, foreign 
                    governments, organizations under the 
                    jurisdiction of foreign governments, and 
                    international organizations.............         690
96              Audit requirements for grants, contracts and 
                    other agreements........................         716
97              Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............         721
99              Audits of States, local governments, and 
                    nonprofit organizations.................         748

[[Page 7]]



PART 0_ETHICS AND CONDUCT OF DEPARTMENT OF LABOR EMPLOYEES--Table of Contents



Subpart A_Standards of Conduct for Current Department of Labor Employees

Sec.
0.735-1 Cross-references to employee ethical conduct standards, 
          financial disclosure regulations and other ethics regulations.

             Subpart B_Post Employment Conflict of Interest

0.737-1 Applicability.
0.737-2 Appointment of alternate officials.
0.737-3 Initiation of administrative disciplinary hearing.
0.737-4 Request for a hearing.
0.737-5 Appointment of Examiner.
0.737-6 Time, date and place of hearing.
0.737-7 Hearing rights.
0.737-8 Hearing decision and exceptions.
0.737-9 Decision on exceptions.
0.737-10 Administrative sanctions.
0.737-11 Judicial review.

    Authority: 5 U.S.C. 301; 18 U.S.C. 207 (1988); E.O. 12674, 54 FR 
15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 
42547, 3 CFR, 1990 Comp., p. 306; 5 CFR part 2634, part 2635, part 2640.

    Source: 33 FR 10432, July 20, 1968, unless otherwise noted.



Subpart A_Standards of Conduct for Current Department of Labor Employees



Sec.  0.735-1  Cross-references to employee ethical conduct standards, 
financial disclosure regulations and other ethics regulations.

    Employees of the Department of Labor (Department) are subject to the 
executive branch-wide standards of ethical conduct at 5 CFR part 2635, 
the Department's regulations at 5 CFR part 5201 which supplement the 
executive branch-wide standards, the executive branch financial 
disclosure regulations at 5 CFR part 2634, the conflicts of interest 
regulations at 5 CFR part 2640, and the post employment regulations at 5 
CFR part 2641.

[64 FR 73853, Dec. 30, 1999]



             Subpart B_Post Employment Conflict of Interest

    Source: 48 FR 11944, Mar. 22, 1983, unless otherwise noted. 
Redesignated at 61 FR 57287, Nov. 6, 1996.



Sec.  0.737-1  Applicability.

    This subpart is applicable to any former employee of the Department 
of Labor leaving Government service on or after July 1, 1979 and prior 
to January 1, 1991.

[64 FR 73853, Dec. 30, 1999]



Sec.  0.737-2  Appointment of alternate officials.

    Notwithstanding any other provision of this subpart, the Secretary 
of Labor is authorized to perform any of the functions otherwise 
assigned in this subpart to the Under Secretary in any proceeding. The 
Secretary is also authorized to appoint as an alternate official any 
other officer or employee of the Department of Labor to perform 
functions otherwise assigned in this subpart to the Under Secretary or 
the Solicitor of Labor in any proceeding; except that:
    (a) The functions otherwise assigned in this subpart to the Under 
Secretary and the Solicitor shall not both be performed by the same 
alternate official in the same proceeding, and
    (b) The same individual shall not be appointed as both an Examiner 
under Sec.  0.737-5 and an alternate official under this section in the 
same proceeding.



Sec.  0.737-3  Initiation of administrative disciplinary hearing.

    (a) Any person may, in writing, report an apparent violation of 18 
U.S.C. 207(a), (b) or (c) or the regulations of the Office of Personnel 
Management at 5 CFR part 737 by a former employee described in Sec.  
0.737-1 to the Solicitor of Labor.
    (b) On receipt of information regarding a possible violation of 18 
U.S.C. 207, and after determining that such information appears to be 
substantiated, the Solicitor shall expeditiously provide such 
information, along with any comments or agency regulations, to the 
Office of the Inspector General, the Director of the Office of 
Government

[[Page 8]]

Ethics and to the Criminal Division, Department of Justice.
    (c) Whenever the Solicitor has determined after appropriate review 
that there is reasonable cause to believe that a former employee 
described in Sec.  0.737-1 has violated 18 U.S.C. 207(a), (b) or (c) or 
the regulations of the Office of Personnel Management at 5 CFR part 737, 
the Solicitor may initiate an administrative disciplinary proceeding by 
providing the former employee with a notice of alleged violation.
    (d) The notice of alleged violation shall include:
    (1) A statement of allegations (and the basis thereof) sufficiently 
detailed to enable the former employee to prepare an adequate defense;
    (2) Notification of the right to a hearing; and
    (3) An explanation of the method by which a hearing may be 
requested.



Sec.  0.737-4  Request for a hearing.

    (a) Any former employee who is the subject of a notice of alleged 
violation issued by the Solicitor under Sec.  0.737-3 may within 15 days 
from the date of such notice request a hearing by writing to: The Office 
of the Under Secretary, U.S. Department of Labor, 200 Constitution 
Avenue, Washington, DC 20210.
    (b) If the former employee fails to request a hearing in accordance 
with paragraph (a), the Under Secretary may then render a final 
administrative decision in the matter and, if appropriate, impose the 
sanctions specified in Sec.  0.737-10.



Sec.  0.737-5  Appointment of Examiner.

    Whenever a notice of alleged violation has been issued and a hearing 
requested, the Under Secretary shall provide for the selection of a 
Department of Labor Administrative Law Judge, appointed in accordance 
with 5 U.S.C. 3105, to act as the Examiner with respect to the matter.



Sec.  0.737-6  Time, date and place of hearing.

    (a) Any hearing shall be conducted at a reasonable time, date and 
place as determined by the Examiner.
    (b) In setting a hearing date the Examiner shall give due regard to 
the former employee's need for:
    (1) Adequate time to prepare a defense properly, and
    (2) An expeditious resolution of allegations that may be damaging to 
his or her reputation.



Sec.  0.737-7  Hearing rights.

    (a) The following rights shall be afforded at a hearing conducted 
before the Examiner:
    (1) To represent oneself or to be represented by counsel,
    (2) To introduce and examine witnesses and to submit physical 
evidence,
    (3) To confront and cross-examine adverse witnesses,
    (4) To present oral argument; and
    (5) To obtain a transcript or recording of proceedings, on request.
    (b) In a hearing under this subpart, the Federal Rules of Civil 
Procedure and Evidence do not apply. However, the Examiner may make 
orders and determinations regarding discovery, admissability of 
evidence, conduct of examination and cross-examination, and similar 
matters as the Examiner deems necessary or appropriate to ensure 
orderliness of the proceedings and fundamental fairness to the parties.
    (c) In any proceeding under this subpart, the Department must 
establish any violation by a preponderance of the evidence.



Sec.  0.737-8  Hearing decision and exceptions.

    The Examiner shall make a determination exclusively on matters of 
record in the proceeding, and shall set forth in the hearing decision 
all findings of fact and conclusions of law relevant to the matters at 
issue. The hearing decision of the Examiner shall be considered final 
agency administrative action unless either party files exceptions in 
writing to the Under Secretary, U.S. Department of Labor, 200 
Constitution Avenue, Washington, DC 20210 within 30 days from the date 
of such hearing decision.



Sec.  0.737-9  Decision on exceptions.

    (a) Upon receipt of exceptions, the Under Secretary may afford both 
parties an opportunity to submit briefs or

[[Page 9]]

other appropriate statements in support of their respective positions.
    (b) The Under Secretary shall issue a decision based solely on the 
record of the proceedings or those portions thereof cited by the parties 
to limit the issues.
    (c) If the Under Secretary modifies or reverses the initial hearing 
decision of the Examiner, he or she shall specify such findings of fact 
and conclusions of law as are different from those of the Examiner.



Sec.  0.737-10  Administrative sanctions.

    The Examiner (or the Under Secretary in any matter in which 
exceptions are filed or which is decided in accordance with Sec.  0.737-
4(b)) may take appropriate action in the case of any individual found in 
violation of 18 U.S.C. 207(a), (b) or (c) or of the regulations at 5 CFR 
part 737 upon final administrative decisions by:
    (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 the Department of Labor on any matter of business for a 
period not to exceed five years, which may be accomplished by directing 
agency employees to refuse to participate in any such appearance or to 
accept any such communications; or
    (b) Taking other appropriate disciplinary action.



Sec.  0.737-11  Judicial review.

    Any person found to have participated in a violation of 18 U.S.C. 
207(a), (b), or (c) or the regulations at 5 CFR part 737 may seek 
judicial review of the administrative determination in an appropriate 
United States district court.



PART 1_PROCEDURES FOR PREDETERMINATION OF WAGE RATES--Table of Contents



Sec.
1.1 Purpose and scope.
1.2 Definitions.
1.3 Obtaining and compiling wage rate information.
1.4 Outline of agency construction programs.
1.5 Procedure for requesting wage determinations.
1.6 Use and effectiveness of wage determinations.
1.7 Scope of consideration.
1.8 Reconsideration by the Administrator.
1.9 Review by Administrative Review Board.

Appendix A to Part 1
Appendix B to Part 1

    Authority: 5 U.S.C. 301; R.S. 161, 64 Stat. 1267; Reorganization 
Plan No. 14 of 1950, 5 U.S.C. appendix; 40 U.S.C. 3141 et seq.; 40 
U.S.C. 3145; 40 U.S.C. 3148; and the laws listed in appendix A of this 
part.

    Source: 48 FR 19533, Apr. 29, 1983, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 1 appear at 61 FR 
19984, May 3, 1996.



Sec.  1.1  Purpose and scope.

    (a) The procedural rules in this part apply under the Davis-Bacon 
Act (946 Stat. 1494, as amended; 40 U.S.C. 276a--276a-7) and other 
statutes listed in appendix A to this part which provide for the payment 
of minimum wages, including fringe benefits, to laborers and mechanics 
engaged in construction activity under contracts entered into or 
financed by or with the assistance of agencies of the United States or 
the District of Columbia, based on determinations by the Secretary of 
Labor of the wage rates and fringe benefits prevailing for the 
corresponding classes of laborers and mechanics employed on projects 
similar to the contract work in the local areas where such work is to be 
performed. Functions of the Secretary of Labor under these statutes and 
under Reorganization Plan No. 14 of 1950 (64 Stat. 1267, 5 U.S.C. 
appendix), except those assigned to the Administrative Review Board (see 
29 CFR part 7), have been delegated to the Deputy Under Secretary of 
Labor for Employment Standards who in turn has delegated the functions 
to the Administrator of the Wage and Hour Division, and authorized 
representatives.
    (b) The regulations in this part set forth the procedures for making 
and applying such determinations of prevailing wage rates and fringe 
benefits pursuant to the Davis-Bacon Act, each of the other statutes 
listed in appendix A, and any other Federal statute providing for 
determinations of such

[[Page 10]]

wages by the Secretary of Labor in accordance with the provisions of the 
Davis-Bacon Act.
    (c) Procedures set forth in this part are applicable, unless 
otherwise indicated, both to general wage determinations for contracts 
in specified localities, and to project wage determinations for use on 
contract work to be performed on a specific project.

[48 FR 19533, Apr. 29, 1983, as amended at 50 FR 49823, Dec. 4, 1985]



Sec.  1.2  Definitions. \1\
---------------------------------------------------------------------------

    \1\ These definitions are not intended to restrict the meaning of 
the terms as used in the applicable statutes.
---------------------------------------------------------------------------

    (a)(1) The prevailing wage shall be the wage paid to the majority 
(more than 50 percent) of the laborers or mechanics in the 
classification on similar projects in the area during the period in 
question. If the same wage is not paid to a majority of those employed 
in the classification, the prevailing wage shall be the average of the 
wages paid, weighted by the total employed in the classification.
    (2) In determining the prevailing wages at the time of issuance of a 
wage determination, the Administrator will be guided by paragraph (a)(1) 
of this section and will consider the types of information listed in 
Sec.  1.3 of this part.
    (b) The term area in determining wage rates under the Davis-Bacon 
Act and the prevailing wage provisions of the other statutes listed in 
appendix A shall mean the city, town, village, county or other civil 
subdivision of the State in which the work is to be performed.
    (c) The term Administrator shall mean the Administrator of the Wage 
and Hour Division, U.S. Department of Labor, or authorized 
representative.
    (d) The term agency shall mean the Federal agency, State highway 
department under 23 U.S.C. 113, or recipient State or local government 
under title 1 of the State and Local Fiscal Assistance Act of 1972.
    (e) The term Wage Determinations OnLine (WDOL) shall mean the 
Government Internet Web site for both Davis-Bacon Act and Service 
Contract Act wage determinations available at http://www.wdol.gov. In 
addition, WDOL provides compliance assistance information. The term will 
also apply to any other Internet Web site or electronic means that the 
Department of Labor may approve for these purposes.

[48 FR 19533, Apr. 29, 1983, as amended at 48 FR 50313, Nov. 1, 1983; 70 
FR 50894, Aug. 26, 2005; 82 FR 2223, Jan. 9, 2017]



Sec.  1.3  Obtaining and compiling wage rate information.

    For the purpose of making wage determinations, the Administrator 
will conduct a continuing program for the obtaining and compiling of 
wage rate information.
    (a) The Administrator will encourage the voluntary submission of 
wage rate data by contractors, contractors' associations, labor 
organizations, public officials and other interested parties, reflecting 
wage rates paid to laborers and mechanics on various types of 
construction in the area. The Administrator may also obtain data from 
agencies on wage rates paid on construction projects under their 
jurisdiction. The information submitted should reflect not only the wage 
rates paid a particular classification in an area, but also the type or 
types of construction on which such rate or rates are paid, and whether 
or not such rates were paid on Federal or federally assisted projects 
subject to Davis-Bacon prevailing wage requirements.
    (b) The following types of information may be considered in making 
wage rate determinations:
    (1) Statements showing wage rates paid on projects. Such statements 
should include the names and addresses of contractors, including 
subcontractors, the locations, approximate costs, dates of construction 
and types of projects, whether or not the projects are Federal or 
federally assisted projects subject to Davis-Bacon prevailing wage 
requirements, the number of workers employed in each classification on 
each project, and the respective wage rates paid such workers.
    (2) Signed collective bargaining agreements. The Administrator may 
request the parties to an agreement to submit statements certifying to 
its scope and application.

[[Page 11]]

    (3) Wage rates determined for public construction by State and local 
officials pursuant to State and local prevailing wage legislation.
    (4) In making wage rate determinations pursuant to 23 U.S.C. 113, 
the highway department of the State in which a project in the Federal-
Aid highway system is to be performed shall be consulted. Before making 
a determination of wage rates for such a project the Administrator shall 
give due regard to the information thus obtained.
    (5) Wage rate data submitted to the Department of Labor by 
contracting agencies pursuant to 29 CFR 5.5(a)(1)(ii).
    (6) Any other information pertinent to the determination of 
prevailing wage rates.
    (c) The Administrator may initially obtain or supplement such 
information obtained on a voluntary basis by such means, including the 
holding of hearings, and from any sources determined to be necessary. 
All information of the types described in Sec.  1.3(b) of this part, 
pertinent to the determination of the wages prevailing at the time of 
issuance of the wage determination, will be evaluated in the light of 
Sec.  1.2(a) of this part.
    (d) In compiling wage rate data for building and residential wage 
determinations, the Administrator will not use data from Federal or 
federally assisted projects subject to Davis-Bacon prevailing wage 
requirements unless it is determined that there is insufficient wage 
data to determine the prevailing wages in the absence of such data. Data 
from Federal or federally assisted projects will be used in compiling 
wage rate data for heavy and highway wage determinations.

[48 FR 19533, Apr. 29, 1983, as amended at 50 FR 4506, Jan. 31, 1985]



Sec.  1.4  Outline of agency construction programs.

    To the extent practicable, at the beginning of each fiscal year each 
agency using wage determinations under any of the various statutes 
listed in appendix A will furnish the Administrator with a general 
outline of its proposed construction programs for the coming year 
indicating the estimated number of projects for which wage 
determinations will be required, the anticipated types of construction, 
and the locations of construction. During the fiscal year, each agency 
will notify the Administrator of any significant changes in its proposed 
construction programs, as outlined at the beginning of the fiscal year. 
This report has been cleared in accordance with FPMR 101-11.11 and 
assigned interagency report control number 1671-DOL-AN.



Sec.  1.5  Procedure for requesting wage determinations.

    (a) The Department of Labor publishes general wage determinations 
under the Davis-Bacon Act on the WDOL Internet Web site. If there is a 
general wage determination applicable to the project, the agency may use 
it without notifying the Department of Labor, Provided, That questions 
concerning its use shall be referred to the Department of Labor in 
accordance with Sec.  1.6(b).
    (b)(1) If a general wage determination is not available, the Federal 
agency shall request a wage determination under the Davis-Bacon Act or 
any of its related prevailing wage statutes by submitting Form SF-308 to 
the Department of Labor at this address: U.S. Department of Labor, Wage 
and Hour Division, Branch of Government Construction Contract Wage 
Determination, Washington, DC 20210. In preparing Form SF-308, the 
agency shall check only those classifications that will be needed in the 
performance of the work. Inserting a note such as ``entire schedule'' or 
``all applicable classifications'' is not sufficient. Additional 
classifications needed that are not on the form may be typed in the 
blank spaces or on a separate list and attached to the form.
    (2) In completing SF-308, the agency shall furnish:
    (i) A sufficiently detailed description of the work to indicate the 
type of construction involved. Additional description or separate 
attachment, if necessary for identification of type of project, shall be 
furnished.
    (ii) The county (or other civil subdivision) and State in which the 
proposed project is located.

[[Page 12]]

    (3) Such request for a wage determination shall be accompanied by 
any pertinent wage payment information that may be available. When the 
requesting agency is a State highway department under the Federal-Aid 
Highway Acts as codified in 23 U.S.C. 113, such agency shall also 
include its recommendations as to the wages which are prevailing for 
each classification of laborers and mechanics on similar construction in 
the area.
    (c) The time required for processing requests for wage 
determinations varies according to the facts and circumstances in each 
case. An agency should anticipate that such processing in the Department 
of Labor will take at least 30 days.

[48 FR 19533, Apr. 29, 1983, as amended at 48 FR 50313, Nov. 1, 1983; 50 
FR 49823, Dec. 4, 1985; 70 FR 50894, Aug. 26, 2005; 82 FR 2223, Jan. 9, 
2017]



Sec.  1.6  Use and effectiveness of wage determinations.

    (a)(1) Project wage determinations initially issued shall be 
effective for 180 calendar days from the date of such determinations. If 
such a wage determination is not used in the period of its effectiveness 
it is void. Accordingly, if it appears that a wage determination may 
expire between bid opening and contract award (or between initial 
endorsement under the National Housing Act or the execution of an 
agreement to enter into a housing assistance payments contract under 
section 8 of the U.S. Housing Act of 1937, and the start of 
construction) the agency shall request a new wage determination 
sufficiently in advance of the bid opening to assure receipt prior 
thereto. However, when due to unavoidable circumstances a determination 
expires before award but after bid opening (or before the start of 
construction, but after initial endorsement under the National Housing 
Act, or before the start of construction but after the execution of an 
agreement to enter into a housing assistance payments contract under 
section 8 of the U.S. Housing Act of 1937), the head of the agency or 
his or her designee may request the Administrator to extend the 
expiration date of the wage determination in the bid specifications 
instead of issuing a new wage determination. Such request shall be 
supported by a written finding, which shall include a brief statement of 
the factual support, that the extension of the expiration date of the 
determination is necessary and proper in the public interest to prevent 
injustice or undue hardship or to avoid serious impairment in the 
conduct of Government business. The Administrator will either grant or 
deny the request for an extension after consideration of all of the 
circumstances, including an examination to determine if the previously 
issued rates remain prevailing. If the request for extension is denied, 
the Administrator will proceed to issue a new wage determination for the 
project.
    (2) General wage determinations issued pursuant to Sec.  1.5(a), 
notice of which is published on WDOL, shall contain no expiration date.
    (b) Contracting agencies are responsible for insuring that only the 
appropriate wage determination(s) are incorporated in bid solicitations 
and contract specifications and for designating specifically the work to 
which such wage determinations will apply. Any question regarding 
application of wage rate schedules shall be referred to the 
Administrator, who shall give foremost consideration to area practice in 
resolving the question.
    (c)(1) Project and general wage determinations may be modified from 
time to time to keep them current. A modification may specify only the 
items being changed, or may be in the form of a supersedeas wage 
determination, which replaces the entire wage determination. Such 
actions are distinguished from a determination by the Administrator 
under paragraphs (d), (e) and (f) of this section that an erroneous wage 
determination has been issued or that the wrong wage determination or 
wage rate schedule has been utilized by the agency.
    (2)(i) All actions modifying a project wage determination received 
by the agency before contract award (or the start of construction where 
there is no contract award) shall be effective except as follows:
    (A) In the case of contracts entered into pursuant to competitive 
bidding procedures, modifications received by the agency less than 10 
days before the

[[Page 13]]

opening of bids shall be effective unless the agency finds that there is 
not a reasonable time still available before bid opening, to notify 
bidders of the modification and a report of the finding is inserted in 
the contract file. A copy of such report shall be made available to the 
Administrator upon request. No such report shall be required if the 
modification is received after bid opening.
    (B) In the case of projects assisted under the National Housing Act, 
modifications shall be effective if received prior to the beginning of 
construction or the date the mortgage is initially endorsed, whichever 
occurs first.
    (C) In the case of projects to receive housing assistance payments 
under section 8 of the U.S. Housing Act of 1937, modifications shall be 
effective if received prior to the beginning of construction or the date 
the agreement to enter into a housing assistance payments contract is 
executed, whichever occurs first.
    (ii) Modifications to project wage determinations and supersedeas 
wage determinations shall not be effective after contract award (or 
after the beginning of construction where there is no contract award).
    (iii) Actual written notice of a modification shall constitute 
receipt.
    (3) All actions modifying a general wage determination shall be 
effective with respect to any project to which the determination 
applies, if notice of such actions is published before contract award 
(or the start of construction where there is no contract award), except 
as follows:
    (i) In the case of contracts entered into pursuant to competitive 
bidding procedures, a modification, notice of which is published less 
than 10 days before the opening of bids, shall be effective unless the 
agency finds that there is not a reasonable time still available before 
bid opening to notify bidders of the modification and a report of the 
finding is inserted in the contract file. A copy of such report shall be 
made available to the Administrator upon request. No such report shall 
be required if notice of the modification is published after bid 
opening.
    (ii) In the case of projects assisted under the National Housing 
Act, a modification shall be effective if notice of such modification is 
published prior to the beginning of construction or the date the 
mortgage is initially endorsed, whichever occurs first.
    (iii) In the case of projects to receive housing assistance payments 
under section 8 of the U.S. Housing Act of 1937, a modification shall be 
effective if notice of such modification is published prior to the 
beginning of construction or the date the agreement to enter into a 
housing assistance payments contract is signed, whichever occurs first.
    (iv) If under paragraph (c)(3)(i) of this section the contract has 
not been awarded within 90 days after bid opening, or if under paragraph 
(c)(3)(ii) or (iii) of this section construction has not begun within 90 
days after initial endorsement or the signing of the agreement to enter 
into a housing assistance payments contract, any modification, notice of 
which is published on WDOL prior to award of the contract or the 
beginning of construction, as appropriate, shall be effective with 
respect to that contract unless the head of the agency or his or her 
designee requests and obtains an extension of the 90-day period from the 
Administrator. Such request shall be supported by a written finding, 
which shall include a brief statement of the factual support, that the 
extension is necessary and proper in the public interest to prevent 
injustice or undue hardship or to avoid serious impairment in the 
conduct of Government business. The Administrator will either grant or 
deny the request for an extension after consideration of all the 
circumstances.
    (v) A modification to a general wage determination is ``published'' 
within the meaning of this section on the date notice of a modification 
or a supersedeas wage determination is published on WDOL or on the date 
the agency receives actual written notice of the modification from the 
Department of Labor, whichever occurs first. Archived versions of Davis-
Bacon and Related Acts wage determinations that are no longer current 
may be accessed in the ``Archived DB WD'' database of WDOL for 
information purposes only. Contracting officers should not use an

[[Page 14]]

archived wage determination in a contract action without prior approval 
of the Department of Labor.
    (vi) A supersedeas wage determination or a modification to an 
applicable general wage determination, notice of which is published 
after contract award (or after the beginning of construction where there 
is no contract award) shall not be effective.
    (d) Upon his/her own initiative or at the request of an agency, the 
Administrator may correct any wage determination, without regard to 
paragraph (c) of this section, whenever the Administrator finds such a 
wage determination contains clerical errors. Such corrections shall be 
included in any bid specifications containing the wage determination, or 
in any on-going contract containing the wage determination in question, 
retroactively to the start of construction.
    (e) Written notification by the Department of Labor prior to the 
award of a contract (or the start of construction under the National 
Housing Act, under section 8 of the U.S. Housing Act of 1937, or where 
there is no contract award) that: (1) There is included in the bidding 
documents or solicitation the wrong wage determination or the wrong 
schedule or that (2) a wage determination is withdrawn by the Department 
of Labor as a result of a decision by the Administrative Review Board, 
shall be effective immediately without regard to paragraph (c) of this 
section.
    (f) The Administrator may issue a wage determination after contract 
award or after the beginning of construction if the agency has failed to 
incorporate a wage determination in a contract required to contain 
prevailing wage rates determined in accordance with the Davis-Bacon Act, 
or has used a wage determination which by its terms or the provisions of 
this part clearly does not apply to the contract. Further, the 
Administrator may issue a wage determination which shall be applicable 
to a contract after contract award or after the beginning of 
construction when it is found that the wrong wage determination has been 
incorporated in the contract because of an inaccurate description of the 
project or its location in the agency's request for the wage 
determination. Under any of the above circumstances, the agency shall 
either terminate and resolicit the contract with the valid wage 
determination, or incorporate the valid wage determination retroactive 
to the beginning of construction through supplemental agreement or 
through change order, Provided That the contractor is compensated for 
any increases in wages resulting from such change. The method of 
incorporation of the valid wage determination, and adjustment in 
contract price, where appropriate, should be in accordance with 
applicable procurement law.
    (g) If Federal funding or assistance under a statute requiring 
payment of wages determined in accordance with the Davis-Bacon Act is 
not approved prior to contract award (or the beginning of construction 
where there is no contract award), the agency shall request a wage 
determination prior to approval of such funds. Such a wage determination 
shall be issued based upon the wages and fringe benefits found to be 
prevailing on the date of award or the beginning of construction (under 
the National Housing Act, under section 8 of the U.S. Housing Act of 
1937 or where there is no contract award), as appropriate, and shall be 
incorporated in the contract specifications retroactively to that date, 
Provided, That upon the request of the head of the agency in individual 
cases the Administrator may issue such a wage determination to be 
effective on the date of approval of Federal funds or assistance 
whenever the Administrator finds that it is necessary and proper in the 
public interest to prevent injustice or undue hardship, Provided further 
That the Administrator finds no evidence of intent to apply for Federal 
funding or assistance prior to contract award or the start of 
construction, as appropriate.

[48 FR 19533, Apr. 29, 1983, as amended at 50 FR 49823, Dec. 4, 1985; 70 
FR 50894, Aug. 26, 2005]



Sec.  1.7  Scope of consideration.

    (a) In making a wage determination, the area will normally be the 
county unless sufficient current wage data (data on wages paid on 
current projects or, where necessary, projects under construction no 
more than one year

[[Page 15]]

prior to the beginning of the survey or the request for a wage 
determination, as appropriate) is unavailable to make a wage 
determination.
    (b) If there has not been sufficient similar construction within the 
area in the past year to make a wage determination, wages paid on 
similar construction in surrounding counties may be considered, Provided 
That projects in metropolitan counties may not be used as a source of 
data for a wage determination in a rural county, and projects in rural 
counties may not be used as a source of data for a wage determination 
for a metropolitan county.
    (c) If there has not been sufficient similar construction in 
surrounding counties or in the State in the past year, wages paid on 
projects completed more than one year prior to the beginning of the 
survey or the request for a wage determination, as appropriate, may be 
considered.
    (d) The use of helpers, apprentices and trainees is permitted in 
accordance with part 5 of this subtitle.

[48 FR 19533, Apr. 29, 1983, as amended at 50 FR 4507, Jan. 31, 1985; 55 
FR 50149, Dec. 4, 1990; 65 FR 69692, Nov. 20, 2000]



Sec.  1.8  Reconsideration by the Administrator.

    Any interested person may seek reconsideration of a wage 
determination issued under this part or of a decision of the 
Administrator regarding application of a wage determination. Such a 
request for reconsideration shall be in writing accompanied by a full 
statement of the interested person's views and any supporting wage data 
or other pertinent information. The Administrator will respond within 30 
days of receipt thereof, or will notify the requestor within the 30-day 
period that additional time is necessary.



Sec.  1.9  Review by Administrative Review Board.

    Any interested person may appeal to the Administrative Review Board 
for a review of a wage determination or its application made under this 
part, after reconsideration by the Administrator has been sought 
pursuant to Sec.  1.8 and denied. Any such appeal may, in the discretion 
of the Administrative Review Board, be received, accepted, and decided 
in accordance with the provisions of 29 CFR part 7 and such other 
procedures as the Board may establish.



                        Sec. Appendix A to Part 1

 Statutes Related to the Davis-Bacon Act Requiring Payment of Wages at 
              Rates Predetermined by the Secretary of Labor

    1. The Davis-Bacon Act (secs. 1-7, 46 Stat. 1494, as amended; Pub. 
L. 74-403, 40 U.S.C. 276a-276a-7).
    2. National Housing Act (sec. 212 added to c. 847, 48 Stat. 1246, by 
sec. 14, 53 Stat. 807; 12 U.S.C. 1715c and repeatedly amended).
    3. Housing Act of 1950 (college Housing) (amended by Housing Act of 
1959 to add labor provisions, 73 Stat. 681; 12 U.S.C. 1749a(f)).
    4. Housing Act of 1959 (sec. 401(f) of the Housing Act of 1950 as 
amended by Pub. L. 86-372, 73 Stat. 681; 12 U.S.C. 1701q(c)(3)).
    5. Commercial Fisheries Research and Development Act of 1964 (sec. 
7, 78 Stat. 199; 16 U.S.C. 779e(b)).
    6. Library Services and Construction Act (sec. 7(a), 78 Stat. 13; 20 
U.S.C. 355c(a)(4), as amended).
    7. National Technical Institute for the Deaf Act (sec. 5(b)(5), 79 
Stat. 126; 20 U.S.C. 684(b)(5)).
    8. National Foundation on the Arts and Humanities Act of 1965 (sec. 
5(k), 79 Stat. 846 as amended; 20 U.S.C. 954(j)).
    9. Elementary and Secondary Education Act of 1965 as amended by 
Elementary and Secondary and other Education Amendments of 1969 (sec. 
423 as added by Pub. L. 91-230, title IV, sec. 401(a)(10), 84 Stat. 169, 
and renumbered sec. 433, by Pub. L. 92-318; title III, sec. 301(a)(1), 
86 Stat. 326; 20 U.S.C. 1232(b)). Under the amendment coverage is 
extended to all programs administered by the Commissioner of Education.
    10. The Federal-Aid Highway Acts (72 Stat. 895, as amended by 82 
Stat. 821; 23 U.S.C. 113, as amended by the Surface Transportation 
Assistance Act of 1982, Pub. L. 97-424).
    11. Indians Self-Determination and Education Assistance Act (sec. 7, 
88 Stat. 2205; 25 U.S.C. 450e).
    12. Indian Health Care Improvement Act (sec. 303(b), 90 Stat. 1407; 
25 U.S.C. 1633(b)).
    13. Rehabilitation Act of 1973 (sec. 306(b)(5), 87 Stat. 384, 29 
U.S.C. 776(b)(5)).
    14. Comprehensive Employment and Training Act of 1973 (sec. 606, 87 
Stat. 880, renumbered sec. 706 by 83 Stat. 1845; 29 U.S.C. 986; also 
sec. 604, 88 Stat. 1846; 29 U.S.C. 964(b)(3)).
    15. State and Local Fiscal Assistance Act of 1972 (sec. 123(a)(6), 
86 Stat. 933; 31 U.S.C. 1246(a)(6)).
    16. Federal Water Pollution Control Act (sec. 513 of sec. 2, 86 
Stat. 894; 33 U.S.C. 1372).
    17. Veterans Nursing Home Care Act of 1964 (78 Stat. 502, as 
amended; 38 U.S.C. 5035(a)(8)).

[[Page 16]]

    18. Postal Reorganization Act (sec. 410(b)(4)(C); 84 Stat. 726 as 
amended; 39 U.S.C. 410(b)(4)(C)).
    19. National Visitors Center Facilities Act of 1968 (sec. 110, 82 
Stat. 45; 40 U.S.C. 808).
    Note: Section applying labor standards provisions of the Davis-Bacon 
Act repealed August 21, 2002, by 116 Stat. 1318, Pub. L. 107-217.
    20. Appalachian Regional Development Act of 1965 (sec. 402, 79 Stat. 
21; 40 U.S.C. 14701).
    21. Health Services Research, Health Statistics, and Medical 
Libraries Act of 1974 (sec. 107, see sec. 306(h)(2) thereof, 83 Stat. 
370, as amended by 90 Stat. 378; 42 U.S.C. 242m(h)(2)).
    22. Hospital Survey and Construction Act, as amended by the Hospital 
and Medical Facilities Amendments of 1964 (sec. 605(a)(5), 78 Stat. 453; 
42 U.S.C. 291e(a)(5)).
    23. Health Professions Education Assistance Act (sec. 303(b), 90 
Stat. 2254; 42 U.S.C. 293a(g)(1)(C); also sec. 308a, 90 Stat. 2256; 42 
U.S.C. 293a(c)(7)).
    24. Nurse Training Act of 1964 (sec. 941(a)(1)(C), 89 Stat. 364; 42 
U.S.C. 296a(b)(5)).
    25. Heart Disease, Cancer, and Stroke Amendments of 1965 (sec. 904, 
as added by sec. 2, 79 Stat. 928; 42 U.S.C. 299d(b)(4)).
    26. Safe Drinking Water Act (sec. 2(a), see sec. 1450e thereof, 88 
Stat. 1691; 42 U.S.C. 300j-9(e)).
    27. National Health Planning and Resources Act (sec. 4, see sec. 
1604(b)(1)(H), 88 Stat. 2261, 42 U.S.C. 300o-3(b)(1)(H)).
    28. U.S. Housing Act of 1937, as amended and recodified (88 Stat. 
667; 42 U.S.C. 1437j).
    29. Demonstration Cities and Metropolitan Development Act of 1966 
(secs. 110, 311, 503, 1003, 80 Stat. 1259, 1270, 1277, 1284; 42 U.S.C. 
3310; 12 U.S.C. 1715c; 42 U.S.C. 1437j).
    30. Slum clearance program: Housing Act of 1949 (sec. 109, 63 Stat. 
419, as amended; 42 U.S.C. 1459).
    31. Farm housing: Housing Act of 1964 (adds sec. 516(f) to Housing 
Act of 1949 by sec. 503, 78 Stat. 797; 42 U.S.C. 1486(f)).
    32. Housing Act of 1961 (sec. 707, added by sec. 907, 79 Stat. 496, 
as amended; 42 U.S.C. 1500c-3).
    33. Defense Housing and Community Facilities and Services Act of 
1951 (sec. 310, 65 Stat. 307; 42 U.S.C. 1592i).
    34. Special Health Revenue Sharing Act of 1975 (sec. 303, see sec. 
222(a)(5) thereof, 89 Stat. 324; 42 U.S.C. 2689j(a)(5)).
    35. Economic Opportunity Act of 1964 (sec. 607, 78 Stat. 532; 42 
U.S.C. 2947).
    36. Headstart, Economic Opportunity, and Community Partnership Act 
of 1974 (sec. 11, see sec. 811 thereof, 88 Stat. 2327; 42 U.S.C. 2992a).
    37. Housing and Urban Development Act of 1965 (sec. 707, 79 Stat. 
492 as amended; 42 U.S.C. 3107).
    38. Older Americans Act of 1965 (sec. 502, Pub. L. 89-73, as amended 
by sec. 501, Pub. L. 93-29; 87 Stat. 50; 42 U.S.C. 3041a(a)(4)).
    39. Public Works and Economic Development Act of 1965 (sec. 712, 79 
Stat. 575 as amended; 42 U.S.C. 3222).
    40. Juvenile Delinquency Prevention Act (sec. 1, 86 Stat. 536; 42 
U.S.C. 3884).
    41. New Communities Act of 1968 (sec. 410.82 Stat. 516; 42 U.S.C. 
3909).
    42. Urban Growth and New Community Development Act of 1970 (sec. 
727(f), 84 Stat. 1803; 42 U.S.C. 4529).
    43. Domestic Volunteer Service Act of 1973 (sec. 406, 87 Stat. 410; 
42 U.S.C. 5046).
    44. Housing and Community Development Act of 1974 (secs. 110, 
802(g), 83 Stat. 649, 724; 42 U.S.C. 5310, 1440(g)).
    45. Developmentally Disabled Assistance and Bill of Rights Act (sec. 
126(4), 89 Stat. 488; 42 U.S.C. 6042(4); title I, sec. 111, 89 Stat. 
491; 42 U.S.C. 6063(b)(19)).
    46. National Energy Conservation Policy Act (sec. 312, 92 Stat. 
3254; 42 U.S.C. 6371j).
    47. Public Works Employment Act of 1976 (sec. 109, 90 Stat. 1001; 42 
U.S.C. 6708; also sec. 208, 90 Stat. 1008; 42 U.S.C. 6728).
    48. Energy Conservation and Production Act (sec. 45(h), 90 Stat. 
1168; 42 U.S.C. 6881(h)).
    49. Solid Waste Disposal Act (sec. 2, 90 Stat. 2828; 42 U.S.C. 
6979).
    50. Rail Passenger Service Act of 1970 (sec. 405d, 84 Stat. 1337; 45 
U.S.C. 565(d)).
    51. Urban Mass Transportation Act of 1964 (sec. 10, 78 Stat. 307; 
renumbered sec. 13 by 88 Stat. 715; 49 U.S.C. 1609).
    52. Highway speed ground transportation study (sec. 6(b), 79 Stat. 
893; 49 U.S.C. 1636(b)).
    53. Airport and Airway Development Act of 1970 (sec. 22(b), 84 Stat. 
231; 49 U.S.C. 1722(b)).
    54. Federal Civil Defense Act of 1950 (50 U.S.C. App. 2281(i)).
    55. National Capital Transportation Act of 1965 (sec. 3(b)(4), 79 
Stat; 40 U.S.C. 682(b)(4)).
    Note: Repealed Dec. 9, 1969 and labor standards incorporated in sec. 
1-1431 of the District of Columbia Code.
    56. Model Secondary School for the Deaf Act (sec. 4, 80 Stat. 1027, 
Pub. L. 89-694, but not in the United States Code).
    57. Delaware River Basin Compact (sec. 15.1, 75 Stat. 714, Pub. L. 
87-328) (considered a statute for purposes of this part but not in the 
United States Code).
    58. Energy Security Act (sec. 175(c), Pub. L. 96-294, 94 Stat. 611; 
42 U.S.C. 8701 note).

[48 FR 19533, Apr. 29, 1983; 48 FR 20408, May 6, 1983, as amended at 70 
FR 50894, Aug. 26, 2005]

[[Page 17]]



                        Sec. Appendix B to Part 1

                            Northeast Region

    For the States of Connecticut, Delaware, District of Columbia, 
Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, 
Pennsylvania, Puerto Rico, Rhode Island, Vermont, Virgin Islands, 
Virginia and West Virginia:
    Regional Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, Curtis Center, 170 South 
Independence Mall West, Room 850 West, Philadelphia, PA 19106 
(Telephone: 215-861-5800, FAX: 215-861-5840).

                            Southeast Region

    For the States of Alabama, Florida, Georgia, Kentucky, Mississippi, 
North Carolina, South Carolina and Tennessee:
    Regional Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, 61 Forsyth Street, SW., Room 
7M40, Atlanta, GA 30303 (Telephone 404-893-4531, FAX: 404-893-4524).

                             Midwest Region

    For the States of Illinois, Indiana, Iowa, Kansas, Michigan, 
Minnesota, Missouri, Nebraska, Ohio and Wisconsin:
    Regional Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, 230 South Dearborn Street, 
Room 530, Chicago, IL 60604-1591 (Telephone: 312-596-7180, FAX: 312-596-
7205).

                            Southwest Region

    For the States of Arkansas, Colorado, Louisiana, Montana, New 
Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah and Wyoming:
    Regional Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, 525 South Griffin Street, 
Suite 800, Dallas, TX 75202-5007 (Telephone: 972-850-2600, FAX: 972-850-
2601).

                             Western Region

    For the States of Alaska, American Samoa, Arizona, California, Guam, 
Hawaii, Idaho, Nevada, Oregon and Washington:
    Regional Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, 71 Stevenson Street, Suite 
930, San Francisco, CA 94105, (Telephone: 415-848-6600, FAX: 415-848-
6655).

[70 FR 50895, Aug. 26, 2005]



PART 2_GENERAL REGULATIONS--Table of Contents



                            Subpart A_General

Sec.
2.1 Employees attached to regional offices.
2.2 Employees attached to Washington office.
2.3 Consent of the Secretary.
2.6 Claims collection.
2.7 Rulemaking.
2.8 Final agency decisions.

        Subpart B_Audiovisual Coverage of Administrative Hearings

2.10 Scope and purpose.
2.11 General principles.
2.12 Audiovisual coverage permitted.
2.13 Audiovisual coverage prohibited.
2.14 Proceedings in which the Department balances conflicting values.
2.15 Protection of witnesses.
2.16 Conduct of hearings.

                Subpart C_Employees Served With Subpoenas

2.20 Purpose, scope and definitions.
2.21 Procedure in the event of a demand for production or disclosure.
2.22 Production or disclosure prohibited unless approved by the 
          appropriate Deputy Solicitor of Labor.
2.23 Procedure where a decision concerning a demand is not made prior to 
          the time a response to the demand is required.
2.24 Procedure in the event of an adverse ruling.
2.25 Subpoenas served upon employees of the Office of the Inspector 
          General.

Subpart D_Equal Treatment in Department of Labor Programs for Religious 
 Organizations; Protection of Religious Liberty of Department of Labor 
               Social Service Providers and Beneficiaries

2.30 Purpose.
2.31 Definitions.
2.32 Equal participation of religious organizations.
2.33 Responsibilities of DOL, DOL social service providers and State and 
          local governments administering DOL support.
2.34 Beneficiary protections: written notice.
2.35 Beneficiary protections: referral requirements.
2.36 Application to State and local funds.
2.37 Effect of DOL support on Title VII employment nondiscrimination 
          requirements and on other existing statutes.
2.38 Status of nonprofit organizations.
2.39 Political or religious affiliation.

Appendix A to Part 2--Notice of Beneficiary Religious Liberty 
          Protections

[[Page 18]]

Appendix B to Part 2--Beneficiary Referral Request

    Authority: 5 U.S.C. 301; Executive Order 13198, 66 FR 8497, 3 CFR 
2001 Comp., p. 750; Executive Order 13279, 67 FR 77141, 3 CFR 2002 
Comp., p. 258; Executive Order 13559, 75 FR 71319, 3 CFR 2011 Comp., p. 
273.



                            Subpart A_General

    Source: 32 FR 11035, July 28, 1967, unless otherwise noted.



Sec.  2.1  Employees attached to regional offices.

    No person who has been an employee of the Department and attached to 
a Regional office of any bureau, board, division, or other agency 
thereof, shall be permitted to practice, appear, or act as attorney, 
agent, or representative before the Department or any branch or agent 
thereof in connection with any case or administrative proceeding which 
was pending before such Regional office during the time of his 
employment with the Department, unless he shall first obtain the written 
consent thereto of the Secretary of Labor or his duly authorized 
representative.



Sec.  2.2  Employees attached to Washington office.

    No person who has been an employee of the Department and attached to 
the Washington office of any bureau, board, division, or other agency 
thereof, shall be permitted to practice, appear, or act as attorney, 
agent, or representative before the Department or any branch or agent 
thereof, in connection with any case or administrative proceeding 
pending before such bureau, board, division, or other agency during the 
time of his employment with the Department, unless he shall first obtain 
the written consent thereto of the Secretary of Labor or his duly 
authorized representative.



Sec.  2.3  Consent of the Secretary.

    The consent of the Secretary or his duly authorized representative 
may be obtained as follows:
    The applicant shall file an application in the form of an affidavit. 
Such application, directed to the Secretary should:
    (a) State the former connection of the applicant with the 
Department;
    (b) Identify the matter in which the applicant desires to appear, 
and
    (c) Contain a statement to the effect that the applicant gave no 
personal consideration to such matter while he was an employee of the 
Department.

The application will be denied if the statements contained therein are 
disproved by an examination of the files, records, and circumstances 
pertaining to the matter, or if, in the opinion of the Secretary or his 
duly authorized representative, the public interest so requires. If the 
Secretary or his duly authorized representative is satisfied that the 
applicant gave no personal consideration to the matter in question while 
employed by the Department, and if he is satisfied that it is lawful and 
consistent with the public interest to do so, he may grant his consent, 
in writing, to the request of the applicant, subject to such conditions, 
if any, as he deems necessary and desirable. Any function of the 
Secretary under this section may be performed by the Under Secretary of 
Labor.



Sec.  2.6  Claims collection.

    (a) Authority of Department; incorporation by reference. The 
regulations in this section are issued under section 3 of the Federal 
Claims Collection Act of 1966, 31 U.S.C. 952. They incorporate herein 
and supplement as necessary for Department operation all provisions of 
the Joint Regulations of the Attorney General and the Comptroller 
General set forth in 4 CFR chap. II, which prescribe standards for 
administrative collection of civil claims by the Government for money or 
property, for the compromise, termination, or suspension of collection 
action, with respect to claims not exceeding $20,000, exclusive of 
interest, and for the referral of civil claims by the Government to the 
Government Accountability Office, and to the Department of Justice for 
litigation.
    (b) Designation. The Assistant Secretary for Administration and 
Management, and such heads of the Administrations and Offices of the 
Department of Labor as he may designate for such purpose, is authorized 
to perform all of

[[Page 19]]

the duties and exercise all of the authority of the Secretary under the 
Federal Claims Collection Act of 1966, the aforementioned Joint 
Regulations of the Attorney General and the Comptroller General, and the 
regulations in this section.

(Sec. 3, 80 Stat. 309; 31 U.S.C. 952)

[34 FR 9122, June 10, 1969, as amended at 72 FR 37098, July 9, 2007]



Sec.  2.7  Rulemaking.

    It is the policy of the Secretary of Labor, that in applying the 
rulemaking provisions of the Administrative Procedure Act (5 U.S.C. 
553), the exemption therein for matters relating to public property, 
loans, grants, benefits or contracts shall not be relied upon as a 
reason for not complying with the notice and public participation 
requirements thereof except for all information-gathering procedures 
adopted by the Bureau of Labor Statistics.

[46 FR 35, Jan. 2, 1981]



Sec.  2.8  Final agency decisions.

    Final agency decision issued under the statutory authority of the 
U.S. Department of Labor may be issued by the Secretary of Labor, or by 
his or her designee under a written delegation of authority. The 
Administrative Review Board, an organizational entity within the Office 
of the Secretary, has been delegated authority to issue final agency 
decisions under the statutes, executive orders, and regulations as 
provided in Secretary's Order 2-96, published on May 3, 1996.

[61 FR 19984, May 3, 1996]



        Subpart B_Audiovisual Coverage of Administrative Hearings

    Source: 38 FR 5631, Mar. 2, 1973, unless otherwise noted.



Sec.  2.10  Scope and purpose.

    This subpart defines the scope of audiovisual coverage of 
departmental administrative hearings. It describes the types of 
proceedings where such coverage is encouraged, defines areas where such 
coverage is prohibited (as in certain enforcement proceedings or where 
witnesses object) and areas where a decision concerning coverage is made 
after weighing the values involved in permitting coverage against the 
reasons for not permitting it.



Sec.  2.11  General principles.

    The following general principles will be observed in granting or 
denying requests for permission to cover hearings audiovisually:
    (a) Notice and comment and on-the-record rule making proceedings may 
involve administrative hearings. If such administrative hearings are 
held, we encourage their audiovisual coverage.
    (b) Audiovisual coverage shall be excluded in adjudicatory 
proceedings involving the rights or status of individuals (including 
those of small corporations likely to be indistinguishable in the public 
mind from one or a few individuals) in which an individual's past 
culpable conduct or other aspect of personal life is a primary subject 
of adjudication, and where the person in question objects to coverage.
    (c) Certain proceedings involve balancing of conflicting values in 
order to determine whether audiovisual coverage should be allowed. Where 
audiovisual coverage is restricted, the reasons for the restriction 
shall be stated in the record.



Sec.  2.12  Audiovisual coverage permitted.

    The following are the types of hearings where the Department 
encourages audiovisual coverage:
    (a) All hearings involving notice and comment and on-the-record rule 
making proceedings. The Administrative Procedure Act provides for notice 
of proposed rule making with provision for participation by interested 
parties through submission of written data, views, or arguments, with or 
without opportunity for oral presentation (5 U.S.C. 553). (In many cases 
the Department follows the above procedure in matters exempted from 
these requirements of 5 U.S.C. 553.) On-the-record rule making 
proceedings under 5 U.S.C. 556 and 557 are also hearings where 
audiovisual coverage of hearings is encouraged. Examples of hearings 
encompassed by this paragraph are:
    (1) Hearings to establish or amend safety or health standards under 
the

[[Page 20]]

Occupational Safety and Health Act of 1970, 29 U.S.C. 651.
    (2) Hearings to determine the adequacy of State laws under the 
Occupational Safety and Health Act of 1970.
    (b) Hearings to collect or review wage data upon which to base 
minimum wage rates determined under various laws, such as the Davis-
Bacon Act (40 U.S.C. 276a) and related statutes and the Service Contract 
Act of 1965 (41 U.S.C. 353, as amended by Pub. L. 92-473 approved 
October 9, 1972).
    (c) Hearings under section 4(c) of the Service Contract Act of 1965 
(41 U.S.C. 353, subsection (c) added by Pub. L. 92-473 approved October 
9, 1972) to determine if negotiated rates are substantially at variance 
with those which prevail in the locality for services of a character 
similar.
    (d) Hearings before the Administrative Review Board (parts 1, 3, 5, 
and 7 of this chapter).
    (e) Hearings held at the request of a Federal agency to resolve 
disputes under the Davis-Bacon and related Acts, involving prevailing 
wage rates or proper classification which involve significant sums of 
money, large groups of employees or novel or unusual situations.
    (f) Hearings of special industry committees held pursuant to the 
Fair Labor Standards Act, as amended (29 U.S.C. 201 et seq.) for the 
purpose of recommending minimum wage rates to be paid in Puerto Rico, 
the Virgin Islands, and American Samoa.
    (g) Hearings pursuant to section 13(a) of the Welfare and Pension 
Plans Disclosure Act (29 U.S.C. 308d) to determine whether a bond in 
excess of $500,000 may be prescribed.
    (h) Hearings where the Department is requesting information needed 
for its administrative use in determining what our position should be 
(e.g., our hearings on the 4-day, 40-hour workweek).

[38 FR 5631, Mar. 2, 1973, as amended at 61 FR 19984, May 3, 1996]



Sec.  2.13  Audiovisual coverage prohibited.

    The Department shall not permit audiovisual coverage of the 
following types of hearings if any party objects:
    (a) Hearings to determine whether applications for individual 
variances should be issued under the Occupational Safety and Health Act 
of 1970.
    (b) Hearings (both formal and informal) involving alleged violations 
of various laws such as the Davis-Bacon Act (40 U.S.C. 276a, et seq.) 
and related Acts, the Contract Work Hours and Safety Standards Act (40 
U.S.C. 327 et seq.), the Service Contract Act (41 U.S.C. 351 et seq.), 
the Walsh Healey Act (41 U.S.C. 35 et seq.), under section 41 of the 
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 941 et 
seq.), the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 
et seq.), and any informal hearings or conferences under the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) which 
are not within the jurisdiction of the Occupational Safety and Health 
Commission.
    (c) Adversary hearings under the Longshoremen's and Harbor Workers' 
Compensation Act (33 U.S.C. 901 et seq.) and related Acts, which 
determine an employee's right to compensation.
    (d) Hearings which determine an employee's right to compensation 
under the Federal Employees' Compensation Act (5 U.S.C. 8101 et seq.).



Sec.  2.14  Proceedings in which the Department balances conflicting values.

    In proceedings not covered by Sec. Sec.  2.12 and 2.13, the 
Department should determine whether the public's right to know 
outbalances the individual's right to privacy. When audiovisual coverage 
is restricted or excluded, the record shall state fully the reasons for 
such restriction or exclusion. For example, there would be included in 
this category hearings before the Board of Contract Appeals involving 
appeals from contracting officer decisions involving claims for extra 
costs for extra work, extra costs for delay in completion caused by the 
Government or for changes in the work, conformity hearings arising under 
State unemployment insurance laws, etc.

[[Page 21]]



Sec.  2.15  Protection of witnesses.

    A witness has the right, prior to or during his testimony, to 
exclude audiovisual coverage of his testimony in any hearing being 
covered audiovisually.



Sec.  2.16  Conduct of hearings.

    The presiding officer at each hearing which is audiovisually covered 
is authorized to take any steps he deems necessary to preserve the 
dignity of the hearing or prevent its disruption by persons setting up 
or using equipment needed for its audiovisual coverage.



                Subpart C_Employees Served With Subpoenas

    Authority: 5 U.S.C. 301 and Reorganization Plan No. 6 of 1950, 15 FR 
3174, 64 Stat. 1263.

    Source: 46 FR 49543, Oct. 6, 1981, unless otherwise noted.



Sec.  2.20  Purpose, scope and definitions.

    (a) This subpart sets forth the procedures to be followed whenever a 
subpoena, order, or other demand (hereinafter referred to as a demand) 
of a court or other authority, in connection with a proceeding to which 
the U.S. Department of Labor is not a party, is issued for the 
production or disclosure of (1) any material contained in the files of 
the Department, (2) any information relating to material contained in 
the files of the Department, or (3) any information or material acquired 
by any person while such person was an employee of the Department as a 
part of the performance of his official duties or because of his 
official status.
    (b) For purposes of this subpart, the term employee of the 
Department includes all officers and employees of the United States 
Department of Labor appointed by, or subject to the supervision, 
jurisdiction, or control of the Secretary of Labor.
    (c)(1) For purposes of this subpart, the term appropriate Deputy 
Solicitor of Labor means the Deputy Solicitor of Labor for National 
Operations when the person served with a demand is either employed by 
the National Office of the Labor Department, or who is a former Labor 
Department employee and is served with a demand in Washington, DC. In 
all other cases, the term appropriate Deputy Solicitor of Labor means 
the Deputy Solicitor of Labor for Regional Operations.
    (2) For purposes of this subpart, the term appropriate Office of the 
Solicitor means that Office of the Associate Solicitor of Labor (in 
Washington, DC) serving as counsel to the program to which the demand 
relates, where the person served with a demand is employed by the 
National Office of the Labor Department, or who is a former Labor 
Department employee and is served with a demand in Washington, DC. In 
all other cases, the term appropriate Office of the Solicitor means that 
Regional Solicitor's Office or Associate Regional Solicitor's Office 
serving the locality in which the employee or former employee is served 
with a demand.
    (d) This subpart is intended to provide instructions regarding the 
internal operations of the Department of Labor, 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 
Department of Labor.



Sec.  2.21  Procedure in the event of a demand for production or disclosure.

    Whenever an employee or former employee of the Department receives a 
demand for the production of material or the disclosure of information 
described in Sec.  2.20(a), he shall immediately notify the appropriate 
Office of the Solicitor. The appropriate Office of the Solicitor shall 
be furnished by the party causing the subpoena to be issued with a 
written summary of the information sought and its relevance to the 
proceeding in connection with which it was served. The Associate 
Solicitor, Regional Solicitor, or Associate Regional Solicitor, 
whichever is appropriate, may waive the requirement that a written 
summary be furnished where he or she deems it to be unnecessary. The 
election to waive the requirement of a written summary in no way 
constitutes a waiver of any other requirement set forth in this subpart.

[[Page 22]]



Sec.  2.22  Production or disclosure prohibited unless approved by 
the appropriate Deputy Solicitor of Labor.

    In terms of instructing an employee or former employee of the manner 
in which to respond to a demand, the Associate Solicitor, Regional 
Solicitor, or Associate Regional Solicitor, whichever is applicable, 
shall follow the instructions of the appropriate Deputy Solicitor of 
Labor. No employee or former employee of the Department of Labor shall, 
in response to a demand of a court or other authority, produce any 
material contained in the files of the Department or disclose any 
information relating to material contained in the files of the 
Department, or disclose any information or produce any material acquired 
as part of the performance of his official duties or because of his 
official status without approval of the appropriate Deputy Solicitor of 
Labor.



Sec.  2.23  Procedure where a decision concerning a demand is not made 
prior to the time a response to the demand is required.

    If the response to the demand is required before the instructions 
from the appropriate Deputy Solicitor of Labor are received, a 
Department attorney or other government attorney designated for the 
purpose shall appear with the employee or former employee of the 
Department upon whom the demand has been made, and shall furnish the 
court or other authority with a copy of the regulations contained in 
this subpart and inform the court or other authority that the demand has 
been, or is being, as the case may be, referred for the prompt 
consideration of the appropriate Deputy Solicitor of Labor and shall 
respectfully request the court or other authority to stay the demand 
pending receipt of the requested instructions.



Sec.  2.24  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec.  2.23 
pending receipt of instructions, or if the court or other authority 
rules that the demand must be complied with irrespective of instructions 
not to produce the material or disclose the information sought, the 
employee or former employee upon whom the demand has been made shall 
respectfully decline to comply with the demand, ``United States ex rel 
Touhy v. Ragen,'' 340 US. 462.



Sec.  2.25  Subpoenas served upon employees of the Office of 
the Inspector General.

    Notwithstanding the requirements set forth in Sec. Sec.  2.20 
through 2.24, this subpart is applicable to demands served on employees 
or former employees of the Office of the Inspector General (OIG), except 
that wherever in Sec. Sec.  2.21 through 2.24 there appear the phrases 
appropriate Office of the Solicitor, Associate Solicitor, Regional 
Solicitor, or Associate Regional Solicitor, and appropriate Deputy 
Solicitor of Labor, there shall be substituted in lieu thereof the 
Inspector General or Deputy Inspector General. In addition, the first 
sentence of Sec.  2.22 shall not be applicable to subpoenas served upon 
employees or former employees of the Office of the Inspector General.



Subpart D_Equal Treatment in Department of Labor Programs for Religious 
 Organizations; Protection of Religious Liberty of Department of Labor 
               Social Service Providers and Beneficiaries

    Source: 69 FR 41891, July 12, 2004, unless otherwise noted.



Sec.  2.30  Purpose.

    The purpose of the regulations in this subpart is to ensure that 
DOL-supported social service programs are open to all qualified 
organizations, regardless of the organizations' religious character, and 
to establish clearly the permissible uses to which DOL support for 
social service programs may be put, and the conditions for receipt of 
such support. In addition, this proposed rule is designed to ensure that 
the Department's social service programs are implemented in a manner 
consistent with the requirements of the Constitution, including the 
Religion Clauses of the First Amendment.

[[Page 23]]



Sec.  2.31  Definitions.

    As used in the regulations in this subpart:
    (a) The term Federal financial assistance means assistance that non-
Federal entities (including State and local governments) receive or 
administer in the form of grants, contracts, loans, loan guarantees, 
property, cooperative agreements, direct appropriations, or other direct 
or indirect assistance, but does not include a tax credit, deduction or 
exemption. Federal financial assistance may be direct or indirect.
    (1) The term direct Federal financial assistance or Federal 
financial assistance provided directly means that the Government or a 
DOL social service intermediary provider under this part selects the 
provider and either purchases services from that provider (e.g., via a 
contract) or awards funds to that provider to carry out a service (e.g., 
via grant or cooperative agreement). In general, Federal financial 
assistance shall be treated as direct, unless it meets the definition of 
indirect Federal financial assistance or Federal financial assistance 
provided indirectly.
    (2) The term indirect Federal financial assistance or Federal 
financial assistance provided indirectly means that the choice of the 
service provider is placed in the hands of the beneficiary, and the cost 
of that service is paid through a voucher, certificate, or other similar 
means of government-funded payment. Federal financial assistance 
provided to an organization is considered indirect when:
    (i) The Government program through which the beneficiary receives 
the voucher, certificate, or other similar means of Government-funded 
payment is neutral toward religion;
    (ii) The organization receives the assistance as a result of a 
decision of the beneficiary, not a decision of the government; and
    (iii) The beneficiary has at least one adequate secular option for 
the use of the voucher, certificate, or other similar means of 
Government-funded payment.
    (3) The recipient of sub-awards received through programs 
administered by States or other intermediaries that are themselves 
recipients of Federal financial assistance (e.g., local areas that 
receive within-state allocations to provide workforce services under 
title I of the Workforce Innovation and Opportunity Act) are not 
considered recipients of indirect Federal financial assistance or 
recipients of Federal financial assistance provided indirectly as those 
terms are used in Executive Order 13559. These recipients of sub-awards 
are considered recipients of direct Federal financial assistance.
    (b) The term social service program means a program that is 
administered or supported by the Federal Government, or by a State or 
local government using Federal financial assistance, and that provides 
services directed at reducing poverty, improving opportunities for low-
income children, revitalizing low-income communities, empowering low-
income families and low-income individuals to become self-sufficient, or 
otherwise helping people in need. Such programs include, but are not 
limited to, the following:
    (1) Child care services and services to meet the special needs of 
children, older individuals, and individuals with disabilities 
(including physical, mental, or emotional disabilities);
    (2) Job training and related services, and employment services;
    (3) Information, referral, and counseling services;
    (4) Literacy and mentoring programs; and
    (5) Services for the prevention and treatment of juvenile 
delinquency and substance abuse, services for the prevention of crime 
and the provision of assistance to the victims and the families of 
criminal offenders, and services related to intervention in, and 
prevention of domestic violence.
    (c) The term DOL means the U.S. Department of Labor.
    (d) The term DOL-supported social service program, DOL social 
service program, or DOL program means a social service program, as 
defined in paragraph (b) of this section, that is administered by or for 
DOL with DOL support. Such programs include, but are not limited to, the 
One Stop Career Center System, the Job Corps, and other programs 
supported through the Workforce Investment Act.

[[Page 24]]

    (e) The term DOL social service provider means any non-Federal 
organization, other than a State or local government, that seeks or 
receives DOL support as defined in paragraph (g) of this section, or 
participates in DOL programs other than as the ultimate beneficiary of 
such programs.
    (f) The term DOL social service intermediary provider means any DOL 
social service provider, including a non-governmental organization, 
that, as part of its duties, selects subgrantees to receive DOL support 
or subcontractors to provide DOL-supported services, or has the same 
duties under this part as a governmental entity.
    (g) The term DOL support means Federal financial assistance, as well 
as procurement funding provided to a non-Federal organization, including 
a State or local government, to support the organization's 
administration of or participation in a DOL social service program as 
defined in paragraph (d) of this section.

[69 FR 41891, July 12, 2004, as amended at 81 FR 19421, Apr. 4, 2016]



Sec.  2.32  Equal participation of religious organizations.

    (a) Religious organizations must be eligible, on the same basis as 
any other organization, to seek DOL support or participate in DOL 
programs for which they are otherwise eligible. DOL, DOL social service 
intermediary providers, as well as State and local governments 
administering DOL support, must not discriminate for or against an 
organization on the basis of the organization's religious character or 
affiliation, although this requirement does not preclude DOL, DOL social 
service providers, or State and local governments administering DOL 
support from accommodating religion in a manner consistent with the 
Establishment Clause. In addition, because this rule does not affect 
existing constitutional requirements, DOL, DOL social service providers 
(insofar as they may otherwise be subject to any constitutional 
requirements), and State and local governments administering DOL support 
must continue to comply with otherwise applicable constitutional 
principles, including, among others, those articulated in the 
Establishment, Free Speech, and Free Exercise Clauses of the First 
Amendment to the Constitution.
    (b) A religious organization that is a DOL social service provider 
retains its independence from Federal, State, and local governments and 
must be permitted to continue to carry out its mission, including the 
definition, development, practice, and expression of its religious 
beliefs, subject to the provisions of Sec.  2.33. Among other things, 
such a religious organization must be permitted to:
    (1) Use its facilities to provide DOL-supported social services 
without removing or altering religious art, icons, scriptures, or other 
religious symbols from those facilities; and
    (2) Retain its authority over its internal governance, including 
retaining religious terms in its name, selecting its board members on a 
religious basis, and including religious references in its mission 
statements and other governing documents.
    (c) A grant document, contract or other agreement, covenant, 
memorandum of understanding, policy, or regulation that is used by DOL, 
a State or local government administering DOL support, or a DOL social 
service intermediary provider must not require only religious 
organizations to provide assurances that they will not use direct DOL 
support for explicitly religious activities (including activities that 
involve overt religious content, such as worship, religious instruction, 
or proselytization). Any such requirements must apply equally to both 
religious and other organizations. All organizations, including 
religious ones, that are DOL social service providers must carry out 
DOL-supported activities in accordance with all applicable legal and 
programmatic requirements, including those prohibiting the use of direct 
DOL support for explicitly religious activities (including activities 
that involve overt religious content, such as worship, religious 
instruction, or proselytization). A grant document, contract or other 
agreement, covenant, memorandum of understanding, policy, or regulation 
that is used by DOL, a State or local government, or a DOL social 
service intermediary provider in administering a DOL social service

[[Page 25]]

program must not disqualify organizations from receiving DOL support or 
participating in DOL programs on the grounds that such organizations are 
motivated or influenced by religious faith to provide social services, 
have a religious character or affiliation, or lack a religious 
component.

[69 FR 41891, July 12, 2004, as amended at 81 FR 19421, Apr. 4, 2016]



Sec.  2.33  Responsibilities of DOL, DOL social service providers and State 
and local governments administering DOL support.

    (a) Any organization that participates in a program funded by 
federal financial assistance shall not, in providing services or in 
outreach activities related to such services, discriminate against a 
current or prospective program beneficiary on the basis of religion, 
religious belief, a refusal to hold a religious belief, or a refusal to 
attend or participate in a religious practice. However, an organization 
that participates in a program funded by indirect financial assistance 
need not modify its program activities to accommodate a beneficiary who 
chooses to expend the indirect aid on the organization's program. This 
requirement does not preclude DOL, DOL social service intermediary 
providers, or State or local governments administering DOL support from 
accommodating religion in a manner consistent with the Establishment 
Clause of the First Amendment to the Constitution.
    (b)(1) DOL, DOL social service intermediary providers, DOL social 
service providers, and State and local governments administering DOL 
support must ensure that they do not use direct DOL support for 
explicitly religious activities (including activities that involve overt 
religious content such as worship, religious instruction, or 
proselytization). DOL social service providers must be permitted to 
offer explicitly religious activities so long as they offer those 
activities separately in time or location from social services receiving 
direct DOL support, and participation in the explicitly religious 
activities is voluntary for the beneficiaries of social service programs 
receiving direct DOL support. For example, participation in an 
explicitly religious activity must not be a condition for participating 
in a directly-supported social service program.
    (2) This regulation is not intended to and does not restrict the 
exercise of rights or duties guaranteed by the Constitution. For 
example, program officials must not impermissibly restrict the ability 
of program beneficiaries or DOL social service providers to freely 
express their views and to exercise their right to religious freedom. 
Additionally, subject to reasonable and permissible time, place and 
manner restrictions, residential facilities that receive DOL support 
must permit residents to engage in voluntary religious activities, 
including holding religious services, at these facilities.
    (3) Notwithstanding the requirements of paragraph (b)(1) of this 
section, and to the extent otherwise permitted by Federal law (including 
constitutional requirements), direct DOL support may be used to support 
explicitly religious activities (including activities that involve overt 
religious content such as worship, religious instruction, or 
proselytization), and such activities need not be provided separately in 
time or location from other DOL-supported activities, under the 
following circumstances:
    (i) Where DOL support is provided to chaplains to work with inmates 
in prisons, detention facilities, or community correction centers 
through social service programs;
    (ii) Where DOL support is provided to social service programs in 
prisons, detention facilities, or community correction centers, in which 
social service organizations assist chaplains in carrying out their 
duties; or
    (iii) Where DOL-supported social service programs involve such a 
degree of government control over the program environment that religious 
exercise would be significantly burdened absent affirmative steps by DOL 
or its social service providers.
    (c) If a DOL social service intermediary provider, acting under a 
contract, grant, or other agreement with the Federal Government or with 
a State or local government that is administering a program supported by 
Federal financial assistance, is given the authority under the contract,

[[Page 26]]

grant, or agreement to select non-governmental organizations to provide 
services funded by the Federal Government, the DOL social service 
intermediary provider must ensure compliance with the provisions of 
Executive Order 13279, as amended by Executive Order 13559, and any 
implementing rules or guidance, by the recipient of a contract, grant or 
agreement. If the DOL social service intermediary provider is a non-
governmental organization, it retains all other rights of a non-
governmental organization under the program's statutory and regulatory 
provisions.

[69 FR 41891, July 12, 2004, as amended at 81 FR 19421, Apr. 4, 2016]



Sec.  2.34  Beneficiary protections: written notice.

    (a) Contents. Religious organizations providing social services to 
beneficiaries under a DOL program supported by direct Federal financial 
assistance must give written notice to beneficiaries and prospective 
beneficiaries of certain protections. Such notice must be given in a 
manner prescribed by DOL, and state that:
    (1) The organization may not discriminate against a beneficiary or 
prospective beneficiary on the basis of religion or religious belief, a 
refusal to hold a religious belief, or a refusal to attend or 
participate in a religious practice;
    (2) The organization may not require beneficiaries to attend or 
participate in any explicitly religious activities (including activities 
that involve overt religious content such as worship, religious 
instruction, or proselytization) that are offered by our organization, 
and any participation by beneficiaries in such activities must be purely 
voluntary;
    (3) The organization must separate out in time or location any 
privately-funded explicitly religious activities (including activities 
that involve overt religious content such as worship, religious 
instruction, or proselytization) from activities supported with direct 
Federal financial assistance;
    (4) If a beneficiary objects to the religious character of the 
organization, the organization must make reasonable efforts to identify 
and refer the beneficiary to an alternative provider to which the 
beneficiary has no objection. The organization cannot guarantee, 
however, that in every instance, an alternative provider will be 
available; and
    (5) Beneficiaries or prospective beneficiaries may report violations 
of these protections to, or file a written complaint of any denials of 
services or benefits by an organization with, the U.S. Department of 
Labor's Civil Rights Center. The required language of the notice is set 
forth in appendix A to these regulations and may be downloaded from the 
Civil Rights Center's Web site at http://www.dol.gov/oasam/programs/crc 
or at the Center for Faith-Based and Neighborhood Partnerships' Web site 
at http://www.dol.gov/cfbnp. DOL social service providers may post and 
distribute exact duplicate copies of the notice, including through 
electronic means.
    (b) Timing of notice. This written notice must be given to 
beneficiaries prior to the time they enroll in the program or receive 
services from such programs. When the nature of the service provided or 
exigent circumstances make it impracticable to provide such written 
notice in advance of the actual service, DOL social service providers 
must advise beneficiaries of their protections at the earliest available 
opportunity.
    (c) Applicability. The obligations in this subsection apply only to 
religious organizations providing services under social service programs 
administered in the United States.

[81 FR 19423, Apr. 4, 2016]



Sec.  2.35  Beneficiary protections: referral requirements.

    (a) If a beneficiary or prospective beneficiary of a social service 
program supported by direct DOL financial assistance objects to the 
religious character of an organization that provides services under the 
program, that organization must promptly undertake reasonable efforts to 
identify and refer the beneficiary or prospective beneficiary to an 
alternative provider to which the beneficiary or the prospective 
beneficiary has no objection.

[[Page 27]]

    (b) A referral may be made to another religious organization, if the 
beneficiary has no objection to that provider. But if the beneficiary 
requests a secular provider, and a secular provider is available, then a 
referral must be made to that provider.
    (c) Except for services provided by telephone, internet, or similar 
means, the referral must be to an alternative provider that is in 
reasonable geographic proximity to the organization making the referral 
and that offers services that are similar in substance and quality to 
those offered by that organization. The alternative provider also must 
have the capacity to accept additional clients.
    (d) When the organization makes a referral to an alternative 
provider, the organization shall maintain a record of that referral for 
review by the awarding entity. When the organization determines that it 
is unable to identify an alternative provider, the organization shall 
promptly notify and maintain a record for review by the awarding entity. 
If the organization is unable to identify an alternative provider, the 
awarding entity shall determine whether there is any other suitable 
alternative provider to which the beneficiary may be referred.
    (e) A DOL social service intermediary provider that receives a 
request for assistance in identifying an alternative provider may 
request assistance from DOL.
    (f) The obligations in this section apply only to religious 
organizations providing services under social service programs 
administered in the United States.

[81 FR 19423, Apr. 4, 2016]



Sec.  2.36  Application to State and local funds.

    If a State or local government voluntarily contributes its own funds 
to supplement activities carried out under the applicable programs, the 
State or local government has the option to separate out the Federal 
funds or commingle them. If the funds are commingled, then the 
provisions of this subpart apply to all of the commingled funds in the 
same manner, and to the same extent, as the provisions apply to the 
Federal assistance. State funds that are contributed pursuant to the 
requirements of a matching or grant agreement are considered to be 
commingled funds.

[69 FR 41891, July 12, 2004. Redesignated at 81 FR 19423, Apr. 4, 2016]



Sec.  2.37  Effect of DOL support on Title VII employment nondiscrimination 
requirements and on other existing statutes.

    A religious organization's exemption from the Federal prohibition on 
employment discrimination on the basis of religion, set forth in Sec.  
702(a) of the Civil Rights Act of 1964, 42 U.S.C. Sec.  2000e-1, is not 
forfeited when the organization receives direct or indirect DOL support. 
Some DOL programs, however, were established through Federal statutes 
containing independent statutory provisions requiring that recipients 
refrain from discriminating on the basis of religion. Accordingly, to 
determine the scope of any applicable requirements, recipients and 
potential recipients should consult with the appropriate DOL program 
official or with the Civil Rights Center, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N4123, Washington, DC 20210, (202) 693-
6500. Individuals with hearing or speech impairments may access this 
telephone number via TTY by calling the toll-free Federal Information 
Relay Service at 1-800-877-8339.

[69 FR 41891, July 12, 2004. Redesignated at 81 FR 19423, Apr. 4, 2016]



Sec.  2.38  Status of nonprofit organizations.

    (a) In general, DOL does not require that an organization, including 
a religious organization, obtain tax-exempt status under section 
501(c)(3) of the Internal Revenue Code in order to be eligible for 
Federal financial assistance under DOL social service programs. Many 
such programs, however, do require an organization to be a ``nonprofit 
organization'' in order to be eligible for such support. Individual 
solicitations that require organizations to have nonprofit status must 
specifically so indicate in the eligibility section of the solicitation. 
In addition, any solicitation for a program that requires an 
organization to maintain tax-exempt status must expressly state the

[[Page 28]]

statutory authority for requiring such status. For assistance with 
questions about a particular solicitation, applicants should contact the 
DOL program office that issued the solicitation.
    (b) Unless otherwise provided by statute, in DOL programs in which 
an applicant must show that it is a nonprofit organization, the 
applicant must be permitted to do so by any of the following means:
    (1) Proof that the Internal Revenue Service currently recognizes the 
applicant as tax exempt under section 501(c)(3) of the Internal Revenue 
Code;
    (2) A statement from a State taxing body or the State Secretary of 
State certifying that:
    (i) The organization is a nonprofit organization operating within 
the State; and
    (ii) No part of its net earnings may lawfully benefit any private 
shareholder or individual;
    (3) A certified copy of the applicant's certificate of incorporation 
or similar document that clearly establishes the nonprofit status of the 
applicant; or
    (4) Any item described in paragraphs (b)(1) through (b)(3) of this 
section, if that item applies to a State or national parent 
organization, together with a statement by the State or national parent 
organization that the applicant is a local nonprofit affiliate of the 
organization.

[69 FR 41891, July 12, 2004. Redesignated at 81 FR 19423, Apr. 4, 2016]



Sec.  2.39  Political or religious affiliation.

    Decisions about awards of Federal financial assistance must be free 
from political interference or even the appearance of such interference 
and must be made on the basis of merit, not on the basis of religion or 
religious belief or lack thereof.

[81 FR 19423, Apr. 4, 2016]



   Sec. Appendix A to Part 2--Notice of Beneficiary Religious Liberty 
                               Protections

    [Insert Name of Organization]:
    [Insert Name of Program]:
    [Insert Contact information for Program Staff (name, phone number, 
and email address, if appropriate)]:
________________________________________________________________________
    Because this program is supported in whole or in part by financial 
assistance from the Federal Government, we are required to let you know 
that:
    (1) We may not discriminate against you on the basis of religion or 
religious belief, a refusal to hold a religious belief, or a refusal to 
attend or participate in a religious practice;
    (2) We may not require you to attend or participate in any 
explicitly religious activities (including activities that involve overt 
religious content such as worship, religious instruction, or 
proselytization) that are offered by our organization, and any 
participation by beneficiaries in such activities must be purely 
voluntary;
    (3) We must separate out in time or location any privately-funded 
explicitly religious activities (including activities that involve overt 
religious content such as worship, religious instruction, or 
proselytization) from activities supported with direct Federal financial 
assistance;
    (4) If you object to the religious character of an organization, we 
must make reasonable efforts to identify and refer you to an alternative 
provider to which you have no objection. We cannot guarantee, however, 
that in every instance, an alternative provider will be available; and
    (5) You may report violations of these protections to, or file a 
written complaint of any denials of services or benefits by an 
organization, with the U.S. Department of Labor's Civil Rights Center, 
200 Constitution Ave. NW., Room N-4123, Washington, DC 20210, or by 
email to [email protected].
    This written notice must be given to you prior to the time you 
enroll in the program or receive services from such programs, unless the 
nature of the service provided or urgent circumstances makes it 
impracticable to provide such notice in advance of the actual service. 
In such an instance, this notice must be given to you at the earliest 
available opportunity.
--End of Form --

[81 FR 19423, Apr. 4, 2016]



         Sec. Appendix B to Part 2--Beneficiary Referral Request

    If you object to receiving services from us based on the religious 
character of our organization, please complete this form and return it 
to the program contact identified above. If you object, we will make 
reasonable efforts to refer you to another service provider. With your 
consent, we will follow up with you or the organization to which you 
were referred to determine whether you contacted that organization.
    Please check if applicable:

[[Page 29]]

( ) I want to be referred to another service provider.
    If you checked above that you wish to be referred to another service 
provider, please check one of the following:
( ) Please follow up with me.
    Name:
    Best way to reach me (phone/address/email):
( ) Please follow up with the other service provider.
( ) Please do not follow up.
--End of Form--

[81 FR 19423, Apr. 4, 2016]



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--
Table of Contents



Sec.
3.1 Purpose and scope.
3.2 Definitions.
3.3 Weekly statement with respect to payment of wages.
3.4 Submission of weekly statements and the preservation and inspection 
          of weekly payroll records.
3.5 Payroll deductions permissible without application to or approval of 
          the Secretary of Labor.
3.6 Payroll deductions permissible with the approval of the Secretary of 
          Labor.
3.7 Applications for the approval of the Secretary of Labor.
3.8 Action by the Secretary of Labor upon applications.
3.9 Prohibited payroll deductions.
3.10 Methods of payment of wages.
3.11 Regulations part of contract.

    Authority: R.S. 161, sec. 2, 48 Stat. 848; Reorg. Plan No. 14 of 
1950, 64 Stat. 1267; 5 U.S.C. 301; 40 U.S.C. 3145; Secretary's Order 01-
2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014).

    Source: 29 FR 97, Jan. 4, 1964, unless otherwise noted.



Sec.  3.1  Purpose and scope.

    This part prescribes ``anti-kickback'' regulations under section 2 
of the Act of June 13, 1934, as amended (40 U.S.C. 276c), popularly 
known as the Copeland Act. This part applies to any contract which is 
subject to Federal wage standards and which is for the construction, 
prosecution, completion, or repair of public buildings, public works or 
buildings or works financed in whole or in part by loans or grants from 
the United States. The part is intended to aid in the enforcement of the 
minimum wage provisions of the Davis-Bacon Act and the various statutes 
dealing with federally assisted construction that contain similar 
minimum wage provisions, including those provisions which are not 
subject to Reorganization Plan No. 14 (e.g., the College Housing Act of 
1950, the Federal Water Pollution Control Act, and the Housing Act of 
1959), and in the enforcement of the overtime provisions of the Contract 
Work Hours Standards Act whenever they are applicable to construction 
work. The part details the obligation of contractors and subcontractors 
relative to the weekly submission of statements regarding the wages paid 
on work covered thereby; sets forth the circumstances and procedures 
governing the making of payroll deductions from the wages of those 
employed on such work; and delineates the methods of payment permissible 
on such work.



Sec.  3.2  Definitions.

    As used in the regulations in this part:
    (a) The terms building or work generally include construction 
activity as distinguished from manufacturing, furnishing of materials, 
or servicing and maintenance work. The terms include, without 
limitation, buildings, structures, and improvements of all types, such 
as bridges, dams, plants, highways, parkways, streets, subways, tunnels, 
sewers, mains, powerlines, pumping stations, railways, airports, 
terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, 
breakwaters, levees, and canals; dredging, shoring, scaffolding, 
drilling, blasting, excavating, clearing, and landscaping. Unless 
conducted in connection with and at the site of such a building or work 
as is described in the foregoing sentence, the manufacture or furnishing 
of materials, articles, supplies, or equipment (whether or not a Federal 
or State agency acquires title to such materials, articles, supplies, or 
equipment during the course of the manufacture or furnishing, or owns 
the materials from which they are manufactured or furnished) is not a 
building or work within the meaning of the regulations in this part.

[[Page 30]]

    (b) The terms construction, prosecution, completion, or repair mean 
all types of work done on a particular building or work at the site 
thereof, including, without limitation, altering, remodeling, painting 
and decorating, the transporting of materials and supplies to or from 
the building or work by the employees of the construction contractor or 
construction subcontractor, and the manufacturing or furnishing of 
materials, articles, supplies, or equipment on the site of the building 
or work, by persons employed at the site by the contractor or 
subcontractor.
    (c) The terms public building or public work include building or 
work for whose construction, prosecution, completion, or repair, as 
defined above, a Federal agency is a contracting party, regardless of 
whether title thereof is in a Federal agency.
    (d) The term building or work financed in whole or in part by loans 
or grants from the United States includes building or work for whose 
construction, prosecution, completion, or repair, as defined above, 
payment or part payment is made directly or indirectly from funds 
provided by loans or grants by a Federal agency. The term includes 
building or work for which the Federal assistance granted is in the form 
of loan guarantees or insurance.
    (e) Every person paid by a contractor or subcontractor in any manner 
for his labor in the construction, prosecution, completion, or repair of 
a public building or public work or building or work financed in whole 
or in part by loans or grants from the United States is employed and 
receiving wages, regardless of any contractual relationship alleged to 
exist between him and the real employer.
    (f) The term any affiliated person includes a spouse, child, parent, 
or other close relative of the contractor or subcontractor; a partner or 
officer of the contractor or subcontractor; a corporation closely 
connected with the contractor or subcontractor as parent, subsidiary, or 
otherwise, and an officer or agent of such corporation.
    (g) The term Federal agency means the United States, the District of 
Columbia, and all executive departments, independent establishments, 
administrative agencies, and instrumentalities of the United States and 
of the District of Columbia, including corporations, all or 
substantially all of the stock of which is beneficially owned by the 
United States, by the District of Columbia, or any of the foregoing 
departments, establishments, agencies, and instrumentalities.

[29 FR 97, Jan. 4, 1964, as amended at 38 FR 32575, Nov. 27, 1973]



Sec.  3.3  Weekly statement with respect to payment of wages.

    (a) As used in this section, the term employee shall not apply to 
persons in classifications higher than that of laborer or mechanic and 
those who are the immediate supervisors of such employees.
    (b) Each contractor or subcontractor engaged in the construction, 
prosecution, completion, or repair of any public building or public 
work, or building or work financed in whole or in part by loans or 
grants from the United States, shall furnish each week a statement with 
respect to the wages paid each of its employees engaged on work covered 
by this part 3 and part 5 of this title during the preceding weekly 
payroll period. This statement shall be executed by the contractor or 
subcontractor or by an authorized officer or employee of the contractor 
or subcontractor who supervises the payment of wages, and shall be on 
the back of Form WH 347, ``Payroll (For Contractors Optional Use)'' or 
on any form with identical wording. Copies of WH 347 may be obtained 
from the Government contracting or sponsoring agency or from the Wage 
and Hour Division Web site at http://www.dol.gov/whd/forms/index.htm or 
its successor site.
    (c) The requirements of this section shall not apply to any contract 
of $2,000 or less.
    (d) Upon a written finding by the head of a Federal agency, the 
Secretary of Labor may provide reasonable limitations, variations, 
tolerances, and exemptions from the requirements of this section subject 
to such conditions as the Secretary of Labor may specify.

[29 FR 97, Jan. 4, 1964, as amended at 33 FR 10186, July 17, 1968; 47 FR 
23679, May 28, 1982; 73 FR 77511, Dec. 19, 2008; 82 FR 2224, Jan. 9, 
2017]

[[Page 31]]



Sec.  3.4  Submission of weekly statements and the preservation 
and inspection of weekly payroll records.

    (a) Each weekly statement required under Sec.  3.3 shall be 
delivered by the contractor or subcontractor, within seven days after 
the regular payment date of the payroll period, to a representative of a 
Federal or State agency in charge at the site of the building or work, 
or, if there is no representative of a Federal or State agency at the 
site of the building or work, the statement shall be mailed by the 
contractor or subcontractor, within such time, to a Federal or State 
agency contracting for or financing the building or work. After such 
examination and check as may be made, such statement, or a copy thereof, 
shall be kept available, or shall be transmitted together with a report 
of any violation, in accordance with applicable procedures prescribed by 
the United States Department of Labor.
    (b) Each contractor or subcontractor shall preserve his weekly 
payroll records for a period of three years from date of completion of 
the contract. The payroll records shall set out accurately and 
completely the name and address of each laborer and mechanic, his 
correct classification, rate of pay, daily and weekly number of hours 
worked, deductions made, and actual wages paid. Such payroll records 
shall be made available at all times for inspection by the contracting 
officer or his authorized representative, and by authorized 
representatives of the Department of Labor.

(Reporting and recordkeeping requirements in paragraph (b) have been 
approved by the Office of Management and Budget under control number 
1235-0008)

[29 FR 97, Jan. 4, 1964, as amended at 47 FR 145, Jan. 5, 1982; 82 FR 
2224, Jan. 9, 2017]



Sec.  3.5  Payroll deductions permissible without application to or approval 
of the Secretary of Labor.

    Deductions made under the circumstances or in the situations 
described in the paragraphs of this section may be made without 
application to and approval of the Secretary of Labor:
    (a) Any deduction made in compliance with the requirements of 
Federal, State, or local law, such as Federal or State withholding 
income taxes and Federal social security taxes.
    (b) Any deduction of sums previously paid to the employee as a bona 
fide prepayment of wages when such prepayment is made without discount 
or interest. A bona fide prepayment of wages is considered to have been 
made only when cash or its equivalent has been advanced to the person 
employed in such manner as to give him complete freedom of disposition 
of the advanced funds.
    (c) Any deduction of amounts required by court process to be paid to 
another, unless the deduction is in favor of the contractor, 
subcontractor, or any affiliated person, or when collusion or 
collaboration exists.
    (d) Any deduction constituting a contribution on behalf of the 
person employed to funds established by the employer or representatives 
of employees, or both, for the purpose of providing either from 
principal or income, or both, medical or hospital care, pensions or 
annuities on retirement, death benefits, compensation for injuries, 
illness, accidents, sickness, or disability, or for insurance to provide 
any of the foregoing, or unemployment benefits, vacation pay, savings 
accounts, or similar payments for the benefit of employees, their 
families and dependents: Provided, however, That the following standards 
are met:
    (1) The deduction is not otherwise prohibited by law;
    (2) It is either:
    (i) Voluntarily consented to by the employee in writing and in 
advance of the period in which the work is to be done and such consent 
is not a condition either for the obtaining of or for the continuation 
of employment, or
    (ii) provided for in a bona fide collective bargaining agreement 
between the contractor or subcontractor and representatives of its 
employees;
    (3) No profit or other benefit is otherwise obtained, directly or 
indirectly, by the contractor or subcontractor or any affiliated person 
in the form of commission, dividend, or otherwise; and
    (4) The deductions shall serve the convenience and interest of the 
employee.

[[Page 32]]

    (e) Any deduction contributing toward the purchase of United States 
Defense Stamps and Bonds when voluntarily authorized by the employee.
    (f) Any deduction requested by the employee to enable him to repay 
loans to or to purchase shares in credit unions organized and operated 
in accordance with Federal and State credit union statutes.
    (g) Any deduction voluntarily authorized by the employee for the 
making of contributions to governmental or quasi-governmental agencies, 
such as the American Red Cross.
    (h) Any deduction voluntarily authorized by the employee for the 
making of contributions to Community Chests, United Givers Funds, and 
similar charitable organizations.
    (i) Any deductions to pay regular union initiation fees and 
membership dues, not including fines or special assessments: Provided, 
however, That a collective bargaining agreement between the contractor 
or subcontractor and representatives of its employees provides for such 
deductions and the deductions are not otherwise prohibited by law.
    (j) Any deduction not more than for the ``reasonable cost'' of 
board, lodging, or other facilities meeting the requirements of section 
3(m) of the Fair Labor Standards Act of 1938, as amended, and part 531 
of this title. When such a deduction is made the additional records 
required under Sec.  516.25(a) of this title shall be kept.
    (k) Any deduction for the cost of safety equipment of nominal value 
purchased by the employee as his own property for his personal 
protection in his work, such as safety shoes, safety glasses, safety 
gloves, and hard hats, if such equipment is not required by law to be 
furnished by the employer, if such deduction is not violative of the 
Fair Labor Standards Act or prohibited by other law, if the cost on 
which the deduction is based does not exceed the actual cost to the 
employer where the equipment is purchased from him and does not include 
any direct or indirect monetary return to the employer where the 
equipment is purchased from a third person, and if the deduction is 
either
    (1) Voluntarily consented to by the employee in writing and in 
advance of the period in which the work is to be done and such consent 
is not a condition either for the obtaining of employment or its 
continuance; or
    (2) Provided for in a bona fide collective bargaining agreement 
between the contractor or subcontractor and representatives of its 
employees.

[29 FR 97, Jan. 4, 1964, as amended at 36 FR 9770, May 28, 1971]



Sec.  3.6  Payroll deductions permissible with the approval 
of the Secretary of Labor.

    Any contractor or subcontractor may apply to the Secretary of Labor 
for permission to make any deduction not permitted under Sec.  3.5. The 
Secretary may grant permission whenever he finds that:
    (a) The contractor, subcontractor, or any affiliated person does not 
make a profit or benefit directly or indirectly from the deduction 
either in the form of a commission, dividend, or otherwise;
    (b) The deduction is not otherwise prohibited by law;
    (c) The deduction is either (1) voluntarily consented to by the 
employee in writing and in advance of the period in which the work is to 
be done and such consent is not a condition either for the obtaining of 
employment or its continuance, or (2) provided for in a bona fide 
collective bargaining agreement between the contractor or subcontractor 
and representatives of its employees; and
    (d) The deduction serves the convenience and interest of the 
employee.



Sec.  3.7  Applications for the approval of the Secretary of Labor.

    Any application for the making of payroll deductions under Sec.  3.6 
shall comply with the requirements prescribed in the following 
paragraphs of this section:
    (a) The application shall be in writing and shall be addressed to 
the Secretary of Labor.
    (b) The application need not identify the contract or contracts 
under which the work in question is to be performed. Permission will be 
given for deductions on all current and future

[[Page 33]]

contracts of the applicant for a period of 1 year. A renewal of 
permission to make such payroll deduction will be granted upon the 
submission of an application which makes reference to the original 
application, recites the date of the Secretary of Labor's approval of 
such deductions, states affirmatively that there is continued compliance 
with the standards set forth in the provisions of Sec.  3.6, and 
specifies any conditions which have changed in regard to the payroll 
deductions.
    (c) The application shall state affirmatively that there is 
compliance with the standards set forth in the provisions of Sec.  3.6. 
The affirmation shall be accompanied by a full statement of the facts 
indicating such compliance.
    (d) The application shall include a description of the proposed 
deduction, the purpose to be served thereby, and the classes of laborers 
or mechanics from whose wages the proposed deduction would be made.
    (e) The application shall state the name and business of any third 
person to whom any funds obtained from the proposed deductions are to be 
transmitted and the affiliation of such person, if any, with the 
applicant.

[29 FR 97, Jan. 4, 1964, as amended at 36 FR 9771, May 28, 1971]



Sec.  3.8  Action by the Secretary of Labor upon applications.

    The Secretary of Labor shall decide whether or not the requested 
deduction is permissible under provisions of Sec.  3.6; and shall notify 
the applicant in writing of his decision.



Sec.  3.9  Prohibited payroll deductions.

    Deductions not elsewhere provided for by this part and which are not 
found to be permissible under Sec.  3.6 are prohibited.



Sec.  3.10  Methods of payment of wages.

    The payment of wages shall be by cash, negotiable instruments 
payable on demand, or the additional forms of compensation for which 
deductions are permissible under this part. No other methods of payment 
shall be recognized on work subject to the Copeland Act.



Sec.  3.11  Regulations part of contract.

    All contracts made with respect to the construction, prosecution, 
completion, or repair of any public building or public work or building 
or work financed in whole or in part by loans or grants from the United 
States covered by the regulations in this part shall expressly bind the 
contractor or subcontractor to comply with such of the regulations in 
this part as may be applicable. In this regard, see Sec.  5.5(a) of this 
subtitle.



PART 4_LABOR STANDARDS FOR FEDERAL SERVICE CONTRACTS--Table of Contents



  Subpart A_Service Contract Labor Standards Provisions and Procedures

Sec.
4.1 Purpose and scope.
4.1a Definitions and use of terms.
4.1b Payment of minimum compensation based on collectively bargained 
          wage rates and fringe benefits applicable to employment under 
          predecessor contract.
4.2 Payment of minimum wage specified in section 6(a)(1) of the Fair 
          Labor Standards Act of 1938 under all service contracts.
4.3 Wage determinations.
4.4 Obtaining a wage determination.
4.5 Contract specification of determined minimum wages and fringe 
          benefits.
4.6 Labor standards clauses for Federal service contracts exceeding 
          $2,500.
4.7-4.9 [Reserved]
4.10 Substantial variance proceedings under section 4(c) of the Act.
4.11 Arm's-length proceedings.
4.12 Substantial interest proceedings.

                 Subpart B_Wage Determination Procedures

4.50 Types of wage and fringe benefit determinations.
4.51 Prevailing in the locality determinations.
4.52 Fringe benefit determinations.
4.53 Collective bargaining agreement (successorship) determinations.
4.54 Locality basis of wage and fringe benefit determinations.
4.55 Issuance and revision of wage determinations.
4.56 Review and reconsideration of wage determinations.

[[Page 34]]

    Subpart C_Application of the McNamara-O'Hara Service Contract Act

                              Introductory

4.101 Official rulings and interpretations in this subpart.
4.102 Administration of the Act.
4.103 The Act.
4.104 What the Act provides, generally.
4.105 The Act as amended.
4.106 [Reserved]

                 Agencies Whose Contracts May Be Covered

4.107 Federal contracts.
4.108 District of Columbia contracts.
4.109 [Reserved]

                       Covered Contracts Generally

4.110 What contracts are covered.
4.111 Contracts ``to furnish services.''
4.112 Contracts to furnish services ``in the United States.''
4.113 Contracts to furnish services ``through the use of service 
          employees.''
4.114 Subcontracts.

                           Specific Exclusions

4.115 Exemptions and exceptions, generally.
4.116 Contracts for construction activity.
4.117 Work subject to requirements of Walsh-Healey Act.
4.118 Contracts for carriage subject to published tariff rates.
4.119 Contracts for services of communications companies.
4.120 Contracts for public utility services.
4.121 Contracts for individual services.
4.122 Contracts for operation of postal contract stations.
4.123 Administrative limitations, variations, tolerances, and 
          exemptions.
4.124-4.129 [Reserved]

         Particular Application of Contract Coverage Principles

4.130 Types of covered service contracts illustrated.
4.131 Furnishing services involving more than use of labor.
4.132 Services and other items to be furnished under a single contract.
4.133 Beneficiary of contract services.
4.134 Contracts outside the Act's coverage.
4.135-4.139 [Reserved]

                     Determining Amount of Contract

4.140 Significance of contract amount.
4.141 General criteria for measuring amount.
4.142 Contracts in an indefinite amount.

                      Changes in Contract Coverage

4.143 Effects of changes or extensions of contracts, generally.
4.144 Contract modifications affecting amount.
4.145 Extended term contracts.

                           Period of Coverage

4.146 Contract obligations after award, generally.
4.147-4.149 [Reserved]

                      Employees Covered by the Act

4.150 Employee coverage, generally.
4.151 Employees covered by provisions of section 2(a).
4.152 Employees subject to prevailing compensation provisions of 
          sections 2(a) (1) and (2) and 4(c).
4.153 Inapplicability of prevailing compensation provisions to some 
          employees.
4.154 Employees covered by sections 2(a) (3) and (4).
4.155 Employee coverage does not depend on form of employment contract.
4.156 Employees in bona fide executive, administrative, or professional 
          capacity.
4.157-4.158 [Reserved]

                    Subpart D_Compensation Standards

4.159 General minimum wage.
4.160 Effect of section 6(e) of the Fair Labor Standards Act.
4.161 Minimum monetary wages under contracts exceeding $2,500.
4.162 Fringe benefits under contracts exceeding $2,500.
4.163 Section 4(c) of the Act.
4.164 [Reserved]

                 Compliance With Compensation Standards

4.165 Wage payments and fringe benefits--in general.
4.166 Wage payments--unit of payment.
4.167 Wage payments--medium of payment.
4.168 Wage payments--deductions from wages paid.
4.169 Wage payments--work subject to different rates.
4.170 Furnishing fringe benefits or equivalents.
4.171 ``Bona fide'' fringe benefits.
4.172 Meeting requirements for particular fringe benefits--in general.
4.173 Meeting requirements for vacation fringe benefits.
4.174 Meeting requirements for holiday fringe benefits.
4.175 Meeting requirements for health, welfare, and/or pension benefits.
4.176 Payment of fringe benefits to temporary and part-time employees.
4.177 Discharging fringe benefit obligations by equivalent means.
4.178 Computation of hours worked.
4.179 Identification of contract work.

[[Page 35]]

                    Overtime Pay of Covered Employees

4.180 Overtime pay--in general.
4.181 Overtime pay provisions of other Acts.
4.182 Overtime pay of service employees entitled to fringe benefits.

                           Notice to Employees

4.183 Employees must be notified of compensation required.
4.184 Posting of notice.

                                 Records

4.185 Recordkeeping requirements.
4.186 [Reserved]

                          Subpart E_Enforcement

4.187 Recovery of underpayments.
4.188 Ineligibility for further contracts when violations occur.
4.189 Administrative proceedings relating to enforcement of labor 
          standards.
4.190 Contract cancellation.
4.191 Complaints and compliance assistance.

    Authority: 41 U.S.C. 351 et seq.; 41 U.S.C. 38 and 39; 5 U.S.C. 301; 
Pub. L. 104-188, 2105(b); Pub. L. 110-28, 121 Stat. 112; Secretary's 
Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014).

    Source: 48 FR 49762, Oct. 27, 1983, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 4 appear at 61 FR 
19984, May 3, 1996.



  Subpart A_Service Contract Labor Standards Provisions and Procedures



Sec.  4.1  Purpose and scope.

    This part contains the Department of Labor's rules relating to the 
administration of the McNamara-O'Hara Service Contract Act of 1965, as 
amended, referred to hereinafter as the Act. Rules of practice for 
administrative proceedings under the Act and for the review of wage 
determinations are contained in parts 6 and 8 of this chapter. See part 
1925 of this title for the safety and health standards applicable under 
the Service Contract Act.



Sec.  4.1a  Definitions and use of terms.

    As used in this part, unless otherwise indicated by the context--
    (a) Act, Service Contract Act, McNamara-O'Hara Act, or Service 
Contract Act of 1965 shall mean the Service Contract Act of 1965 as 
amended by Public Law 92-473, 86 Stat. 789, effective October 9, 1972, 
Public Law 93-57, 87 Stat. 140, effective July 6, 1973, and Public Law 
94-489, 90 Stat. 2358, effective October 13, 1976 and any subsequent 
amendments thereto.
    (b) Secretary includes the Secretary of Labor or their authorized 
representative.
    (c) Wage and Hour Division means the organizational unit of the 
Department of Labor to which is assigned the performance of functions of 
the Secretary under the Service Contract Act of 1965, as amended.
    (d) Administrator means the Administrator of the Wage and Hour 
Division, or authorized representative.
    (e) Contract includes any contract subject wholly or in part to the 
provisions of the Service Contract Act of 1965 as amended, and any 
subcontract of any tier thereunder. (See Sec. Sec.  4.10-4.134.)
    (f) Contractor includes a subcontractor whose subcontract is subject 
to provisions of the Act. Also, the term employer means, and is used 
interchangeably with, the terms contractor and subcontractor in various 
sections in this part. The U.S. Government, its agencies, and 
instrumentalities are not contractors, subcontractors, employers or 
joint employers for purposes of compliance with the provisions of the 
Act.
    (g) Affiliate or affiliated person includes a spouse, child, parent, 
or other close relative of the contractor or subcontractor; a partner or 
officer of the contractor or subcontractor; a corporation closely 
connected with a contractor or subcontractor as a parent, subsidiary, or 
otherwise; and an officer or agent of such corporation. An affiliation 
is also deemed to exist where, directly or indirectly, one business 
concern or individual controls or has the power to control the other or 
where a third party controls or has the power to control both.
    (h) Wage determination includes any determination of minimum wage 
rates or fringe benefits made pursuant to the provisions of sections 
2(a) and/or 4(c) of the Act for application to the employment in a 
locality of any class or classes of service employees in the performance 
of any contract in excess of $2,500 which is subject to the provisions 
of

[[Page 36]]

the Service Contract Act of 1965. A wage determination is effective upon 
its publication on the WDOL Web site or when a Federal agency receives a 
response from the Department of Labor to an e98.
    (i) Wage Determinations OnLine (WDOL) means the Government Internet 
Web site for both Davis-Bacon Act and Service Contract Act wage 
determinations available at http://www.wdol.gov. In addition, WDOL 
provides compliance assistance information and a link to submit an e98 
or any electronic means the Department of Labor may approve for this 
purpose. The term will also apply to any other Internet Web site or 
electronic means that the Department of Labor may approve for these 
purposes.
    (j) The e98 means a Department of Labor approved electronic 
application (http://www.wdol.gov), whereby a contracting officer submits 
pertinent information to the Department of Labor and requests a wage 
determination directly from the Wage and Hour Division. The term will 
also apply to any other process or system the Department of Labor may 
establish for this purpose.

[48 FR 49762, Oct. 27, 1983, as amended at 70 FR 50895, Aug. 26, 2005; 
81 FR 2224, Jan. 9, 2017]



Sec.  4.1b  Payment of minimum compensation based on collectively bargained 
wage rates and fringe benefits applicable to employment 
under predecessor contract.

    (a) Section 4(c) of the Service Contract Act of 1965 as amended 
provides special minimum wage and fringe benefit requirements applicable 
to every contractor and subcontractor under a contract which succeeds a 
contract subject to the Act and under which substantially the same 
services as under the predecessor contract are furnished in the same 
locality. Section 4(c) provides that no such contractor or subcontractor 
shall pay any service employee employed on the contract work less than 
the wages and fringe benefits provided for in a collective bargaining 
agreement as a result of arms-length negotiations, to which such service 
employees would have been entitled if they were employed under the 
predecessor contract, including accrued wages and fringe benefits and 
any prospective increases in wages and fringe benefits provided for in 
such collective bargaining agreement. If, however, the Secretary finds 
after a hearing in accordance with the regulations set forth in Sec.  
4.10 of this subpart and parts 6 and 8 of this title that in any of the 
foregoing circumstances such wages and fringe benefits are substantially 
at variance with those which prevail for service of a character similar 
in the locality, those wages and/or fringe benefits in such collective 
bargaining agreement which are found to be substantially at variance 
shall not apply, and a new wage determination shall be issued. If the 
contract has been awarded and work begun prior to a finding that the 
wages and/or fringe benefits in a collective bargaining agreement are 
substantially at variance with those prevailing in the locality, the 
payment obligation of such contractor or subcontractor with respect to 
the wages and fringe benefits contained in the new wage determination 
shall be applicable as of the date of the Administrative Law Judge's 
decision or, where the decision is reviewed by the Administrative Review 
Board, the date of the decision of the Administrative Review Board. (See 
also Sec.  4.163(c).)
    (b) Pursuant to section 4(b) of the Act, the application of section 
4(c) is made subject to the following variation in the circumstances and 
under the conditions described: The wage rates and fringe benefits 
provided for in any collective bargaining agreement applicable to the 
performance of work under the predecessor contract which is consummated 
during the period of performance of such contract shall not be effective 
for purposes of the successor contract under the provisions of section 
4(c) of the Act or under any wage determination implementing such 
section issued pursuant to section 2(a) of the Act, if--
    (1) In the case of a successor contract for which bids have been 
invited by formal advertising, notice of the terms of such new or 
changed collective bargaining agreement is received by the contracting 
agency less than 10 days before the date set for opening of bids,

[[Page 37]]

provided that the contracting agency finds that there is not reasonable 
time still available to notify bidders; or
    (2) Notice of the terms of a new or changed collective bargaining 
agreement is received by the agency after award of a successor contract 
to be entered into pursuant to negotiations or as a result of the 
execution of a renewal option or an extension of the initial contract 
term, provided that the contract start of performance is within 30 days 
of such award or renewal option or extension. If the contract does not 
specify a start of performance date which is within 30 days from the 
award, and/or performance of such procurement does not commence within 
this 30-day period, any notice of the terms of a new or changed 
collective bargaining agreement received by the agency not less than 10 
days before commencement of the contract will be effective for purposes 
of the successor contract under section 4(c); and
    (3) The limitations in paragraph (b)(1) or (2) of this section shall 
apply only if the contracting officer has given both the incumbent 
(predecessor) contractor and his employees' collective bargaining 
representative written notification at least 30 days in advance of all 
applicable estimated procurement dates, including issue of bid 
solicitation, bid opening, date of award, commencement of negotiations, 
receipt of proposals, or the commencement date of a contract resulting 
from a negotiation, option, or extension, as the case may be.



Sec.  4.2  Payment of minimum wage specified in section 6(a)(1) 
of the Fair Labor Standards Act of 1938 under all service contracts.

    Section 2(b)(1) of the Service Contract Act of 1965 provides in 
effect that, regardless of contract amount, no contractor or 
subcontractor performing work under any Federal contract the principal 
purpose of which is to furnish services through the use of service 
employees shall pay any employees engaged in such work less than the 
minimum wage specified in section 6(a)(1) of the Fair Labor Standards 
Act of 1938, as amended.

[61 FR 68663, Dec. 30, 1996]



Sec.  4.3  Wage determinations.

    (a) The minimum monetary wages and fringe benefits for service 
employees which the Act requires to be specified in contracts and bid 
solicitations subject to section 2(a) thereof will be set forth in wage 
determinations issued by the Administrator. Wage determinations shall be 
issued as soon as administratively feasible for all contracts subject to 
section 2(a) of the Act, and will be issued for all contracts entered 
into under which more than 5 service employees are to be employed.
    (b) As described in subpart B of this part--Wage Determination 
Procedures, two types of wage determinations are issued under the Act: 
Prevailing in the locality or Collective Bargaining Agreement 
(Successorship) wage determinations. The facts related to a specific 
solicitation and contract will determine the type of wage determination 
applicable to that procurement. In addition, different types of 
prevailing wage determinations may be issued depending upon the nature 
of the contract. While prevailing wage determinations based upon cross-
industry survey data are applicable to most contracts covered by the 
Act, in some cases the Department of Labor may issue industry specific 
wage determinations for application to specific types of service 
contracts. In addition, the geographic scope of contracts is often 
different and the geographic scope of the underlying survey data for the 
wage determinations applicable to those contracts may be different.
    (c) Such wage determinations will set forth for the various classes 
of service employees to be employed in furnishing services under such 
contracts in the appropriate localities, minimum monetary wage rates to 
be paid and minimum fringe benefits to be furnished them during the 
periods when they are engaged in the performance of such contracts, 
including, where appropriate under the Act, provisions for adjustments 
in such minimum rates and benefits to be placed in effect under such 
contracts at specified future times. The wage rates and fringe benefits 
set forth in such wage determinations shall be determined in accordance 
with the provisions of sections 2(a)(1), (2), and (5), 4(c) and 4(d) of 
the

[[Page 38]]

Act from those prevailing in the locality for such employees, with due 
consideration of the rates that would be paid for direct Federal 
employment of any classes of such employees whose wages, if Federally 
employed, would be determined as provided in 5 U.S.C. 5341 or 5 U.S.C. 
5332, or from pertinent collective bargaining agreements with respect to 
the implementation of section 4(c). The wage rates and fringe benefits 
so determined for any class of service employees to be engaged in 
furnishing covered contract services in a locality shall be made 
applicable by contract to all service employees of such class employed 
to perform such services in the locality under any contract subject to 
section 2(a) of the Act which is entered into thereafter and before such 
determination has been rendered obsolete by a withdrawal, modification, 
revision, or supersedure.
    (d) Generally, wage determinations issued for solicitations or 
negotiations for any contract where the place of performance is unknown 
will contain minimum monetary wages and fringe benefits for the various 
geographic localities where the work may be performed which were 
identified in the initial solicitation. (See Sec.  4.4(a)(3)(i).)
    (e) Wage determinations will be available for public inspection 
during business hours at the Wage and Hour Division, U.S. Department of 
Labor, Washington, DC, and copies will be made available upon request at 
Regional Offices of the Wage and Hour Division. In addition, most 
prevailing wage determinations are available online from WDOL. Archived 
versions of SCA wage determinations that are no longer current may be 
accessed in the ``Archived SCA WD'' database of WDOL for information 
purposes only. Contracting officers should not use an archived wage 
determination in a contract action without prior approval of the 
Department of Labor.

[48 FR 49762, Oct. 27, 1983, as amended at 70 FR 50895, Aug. 26, 2005; 
82 FR 2224, Jan. 9, 2017]



Sec.  4.4  Obtaining a wage determination.

    (a)(1) Sections 2(a)(1) and (2) of the Act require that every 
contract and any bid specification therefore in excess of $2,500 contain 
a wage determination specifying the minimum monetary wages and fringe 
benefits to be paid to service employees performing work on the 
contract. The contracting agency, therefore, must obtain a wage 
determination prior to:
    (i) Any invitation for bids;
    (ii) Request for proposals;
    (iii) Commencement of negotiations;
    (iv) Exercise of option or contract extension;
    (v) Annual anniversary date of a multi-year contract subject to 
annual fiscal appropriations of the Congress; or
    (vi) Each biennial anniversary date of a multi-year contract not 
subject to such annual appropriations, if so authorized by the Wage and 
Hour Division.
    (2) As described in Sec.  4.4(b), wage determinations may be 
obtained from the Department of Labor by electronically submitting an 
e98 describing the proposed contract and the occupations expected to be 
employed on the contract. Based upon the information provided on the 
e98, the Department of Labor will respond with the wage determination or 
wage determinations that the contracting agency may rely upon as the 
correct wage determination(s) for the contract described in the e98. 
Alternatively, contracting agencies may select and obtain a wage 
determination using WDOL. (See Sec.  4.4(c).) Although the WDOL Web site 
provides assistance to the agency to select the correct wage 
determination for the contract, the agency remains responsible for the 
wage determination selected.
    (3)(i) Where the place of performance of a contract for services 
subject to the Act is unknown at the time of solicitation, the 
solicitation need not initially contain a wage determination. The 
contracting agency, upon identification of firms participating in the 
procurement in response to an initial solicitation, shall obtain a wage 
determination for each location where the work may be performed as 
indicated by participating firms. An applicable wage determination must 
be obtained for each firm participating in the bidding for the location 
in which it would perform the contract. The appropriate

[[Page 39]]

wage determination shall be incorporated in the resultant contract 
documents and shall be applicable to all work performed thereunder 
(regardless of whether the successful contractor subsequently changes 
the place(s) of contract performance).
    (ii) There may be unusual situations, as determined by the 
Department of Labor upon consultation with a contracting agency, where 
the procedure in paragraph (a)(3)(i) of this section is not practicable 
in a particular situation. In these situations, the Department may 
authorize a modified procedure that may result in the subsequent 
issuance of wage determinations for one or more composite localities.
    (4) In no event may a contract subject to the Act on which more than 
five (5) service employees are contemplated to be employed be awarded 
without an appropriate wage determination. (See section 10 of the Act.)
    (b) e98 process--
    (1) The e98 is an electronic application used by contracting 
agencies to request wage determinations directly from the Wage and Hour 
Division. The Division uses computers to analyze information provided on 
the e98 and to provide a response while the requester is online, if the 
analysis determines that an existing wage determination is currently 
applicable to the procurement. The response will assign a unique serial 
number to the e98 and the response will provide a link to an electronic 
copy of the applicable wage determination(s). If the initial computer 
analysis cannot identify the applicable wage determination for the 
request, an online response will be provided indicating that the request 
has been referred to an analyst. Again, the online response will assign 
a unique serial number to the e98. After an analyst has reviewed the 
request, a further response will be sent to the email address identified 
on the e98. In most cases, the further response will provide an 
attachment with a copy of the applicable wage determination(s). In some 
cases, however, additional information may be required and the 
additional information will be requested via email. After an applicable 
wage determination is sent in response to an e98, the e98 system 
continues to monitor the request and if the applicable wage 
determination is revised in time to affect the procurement, an amended 
response will be sent to the email address identified on the e98.
    (2) When completing an e98, it is important that all information 
requested be completed accurately and fully. However, several sections 
are particularly important. Since most responses are provided via email, 
a correct email address is critically important. Accurate procurement 
dates are essential for the follow-up response system to operate 
effectively. An accurate estimate of the number of service employees to 
be employed under the contract is also important because section 10 of 
the Act requires that a wage determination be issued for all contracts 
that involve more than five service employees.
    (3) Since the e98 system automatically provides an amended response 
if the applicable wage determination is revised, the email address 
listed on the e98 must be monitored during the full solicitation stage 
of the procurement. Communications sent to the email address provided 
are deemed to be received by the contracting agency. A contracting 
agency must update the email address through the ``help'' process 
identified on the e98, if the agency no longer intends to monitor the 
email address.
    (4) For invitations to bid, if the bid opening date is delayed by 
more than sixty (60) days, or if contract commencement is delayed by 
more than sixty (60) days for all other contract actions, the 
contracting agency shall submit a revised e98.
    (5) If the services to be furnished under the proposed contract will 
be substantially the same as services being furnished in the same 
locality by an incumbent contractor whose contract the proposed contract 
will succeed, and if such incumbent contractor is furnishing such 
services through the use of service employees whose wage rates and 
fringe benefits are the subject of one or more collective bargaining 
agreements, the contracting agency shall reference the union and the 
collective bargaining agreement on the e98. The requester will receive 
an e-mail response giving instructions for

[[Page 40]]

submitting a copy of each such collective bargaining agreement together 
with any related documents specifying the wage rates and fringe benefits 
currently or prospectively payable under such agreement. After receipt 
of the collective bargaining agreement, the Wage and Hour Division will 
provide a further e-mail response attaching a copy of the wage 
determination based upon the collective bargaining agreement. If the 
place of contract performance is unknown, the contracting agency will 
submit the collective bargaining agreement of the incumbent contractor 
for incorporation into a wage determination applicable to a potential 
bidder located in the same locality as the predecessor contractor. If 
such services are being furnished at more than one locality and the 
collectively bargained wage rates and fringe benefits are different at 
different localities or do not apply to one or more localities, the 
agency shall identify the localities to which such agreements have 
application. If the collective bargaining agreement does not apply to 
all service employees under the contract, the agency shall identify the 
employees and/or work subject to the collective bargaining agreement. In 
the event the agency has reason to believe that any such collective 
bargaining agreement was not entered into as a result of arm's-length 
negotiations, a full statement of the facts so indicating shall be 
transmitted with the copy of such agreement. (See Sec.  4.11.) If the 
agency has information indicating that any such collectively bargained 
wage rates and fringe benefits are substantially at variance with those 
prevailing for services of a similar character in the locality, the 
agency shall so advise the Wage and Hour Division and, if it believes a 
hearing thereon pursuant to section 4(c) of the Act is warranted, shall 
file its request for such hearing pursuant to Sec.  4.10 at the time of 
filing the e98.
    (6) If the proposed contract is for a multi-year period subject to 
other than annual appropriations, the contracting agency shall provide a 
statement in the comments section of the e98 concerning the type of 
funding and the contemplated term of the proposed contract. Unless 
otherwise advised by the Wage and Hour Division that a wage 
determination must be obtained on the annual anniversary date, a new 
wage determination shall be obtained on each biennial anniversary date 
of the proposed multi-year contract in the event its term is for a 
period in excess of two years.
    (c) WDOL process--
    (1) Contracting agencies may use the WDOL Web site to select the 
applicable prevailing wage determination for the procurement. The WDOL 
site provides assistance to the agency in the selection of the correct 
wage determination. The contracting agency, however, is fully 
responsible for selecting the correct wage determination. If the 
Department of Labor subsequently determines that an incorrect wage 
determination was applied to a specific contract, the contracting 
agency, in accordance with Sec.  4.5, shall amend the contract to 
incorporate the correct wage determination as determined by the 
Department of Labor.
    (2) If an applicable prevailing wage determination is not available 
on the WDOL site, the contracting agency must submit an e98 in 
accordance with Sec.  4.4(b).
    (3) The contracting agency shall monitor the WDOL site to determine 
whether the applicable wage determination has been revised. Revisions 
published on the WDOL site or otherwise communicated to the contracting 
officer within the timeframes prescribed in Sec.  4.5(a)(2) are 
applicable and must be included in the resulting contract.
    (4) If the services to be furnished under the proposed contract will 
be substantially the same as services being furnished in the same 
locality by an incumbent contractor whose contract the proposed contract 
will succeed, and if such incumbent contractor is furnishing such 
services through the use of service employees whose wage rates and 
fringe benefits are the subject of one or more collective bargaining 
agreements, the contracting agency may prepare a wage determination that 
references the collective bargaining agreement by incorporating that 
wage determination, with a complete copy of the collective bargaining 
agreement attached thereto, into the

[[Page 41]]

successor contract action. It need not submit a copy of the collective 
bargaining agreement to the Department of Labor unless requested to do 
so. If the place of contract performance is unknown, the contracting 
agency will prepare a wage determination on WDOL and attach the 
collective bargaining agreement of the incumbent contractor and make 
both the wage determination and collective bargaining agreement 
applicable to a potential bidder located in the same locality as the 
predecessor contractor. (See section 4.4(a)(3).) If such services are 
being furnished at more than one locality and the collectively bargained 
wage rates and fringe benefits are different at different localities or 
do not apply to one or more localities, the agency shall identify the 
localities to which such agreements have application. If the collective 
bargaining agreement does not apply to all service employees under the 
contract, the agency shall identify the employees and/or work subject to 
the collective bargaining agreement. In the event the agency has reason 
to believe that any such collective bargaining agreement was not entered 
into as a result of arm's-length negotiations, a full statement of the 
facts so indicating shall be transmitted to the Wage and Hour Division 
with the copy of such agreement. (See Sec.  4.11.) If the agency has 
information indicating that any such collectively bargained wage rates 
and fringe benefits are substantially at variance with those prevailing 
for services of a similar character in the locality, the agency shall so 
advise the Wage and Hour Division and, if it believes a hearing thereon 
pursuant to section 4(c) of the Act is warranted, shall file its request 
for such hearing pursuant to Sec.  4.10. A wage determination based upon 
the collective bargaining agreement must be included in the contract 
until a hearing or a final ruling of the Administrator determines that 
the collective bargaining agreement was not reached as the result of 
arm's-length negotiations or was substantially at variance with locally 
prevailing rates. Any questions regarding timeliness or applicability of 
collective bargaining agreements must be referred to the Department of 
Labor for resolution.
    (5) If the proposed contract is for a multi-year period subject to 
other than annual appropriations, the contracting agency shall, unless 
otherwise advised by the Wage and Hour Division, obtain a new wage 
determination on each biennial anniversary date of the proposed multi-
year contract in the event its term is for a period in excess of two 
years.

[70 FR 50896, Aug. 26, 2005]



Sec.  4.5  Contract specification of determined minimum wages 
and fringe benefits.

    (a) Any contract in excess of $2,500 shall contain, as an 
attachment, the applicable, currently effective wage determination 
specifying the minimum wages and fringe benefits for service employees 
to be employed thereunder, including any information referred to in 
paragraphs (a)(1) or (2) of this section;
    (1) Any wage determination from the Wage and Hour Division, 
Department of Labor, responsive to the contracting agency's submission 
of an e98 or obtained through WDOL under Sec.  4.4; or
    (2) Any revision of a wage determination issued prior to the award 
of the contract or contracts which specifies minimum wage rates or 
fringe benefits for classes of service employees whose wages or fringe 
benefits were not previously covered by wage determinations, or which 
changes previously determined minimum wage rates and fringe benefits for 
service employees employed on covered contracts in the locality.
    (i) However, revisions received by the Federal agency later than 10 
days before the opening of bids, in the case of contracts entered into 
pursuant to competitive bidding procedures, shall not be effective if 
the Federal agency finds that there is not a reasonable time still 
available to notify bidders of the revision.
    (ii) In the case of procurements entered into pursuant to 
negotiations (or in the case of the execution of an option or an 
extension of the initial contract term), revisions received by the 
agency after award (or execution of an option or extension of term, as 
the case may be) of the contract shall not be effective provided that 
the contract start

[[Page 42]]

of performance is within 30 days of such award (or execution of an 
option or extension of term). Any notice of a revision received by the 
agency not less than 10 days before commencement of the contract shall 
be effective, if:
    (A) The contract does not specify a start of performance date which 
is within 30 days from the award; and/or
    (B) Performance of such procurement does not commence within this 
30-day period.
    (iii) In situations arising under section 4(c) of the Act, the 
provisions in Sec.  4.1b(b) apply.
    (3) For purposes of using WDOL databases containing prevailing wage 
determinations, the date of receipt by the contracting agency will be 
the date of publication on the WDOL Web site or on the date the agency 
receives actual notice of an initial or revised wage determination from 
the Department of Labor through the e98 process, whichever occurs first.
    (b)(1) The following exemption from the compensation requirements of 
section 2(a) of the Act applies, subject to the limitations set forth in 
paragraphs (b)(2), (3), and (4) of this section: To avoid serious 
impairment of the conduct of Government business it has been found 
necessary and proper to provide exemption from the determined wage and 
fringe benefits section of the Act (section 2(a)(1), (2)) but not the 
minimum wage specified under section 6(a)(1) of the Fair Labor Standards 
Act of 1938, as amended (section 2(b) of this Act), of contracts under 
which five or less service employees are to be employed, and for which 
no such wage or fringe benefit determination has been issued;
    (2) The exemption provided in paragraph (b)(1) of this section, 
which was adopted pursuant to section 4(b) of the Act prior to its 
amendment by Public Law 92-473, does not extend to undetermined wages or 
fringe benefits in contracts for which one or more, but not all, classes 
of service employees are the subject of an applicable wage 
determination. The procedure for determination of wage rates and fringe 
benefits for any classes of service employees engaged in performing such 
contracts whose wages and fringe benefits are not specified in the 
applicable wage determination is set forth in Sec.  4.6(b).
    (3) The exemption provided in paragraph (b)(1) of this section does 
not exempt any contract from the application of the provisions of 
section 4(c) of the Act as amended, concerning successor contracts.
    (4) The exemption provided in paragraph (b)(1) of this section does 
not apply to any contract for which section 10 of the Act as amended 
requires an applicable wage determination.
    (c) Where the Department of Labor discovers and determines, whether 
before or subsequent to a contract award, that a contracting agency made 
an erroneous determination that the Service Contract Act did not apply 
to a particular procurement and/or failed to include an appropriate wage 
determination in a covered contract, the contracting agency, within 30 
days of notification by the Department of Labor, shall include in the 
contract the stipulations contained in Sec.  4.6 and any applicable wage 
determination issued by the Administrator or his authorized 
representative through the exercise of any and all authority that may be 
needed (including, where necessary, its authority to negotiate or amend, 
its authority to pay any necessary additional costs, and its authority 
under any contract provision authorizing changes, cancellation, and 
termination). With respect to any contract subject to section 10 of the 
Act, the Administrator may require retroactive application of such wage 
determination. (See 53 Comp. Gen. 412, (1973); Curtiss-Wright Corp. v. 
McLucas, 381 F. Supp. 657 (D NJ 1974); Marine Engineers Beneficial 
Assn., District 2 v. Military Sealift Command, 86 CCH Labor Cases ] 
33,782 (D DC 1979); Brinks, Inc. v. Board of Governors of the Federal 
Reserve System, 466 F. Supp. 112 (D DC 1979), 466 F. Supp. 116 (D DC 
1979).) (See also 32 CFR 1-403.)
    (d) In cases where the contracting agency has filed an e98 and has 
not received a response from the Department of Labor, the contracting 
agency shall, with respect to any contract for which section 10 to the 
Act and Sec.  4.3 for this part mandate the inclusion of an applicable 
wage determination, contact the

[[Page 43]]

Wage and Hour Division by e-mail or telephone for guidance.

[48 FR 49762, Oct. 27, 1983, as amended at 70 FR 50897, Aug. 26, 2005; 
82 FR 2224, Jan. 9, 2017]



Sec.  4.6  Labor standards clauses for Federal service contracts 
exceeding $2,500.

    The clauses set forth in the following paragraphs shall be included 
in full by the contracting agency in every contract entered into by the 
United States or the District of Columbia, in excess of $2,500, or in an 
indefinite amount, the principal purpose of which is to furnish services 
through the use of service employees:
    (a) Service Contract Act of 1965, as amended: This contract is 
subject to the Service Contract Act of 1965, as amended (41 U.S.C. 351 
et seq.) and is subject to the following provisions and to all other 
applicable provisions of the Act and regulations of the Secretary of 
Labor issued thereunder (29 CFR part 4).
    (b)(1) Each service employee employed in the performance of this 
contract by the contractor or any subcontractor shall be paid not less 
than the minimum monetary wages and shall be furnished fringe benefits 
in accordance with the wages and fringe benefits determined by the 
Secretary of Labor or authorized representative, as specified in any 
wage determination attached to this contract.
    (2)(i) If there is such a wage determination attached to this 
contract, the contracting officer shall require that any class of 
service employee which is not listed therein and which is to be employed 
under the contract (i.e., the work to be performed is not performed by 
any classification listed in the wage determination), be classified by 
the contractor so as to provide a reasonable relationship (i.e., 
appropriate level of skill comparison) between such unlisted 
classifications and the classifications listed in the wage 
determination. Such conformed class of employees shall be paid the 
monetary wages and furnished the fringe benefits as are determined 
pursuant to the procedures in this section.
    (ii) Such conforming procedure shall be initiated by the contractor 
prior to the performance of contract work by such unlisted class of 
employee. A written report of the proposed conforming action, including 
information regarding the agreement or disagreement of the authorized 
representative of the employees involved or, where there is no 
authorized representative, the employees themselves, shall be submitted 
by the contractor to the contracting officer no later than 30 days after 
such unlisted class of employees performs any contract work. The 
contracting officer shall review the proposed action and promptly submit 
a report of the action, together with the agency's recommendation and 
all pertinent information including the position of the contractor and 
the employees, to the Wage and Hour Division, U.S. Department of Labor, 
for review. The Wage and Hour Division will approve, modify, or 
disapprove the action or render a final determination in the event of 
disagreement within 30 days of receipt or will notify the contracting 
officer within 30 days of receipt that additional time is necessary.
    (iii) The final determination of the conformance action by the Wage 
and Hour Division shall be transmitted to the contracting officer who 
shall promptly notify the contractor of the action taken. Each affected 
employee shall be furnished by the contractor with a written copy of 
such determination or it shall be posted as a part of the wage 
determination.
    (iv)(A) The process of establishing wage and fringe benefit rates 
that bear a reasonable relationship to those listed in a wage 
determination cannot be reduced to any single formula. The approach used 
may vary from wage determination to wage determination depending on the 
circumstances. Standard wage and salary administration practices which 
rank various job classifications by pay grade pursuant to point schemes 
or other job factors may, for example, be relied upon. Guidance may also 
be obtained from the way different jobs are rated under Federal pay 
systems (Federal Wage Board Pay System and the General Schedule) or from 
other wage determinations issued in the same locality. Basic to the 
establishment of any conformable wage rate(s) is the concept that a pay

[[Page 44]]

relationship should be maintained between job classifications based on 
the skill required and the duties performed.
    (B) In the case of a contract modification, an exercise of an option 
or extension of an existing contract, or in any other case where a 
contractor succeeds a contract under which the classification in 
question was previously conformed pursuant to this section, a new 
conformed wage rate and fringe benefits may be assigned to such 
conformed classification by indexing (i.e., adjusting) the previous 
conformed rate and fringe benefits by an amount equal to the average 
(mean) percentage increase (or decrease, where appropriate) between the 
wages and fringe benefits specified for all classifications to be used 
on the contract which are listed in the current wage determination, and 
those specified for the corresponding classifications in the previously 
applicable wage determination. Where conforming actions are accomplished 
in accordance with this paragraph prior to the performance of contract 
work by the unlisted class of employees, the contractor shall advise the 
contracting officer of the action taken but the other procedures in 
paragraph (b)(2)(ii) of this section need not be followed.
    (C) No employee engaged in performing work on this contract shall in 
any event be paid less than the currently applicable minimum wage 
specified under section 6(a)(1) of the Fair Labor Standards Act of 1938, 
as amended.
    (v) The wage rate and fringe benefits finally determined pursuant to 
paragraphs (b)(2)(i) and (ii) of this section shall be paid to all 
employees performing in the classification from the first day on which 
contract work is performed by them in the classification. Failure to pay 
such unlisted employees the compensation agreed upon by the interested 
parties and/or finally determined by the Wage and Hour Division 
retroactive to the date such class of employees commenced contract work 
shall be a violation of the Act and this contract.
    (vi) Upon discovery of failure to comply with paragraphs (b)(2)(i) 
through (v) of this section, the Wage and Hour Division shall make a 
final determination of conformed classification, wage rate, and/or 
fringe benefits which shall be retroactive to the date such class of 
employees commenced contract work.
    (3) If, as authorized pursuant to section 4(d) of the Service 
Contract Act of 1965 as amended, the term of this contract is more than 
1 year, the minimum monetary wages and fringe benefits required to be 
paid or furnished thereunder to service employees shall be subject to 
adjustment after 1 year and not less often than once every 2 years, 
pursuant to wage determinations to be issued by the Wage and Hour 
Division of the Department of Labor as provided in such Act.
    (c) The contractor or subcontractor may discharge the obligation to 
furnish fringe benefits specified in the attachment or determined 
conformably thereto by furnishing any equivalent combinations of bona 
fide fringe benefits, or by making equivalent or differential payments 
in cash in accordance with the applicable rules set forth in subpart D 
of 29 CFR part 4, and not otherwise.
    (d)(1) In the absence of a minimum wage attachment for this 
contract, neither the contractor nor any subcontractor under this 
contract shall pay any person performing work under the contract 
(regardless of whether they are service employees) less than the minimum 
wage specified by section 6(a)(1) of the Fair Labor Standards Act of 
1938. Nothing in this provision shall relieve the contractor or any 
subcontractor of any other obligation under law or contract for the 
payment of a higher wage to any employee.
    (2) If this contract succeeds a contract, subject to the Service 
Contract Act of 1965 as amended, under which substantially the same 
services were furnished in the same locality and service employees were 
paid wages and fringe benefits provided for in a collective bargaining 
agreement, in the absence of the minimum wage attachment for this 
contract setting forth such collectively bargained wage rates and fringe 
benefits, neither the contractor nor any subcontractor under this 
contract shall pay any service employee performing any of the contract 
work (regardless of whether or not such employee was employed under the

[[Page 45]]

predecessor contract), less than the wages and fringe benefits provided 
for in such collective bargaining agreements, to which such employee 
would have been entitled if employed under the predecessor contract, 
including accrued wages and fringe benefits and any prospective 
increases in wages and fringe benefits provided for under such 
agreement. No contractor or subcontractor under this contract may be 
relieved of the foregoing obligation unless the limitations of Sec.  
4.1b(b) of 29 CFR part 4 apply or unless the Secretary of Labor or his 
authorized representative finds, after a hearing as provided in Sec.  
4.10 of 29 CFR part 4 that the wages and/or fringe benefits provided for 
in such agreement are substantially at variance with those which prevail 
for services of a character similar in the locality, or determines, as 
provided in Sec.  4.11 of 29 CFR part 4, that the collective bargaining 
agreement applicable to service employees employed under the predecessor 
contract was not entered into as a result of arm's-length negotiations. 
Where it is found in accordance with the review procedures provided in 
29 CFR 4.10 and/or 4.11 and parts 6 and 8 that some or all of the wages 
and/or fringe benefits contained in a predecessor contractor's 
collective bargaining agreement are substantially at variance with those 
which prevail for services of a character similar in the locality, and/
or that the collective bargaining agreement applicable to service 
employees employed under the predecessor contract was not entered into 
as a result of arm's-length negotiations, the Department will issue a 
new or revised wage determination setting forth the applicable wage 
rates and fringe benefits. Such determination shall be made part of the 
contract or subcontract, in accordance with the decision of the 
Administrator, the Administrative Law Judge, or the Administrative 
Review Board, as the case may be, irrespective of whether such issuance 
occurs prior to or after the award of a contract or subcontract. 53 
Comp. Gen. 401 (1973). In the case of a wage determnation issued solely 
as a result of a finding of substantial variance, such determination 
shall be effective as of the date of the final administrative decision.
    (e) The contractor and any subcontractor under this contract shall 
notify each service employee commencing work on this contract of the 
minimum monetary wage and any fringe benefits required to be paid 
pursuant to this contract, or shall post the wage determination attached 
to this contract. The poster provided by the Department of Labor 
(Publication WH 1313) shall be posted in a prominent and accessible 
place at the worksite. Failure to comply with this requirement is a 
violation of section 2(a)(4) of the Act and of this contract.
    (f) The contractor or subcontractor shall not permit any part of the 
services called for by this contract to be performed in buildings or 
surroundings or under working conditions provided by or under the 
control or supervision of the contractor or subcontractor which are 
unsanitary or hazardous or dangerous to the health or safety of service 
employees engaged to furnish these services, and the contractor or 
subcontractor shall comply with the safety and health standards applied 
under 29 CFR part 1925.
    (g)(1) The contractor and each subcontractor performing work subject 
to the Act shall make and maintain for 3 years from the completion of 
the work records containing the information specified in paragraphs 
(g)(1)(i) through (vi) of this section for each employee subject to the 
Act and shall make them available for inspection and transcription by 
authorized representatives of the Wage and Hour Division of the U.S. 
Department of Labor:
    (i) Name and address and social security number of each employee.
    (ii) The correct work classification or classifications, rate or 
rates of monetary wages paid and fringe benefits provided, rate or rates 
of fringe benefit payments in lieu thereof, and total daily and weekly 
compensation of each employee.
    (iii) The number of daily and weekly hours so worked by each 
employee.
    (iv) Any deductions, rebates, or refunds from the total daily or 
weekly compensation of each employee.
    (v) A list of monetary wages and fringe benefits for those classes 
of service employees not included in the wage

[[Page 46]]

determination attached to this contract but for which such wage rates or 
fringe benefits have been determined by the interested parties or by the 
Administrator or authorized representative pursuant to the labor 
standards clause in paragraph (b) of this section. A copy of the report 
required by the clause in paragraph (b)(2)(ii) of this section shall be 
deemed to be such a list.
    (vi) Any list of the predecessor contractor's employees which had 
been furnished to the contractor pursuant to Sec.  4.6(l)(2).
    (2) The contractor shall also make available a copy of this contract 
for inspection or transcription by authorized representatives of the 
Wage and Hour Division.
    (3) Failure to make and maintain or to make available such records 
for inspection and transcription shall be a violation of the regulations 
and this contract, and in the case of failure to produce such records, 
the contracting officer, upon direction of the Department of Labor and 
notification of the contractor, shall take action to cause suspension of 
any further payment or advance of funds until such violation ceases.
    (4) The contractor shall permit authorized representatives of the 
Wage and Hour Division to conduct interviews with employees at the 
worksite during normal working hours.
    (h) The contractor shall unconditionally pay to each employee 
subject to the Act all wages due free and clear and without subsequent 
deduction (except as otherwise provided by law or Regulations, 29 CFR 
part 4), rebate, or kickback on any account. Such payments shall be made 
no later than one pay period following the end of the regular pay period 
in which such wages were earned or accrued. A pay period under this Act 
may not be of any duration longer than semi-monthly.
    (i) The contracting officer shall withhold or cause to be withheld 
from the Government prime contractor under this or any other Government 
contract with the prime contractor such sums as an appropriate official 
of the Department of Labor requests or such sums as the contracting 
officer decides may be necessary to pay underpaid employees employed by 
the contractor or subcontractor. In the event of failure to pay any 
employees subject to the Act all or part of the wages or fringe benefits 
due under the Act, the agency may, after authorization or by direction 
of the Department of Labor and written notification to the contractor, 
take action to cause suspension of any further payment or advance of 
funds until such violations have ceased. Additionally, any failure to 
comply with the requirements of these clauses relating to the Service 
Contract Act of 1965, may be grounds for termination of the right to 
proceed with the contract work. In such event, the Government may enter 
into other contracts or arrangements for completion of the work, 
charging the contractor in default with any additional cost.
    (j) The contractor agrees to insert these clauses in this section 
relating to the Service Contract Act of 1965 in all subcontracts subject 
to the Act. The term contractor as used in these clauses in any 
subcontract, shall be deemed to refer to the subcontractor, except in 
the term Government prime contractor.
    (k)(1) As used in these clauses, the term service employee means any 
person engaged in the performance of this contract other than any person 
employed in a bona fide executive, administrative, or professional 
capacity, as those terms are defined in part 541 of title 29, Code of 
Federal Regulations, as of July 30, 1976, and any subsequent revision of 
those regulations. The term service employee includes all such persons 
regardless of any contractual relationship that may be alleged to exist 
between a contractor or subcontractor and such persons.
    (2) The following statement is included in contracts pursuant to 
section 2(a)(5) of the Act and is for informational purposes only:
    The following classes of service employees expected to be employed 
under the contract with the Government would be subject, if employed by 
the contracting agency, to the provisions of 5 U.S.C. 5341 or 5 U.S.C. 
5332 and would, if so employed, be paid not less than the following 
rates of wages and fringe benefits:

[[Page 47]]



------------------------------------------------------------------------
                                                               Monetary
                       Employee class                        wage-fringe
                                                               benefits
------------------------------------------------------------------------
                                                             ...........
                                                             ...........
                                                             ...........
------------------------------------------------------------------------

    (l)(1) If wages to be paid or fringe benefits to be furnished any 
service employees employed by the Government prime contractor or any 
subcontractor under the contract are provided for in a collective 
bargaining agreement which is or will be effective during any period in 
which the contract is being performed, the Government prime contractor 
shall report such fact to the contracting officer, together with full 
information as to the application and accrual of such wages and fringe 
benefits, including any prospective increases, to service employees 
engaged in work on the contract, and a copy of the collective bargaining 
agreement. Such report shall be made upon commencing performance of the 
contract, in the case of collective bargaining agreements effective at 
such time, and in the case of such agreements or provisions or 
amendments thereof effective at a later time during the period of 
contract performance, such agreements shall be reported promptly after 
negotiation thereof.
    (2) Not less than 10 days prior to completion of any contract being 
performed at a Federal facility where service employees may be retained 
in the performance of the succeeding contract and subject to a wage 
determination which contains vacation or other benefit provisions based 
upon length of service with a contractor (predecessor) or successor 
(Sec.  4.173 of Regulations, 29 CFR part 4), the incumbent prime 
contractor shall furnish to the contracting officer a certified list of 
the names of all service employees on the contractor's or 
subcontractor's payroll during the last month of contract performance. 
Such list shall also contain anniversary dates of employment on the 
contract either with the current or predecessor contractors of each such 
service employee. The contracting officer shall turn over such list to 
the successor contractor at the commencement of the succeeding contract.
    (m) Rulings and interpretations of the Service Contract Act of 1965, 
as amended, are contained in Regulations, 29 CFR part 4.
    (n)(1) By entering into this contract, the contractor (and officials 
thereof) certifies that neither it (nor he or she) nor any person or 
firm who has a substantial interest in the contractor's firm is a person 
or firm ineligible to be awarded Government contracts by virtue of the 
sanctions imposed pursuant to section 5 of the Act.
    (2) No part of this contract shall be subcontracted to any person or 
firm ineligible for award of a Government contract pursuant to section 5 
of the Act.
    (3) The penalty for making false statements is prescribed in the 
U.S. Criminal Code, 18 U.S.C. 1001.
    (o) Notwithstanding any of the clauses in paragraphs (b) through (m) 
of this section relating to the Service Contract Act of 1965, the 
following employees may be employed in accordance with the following 
variations, tolerances, and exemptions, which the Secretary of Labor, 
pursuant to section 4(b) of the Act prior to its amendment by Public Law 
92-473, found to be necessary and proper in the public interest or to 
avoid serious impairment of the conduct of Government business:
    (1) Apprentices, student-learners, and workers whose earning 
capacity is impaired by age, physical, or mental deficiency or injury 
may be employed at wages lower than the minimum wages otherwise required 
by section 2(a)(1) or 2(b)(1) of the Service Contract Act without 
diminishing any fringe benefits or cash payments in lieu thereof 
required under section 2(a)(2) of that Act, in accordance with the 
conditions and procedures prescribed for the employment of apprentices, 
student-learners, handicapped persons, and handicapped clients of 
sheltered workshops under section 14 of the Fair Labor Standards Act of 
1938, in the regulations issued by the Administrator (29 CFR parts 520, 
521, 524, and 525).
    (2) The Administrator will issue certificates under the Service 
Contract Act for the employment of apprentices, student-learners, 
handicapped persons, or handicapped clients of sheltered workshops not 
subject to the Fair Labor Standards Act of 1938, or subject to different 
minimum rates of pay

[[Page 48]]

under the two acts, authorizing appropriate rates of minimum wages (but 
without changing requirements concerning fringe benefits or 
supplementary cash payments in lieu thereof), applying procedures 
prescribed by the applicable regulations issued under the Fair Labor 
Standards Act of 1938 (29 CFR parts 520, 521, 524, and 525).
    (3) The Administrator will also withdraw, annul, or cancel such 
certificates in accordance with the regulations in parts 525 and 528 of 
title 29 of the Code of Federal Regulations.
    (p) Apprentices will be permitted to work at less than the 
predetermined rate for the work they perform when they are employed and 
individually registered in a bona fide apprenticeship program registered 
with a State Apprenticeship Agency which is recognized by the U.S. 
Department of Labor, or if no such recognized agency exists in a State, 
under a program registered with the Bureau of Apprenticeship and 
Training, Employment and Training Administration, U.S. Department of 
Labor. Any employee who is not registered as an apprentice in an 
approved program shall be paid the wage rate and fringe benefits 
contained in the applicable wage determination for the journeyman 
classification of work actually performed. The wage rates paid 
apprentices shall not be less than the wage rate for their level of 
progress set forth in the registered program, expressed as the 
appropriate percentage of the journeyman's rate contained in the 
applicable wage determination. The allowable ratio of apprentices to 
journeymen employed on the contract work in any craft classification 
shall not be greater than the ratio permitted to the contractor as to 
his entire work force under the registered program.
    (q) Where an employee engaged in an occupation in which he or she 
customarily and regularly receives more than $30 a month in tips, the 
amount of tips received by the employee may be credited by the employer 
against the minimum wage required by Section 2(a)(1) or 2(b)(1) of the 
Act to the extent permitted by section 3(m) of the Fair Labor Standards 
Act and Regulations, 29 CFR part 531. To utilize this proviso:
    (1) The employer must inform tipped employees about this tip credit 
allowance before the credit is utilized;
    (2) The employees must be allowed to retain all tips (individually 
or through a pooling arrangement and regardless of whether the employer 
elects to take a credit for tips received);
    (3) The employer must be able to show by records that the employee 
receives at least the applicable Service Contract Act minimum wage 
through the combination of direct wages and tip credit;
    (4) The use of such tip credit must have been permitted under any 
predecessor collective bargaining agreement applicable by virtue of 
section 4(c) of the Act.
    (r) Disputes concerning labor standards. Disputes arising out of the 
labor standards provisions of this contract shall not be subject to the 
general disputes clause of this contract. Such disputes shall be 
resolved in accordance with the procedures of the Department of Labor 
set forth in 29 CFR parts 4, 6, and 8. Disputes within the meaning of 
this clause include disputes between the contractor (or any of its 
subcontractors) and the contracting agency, the U.S. Department of 
Labor, or the employees or their representatives.

(The information collection, recordkeeping, and reporting requirements 
contained in this section have been approved by the Office of Management 
and Budget under the following numbers:

------------------------------------------------------------------------
                                                            OMB Control
                        Paragraph                               No.
------------------------------------------------------------------------
(b)(2)(i)-(iv)..........................................       1235-0007
(e).....................................................       1235-0007
(g)(1)(i)-(iv)..........................................       1235-0007
                                                               1235-0018
(g)(1)(v)-(vi)..........................................       1235-0007
(l)(1), (2).............................................       1235-0007
(q)(3)..................................................       1235-0007
------------------------------------------------------------------------


[48 FR 49762, Oct. 27, 1983; 48 FR 50529, Nov. 2, 1983, as amended at 61 
FR 68663, Dec. 30, 1996; 82 FR 2224, Jan. 9, 2017]



Sec. Sec.  4.7-4.9  [Reserved]



Sec.  4.10  Substantial variance proceedings under section 4(c) of the Act.

    (a) Statutory provision. Under section 4(c) of the Act, and under 
corresponding wage determinations made

[[Page 49]]

as provided in section 2(a)(1) and (2) of the Act, contractors and 
subcontractors performing contracts subject to the Act generally are 
obliged to pay to service employees employed on the contract work wages 
and fringe benefits not less than those to which they would have been 
entitled under a collective bargaining agreement if they were employed 
on like work under a predecessor contract in the same locality. (See 
Sec. Sec.  4.1b, 4.3, 4.6(d)(2).) Section 4(c) of the Act provides, 
however, that ``such obligations shall not apply if the Secretary finds 
after a hearing in accordance with regulations adopted by the Secretary 
that such wages and fringe benefits are substantially at variance with 
those which prevail for services of a character similar in the 
locality''.
    (b) Prerequisites for hearing. (1)(i) A request for a hearing under 
this section may be made by the contracting agency or other person 
affected or interested, including contractors or prospective contractors 
and associations of contractors, representatives of employees, and other 
interested Governmental agencies. Such a request shall be submitted in 
writing to the Administrator, Wage and Hour Division, U.S. Department of 
Labor, Washington, DC 20210, and shall include the following:
    (A) The number of any wage determination at issue, the name of the 
contracting agency whose contract is involved, and a brief description 
of the services to be performed under the contract;
    (B) A statement regarding the status of the procurement and any 
estimated procurement dates, such as bid opening, contract award, 
commencement date of the contract or its follow-up option period;
    (C) A statement of the applicant's case, setting forth in detail the 
reasons why the applicant believes that a substantial variance exists 
with respect to some or all of the wages and/or fringe benefits, 
attaching available data concerning wages and/or fringe benefits 
prevailing in the locality;
    (D) Names and addresses (to the extent known) of interested parties.
    (ii) If the information in paragraph (b)(1)(i) of this section is 
not submitted with the request, the Administrator may deny the request 
or request supplementary information, at his/her discretion. No 
particular form is prescribed for submission of a request under this 
section.
    (2) The Administrator will respond to the party requesting a hearing 
within 30 days after receipt, granting or denying the request or 
advising that additional time is necessary for a decision. No hearing 
will be provided pursuant to this section and section 4(c) of the Act 
unless the Administrator determines from information available or 
submitted with a request for such a hearing that there may be a 
substantial variance between some or all of the wage rates and/or fringe 
benefits provided for in a collective bargaining agreement to which the 
service employees would otherwise be entitled by virtue of the 
provisions of section 4(c) of the Act, and those which prevail for 
services of a character similar in the locality.
    (3) Pursuant to section 4(b) of the Act, requests for a hearing 
shall not be considered unless received as specified below, except in 
those situations where the Administrator determines that extraordinary 
circumstances exist:
    (i) For advertised contracts, prior to ten days before the award of 
the contract;
    (ii) For negotiated contracts and for contracts with provisions 
extending the initial term by option, prior to the commencement date of 
the contract or the follow-up option period, as the case may be.
    (c) Referral to the Chief Administrative Law Judge. When the 
Administrator determines from the information available or submitted 
with a request for a hearing that there may be a substantial variance, 
the Administrator on his/her own motion or on application of any 
interested person will by order refer the issue to the Chief 
Administrative Law Judge, for designation of an Administrative Law Judge 
who shall conduct such a fact finding hearing as may be necessary to 
render a decision solely on the issue of whether the wages and/or fringe 
benefits contained in the collective bargaining agreement which was the 
basis for the wage determination at issue are substantially at variance 
with those which prevail for

[[Page 50]]

services of a character similar in the locality. However, in situations 
where there is also a question as to whether the collective bargaining 
agreement was reached as a result of ``arm's-length negotiations'' (see 
Sec.  4.11), the referral shall include both issues for resolution in 
one proceeding. No authority is delegated under this section to hear 
and/or decide any other issues pertaining to the Service Contract Act. 
As provided in section 4(a) of the Act, the provisions of section 4 and 
5 of the Walsh-Healey Public Contracts Act (41 U.S.C. 38, 39) shall be 
applicable to such proceeding, which shall be conducted in accordance 
with the procedures set forth at 29 CFR part 6.
    (d) The Administrator shall be an interested party and shall have 
the opportunity to participate in the proceeding to the degree he/she 
considers appropriate.

[48 FR 49762, Oct. 27, 1983, as amended at 82 FR 2225, Jan. 9, 2017]



Sec.  4.11  Arm's length proceedings.

    (a) Statutory provision. Under section 4(c) of the Act, the wages 
and fringe benefits provided in the predecessor contractor's collective 
bargaining agreement must be reached ``as a result of arm's-length 
negotiations.'' This provision precludes arrangements by parties to a 
collective bargaining agreement who, either separately or together, act 
with an intent to take advantage of the wage determination scheme 
provided for in sections 2(a) and 4(c) of the Act. See Trinity Services, 
Inc. v. Marshall, 593 F.2d 1250 (D.C. Cir. 1978). A finding as to 
whether a collective bargaining agreement or particular wages and fringe 
benefits therein are reached as a result of arm's-length negotiations 
may be made through investigation, hearing or otherwise pursuant to the 
Secretary's authority under section 4(a) of the Act.
    (b) Prerequisites for hearing. (1) A request for a determination 
under this section may be made by a contracting agency or other person 
affected or interested, including contractors or prospective contractors 
and associations of contractors, representatives of employees, and 
interested Governmental agencies. Such a request shall be submitted in 
writing to the Administrator, Wage and Hour Division, U.S. Department of 
Labor, Washington, DC 20210. Although no particular form is prescribed 
for submission of a request under this section, such request shall 
include the following information:
    (i) A statement of the applicant's case setting forth in detail the 
reasons why the applicant believes that the wages and fringe benefits 
contained in the collective bargaining agreement were not reached as a 
result of arm's-length negotiations;
    (ii) A statement regarding the status of the procurement and any 
estimated procurement dates, such as bid opening, contract award, 
commencement date of the contract or its follow-up option period;
    (iii) Names and addresses (to the extent known) of interested 
parties.
    (2) Pursuant to section 4(b) of the Act, requests for a hearing 
shall not be considered unless received as specified below except in 
those situations where the Administrator determines that extraordinary 
circumstances exist:
    (i) For advertised contracts, prior to ten days before the award of 
the contract;
    (ii) For negotiated contracts and for contracts with provisions 
extending the term by option, prior to the commencement date of the 
contract or the follow-up option period, as the case may be.
    (c)(1) The Administrator, on his/her own motion or after receipt of 
a request for a determination, may make a finding on the issue of arm's-
length negotiations.
    (2) If the Administrator determines that there may not have been 
arm's-length negotiations, but finds that there is insufficient evidence 
to render a final decision thereon, the Administrator may refer the 
issue to the Chief Administrative Law Judge in accordance with paragraph 
(d) of this section.
    (3)(i) If the Administrator finds that the collective bargaining 
agreement or wages and fringe benefits at issue were reached as a result 
of arm's-length negotiations or that arm's-length negotiations did not 
take place, the interested parties, including the parties to the 
collective bargaining agreement, will be notified of the Administrator's

[[Page 51]]

findings, which shall include the reasons therefor, and such parties 
shall be afforded an opportunity to request that a hearing be held to 
render a decision on the issue of arm's-length negotiations.
    (ii) Such parties shall have 20 days from the date of the 
Administrator's ruling to request a hearing. A detailed statement of the 
reasons why the Administrator's ruling is in error, including facts 
alleged to be in dispute, if any, shall be submitted with the request 
for a hearing.
    (iii) If no hearing is requested within the time mentioned in 
paragraph (c)(3)(ii) of this section, the Administrator's ruling shall 
be final, and, in the case of a finding that arm's-length negotiations 
did not take place, a new wage determination will be issued for the 
contract. If a hearing is requested, the decision of the Administrator 
shall be inoperative.
    (d) Referral to the Chief Administrative Law Judge. The 
Administrator on his/her own motion, under paragraph (c)(2) of this 
section or upon a request for a hearing under paragraph (c)(3)(ii) of 
this section where the Administrator determines that material facts are 
in dispute, shall by order refer the issue to the Chief Administrative 
Law Judge for designation of an Administrative Law Judge, who shall 
conduct such hearings as may be necessary to render a decision solely on 
the issue of arm's-length negotiations. However, in situations where 
there is also a question as to whether some or all of the collectively 
bargained wage rates and/or fringe benefits are substantially at 
variance (see Sec.  4.10), the referral shall include both issues for 
resolution in one proceeding. As provided in section 4(a) of the Act, 
the provisions of sections 4 and 5 of the Walsh-Healey Public Contracts 
Act (41 U.S.C. 38, 39) shall be applicable to such proceeding, which 
shall be conducted in accordance with the procedures set forth at 29 CFR 
part 6.
    (e) Referral to the Administrative Review Board. When a party 
requests a hearing under paragraph (c)(3)(ii) of this section and the 
Administrator determines that no material facts are in dispute, the 
Administrator shall refer the issue and the record compiled thereon to 
the Administrative Review Board to render a decision solely on the issue 
of arm's-length negotiations. Such proceeding shall be conducted in 
accordance with the procedures set forth at 29 CFR part 8.

[48 FR 49762, Oct. 27, 1983, as amended at 82 FR 2225, Jan. 9, 2017]



Sec.  4.12  Substantial interest proceedings.

    (a) Statutory provision. Under section 5(a) of the Act, no contract 
of the United States (or the District of Columbia) shall be awarded to 
the persons or firms appearing on the list distributed by the 
Comptroller General giving the names of persons or firms who have been 
found to have violated the Act until 3 years have elapsed from the date 
of publication of the list. Section 5(a) further states that ``no 
contract of the United States shall be awarded * * * to any firm, 
corporation, partnership, or association in which such persons or firms 
have a substantial interest * * * .'' A finding as to whether persons or 
firms whose names appear on the debarred bidders list have a substantial 
interest in any other firm, corporation, partnership, or association may 
be made through investigation, hearing, or otherwise pursuant to the 
Secretary's authority under section 4(a) of the Act.
    (b) Ineligibility. See Sec.  4.188 of this part for the Secretary's 
rulings and interpretations with respect to substantial interest.
    (c)(1) A request for a determination under this section may be made 
by any interested party, including contractors or prospective 
contractors, and associations of contractors, representatives of 
employees, and interested Government agencies. Such a request shall be 
submitted in writing to the Administrator, Wage and Hour Division, U.S. 
Department of Labor, Washington, DC 20210.
    (2) The request shall include a statement setting forth in detail 
why the petitioner believes that a person or firm whose name appears on 
the debarred bidders list has a substantial interest in any firm, 
corporation, partnership, or association which is seeking or has been 
awarded a contract of

[[Page 52]]

the United States or the District of Columbia. No particular form is 
prescribed for the submission of a request under this section.
    (d)(1) The Administrator, on his/her own motion or after receipt of 
a request for a determination, may make a finding on the issue of 
substantial interest.
    (2) If the Administrator determines that there may be a substantial 
interest, but finds that there is insufficient evidence to render a 
final ruling thereon, the Administrator may refer the issue to the Chief 
Administrative Law Judge in accordance with paragraph (e) of this 
section.
    (3) If the Administrator finds that no substantial interest exists, 
or that there is not sufficient information to warrant the initiation of 
an investigation, the requesting party, if any, will be so notified and 
no further action taken.
    (4)(i) If the Administrator finds that a substantial interest 
exists, the person or firm affected will be notified of the 
Administrator's finding, which shall include the reasons therefor, and 
such person or firm shall be afforded an opportunity to request that a 
hearing be held to render a decision on the issue of substantial 
interest.
    (ii) Such person or firm shall have 20 days from the date of the 
Administrator's ruling to request a hearing. A detailed statement of the 
reasons why the Administrator's ruling is in error, including facts 
alleged to be in dispute, if any, shall be submitted with the request 
for a hearing.
    (iii) If no hearing is requested within the time mentioned in 
paragraph (d)(4)(ii) of this section, the Administrator's finding shall 
be final and the Administrator shall so notify the Comptroller General. 
If a hearing is requested, the decision of the Administrator shall be 
inoperative unless and until the Administrative Law Judge or the 
Administrative Review Board issues an order that there is a substantial 
interest.
    (e) Referral to the Chief Administrative Law Judge. The 
Administrator on his/her own motion, or upon a request for a hearing 
where the Administrator determines that relevant facts are in dispute, 
shall by order refer the issue to the Chief Administrative Law Judge, 
for designation of an Administrative Law Judge who shall conduct such 
hearings as may be necessary to render a decision solely on the issue of 
substantial interest. As provided in section 4(a) of the Act, the 
provisions of sections 4 and 5 of the Walsh-Healey Public Contracts Act 
(41 U.S.C. 38, 39) shall be applicable to such proceedings, which shall 
be conducted in accordance with the procedures set forth at 29 CFR part 
6.
    (f) Referral to the Administrative Review Board. When the person or 
firm requests a hearing and the Administrator determines that relevant 
facts are not in dispute, the Administrator will refer the issue and the 
record compiled thereon to the Administrative Review Board to render a 
decision solely on the issue of substantial interest. Such proceeding 
shall be conducted in accordance with the procedures set forth at 29 CFR 
part 8.

[48 FR 49762, Oct. 27, 1983, as amended at 82 FR 2225, Jan. 9, 2017]



                 Subpart B_Wage Determination Procedures



Sec.  4.50  Types of wage and fringe benefit determinations.

    The Administrator specifies the minimum monetary wages and fringe 
benefits to be paid as required under the Act in two types of 
determinations:
    (a) Prevailing in the locality. (1) Determinations that set forth 
minimum monetary wages and fringe benefits determined to be prevailing 
for various classes of service employees in the locality (sections 
2(a)(1) and 2(a)(2) of the Act) after giving ``due consideration'' to 
the rates applicable to such service employees if directly hired by the 
Federal Government (section 2(a)(5) of the Act).
    (2) The prevailing wage determinations applicable to most contracts 
covered by the Act are based upon cross-industry survey data. However, 
in some cases the Department of Labor may issue industry specific wage 
determinations for application to specific types of service contracts. 
In addition, the geographic scope of contracts is often different and 
the geographic scope of the underlying survey data for the

[[Page 53]]

wage determinations applicable to those contracts may be different. 
Therefore, a variety of different prevailing wage determinations may be 
applicable in a particular locality. The application of these different 
prevailing wage determinations will depend upon the nature of the 
contracts to which they are applied.
    (b) Collective Bargaining Agreement--(Successorship). Determinations 
that set forth the wage rates and fringe benefits, including accrued and 
prospective increases, contained in a collective bargaining agreement 
applicable to the service employees who performed on a predecessor 
contract in the same locality. (See sections 2(a)(1) and (2) as well as 
4(c) of the Act.)

[70 FR 50898, Aug. 26, 2005]



Sec.  4.51  Prevailing in the locality determinations.

    (a) Information considered. The minimum monetary wages and fringe 
benefits set forth in determinations of the Secretary are based on all 
available pertinent information as to wage rates and fringe benefits 
being paid at the time the determination is made. Such information is 
most frequently derived from area surveys made by the Bureau of Labor 
Statistics, U.S. Department of Labor, or other Labor Department 
personnel. Information may also be obtained from Government contracting 
officers and from other available sources, including employees and their 
representatives and employers and their associations. The determinations 
may be based on the wage rates and fringe benefits contained in 
collective bargaining agreements where they have been determined to 
prevail in a locality for specified occupational class(es) of employees.
    (b) Determination of prevailing rates. Where a single rate is paid 
to a majority (50 percent or more) of the workers in a class of service 
employees engaged in similar work in a particular locality, that rate is 
determined to prevail. The wage rates and fringe benefits in a 
collective bargaining agreement covering 2,001 janitors in a locality, 
for example, prevail if it is determined that no more than 4,000 workers 
are engaged in such janitorial work in that locality. In the case of 
information developed from surveys, statistical measurements of central 
tendency such as a median (a point in a distribution of wage rates where 
50 percent of the surveyed workers receive that or a higher rate and an 
equal number receive a lesser rate) or the mean (average) are considered 
reliable indicators of the prevailing rate. Which of these statistical 
measurements will be applied in a given case will be determined after a 
careful analysis of the overall survey, separate classification data, 
patterns existing between survey periods, and the way the separate 
classification data interrelate. Use of the median is the general rule. 
However, the mean (average) rate may be used in situations where, after 
analysis, it is determined that the median is not a reliable indicator. 
Examples where the mean may be used include situations where:
    (1) The number of workers studied for the job classification 
constitutes a relatively small sample and the computed median results in 
an actual rate that is paid to few of the studied workers in the class;
    (2) Statistical deviation such as a skewed (bimodal or multimodal) 
frequency distribution biases the median rate due to large 
concentrations of workers toward either end of the distribution curve 
and the computed median results in an actual rate that is paid to few of 
the studied workers in the class; or
    (3) The computed median rate distorts historic wage relationships 
between job levels within a classification family (i.e., Electronic 
Technician Classes A, B, and C levels within the Electronic technician 
classification family), between classifications of different skill 
levels (i.e., a maintenance electrician as compared with a maintenance 
carpenter), or, for example, yields a wage movement inconsistent with 
the pattern shown by the survey overall or with related and/or similarly 
skilled job classifications.
    (c) Slotting wage rates. In some instances, a wage survey for a 
particular locality may result in insufficient data for one or more job 
classifications that are required in the performance of a contract. 
Establishment of a prevailing wage rate for certain such classifications 
may be accomplished through a

[[Page 54]]

``slotting'' procedure, such as that used under the Federal pay system. 
Under this procedure, wage rates are derived for a classification based 
on a comparison of equivalent or similar job duty and skill 
characteristics between the classifications studied and those for which 
no survey data is available. As an example, a wage rate found prevailing 
for the janitorial classification may be adopted for the classification 
of mess attendant if the skill and duties attributed to each 
classification are known to be rated similarly under pay classification 
schemes. (Both classifications are assigned the same wage grade under 
the Coordinated Federal Wage System and are paid at the Wage Board grade 
2 when hired directly by a Federal agency.)
    (d) Due consideration. In making wage and fringe benefit 
determinations, section 2(a)(5) of the Act requires that due 
consideration be given to the rates that would be paid by the Federal 
agency to the various classes of service employees if section 5341 or 
section 5332 of title 5 U.S.C., were applicable to them. Section 5341 
refers to the Wage Board or Coordinated Federal Wage System for ``blue 
collar'' workers and section 5332 refers to the General Schedule pay 
system for ``white collar'' workers. The term due consideration implies 
the exercise of discretion on the basis of the facts and circumstances 
surrounding each determination, recognizing the legislative objective of 
narrowing the gap between the wage rates and fringe benefits prevailing 
for service employees and those established for Federal employees. Each 
wage determination is based on a survey or other information on the wage 
rates and fringe benefits being paid in a particular locality and also 
takes into account those wage rates and fringe benefits which would be 
paid under Federal pay systems.



Sec.  4.52  Fringe benefit determinations.

    (a) Wage determinations issued pursuant to the Service Contract Act 
ordinarily contain provisions for vacation and holiday benefits 
prevailing in the locality. In addition, wage determinations contain a 
prescribed minimum rate for all other benefits, such as insurance, 
pension, etc., which are not required as a matter of law (i.e., 
excluding Social Security, unemployment insurance, and workers' 
compensation payments and similar statutory benefits), based upon the 
sum of the benefits contained in the U.S. Bureau of Labor Statistics, 
Employment Cost Index (ECI), for all employees in private industry, 
nationwide (and excluding ECI components for supplemental pay, such as 
shift differential, which are considered wages rather than fringe 
benefits under SCA). Pursuant to Section 4(b) of the Act and Sec.  
4.123, the Secretary has determined that it is necessary and proper in 
the public interest, and in accord with remedial purposes of the Act to 
protect prevailing labor standards, to issue a variation from the Act's 
requirement that fringe benefits be determined for various classes of 
service employees in the locality.
    (b) The minimum rate for all benefits (other than holidays and 
vacation) which are not legally required, as prescribed in paragraph (a) 
of this section, shall be phased in over a four-year period beginning 
June 1, 1997. The first year the rate will be $.90 per hour plus one-
fourth of the difference between $.90 per hour and the rate prescribed 
in paragraph (a) of this section; the second year the rate will be 
increased by one-third of the difference between the rate set the first 
year and the rate prescribed; the third year the rate will be increased 
by one-half of the difference between the rate set in the second year 
and the rate prescribed; and the fourth year and thereafter the rate 
will be the rate prescribed in paragraph (a) of this section.
    (c) Where it is determined pursuant to Sec.  4.51(b) that a single 
fringe benefit rate is paid with respect to a majority of the workers in 
a class of service employees engaged in similar work in a locality, that 
rate will be determined to prevail notwithstanding the rate which would 
otherwise be prescribed pursuant to this section. Ordinarily, it will be 
found that a majority of workers receive fringe benefits at a single 
level where those workers are subject to a collective bargaining 
agreement whose provisions have been found to prevail in the locality.

[[Page 55]]

    (d) A significant number of contracts contain a prevailing fringe 
benefit rate of $2.56 per hour. Generally, these contracts are large 
base support contracts, contracts requiring competition from large 
corporations, contracts requiring highly technical services, and 
contracts solicited pursuant to A-76 procedures (displacement of Federal 
employees), as well as successor contracts thereto. The $2.56 benefit 
rate shall continue to be issued for all contracts containing the $2.56 
benefit rate, as well as resolicitations and other successor contracts 
for substantially the same services, until the fringe benefit rate 
determined in accordance with paragraphs (a) and (b) of this section 
equals or exceeds $2.56 per hour.
    (e) Variance procedure. (1) The Department will consider variations 
requested by contracting agencies pursuant to Section 4(b) of the Act 
and Sec.  4.123, from the methodology described in paragraph (a) of this 
section for determining prevailing fringe benefit rates. This variation 
procedure will not be utilized to routinely permit separate fringe 
benefit packages for classes of employees and industries, but rather 
will be limited to the narrow circumstances set forth herein where 
special needs of contracting agencies require this procedure. Such 
variations will be considered where the agency demonstrates that because 
of the special circumstances of the particular industry, the variation 
is necessary and proper in the public interest or to avoid the serious 
impairment of government business. Such a demonstration might be made, 
for example, where an agency is unable to obtain contractors willing to 
bid on a contract because the service will be performed at the 
contractor's facility by employees performing work for the Government 
and other customers, and as a result, paying the required SCA fringe 
benefits would cause undue disruption to the contractor's own work force 
and pay practices.
    (2) It will also be necessary for the agency to demonstrate that a 
variance is in accordance with the remedial purpose of the Act to 
protect prevailing labor standards, by providing comprehensive data from 
a valid survey demonstrating the prevailing fringe benefits for the 
specific industry. If the agency does not continue to provide current 
data in subsequent years, the variance will be withdrawn and the rate 
prescribed in paragraph (a) of this section will be issued for the 
contract.

[61 FR 68664, Dec. 30, 1996]



Sec.  4.53  Collective bargaining agreement (successorship) determinations.

    Determinations based on the collective bargaining agreement of a 
predecessor contractor set forth by job classification each provision 
relating to wages (such as the established straight time hourly or 
salary rate, cost-of-living allowance, and any shift, hazardous, and 
other similar pay differentials) and to fringe benefits (such as holiday 
pay, vacation pay, sick leave pay, life, accidental death, disability, 
medical, and dental insurance plans, retirement or pension plans, 
severance pay, supplemental unemployment benefits, saving and thrift 
plans, stock-option plans, funeral leave, jury/witness leave, or 
military leave) contained in the predecessor's collective bargaining 
agreement, as well as conditions governing the payment of such wages and 
fringe benefits. Accrued wages and fringe benefits and prospective 
increases therein are also included. Each wage determination is limited 
in application to a specific contract succeeding a contract which had 
been performed in the same locality by a contractor with a collective 
bargaining agreement, and contains a notice to prospective bidders 
regarding their obligations under section 4(c) of the Act.

[48 FR 49762, Oct. 27, 1983. Redesignated at 61 FR 68664, Dec. 30, 1996]



Sec.  4.54  Locality basis of wage and fringe benefit determinations.

    (a) Under section 2(a) of the Act, the Secretary or his authorized 
representative is given the authority to determine the minimum monetary 
wages and fringe benefits prevailing for various classes of service 
employees ``in the locality''. Although the term locality has reference 
to a geographic area, it has an elastic and variable meaning and 
contemplates consideration of the existing wage structures which are 
pertinent to the employment of particular

[[Page 56]]

classes of service employees on the varied kinds of service contracts. 
Because wage structures are extremely varied, there can be no precise 
single formula which would define the geographic limits of a 
``locality'' that would be relevant or appropriate for the determination 
of prevailing wage rates and prevailing fringe benefits in all 
situations under the Act. The locality within which a wage or fringe 
benefit determination is applicable is, therefore, defined in each such 
determination upon the basis of all the facts and circumstances 
pertaining to that determination. Locality is ordinarily limited 
geographically to a particular county or cluster of counties comprising 
a metropolitan area. For example, a survey by the Bureau of Labor 
Statistics of the Baltimore, Maryland Standard Metropolitan Statistical 
Area includes the counties of Baltimore, Harford, Howard, Anne Arundel, 
and the City of Baltimore. A wage determination based on such 
information would define locality as the same geographic area included 
within the scope of the survey. Locality may also be defined as, for 
example, a city, a State, or, under rare circumstances, a region, 
depending on the actual place or places of contract performance, the 
geographical scope of the data on which the determination was based, the 
nature of the services being contracted for, and the procurement method 
used. In addition, in Southern Packaging & Storage Co. v. United States, 
618 F.2d 1088 (4th Cir. 1980), the court held that a nationwide wage 
determination normally is not permissible under the Act, but postulated 
that ``there may be the rare and unforeseen service contract which might 
be performed at locations throughout the country and which would 
generate truly nationwide competition''.
    (b) Where the services are to be performed for a Federal agency at 
the site of the successful bidder, in contrast to services to be 
performed at a specific Federal facility or installation, or in the 
locality of such installation, the location where the work will be 
performed often cannot be ascertained at the time of bid advertisement 
or solicitation. In such instances, wage determinations will generally 
be issued for the various localities identified by the agency as set 
forth in Sec.  4.4(a)(3)(i).
    (c) Where the wage rates and fringe benefits contained in a 
collective bargaining agreement applicable to the predecessor contract 
are set forth in a determination, locality in such a determination is 
typically described as the geographic area in which the predecessor 
contract was performed. The determination applies to any successor 
contractor which performs the contract in the same locality. However, 
see Sec.  4.163(i).

[48 FR 49762, Oct. 27, 1983. Redesignated at 61 FR 68664, Dec. 30, 1996, 
and amended at 70 FR 50898, Aug. 26, 2005]



Sec.  4.55  Issuance and revision of wage determinations.

    (a) Determinations will be reviewed periodically and where 
prevailing wage rates or fringe benefits have changed, such changes will 
be reflected in revised determinations. For example, in a locality where 
it is determined that the wage rate which prevails for a particular 
class of service employees is the rate specified in a collective 
bargaining agreement(s) applicable in that locality, and such 
agreement(s) specifies increases in such rates to be effective on 
specific dates, the determinations would be revised to reflect such 
changes as they become effective. Revised determinations shall be 
applicable to contracts in accordance with the provisions of Sec.  
4.5(a) of subpart A.
    (b) Determinations issued by the Wage and Hour Division with respect 
to particular contracts are required to be incorporated in the 
invitations for bids or requests for proposals or quotations issued by 
the contracting agencies, and are to be incorporated in the contract 
specifications in accordance with Sec.  4.5 of subpart A. In this 
manner, prospective contractors and subcontractors are advised of the 
minimum monetary wages and fringe benefits required under the most 
recently applicable determination to be paid the service employees who 
perform the contract work. These requirements are the same for all 
bidders so none will be placed at a competitive disadvantage.
    (c) Determinations issued by the Wage and Hour Division with respect 
to particular contracts are required to

[[Page 57]]

be incorporated in the invitations for bids or requests for proposals or 
quotations issued by the contracting agencies, and are to be 
incorporated in the contract specifications in accordance with Sec.  4.5 
of subpart A. In this manner, prospective contractors and subcontractors 
are advised of the minimum monetary wages and fringe benefits required 
under the most recently applicable determination to be paid the service 
employees who perform the contract work. These requirements are, of 
course, the same for all bidders so none will be placed at a competitive 
disadvantage.

[48 FR 49762, Oct. 27, 1983. Redesignated at 61 FR 68664, Dec. 30, 1996; 
70 FR 50898, Aug. 26, 2005]



Sec.  4.56  Review and reconsideration of wage determinations.

    (a) Review by the Administrator. (1) Any interested party affected 
by a wage determination issued under section 2(a) of the Act may request 
review and reconsideration by the Administrator. A request for review 
and reconsideration may be made by the contracting agency or other 
interested party, including contractors or prospective contractors and 
associations of contractors, representatives of employees, and other 
interested Governmental agencies. Any such request must be accompanied 
by supporting evidence. In no event shall the Administrator review a 
wage determination or its applicability after the opening of bids in the 
case of a competitively advertised procurement, or, later than 10 days 
before commencement of a contract in the case of a negotiated 
procurement, exercise of a contract option or extension. This limitation 
is necessary in order to ensure competitive equality and an orderly 
procurement process.
    (2) The Administrator shall, upon receipt of a request for 
reconsideration, review the data sources relied upon as a basis for the 
wage determination, the evidence furnished by the party requesting 
review or reconsideration, and, if necessary to resolve the matter, any 
additional information found to be relevant to determining prevailing 
wage rates and fringe benefits in a particular locality. The 
Administrator, pursuant to a review of available information, may issue 
a new wage determination, may cause the wage determination to be 
revised, or may affirm the wage determination issued, and will notify 
the requesting party in writing of the action taken. The Administrator 
will render a decision within 30 days of receipt of the request or will 
notify the requesting party in writing within 30 days of receipt that 
additional time is necessary.
    (b) Review by the Administrative Review Board. Any decision of the 
Administrator under paragraph (a) of this section may be appealed to the 
Administrative Review Board within 20 days of issuance of the 
Administrator's decision. Any such appeal shall be in accordance with 
the provisions of part 8 of this title.

[48 FR 49762, Oct. 27, 1983. Redesignated at 61 FR 68664, Dec. 30, 1996]



    Subpart C_Application of the McNamara-O'Hara Service Contract Act

                              Introductory



Sec.  4.101  Official rulings and interpretations in this subpart.

    (a) The purpose of this subpart is to provide, pursuant to the 
authority cited in Sec.  4.102, official rulings and interpretations 
with respect to the application of the McNamara-O'Hara Service Contract 
Act for the guidance of the agencies of the United States and the 
District of Columbia which may enter into and administer contracts 
subject to its provisions, the persons desiring to enter into such 
contracts with these agencies, and the contractors, subcontractors, and 
employees who perform work under such contracts.
    (b) These rulings and interpretations are intended to indicate the 
construction of the law and regulations which the Department of Labor 
believes to be correct and which will be followed in the administration 
of the Act unless and until directed otherwise by Act of Congress or by 
authoritative ruling of the courts, or if it is concluded upon 
reexamination of an interpretation that it is incorrect. See for 
example, Skidmore v. Swift & Co., 323 U.S. 134

[[Page 58]]

(1944); Roland Co. v. Walling, 326 U.S. 657 (1946); Endicott Johnson 
Corp. v. Perkins, 317 U.S. 501, 507-509 (1943); Perkins v. Lukens Steel 
Co., 310 U.S. 113, 128 (1940); United States v. Western Pacific Railroad 
Co., 352 U.S. 59 (1956). The Department of Labor (and not the 
contracting agencies) has the primary and final authority and 
responsibility for administering and interpreting the Act, including 
making determinations of coverage. See Woodside Village v. Secretary of 
Labor, 611 F. 2d 312 (9th Cir. 1980); Nello L. Teer Co. v. United 
States, 348 F.2d 533, 539-540 (Ct. Cl. 1965), cert. denied, 383 U.S. 
934; North Georgia Building & Construction Trades Council v. U.S. 
Department of Transportation, 399 F. Supp. 58, 63 (N.D. Ga. 1975) 
(Davis-Bacon Act); Curtiss-Wright Corp. v. McLucas, 364 F. Supp. 750, 
769-72 (D.N.J. 1973); and 43 Atty. Gen. Ops. __ (March 9, 1979); 53 
Comp. Gen. 647, 649-51 (1974); 57 Comp. Gen. 501, 506 (1978).
    (c) Court decisions arising under the Act (as well as under related 
remedial labor standards laws such as the Walsh-Healey Public Contracts 
Act, the Davis-Bacon Act, the Contract Work Hours and Safety Standards 
Act, and the Fair Labor Standards Act) which support policies and 
interpretations contained in this part are cited where it is believed 
that they may be helpful. On matters which have not been authoritatively 
determined by the courts, it is necessary for the Secretary of Labor and 
the Administrator to reach conclusions as to the meaning and the 
application of provisions of the law in order to carry out their 
responsibilities of administration and enforcement (Skidmore v. Swift & 
Co., 323 U.S. 134 (1944)). In order that these positions may be made 
known to persons who may be affected by them, official interpretations 
and rulings are issued by the Administrator with the advice of the 
Solicitor of Labor, as authorized by the Secretary (Secretary's Order 
No. 16-75, Nov. 21, 1975, 40 FR 55913; Employment Standards Order No. 2-
76, Feb. 23, 1976, 41 FR 9016). These interpretations are a proper 
exercise of the Secretary's authority. Idaho Sheet Metal Works v. Wirtz, 
383 U.S. 190, 208 (1966), reh. den. 383 U.S. 963 (1966). References to 
pertinent legislative history, decisions of the Comptroller General and 
of the Attorney General, and Administrative Law Judges' decisions are 
also made in this part where it appears they will contribute to a better 
understanding of the stated interpretations and policies.
    (d) The interpretations of the law contained in this part are 
official interpretations which may be relied upon. The Supreme Court has 
recognized that such interpretations of the Act ``provide a practical 
guide to employers and employees as to how the office representing the 
public interest in its enforcement will seek to apply it'' and 
``constitute a body of experience and informed judgment to which courts 
and litigants may properly resort for guidance'' (Skidmore v. Swift & 
Co., 323 U.S. 134 (1944)). Interpretations of the agency charged with 
administering an Act are generally afforded deference by the courts. 
(Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971); Udall v. 
Tallman, 380 U.S. 1 (1965).) Some of the interpretations in this part 
relating to the application of the Act are interpretations of provisions 
which appeared in the original Act before its amendments in 1972 and 
1976. Accordingly, the Department of Labor considers these 
interpretations to be correct, since there were no amendments of the 
statutory provisions which they interpret. (United States v. Davison 
Fuel & Dock Co., 371 F.2d 705, 711-12 (C.A. 4, 1967).)
    (e) The interpretations contained herein shall be in effect until 
they are modified, rescinded, or withdrawn. This part supersedes and 
replaces certain interpretations previously published in the Federal 
Register and Code of Federal Regulations as part 4 of this chapter. 
Prior opinions, rulings, and interpretations and prior enforcement 
policies which are not inconsistent with the interpretations in this 
part or with the Act as amended are continued in effect; all other 
opinions, rulings, interpretations, and enforcement policies on the 
subjects discussed in the interpretations in this part, to the extent 
they are inconsistent with the rules herein stated, are superseded, 
rescinded, and withdrawn.

[[Page 59]]

    (f) Principles governing the application of the Act as set forth in 
this subpart are clarified or amplified in particular instances by 
illustrations and examples based on specific fact situations. Since such 
illustrations and examples cannot and are not intended to be exhaustive, 
or to provide guidance on every problem which may arise under the Act, 
no inference should be drawn from the fact that a subject or 
illustration is omitted.
    (g) It should not be assumed that the lack of discussion of a 
particular subject in this subpart indicates the adoption of any 
particular position by the Department of Labor with respect to such 
matter or to constitute an interpretation, practice, or enforcement 
policy. If doubt arises or a question exists, inquiries with respect to 
matters other than safety and health standards should be directed to the 
Administrator of the Wage and Hour Division, U.S. Department of Labor, 
Washington, DC 20210, or any regional office of the Wage and Hour 
Division. Safety and health inquiries should be addressed to the 
Assistant Secretary for Occupational Safety and Health, U.S. Department 
of Labor, Washington, DC 20210, or to any OSHA regional office. A full 
description of the facts and any relevant documents should be submitted 
if an official ruling is desired.

[48 FR 49762, Oct. 27, 1983, as amended at 82 FR 2225, Jan. 9, 2017]



Sec.  4.102  Administration of the Act.

    As provided by section 4 of the Act and under provisions of sections 
4 and 5 of the Walsh-Healey Public Contracts Act (49 Stat. 2036, 41 
U.S.C. 38, 39), which are made expressly applicable for the purpose, the 
Secretary of Labor is authorized and directed to administer and enforce 
the provisions of the McNamara-O'Hara Service Contract Act, to make 
rules and regulations, issue orders, make decisions, and take other 
appropriate action under the Act. The Secretary is also authorized to 
make reasonable limitations and to make rules and regulations allowing 
reasonable variations, tolerances, and exemptions to and from provisions 
of the Act (except section 10), but only in special circumstances where 
it is determined that such action is necessary and proper in the public 
interest or to avoid serious impairment of the conduct of Government 
business and is in accord with the remedial purposes of the Act to 
protect prevailing labor standards. The authority and enforcement powers 
of the Secretary under the Act are coextensive with the authority and 
powers under the Walsh-Healey Act. Curtiss Wright Corp. v. McLucas 364 
F. Supp. 750, 769 (D NJ 1973).



Sec.  4.103  The Act.

    The McNamara-O'Hara Service Contract Act of 1965 (Pub. L. 89-286, 79 
Stat. 1034, 41 U.S.C. 351 et seq.), hereinafter referred to as the Act, 
was approved by the President on October 22, 1965 (1 Weekly Compilation 
of Presidential Documents 428). It establishes standards for minimum 
compensation and safety and health protection of employees performing 
work for contractors and subcontractors on service contracts entered 
into with the Federal Government and the District of Columbia. It 
applies to contracts entered into pursuant to negotiations concluded or 
invitations for bids issued on or after January 20, 1966. It has been 
amended by Public Law 92-473, 86 Stat. 798; by Public Law 93-57, 87 
Stat. 140; and by Public Law 94-489, 90 Stat. 2358.



Sec.  4.104  What the Act provides, generally.

    The provisions of the Act apply to contracts, whether negotiated or 
advertised, the principal purpose of which is to furnish services in the 
United States through the use of service employees. Under its 
provisions, every contract subject to the Act (and any bid specification 
therefor) entered into by the United States or the District of Columbia 
in excess of $2,500 must contain stipulations as set forth in Sec.  4.6 
of this part requiring: (a) That specified minimum monetary wages and 
fringe benefits determined by the Secretary of Labor (based on wage 
rates and fringe benefits prevailing in the locality or, in specified 
circumstances, the wage rates and fringe benefits contained in a 
collective bargaining agreement applicable to employees who performed on 
a predecessor contract) be paid to service employees employed by

[[Page 60]]

the contractor or any subcontractor in performing the services 
contracted for; (b) that working conditions of such employees which are 
under the control of the contractor or subcontractor meet safety and 
health standards; and (c) that notice be given to such employees of the 
compensation due them under the minimum wage and fringe benefits 
provisions of the contract. Contractors performing work subject to the 
Act thus enter into competition to obtain Government business on terms 
of which they are fairly forewarned by inclusion in the contract. 
(Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 507 (1943).) The Act's 
purpose is to impose obligations upon those favored with Government 
business by precluding the use of the purchasing power of the Federal 
Government in the unfair depression of wages and standards of 
employment. (See H.R. Rep. No. 948, 89th Cong., 1st Sess. 2-3 (1965); S. 
Rep. No. 798, 89th Cong., 1st Sess. 3-4 (1965).) The Act does not permit 
the monetary wage rates specified in such a contract to be less than the 
minimum wage specified under section 6(a)(1) of the Fair Labor Standards 
Act, as amended (29 U.S.C. 206(a)(1)). In addition, it is a violation of 
the Act for any contractor or subcontractor under a Federal contract 
subject to the Act, regardless of the amount of the contract, to pay any 
of his employees engaged in performing work on the contract less than 
such Fair Labor Standards Act minimum wage. Contracts of $2,500 or less 
are not, however, required to contain the stipulations described above. 
These provisions of the Service Contract Act are implemented by the 
regulations contained in this part 4 and are discussed in more detail in 
subsequent sections of subparts C, D, and E.



Sec.  4.105  The Act as amended.

    (a) The provisions of the Act (see Sec. Sec.  4.102-4.103) were 
amended, effective October 9, 1972, by Public Law 92-473, signed into 
law by the President on that date. By virtue of amendments made to 
paragraphs (1) and (2) of section 2(a) and the addition to section 4 of 
a new subsection (c), the compensation standards of the Act (see 
Sec. Sec.  4.159-4.179) were revised to impose on successor contractors 
certain requirements (see Sec.  4.1b) with respect to payment of wage 
rates and fringe benefits based on those agreed upon for substantially 
the same services in the same locality in collective bargaining 
agreements entered into by their predecessor contractors (unless such 
agreed compensation is substantially at variance with that locally 
prevailing or the agreement was not negotiated at arm's length). The 
Secretary of Labor is to give effect to the provisions of such 
collective bargaining agreements in his wage determinations under 
section 2 of the Act. A new paragraph (5) added to section 2(a) of the 
Act requires a statement in the government service contract of the rates 
that would be paid by the contracting agency in the event of its direct 
employment of those classes of service employees to be employed on the 
contract work who, if directly employed by the agency, would receive 
wages determined as provided in 5 U.S.C. 5341. The Secretary of Labor is 
directed to give due consideration to such rates in determining 
prevailing monetary wages and fringe benefits under the Act's 
provisions. Other provisions of the 1972 amendments include the addition 
of a new section 10 to the Act to insure that wage determinations are 
issued by the Secretary for substantially all service contracts subject 
to section 2(a) of the Act at the earliest administratively feasible 
time; an amendment to section 4(b) of the Act to provide, in addition to 
the conditions previously specified for issuance of administrative 
limitations, variations, tolerances, and exemptions (see Sec.  4.123), 
that administrative action in this regard shall be taken only in special 
circumstances where the Secretary determines that it is in accord with 
the remedial purpose of the Act to protect prevailing labor standards; 
and a new subsection (d) added to section 4 of the Act providing for the 
award of service contracts for terms not more than 5 years with 
provision for periodic adjustment of minimum wage rates and fringe 
benefits payable thereunder by the issuance of wage determinations by 
the Secretary of Labor during the term of the contract. A further 
amendment to section 5(a) of the Act requires the names of contractors 
found to have violated the Act to be submitted for

[[Page 61]]

the debarment list (see Sec.  4.188) not later than 90 days after the 
hearing examiner's finding of violation unless the Secretary recommends 
relief, and provides that such recommendations shall be made only 
because of unusual circumstances.
    (b) The provisions of the Act were amended by Public Law 93-57, 87 
Stat. 140, effective July 6, 1973, to extend the Act's coverage to 
Canton Island.
    (c) The provisions of the Act were amended by Public Law 94-489, 90 
Stat. 2358, approved October 13, 1976, to extend the Act's coverage to 
white collar workers. Accordingly, the minimum wage protection of the 
Act now extends to all workers, both blue collar and white collar, other 
than persons employed in a bona fide executive, administrative, or 
professional capacity as those terms are used in the Fair Labor 
Standards Act and in part 541 of title 29. Public Law 94-489 
accomplished this change by adding to section 2(a)(5) of the Act a 
reference to 5 U.S.C. 5332, which deals with white collar workers, and 
by amending the definition of service contract employee in section 8(b) 
of the Act.
    (d) Included in this part 4 and in parts 6 and 8 of this subtitle 
are provisions to give effect to the amendments mentioned in this 
section.



Sec.  4.106  [Reserved]

                 Agencies Whose Contracts May Be Covered



Sec.  4.107  Federal contracts.

    (a) Section 2(a) of the Act covers contracts (and any bid 
specification therefor) ``entered into by the United States'' and 
section 2(b) applies to contracts entered into ``with the Federal 
Government.'' Within the meaning of these provisions, contracts entered 
into by the United States and contracts with the Federal Government 
include generally all contracts to which any agency or instrumentality 
of the U.S. Government becomes a party pursuant to authority derived 
from the Constitution and laws of the United States. The Act does not 
authorize any distinction in this respect between such agencies and 
instrumentalities on the basis of their inclusion in or independence 
from the executive, legislative, or judicial branches of the Government, 
the fact that they may be corporate in form, or the fact that payment 
for the contract services is not made from appropriated funds. Thus, 
contracts of wholly owned Government corporations, such as the Postal 
Service, and those of nonappropriated fund instrumentalities under the 
jurisdiction of the Armed Forces, or of other Federal agencies, such as 
Federal Reserve Banks, are included among those subject to the general 
coverage of the Act. (Brinks, Inc. v. Board of Governors of the Federal 
Reserve System, 466 F. Supp. 116 (D DC 1979); 43 Atty. Gen. Ops. ___ 
(September 26, 1978).) Contracts with the Federal Government and 
contracts entered into ``by the United States'' within the meaning of 
the Act do not, however, include contracts for services entered into on 
their own behalf by agencies or instrumentalities of other Governments 
within the United States, such as those of the several States and their 
political subdivisions, or of Puerto Rico, the Virgin Islands, Guam, or 
American Samoa.
    (b) Where a Federal agency exercises its contracting authority to 
procure services desired by the Government, the method of procurement 
utilized by the contracting agency is not controlling in determining 
coverage of the contract as one entered into by the United States. Such 
contracts may be entered into by the United States either through a 
direct award by a Federal agency or through the exercise by another 
agency (whether governmental or private) of authority granted to it to 
procure services for or on behalf of a Federal agency. Thus, sometimes 
authority to enter into service contracts of the character described in 
the Act for and on behalf of the Government and on a cost-reimbursable 
basis may be delegated, for the convenience of the contracting agency, 
to a prime contractor which has the responsibility for all work to be 
done in connection with the operation and management of a Federal plant, 
installation, facility, or program, together with the legal authority to 
act as agency for and on behalf of the Government and to obligate 
Government funds in the procurement of all services and supplies 
necessary to

[[Page 62]]

carry out the entire program of operation. The contracts entered into by 
such a prime contractor with secondary contractors for and on behalf of 
the Federal agency pursuant to such delegated authority, which have such 
services as their principal purpose, are deemed to be contracts entered 
into by the United States and contracts with the Federal Government 
within the meaning of the Act. However, service contracts entered into 
by State or local public bodies with purveyors of services are not 
deemed to be entered into by the United States merely because such 
services are paid for with funds of the public body which have been 
received from the Federal Government as a grant under a Federal program. 
For example, a contract entered into by a municipal housing authority 
for tree trimming, tree removal, and landscaping for an urban renewal 
project financed by Federal funds is not a contract entered into by the 
United States and is not covered by the Service Contract Act. Similarly, 
contracts let under the Medicaid program which are financed by 
federally-assisted grants to the States, and contracts which provide for 
insurance benefits to a third party under the Medicare program are not 
subject to the Act.



Sec.  4.108  District of Columbia contracts.

    Section 2(a) of the Act covers contracts (and any bid specification 
therefor) in excess of $2,500 which are ``entered into by the * * * 
District of Columbia.'' The contracts of all agencies and 
instrumentalities which procure contract services for or on behalf of 
the District or under the authority of the District Government are 
contracts entered into by the District of Columbia within the meaning of 
this provision. Such contracts are also considered contracts entered 
into with the Federal Government or the United States within the meaning 
of section 2(b), section 5, and the other provisions of the Act. The 
legislative history indicates no intent to distinguish District of 
Columbia contracts from the other contracts made subject to the Act, and 
traditionally, under other statutes, District Government contracts have 
been made subject to the same labor standards provisions as contracts of 
agencies and instrumentalities of the United States.

[48 FR 49762, Oct. 27, 1983; 48 FR 50529, Nov. 2, 1983]



Sec.  4.109  [Reserved]

                       Covered Contracts Generally



Sec.  4.110  What contracts are covered.

    The Act covers service contracts of the Federal agencies described 
in Sec. Sec.  4.107-4.108. Except as otherwise specifically provided 
(see Sec. Sec.  4.115 et seq.), all such contracts, the principal 
purpose of which is to furnish services in the United States through the 
use of service employees, are subject to its terms. This is true of 
contracts entered into by such agencies with States or their political 
subdivisions, as well as such contracts entered into with private 
employers. Contracts between a Federal or District of Columbia agency 
and another such agency are not within the purview of the Act; however, 
``subcontracts'' awarded under ``prime contracts'' between the Small 
Business Administration and another Federal agency pursuant to various 
preferential set-aside programs, such as the 8(a) program, are covered 
by the Act. It makes no difference in the coverage of a contract whether 
the contract services are procured through negotiation or through 
advertising for bids. Also, the mere fact that an agreement is not 
reduced to writing does not mean that the contract is not within the 
coverage of the Act. The amount of the contract is not determinative of 
the Act's coverage, although the requirements are different for 
contracts in excess of $2,500 and for contracts of a lesser amount. The 
Act is applicable to the contract if the principal purpose of the 
contract is to furnish services, if such services are to be furnished in 
the United States, and if service employees will be used in providing 
such services. These elements of coverage will be discussed separately 
in the following sections.



Sec.  4.111  Contracts ``to furnish services.''

    (a) ``Principal purpose'' as criterion. Under its terms, the Act 
applies to a ``contract * * * the principal purpose of which is to 
furnish services * * *.'' If

[[Page 63]]

the principal purpose is to provide something other than services of the 
character contemplated by the Act and any such services which may be 
performed are only incidental to the performance of a contract for 
another purpose, the Act does not apply. However, as will be seen by 
examining the illustrative examples of covered contracts in Sec. Sec.  
4.130 et seq., no hard and fast rule can be laid down as to the precise 
meaning of the term principal purpose. This remedial Act is intended to 
be applied to a wide variety of contracts, and the Act does not define 
or limit the types of services which may be contracted for under a 
contract the principal purpose of which is to furnish services. Further, 
the nomenclature, type, or particular form of contract used by 
procurement agencies is not determinative of coverage. Whether the 
principal purpose of a particular contract is the furnishing of services 
through the use of service employees is largely a question to be 
determined on the basis of all the facts in each particular case. Even 
where tangible items of substantial value are important elements of the 
subject matter of the contract, the facts may show that they are of 
secondary import to the furnishing of services in the particular case. 
This principle is illustrated by the examples set forth in Sec.  4.131.
    (b) Determining whether a contract is for ``services'', generally. 
Except indirectly through the definition of service employee the Act 
does not define, or limit, the types of services which may be contracted 
for under a contract ``the principal purpose of which is to furnish 
services''. As stated in the congressional committee reports on the 
legislation, the types of service contracts covered by its provisions 
are varied. Among the examples cited are contracts for laundry and dry 
cleaning, for transportation of the mail, for custodial, janitorial, or 
guard service, for packing and crating, for food service, and for 
miscellaneous housekeeping services. Covered contracts for services 
would also include those for other types of services which may be 
performed through the use of the various classes of service employees 
included in the definition in section 8(b) of the Act (see Sec.  4.113). 
Examples of some such contracts are set forth in Sec. Sec.  4.130 et 
seq. In determining questions of contract coverage, due regard must be 
given to the apparent legislative intent to include generally as 
contracts for services those contracts which have as their principal 
purpose the procurement of something other than the construction 
activity described in the Davis-Bacon Act or the materials, supplies, 
articles, and equipment described in the Walsh-Healey Act. The Committee 
reports in both the House and Senate, and statements made on the floor 
of the House, took note of the labor standards protections afforded by 
these two Acts to employees engaged in the performance of construction 
and supply contracts and observed: ``The service contract is now the 
only remaining category of Federal contracts to which no labor standards 
protections apply'' (H. Rept. 948, 89th Cong., 1st Sess., p. 1; see also 
S. Rept. 798, 89th Cong., 1st Sess., p. 1; daily Congressional Record, 
Sept. 20, 1965, p. 23497). A similar understanding of contracts 
principally for services as embracing contracts other than those for 
construction or supplies is reflected in the statement of President 
Johnson upon signing the Act (1 Weekly Compilation of Presidential 
Documents, p. 428).



Sec.  4.112  Contracts to furnish services ``in the United States.''

    (a) The Act and the provisions of this part apply to contract 
services furnished ``in the United States,'' including any State of the 
United States, the District of Columbia, Puerto Rico, the Virgin 
Islands, Outer Continental Shelf lands as defined in the Outer 
Continental Shelf Lands Act, American Samoa, Guam, the Commonwealth of 
the Northern Mariana Islands, Wake Island, and Johnston Island. The 
definition expressly excludes any other territory under the jurisdiction 
of the United States and any United States base or possession within a 
foreign country. Services to be performed exclusively on a vessel 
operating in international waters outside the geographic areas named in 
this paragraph would not be services furnished ``in the United States'' 
within the meaning of the Act.

[[Page 64]]

    (b) A service contract to be performed in its entirety outside the 
geographical limits of the United States as thus defined is not covered 
and is not subject to the labor standards of the Act. However, if a 
service contract is to be performed in part within and in part outside 
these geographic limits, the stipulations required by Sec.  4.6 or Sec.  
4.7, as appropriate, must be included in the invitation for bids or 
negotiation documents and in the contract, and the labor standards must 
be observed with respect to that part of the contract services that is 
performed within these geographic limits. In such a case the 
requirements of the Act and of the contract clauses will not be 
applicable to the services furnished outside the United States.

[61 FR 68664, Dec. 30, 1996]



Sec.  4.113  Contracts to furnish services 
``through the use of service employees.''

    (a) Use of ``service employees'' in a contract performance. (1) As 
indicated in Sec.  4.110, the Act covers service contracts only where 
``service employees'' will be used in performing the services which it 
is the purpose of the contract to procure. A contract principally for 
services ordinarily will meet this condition if any of the services will 
be furnished through the use of any service employee or employees. Where 
it is contemplated that the services (of the kind performed by service 
employees) will be performed individually by the contractor, and the 
contracting officer knows when advertising for bids or concluding 
negotiations that service employees will in no event be used by the 
contractor in providing the contract services, the Act will not be 
deemed applicable to the contract and the contract clauses required by 
Sec.  4.6 or Sec.  4.7 may be omitted. The fact that the required 
services will be performed by municipal employees or employees of a 
State would not remove the contract from the purview of the Act, as this 
Act does not contain any exemption for contracts performed by such 
employees. Also, as discussed in paragraph (a)(3) of this section, where 
the services the Government wants under the contract are of a type that 
will require the use of service employees as defined in section 8(b) of 
the Act, the contract is not taken out of the purview of the Act by the 
fact that the manner in which the services of such employees are 
performed will be subject to the continuing overall supervision of bona 
fide executive, administrative, or professional personnel to whom the 
Act does not apply.
    (2) The coverage of the Act does not extend to contracts for 
services to be performed exclusively by persons who are not service 
employees, i.e., persons who are bona fide executive, administrative or 
professional personnel as defined in part 541 of this title (see 
paragraph (b) of this section). A contract for medical services 
furnished by professional personnel is an example of such a contract.
    (3) In addition, the Department does not require application of the 
Act to any contract for services which is performed essentially by bona 
fide executive, administrative, or professional employees, with the use 
of service employees being only a minor factor in the performance of the 
contract. However, the Act would apply to a contract for services which 
may involve the use of service employees to a significant or substantial 
extent even though there is some use of bona fide executive, 
administrative, or professional employees in the performance of the 
contract. For example, contracts for drafting or data processing 
services are often performed by drafters, computer operators, or other 
service employees and are subject to the Act even though the work of 
such employees may be performed under the direction and supervision of 
bona fide professional employees.
    (4) In close cases involving a decision as to whether a contract 
will involve a significant use of service employees, the Department of 
Labor should be consulted, since such situations require consideration 
of other factors such as the nature of the contract work, the type of 
work performed by service employees, how necessary the work is to 
contract performance, the amount of contract work performed by service 
employees vis-a-vis professional employees, and the total number of 
service employees employed on the contract.

[[Page 65]]

    (b) ``Service employees'' defined. In determining whether or not any 
of the contract services will be performed by service employees, the 
definition of service employee in section 8(b) of the Act is 
controlling. It provides:

    The term service employee means any person engaged in the 
performance of a contract entered into by the United States and not 
exempted under section 7, whether negotiated or advertised, the 
principal purpose of which is to furnish services in the United States 
(other than any person employed in a bona fide executive, 
administrative, or professional capacity, as those terms are defined in 
part 541 of title 29, Code of Federal Regulations, as of July 30, 1976, 
and any subsequent revision of those regulations); and shall include all 
such persons regardless of any contractual relationship that may be 
alleged to exist between a contractor or subcontractor and such persons.
It will be noted that the definition expressly excludes those employees 
who are employed in a bona fide executive, administrative, or 
professional capacity as defined in part 541 of this title and as 
discussed further in Sec.  4.156. Some of the specific types of service 
employees who may be employed on service contracts are noted in other 
sections which discuss the application of the Act to employees.

[48 FR 49762, Oct. 27, 1983; 48 FR 50529, Nov. 2, 1983]



Sec.  4.114  Subcontracts.

    (a) ``Contractor'' as including ``subcontractor.'' Except where 
otherwise noted or where the term Government prime contractor is used, 
the term contractor as used in this part 4 shall be deemed to include a 
subcontractor. The term contractor as used in the contract clauses 
required by subpart A in any subcontract under a covered contract shall 
be deemed to refer to the subcontractor, or, if in a subcontract entered 
into by such a subcontractor, shall be deemed to refer to the lower 
level subcontractor. (See Sec.  4.1a(f).)
    (b) Liability of prime contractor. When a contractor undertakes a 
contract subject to the Act, the contractor agrees to assume the 
obligation that the Act's labor standards will be observed in furnishing 
the required services. This obligation may not be relieved by shifting 
all or part of the work to another, and the prime contractor is jointly 
and severally liable with any subcontractor for any underpayments on the 
part of a subcontractor which would constitute a violation of the prime 
contract. The prime contractor is required to include the prescribed 
contract clauses (Sec. Sec.  4.6-4.7) and applicable wage determination 
in all subcontracts. The appropriate enforcement sanctions provided 
under the Act may be invoked against both the prime contractor and the 
subcontractor in the event of failure to comply with any of the Act's 
requirements where appropriate under the circumstances of the case.

                           Specific Exclusions



Sec.  4.115  Exemptions and exceptions, generally.

    (a) The Act, in section 7, specifically excludes from its coverage 
certain contracts and work which might otherwise come within its terms 
as procurements the principal purpose of which is to furnish services 
through the use of service employees.
    (b) The statutory exemptions in section 7 of the Act are as follows:
    (1) Any contract of the United States or District of Columbia for 
construction, alteration, and/or repair, including painting and 
decorating of public buildings or public works;
    (2) Any work required to be done in accordance with the provisions 
of the Walsh-Healey Public Contracts Act (49 Stat. 2036);
    (3) Any contract for the carriage of freight or personnel by vessel, 
airplane, bus, truck, express, railway line, or oil or gas pipeline 
where published tariff rates are in effect;
    (4) Any contract for the furnishing of services by radio, telephone, 
telegraph, or cable companies, subject to the Communications Act of 
1934;
    (5) Any contract for public utility services, including electric 
light and power, water, steam, and gas;
    (6) Any employment contract providing for direct services to a 
Federal agency by an individual or individuals;
    (7) Any contract with the Post Office Department, (now the U.S. 
Postal Service) the principal purpose of which is the operation of 
postal contract stations.

[[Page 66]]



Sec.  4.116  Contracts for construction activity.

    (a) General scope of exemption. The Act, in paragraph (1) of section 
7, exempts from its provisions ``any contract of the United States or 
District of Columbia for construction, alteration and/or repair, 
including painting and decorating of public buildings or public works.'' 
This language corresponds to the language used in the Davis-Bacon Act to 
describe its coverage (40 U.S.C. 276a). The legislative history of the 
McNamara-O'Hara Service Contract Act indicates that the purpose of the 
provision is to avoid overlapping coverage of the two acts by excluding 
from the application of the McNamara-O'Hara Act those contracts to which 
the Davis-Bacon Act is applicable and in the performance of which the 
labor standards of that Act are intended to govern the compensation 
payable to the employees of contractors and subcontractors on the work. 
(See H. Rept. 798, pp. 2, 5, and H. Rept. 948, pp. 1, 5, also Hearing, 
Special Subcommittee on Labor, House Committee on Education and Labor, 
p. 9 (89th Cong., 1st sess.).) The intent of section 7(1) is simply to 
exclude from the provisions of the Act those construction contracts 
which involve the employment of persons whose wage rates and fringe 
benefits are determinable under the Davis-Bacon Act.
    (b) Contracts not within exemption. Section 7(1) does not exempt 
contracts which, for purposes of the Davis-Bacon Act, are not considered 
to be of the character described by the corresponding language in that 
Act, and to which the provisions of the Davis-Bacon Act are therefore 
not applied. Such contracts are accordingly subject to the McNamara-
O'Hara Act where their principal purpose is to furnish services in the 
United States through the use of service employees. For example, a 
contract for clearing timber or brush from land or for the demolition or 
dismantling of buildings or other structures located thereon may be a 
contract for construction activity subject to the Davis-Bacon Act where 
it appears that the clearing of the site is to be followed by the 
construction of a public building or public work at the same location. 
If, however, no further construction activity at the site is 
contemplated the Davis-Bacon Act is considered inapplicable to such 
clearing, demolition, or dismantling work. In such event, the exemption 
in section 7(1) of the McNamara-O'Hara Act has no application and the 
contract may be subject to the Act in accordance with its general 
coverage provisions. It should be noted that the fact that a contract 
may be labeled as one for the sale and removal of property, such as 
salvage material, does not negate coverage under the Act even though 
title to the removable property passes to the contractor. While the 
value of the property being sold in relation to the services performed 
under the contract is a factor to be considered in determining coverage, 
where the facts show that the principal purpose of removal, dismantling, 
and demolition contracts is to furnish services through the use of 
service employees, these contracts are subject to the Act. (See also 
Sec.  4.131.)
    (c) Partially exempt contracts. (1) Instances may arise in which, 
for the convenience of the Government, instead of awarding separate 
contracts for construction work subject to the Davis-Bacon Act and for 
services of a different type to be performed by service employees, the 
contracting officer may include separate specifications for each type of 
work in a single contract calling for the performance of both types of 
work. For example, a contracting agency may invite bids for the 
installation of a plumbing system or for the installation of a security 
alarm system in a public building and for the maintenance of the system 
for one year. In such a case, if the contract is principally for 
services, the exemption provided by section 7(1) will be deemed 
applicable only to that portion of the contract which calls for 
construction activity subject to the Davis-Bacon Act. The contract 
documents are required to contain the clauses prescribed by Sec.  4.6 
for application to the contract obligation to furnish services through 
the use of service employees, and the provisions of the McNamara-O'Hara 
Act will apply to that portion of the contract.
    (2) Service or maintenance contracts involving construction work. 
The provisions of both the Davis-Bacon Act and

[[Page 67]]

the Service Contract Act would generally apply to contracts involving 
construction and service work where such contracts are principally for 
services. The Davis-Bacon Act, and thus the exemption provided by 
section 7(1) of the Act, would be applicable to construction contract 
work in such hybrid contracts where:
    (i) The contract contains specific requirements for substantial 
amounts of construction, reconstruction, alteration, or repair work 
(hereinafter referred to as construction) or it is ascertainable that a 
substantial amount of construction work will be necessary for the 
performance of the contract (the word ``substantial'' relates to the 
type and quantity of construction work to be performed and not merely to 
the total value of construction work (whether in absolute dollars or 
cost percentages) as compared to the total value of the contract); and
    (ii) The construction work is physically or functionally separate 
from, and as a practical matter is capable of being performed on a 
segregated basis from, the other work called for by the contract.

[48 FR 49762, Oct. 27, 1983; 48 FR 50529, Nov. 2, 1983]



Sec.  4.117  Work subject to requirements of Walsh-Healey Act.

    (a) The Act, in paragraph (2) of section 7, exempts from its 
provisions ``any work required to be done in accordance with the 
provision of the Walsh-Healey Public Contracts Act'' (49 Stat. 2036, 41 
U.S.C. 35 et seq.). It will be noted that like the similar provision in 
the Contract Work Hours and Safety Standards Act (40 U.S.C. 329(b)), 
this is an exemption for ``work'', i.e., specifications or requirements, 
rather than for ``contracts'' subject to the Walsh-Healey Act. The 
purpose of the exemption was to eliminate possible overlapping of the 
differing labor standards of the two Acts, which otherwise might be 
applied to employees performing work on a contract covered by the 
Service Contract Act if such contract and their work under it should 
also be deemed to be covered by the Walsh-Healey Act. The Walsh-Healey 
Act applies to contracts in excess of $10,000 for the manufacture or 
furnishing of materials, supplies, articles or equipment. Thus, there is 
no overlap if the principal purpose of the contract is the manufacture 
or furnishing of such materials etc., rather than the furnishing of 
services of the character referred to in the Service Contract Act, for 
such a contract is not within the general coverage of the Service 
Contract Act. In such cases the exemption in section 7(2) is not 
pertinent. See, for example, the discussion in Sec. Sec.  4.131 and 
4.132.
    (b) Further, contracts principally for remanufacturing of equipment 
which is so extensive as to be equivalent to manufacturing are subject 
to the Walsh-Healey Act. Remanufacturing shall be deemed to be 
manufacturing when the criteria in paragraph (b)(1) or (2) of this 
section are met.
    (1) Major overhaul of an item, piece of equipment, or materiel which 
is degraded or inoperable, and under which all of the following 
conditions exist:
    (i) The item or equipment is required to be completely or 
substantially torn down into individual components parts; and
    (ii) Substantially all of the parts are reworked, rehabilitated, 
altered and/or replaced; and
    (iii) The parts are reassembled so as to furnish a totally rebuilt 
item or piece of equipment; and
    (iv) Manufacturing processes similar to those which were used in the 
manufacturing of the item or piece of equipment are utilized; and
    (v) The disassembled componets, if usable (except for situations 
where the number of items or pieces of equipment involved are too few to 
make it practicable) are commingled with existing inventory and, as 
such, lose their identification with respect to a particular piece of 
equipment; and
    (vi) The items or equipment overhauled are restored to original life 
expectancy, or nearly so; and
    (vii) Such work is performed in a facility owned or operated by the 
contractor.
    (2) Major modification of an item, piece of equipment, or materiel 
which is wholly or partially obsolete, and under which all of the 
following conditions exist:

[[Page 68]]

    (i) The item or equipment is required to be completely or 
substantially torn down; and
    (ii) Outmoded parts are replaced; and
    (iii) The item or equipment is rebuilt or reassembled; and
    (iv) The contract work results in the furnishing of a substantially 
modified item in a usable and serviceable condition; and
    (v) The work is performed in a facility owned or operated by the 
contractor.
    (3) Remanufacturing does not include the repair of damaged or broken 
equipment which does not require a complete teardown, overhaul, and 
rebuild as described in paragraphs (b)(1) and (2) of this section, or 
the periodic and routine maintenance, preservation, care, adjustment, 
upkeep, or servicing of equipment to keep it in usable, serviceable, 
working order. Such contracts typically are billed on an hourly rate 
(labor plus materials and parts) basis. Any contract principally for the 
work described in this paragraph (b)(3) is subject to the Service 
Contract Act. Examples of such work include:
    (i) Repair of an automobile, truck, or other vehicle, construction 
equipment, tractor, crane, aerospace, air conditioning and refrigeration 
equipment, electric motors, and ground powered industrial or vehicular 
equipment;
    (ii) Repair of typewriters and other office equipment (see Sec.  
4.123(e));
    (iii) Repair of appliances, radios television, calculators, and 
other electronic equipment;
    (iv) Inspecting, testing, calibration, painting, packaging, 
lubrication, tune-up, or replacement of internal parts of equipment 
listed in paragraphs (b)(3)(i), (ii), and (iii) of this section; and
    (v) Reupholstering, reconditioning, repair, and refinishing of 
furniture.
    (4) Application of the Service Contract Act or the Walsh-Healey Act 
to any similar type of contract not decided above will be decided on a 
case-by-case basis by the Administrator.



Sec.  4.118  Contracts for carriage subject to published tariff rates.

    The Act, in paragraph (3) of section 7, exempts from its provisions 
``any contract for the carriage of freight or personnel by vessel, 
airplane, bus, truck, express, railway line or oil or gas pipeline where 
published tariff rates are in effect''. In order for this exemption to 
be applicable, the contract must be for such carriage by a common 
carrier described by the terms used. It does not, for example, apply to 
contracts for taxicab or ambulance service, because taxicab and 
ambulance companies are not among the common carriers specified by the 
statute. Also, a contract for transportation service does not come 
within this exemption unless the service contracted for is actually 
governed by published tariff rates in effect pursuant to State or 
Federal law for such carriage. The contracts excluded from the reach of 
the Act by this exemption are typically those where there is on file 
with the Interstate Commerce Commission or an appropriate State or local 
regulatory body a tariff rate applicable to the transportation involved, 
and the transportation contract between the Government and the carrier 
is evidenced by a Government bill of lading citing the published tariff 
rate. An administrative exemption has been provided for certain 
contracts where such carriage is subject to rates covered by section 
10721 of the Interstate Commerce Act and is in accordance with 
applicable regulations governing such rates. See Sec.  4.123(d). 
However, only contracts principally for the carriage of ``freight or 
personnel'' are exempt. Thus, the exemption cannot apply where the 
principal purpose of the contract is packing, crating, handling, 
loading, and/or storage of goods prior to or following line-haul 
transportation. The fact that substantial local drayage to and from the 
contractor's establishment (such as a warehouse) may be required in such 
contracts does not alter the fact that their principal purpose is other 
than the carriage of freight. Also, this exemption does not exclude any 
contracts for the transportation of mail from the application of the 
Act, because the term freight does not include the mail. (For an 
administrative exemption of certain contracts with common carriers for 
carriage of mail, see Sec.  4.123(d).)

[[Page 69]]



Sec.  4.119  Contracts for services of communications companies.

    The Act, in paragraph (4) of section 7, exempts from its provisions 
``any contract for the furnishing of services by radio, telephone, 
telegraph, or cable companies, subject to the Communications Act of 
1934.'' This exemption is applicable to contracts with such companies 
for communication services regulated under the Communications Act. It 
does not exempt from the Act any contracts with such companies to 
furnish any other kinds of services through the use of service 
employees.



Sec.  4.120  Contracts for public utility services.

    The Act, in paragraph (5) of section 7, exempts from its provisions 
``any contract for public utility services, including electric light and 
power, water, steam, and gas.'' This exemption is applicable to 
contracts for such services with companies whose rates therefor are 
regulated under State, local, or Federal law governing operations of 
public utility enterprises. Contracts entered into with public utility 
companies to furnish services through the use of service employees, 
other than those subject to such rate regulation, are not exempt from 
the Act. Among the contracts included in the exemption would be those 
between Federal electric power marketing agencies and investor-owned 
electric utilities, Rural Electrification Administration cooperatives, 
municipalities and State agencies engaged in the transmission and sale 
of electric power and energy.

(See H. Rept. No. 948, 89th Cong., 1st sess., p. 4)



Sec.  4.121  Contracts for individual services.

    The Act, in paragraph (6) of section 7, exempts from its provisions 
``any employment contract providing for direct services to a Federal 
agency by an individual or individuals.'' This exemption, which applies 
only to an ``employment contract'' for ``direct services,'' makes it 
clear that the Act's application to Federal contracts for services is 
intended to be limited to service contracts entered into with 
independent contractors. If a contract to furnish services (to be 
performed by a service employee as defined in the Act) provides that 
they will be furnished directly to the Federal agency by the individual 
under conditions or circumstances which will make him an employee of the 
agency in providing the contract service, the exemption applies and the 
contract will not be subject to the Act's provisions. The exemption does 
not exclude from the Act any contract for services of the kind performed 
by service employees which is entered into with an independent 
contractor whose individual services will be used in performing the 
contract, but as noted earlier in Sec.  4.113, such a contract would be 
outside the general coverage of the Act if only the contractor's 
individual services would be furnished and no service employee would in 
any event be used in its performance.



Sec.  4.122  Contracts for operation of postal contract stations.

    The Act, in paragraph (7) of section 7, exempts from its provisions 
``any contract with the Post Office Department, [now the U.S. Postal 
Service], the principal purpose of which is the operation of postal 
contract stations.'' The exemption is limited to postal service 
contracts having the operation of such stations as their principal 
purpose. A provision of the legislation which would also have exempted 
contracts with the U.S. Postal Service having as their principal purpose 
the transportation, handling, or delivery of the mails was eliminated 
from the bill during its consideration by the House Committee on 
Education and Labor (H. Rept. 948, 89th Cong., 1st sess., p. 1).



Sec.  4.123  Administrative limitations, variances, tolerances, 
and exemptions.

    (a) Authority of the Secretary. Section 4(b) of the Act as amended 
in 1972 authorizes the Secretary to ``provide such reasonable 
limitations'' and to ``make such rules and regulations allowing 
reasonable variations, tolerances, and exemptions to and from any or all 
provisions of this Act (other than Sec.  10), but only in special 
circumstances where he determines that such limitation, variation, 
tolerance, or exemption is necessary and proper in the public interest

[[Page 70]]

or to avoid the serious impairment of Government business, and is in 
accord with the remedial purpose of this Act to protect prevailing labor 
standards.'' This authority is similar to that vested in the Secretary 
under section 6 of the Walsh-Healey Public Contracts Act (41 U.S.C. 40) 
and under section 105 of the Contract Work Hours and Safety Standards 
Act (40 U.S.C. 331).
    (b) Administrative action under section 4(b) of the Act. The 
authority conferred on the Secretary by section 4(b) of the Act will be 
exercised with due regard to the remedial purpose of the statute to 
protect prevailing labor standards and to avoid the undercutting of such 
standards which could result from the award of Government work to 
contractors who will not observe such standards, and whose saving in 
labor cost therefrom enables them to offer a lower price to the 
Government than can be offered by the fair employers who maintain the 
prevailing standards. Administrative action consistent with this 
statutory purpose may be taken under section 4(b) with or without a 
request therefor, when found necessary and proper in accordance with the 
statutory standards. No formal procedures have been prescribed for 
requesting such action. However, a request for exemption from the Act's 
provisions will be granted only upon a strong and affirmative showing 
that it is necessary and proper in the public interest or to avoid 
serious impairment of Government business, and is in accord with the 
remedial purpose of the Act to protect prevailing labor standards. If 
the request for administrative action under section 4(b) is not made by 
the headquarters office of the contracting agency to which the contract 
services are to be provided, the views of such office on the matter 
should be obtained and submitted with the request or the contracting 
officer may forward such a request through channels to the agency 
headquarters for submission with the latter's views to the Administrator 
of the Wage and Hour Division, Department of Labor, whenever any wage 
payment issues are involved. Any request relating to an occupational 
safety or health issue shall be submitted to the Assistant Secretary for 
Occupational Safety and Health, Department of Labor.
    (c) Documentation of official action under section 4(b). All papers 
and documents made a part of the official record of administrative 
action pursuant to section 4(b) of the Act are available for public 
inspection in accordance with the regulations in 29 CFR part 70. 
Limitations, variations, tolerances and exemptions of general 
applicability and legal effect promulgated pursuant to such authority 
are published in the Federal Register and made a part of the rules 
incorporated in this part 4. For convenience in use of the rules, they 
are generally set forth in the sections of this part covering the 
subject matter to which they relate. (See, for example, Sec. Sec.  
4.5(b), 4.6(o), 4.112 and 4.113.) Any rules that are promulgated under 
section 4(b) of the Act relating to subject matter not dealt with 
elsewhere in this part 4 will be set forth immediately following this 
paragraph.
    (d) In addition to the statutory exemptions in section 7 of the Act 
(see Sec.  4.115(b)), the following types of contracts have been 
exempted from all the provisions of the Service Contract Act of 1965, 
pursuant to section 4(b) of the Act, prior to its amendment by Public 
Law 92-473, which exemptions the Secretary of Labor found to be 
necessary and proper in the public interest or to avoid serious 
impairment of the conduct of Government business:
    (1) Contracts entered into by the United States with common carriers 
for the carriage of mail by rail, air (except air star routes), bus, and 
ocean vessel, where such carriage is performed on regularly scheduled 
runs of the trains, airplanes, buses, and vessels over regularly 
established routes and accounts for an insubstantial portion of the 
revenue therefrom;
    (2) Any contract entered into by the U.S. Postal Service with an 
individual owner-operator for mail service where it is not contemplated 
at the time the contract is made that such owner-operator will hire any 
service employee to perform the services under the contract except for 
short periods of vacation time or for unexpected contingencies or 
emergency situations such as illness, or accident; and

[[Page 71]]

    (3) Contracts for the carriage of freight or personnel where such 
carriage is subject to rates covered by section 10721 of the Interstate 
Commerce Act.
    (e) The following types of contracts have been exempted from all the 
provisions of the Service Contract Act of 1965, pursuant to section 4(b) 
of the Act, which exemptions the Secretary of Labor found are necessary 
and proper in the public interest or to avoid serious impairment of the 
conduct of Government business, and are in accord with the remedial 
purpose of the Act to protect prevailing labor standards:
    (1)(i) Prime contracts or subcontracts principally for the 
maintenance, calibration, and/or repair of:
    (A) Automated data processing equipment and office information/word 
processing systems;
    (B) Scientific equipment and medical apparatus or equipment where 
the application of microelectronic circuitry or other technology of at 
least similar sophistication is an essential element (for example, 
Federal Supply Classification (FSC) Group 65, Class 6515, ``Medical 
Diagnostic Equipment''; Class 6525, ``X-Ray Equipment''; FSC Group 66, 
Class 6630, ``Chemical Analysis Instruments''; Class 6665, 
``Geographical and Astronomical Instruments'', are largely composed of 
the types of equipment exempted under this paragraph);
    (C) Office/business machines not otherwise exempt pursuant to 
paragraph (e)(1)(i)(A) of this section, where such services are 
performed by the manufacturer or supplier of the equipment.
    (ii) The exemptions set forth in this paragraph (e)(1) shall apply 
only under the following circumstances:
    (A) The items of equipment are commercial items which are used 
regularly for other than Government purposes, and are sold or traded by 
the contractor (or subcontractor in the case of an exempt subcontract) 
in substantial quantities to the general public in the course of normal 
business operations;
    (B) The prime contract or subcontract services are furnished at 
prices which are, or are based on, established catalog or market prices 
for the maintenance, calibration, and/or repair of such commercial 
items. An ``established catalog price'' is a price included in a 
catalog, price list, schedule, or other form that is regularly 
maintained by the manufacturer or the contractor, is either published or 
otherwise available for inspection by customers, and states prices at 
which sales currently, or were last, made to a significant number of 
buyers constituting the general public. An ``established market price'' 
is a current price, established in the usual course of trade between 
buyers and sellers free to bargain, which can be substantiated from 
sources independent of the manufacturer or contractor; and
    (C) The contractor utilizes the same compensation (wage and fringe 
benefits) plan for all service employees performing work under the 
contract as the contractor uses for these employees and equivalent 
employees servicing the same equipment of commercial customers;
    (D) The contractor certifies to the provisions in this paragraph 
(e)(1)(ii). Certification by the prime contractor as to its compliance 
with respect to the prime contract also constitutes its certification as 
to compliance by its subcontractor if it subcontracts out the exempt 
services. The certification shall be included in the prime contract or 
subcontract.
    (iii)(A) Determinations of the applicability of this exemption to 
prime contracts shall be made in the first instance by the contracting 
officer on or before contract award. In making a judgment that the 
exemption applies, the contracting officer shall consider all factors 
and make an affirmative determination that all of the conditions in 
paragraph (e)(1) of this section have been met.
    (B) Determinations of the applicability of this exemption to 
subcontracts shall be made by the prime contractor on or before 
subcontract award. In making a judgment that the exemption applies, the 
prime contractor shall consider all factors and make an affirmative 
determination that all of the conditions in paragraph (e)(1) have been 
met.
    (iv)(A) If the Administrator determines after award of the prime 
contract that any of the requirements in

[[Page 72]]

paragraph (e)(1) of this section for exemption has not been met, the 
exemption will be deemed inapplicable, and the contract shall become 
subject to the Service Contract Act, effective as of the date of the 
Administrator's determination. In such case, the corrective procedures 
in Sec.  4.5(c) shall be followed.
    (B) The prime contractor is responsible for compliance with the 
requirements of the Service Contract Act by its subcontractors, 
including compliance with all of the requirements of this exemption (see 
Sec.  4.114(b)). If the Administrator determines that any of the 
requirements in paragraph (e)(1) for exemption has not been met with 
respect to a subcontract, the exemption will be deemed inapplicable, and 
the prime contractor may be responsible for compliance with the Act 
effective as of the date of contract award.
    (2)(i) Prime contracts or subcontracts principally for the following 
services where the services under the contract or subcontract meet all 
of the criteria set forth in paragraph (e)(2)(ii) of this section and 
are not excluded by paragraph (e)(2)(iii):
    (A) Automobile or other vehicle (e.g., aircraft) maintenance 
services (other than contracts to operate a Government motor pool or 
similar facility);
    (B) Financial services involving the issuance and servicing of cards 
(including credit cards, debit cards, purchase cards, smart cards, and 
similar card services);
    (C) Contracts with hotels/motels for conferences, including lodging 
and/or meals which are part of the contract for the conference (which 
shall not include ongoing contracts for lodging on an as needed or 
continuing basis);
    (D) Maintenance, calibration, repair and/or installation (where the 
installation is not subject to the Davis-Bacon Act, as provided in Sec.  
4.116(c)(2)) services for all types of equipment where the services are 
obtained from the manufacturer or supplier of the equipment under a 
contract awarded on a sole source basis;
    (E) Transportation by common carrier of persons by air, motor 
vehicle, rail, or marine vessel on regularly scheduled routes or via 
standard commercial services (not including charter services);
    (F) Real estate services, including real property appraisal 
services, related to housing federal agencies or disposing of real 
property owned by the Federal Government; and
    (G) Relocation services, including services of real estate brokers 
and appraisers, to assist federal employees or military personnel in 
buying and selling homes (which shall not include actual moving or 
storage of household goods and related services).
    (ii) The exemption set forth in this paragraph (e)(2) shall apply to 
the services listed in paragraph (e)(2)(i) only when all of the 
following criteria are met:
    (A) The services under the prime contract or subcontract are 
commercial--i.e., they are offered and sold regularly to non-
Governmental customers, and are provided by the contractor (or 
subcontractor in the case of an exempt subcontract) to the general 
public in substantial quantities in the course of normal business 
operations.
    (B) The prime contract or subcontract will be awarded on a sole 
source basis or the contractor or subcontractor will be selected for 
award on the basis of other factors in addition to price. In such cases, 
price must be equal to or less important than the combination of other 
non-price or cost factors in selecting the contractor.
    (C) The prime contract or subcontract services are furnished at 
prices which are, or are based on, established catalog or market prices. 
An established price is a price included in a catalog, price list, 
schedule, or other form that is regularly maintained by the contractor 
or subcontractor, is either published or otherwise available for 
inspection by customers, and states prices at which sales are currently, 
or were last, made to a significant number of buyers constituting the 
general public. An established market price is a current price, 
established in the usual course of trade between buyers and sellers free 
to bargain, which can be substantiated from sources independent of the 
manufacturer or contractor.
    (D) Each service employee who will perform services under the 
Government

[[Page 73]]

contract or subcontract will spend only a small portion of his or her 
time (a monthly average of less than 20 percent of the available hours 
on an annualized basis, or less than 20 percent of available hours 
during the contract period if the contract period is less than a month) 
servicing the government contract or subcontract.
    (E) The contractor utilizes the same compensation (wage and fringe 
benefits) plan for all service employees performing work under the 
contract or subcontract as the contractor uses for these employees and 
for equivalent employees servicing commercial customers.
    (F) The contracting officer (or prime contractor with respect to a 
subcontract) determines in advance, based on the nature of the contract 
requirements and knowledge of the practices of likely offerors, that all 
or nearly all offerors will meet the requirements in paragraph 
(e)(2)(ii) of this section. Where the services are currently being 
performed under contract, the contracting officer or prime contractor 
shall consider the practices of the existing contractor in making a 
determination regarding the requirements in paragraph (e)(2)(ii). If 
upon receipt of offers, the contracting officer finds that he or she did 
not correctly determine that all or nearly all offerors would meet the 
requirements, the Service Contract Act shall apply to the procurement, 
even if the successful offeror has certified in accordance with 
paragraph (e)(2)(ii)(G) of this section.
    (G) The contractor certifies in the prime contract or subcontract, 
as applicable, to the provisions in paragraph (e)(2)(ii)(A) and (C) 
through (E) of this section. Certification by the prime contractor as to 
its compliance with respect to the prime contract also constitutes its 
certification as to compliance by its subcontractor if it subcontracts 
out the exempt services. If the contracting officer or prime contractor 
has reason to doubt the validity of the certification, SCA stipulations 
shall be included in the prime contract or subcontract.
    (iii)(A) If the Administrator determines after award of the prime 
contract that any of the requirements in paragraph (e)(2) of this 
section for exemption has not been met, the exemption will be deemed 
inapplicable, and the contract shall become subject to the Service 
Contract Act. In such case, the corrective procedures in Sec.  4.5(c) 
shall be followed.
    (B) The prime contractor is responsible for compliance with the 
requirements of the Service Contract Act by its subcontractors, 
including compliance with all of the requirements of this exemption (see 
Sec.  4.114(b)). If the Department of Labor determines that any of the 
requirements in paragraph (e)(2) for exemption has not been met with 
respect to a subcontract, the exemption will be deemed inapplicable, and 
the prime contractor may be responsible for compliance with the Act, as 
of the date of contract award.
    (iv) The exemption set forth in this paragraph (e)(2) does not apply 
to solicitations and contracts:
    (A) Entered into under the Javits-Wagner-O'Day Act, 41 U.S.C. 47;
    (B) For the operation of a Government facility or portion thereof 
(but may be applicable to subcontracts for services set forth in 
paragraph (e)(2)(ii) that meet all of the criteria of paragraph 
(e)(2)(ii)); or
    (C) Subject to section 4(c) of the Service Contract Act, as well as 
any options or extensions under such contract.

[48 FR 49762, Oct. 27, 1983, as amended 66 FR 5134, Jan. 18, 2001; 70 FR 
50899, Aug. 26, 2005]



Sec. Sec.  4.124-4.129  [Reserved]

         Particular Application of Contract Coverage Principles



Sec.  4.130  Types of covered service contracts illustrated.

    (a) The types of contracts, the principal purpose of which is to 
furnish services through the use of service employees, are too numerous 
and varied to permit an exhaustive listing. The following list is 
illustrative, however, of the types of services called for by such 
contracts that have been found to come within the coverage of the Act. 
Other examples of covered contracts are discussed in other sections of 
this subpart.
    (1) Aerial spraying.

[[Page 74]]

    (2) Aerial reconnaissance for fire detection.
    (3) Ambulance service.
    (4) Barber and beauty shop services.
    (5) Cafeteria and food service.
    (6) Carpet laying (other than part of construction) and cleaning.
    (7) Cataloging services.
    (8) Chemical testing and analysis.
    (9) Clothing alteration and repair.
    (10) Computer services.
    (11) Concessionaire services.
    (12) Custodial, janitorial, and housekeeping services.
    (13) Data collection, processing, and/or analysis services.
    (14) Drafting and illustrating.
    (15) Electronic equipment maintenance and operation and engineering 
support services.
    (16) Exploratory drilling (other than part of construction).
    (17) Film processing.
    (18) Fire fighting and protection.
    (19) Fueling services.
    (20) Furniture repair and rehabilitation.
    (21) Geological field surveys and testing.
    (22) Grounds maintenance.
    (23) Guard and watchman security service.
    (24) Inventory services.
    (25) Keypunching and keyverifying contracts.
    (26) Laboratory analysis services.
    (27) Landscaping (other than part of construction).
    (28) Laundry and dry cleaning.
    (29) Linen supply services.
    (30) Lodging and/or meals.
    (31) Mail hauling.
    (32) Mailing and addressing services.
    (33) Maintenance and repair of all types of equipment, e.g., 
aircraft, engines, electrical motors, vehicles, and electronic, 
telecommunications, office and related business, and construction 
equipment (See Sec.  4.123(e).).
    (34) Mess attendant services.
    (35) Mortuary services.
    (36) Motor pool operation.
    (37) Nursing home services.
    (38) Operation, maintenance, or logistic support of a Federal 
facility.
    (39) Packing and crating.
    (40) Parking services.
    (41) Pest control.
    (42) Property management.
    (43) Snow removal.
    (44) Stenographic reporting.
    (45) Support services at military installations.
    (46) Surveying and mapping services (not directly related to 
construction).
    (47) Taxicab services.
    (48) Telephone and field interview services.
    (49) Tire and tube repairs.
    (50) Transporting property or personnel (except as explained in 
Sec.  4.118).
    (51) Trash and garbage removal.
    (52) Tree planting and thinning, clearing timber or brush, etc. (See 
also Sec. Sec.  4.116(b) and 4.131(f).).
    (53) Vending machine services.
    (54) Visual and graphic arts.
    (55) Warehousing or storage.



Sec.  4.131  Furnishing services involving more than use of labor.

    (a) If the principal purpose of a contract is to furnish services in 
the performance of which service employees will be used, the Act will 
apply to the contract, in the absence of an exemption, even though the 
use or furnishing of nonlabor items may be an important element in the 
furnishing of the services called for by its terms. The Act is concerned 
with protecting the labor standards of workers engaged in performing 
such contracts, and is applicable if the statutory coverage test is met, 
regardless of the form in which the contract is drafted. The proportion 
of the labor cost to the total cost of the contract and the necessity of 
furnishing or receiving tangible nonlabor items in performing the 
contract obligations will be considered but are not necessarily 
determinative. A procurement that requires tangible items to be supplied 
to the Government or the contractor as a part of the service furnished 
is covered by the Act so long as the facts show that the contract is 
chiefly for services, and that the furnishing of tangible items is of 
secondary importance.
    (b) Some examples of covered contracts illustrating these principles 
may be helpful. One such example is a contract for the maintenance and 
repair of typewriters. Such a contract may require the contractor to 
furnish typewriter parts, as the need arises, in performing the contract 
services. Since

[[Page 75]]

this does not change the principal purpose of the contract, which is to 
furnish the maintenance and repair services through the use of service 
employees, the contract remains subject to the Act.
    (c) Another example of the application of the above principle is a 
contract for the recurrent supply to a Government agency of freshly 
laundered items on a rental basis. It is plain from the legislative 
history that such a contract is typical of those intended to be covered 
by the Act. S. Rept. 798, 89th Cong., 1st Sess., p. 2; H. Rept. 948, 
89th Cong., 1st Sess., p. 2. Although tangible items owned by the 
contractor are provided on a rental basis for the use of the Government, 
the service furnished by the contractor in making them available for 
such use when and where they are needed, through the use of service 
employees who launder and deliver them, is the principal purpose of the 
contract.
    (d) Similarly, a contract in the form of rental of equipment with 
operators for the plowing and reseeding of a park area is a service 
contract. The Act applies to it because its principal purpose is the 
service of plowing and reseeding, which will be performed by service 
employees, although as a necessary incident the contractor is required 
to furnish equipment. For like reasons the contracts for aerial spraying 
and aerial reconnaissance listed in Sec.  4.130 are covered, even though 
the use of airplanes, an expensive item of equipment, is essential in 
performing such services. In general, contracts under which the 
contractor agrees to provide the Government with vehicles or equipment 
on a rental basis with drivers or operators for the purpose of 
furnishing services are covered by the Act. Such contracts are not 
considered contracts for furnishing equipment within the meaning of the 
Walsh-Healey Public Contracts Act. On the other hand, contracts under 
which the contractor provides equipment with operators for the purpose 
of construction of a public building or public work, such as road 
resurfacing or dike repair, even where the work is performed under the 
supervision of Government employees, would be within the exemption in 
section 7(1) of the Act as contracts for construction subject to the 
Davis-Bacon Act. (See Sec.  4.116.)
    (e) Contracts for data collection, surveys, computer services, and 
the like are within the general coverage of the Act even though the 
contractor may be required to furnish such tangible items as written 
reports or computer printouts, since items of this nature are considered 
to be of secondary importance to the services which it is the principal 
purpose of the contract to procure.
    (f) Contracts under which the contractor receives tangible items 
from the Government in return for furnishing services (which items are 
in lieu of or in addition to monetary consideration granted by either 
party) are covered by the Act where the facts show that the furnishing 
of such services is the principal purpose of the contracts. For example, 
property removal or disposal contracts which involve demolition of 
buildings or other structures are subject to the Act when their 
principal purpose is dismantling and removal (and no further 
construction activity at the site is contemplated). However, removal or 
dismantling contracts whose principal purpose is sales are not covered. 
So-called ``timber sales'' contracts generally are not subject to the 
Act because normally the services provided under such contracts are 
incidental to the principal purpose of the contracts. (See also 
Sec. Sec.  4.111(a) and 4.116(b).)



Sec.  4.132  Services and other items to be furnished under a single contract.

    If the principal purpose of a contract is to furnish services 
through the use of service employees within the meaning of the Act, the 
contract to furnish such services is not removed from the Act's coverage 
merely because, as a matter of convenience in procurement, the service 
specifications are combined in a single contract document with 
specifications for the procurement of different or unrelated items. In 
such case, the Act would apply to service specifications but would not 
apply to any specifications subject to the Walsh-Healey Act or to the 
Davis-Bacon Act. With respect to contracts which contain separate 
specifications

[[Page 76]]

for the furnishing of services and construction activity, see Sec.  
4.116(c).



Sec.  4.133  Beneficiary of contract services.

    (a) The Act does not say to whom the services under a covered 
contract must be furnished. So far as its language is concerned, it is 
enough if the contract is ``entered into'' by and with the Government 
and if its principal purpose is ``to furnish services in the United 
States through the use of service employees''. It is clear that Congress 
intended to cover at least contracts for services of direct benefit to 
the Government, its property, or its civilian or military personnel for 
whose needs it is necessary or desirable for the Government to make 
provision for such services. For example, the legislative history makes 
specific reference to such contracts as those for furnishing food 
service and laundry and dry cleaning service for personnel at military 
installations. Furthermore, there is no limitation in the Act regarding 
the beneficiary of the services, nor is there any indication that only 
contracts for services of direct benefit to the Government, as 
distinguished from the general public, are subject to the Act. 
Therefore, where the principal purpose of the Government contract is to 
provide services through the use of service employees, the contract is 
covered by the Act, regardless of the direct beneficiary of the services 
or the source of the funds from which the contractor is paid for the 
service, and irrespective of whether the contractor performs the work in 
its own establishment, on a Government installation, or elsewhere. The 
fact that the contract requires or permits the contractor to provide the 
services directly to individual personnel as a concessionaire, rather 
than through the contracting agency, does not negate coverage by the 
Act.
    (b) The Department of Labor, pursuant to section 4(b) of the Act, 
exempts from the provisions of the Act certain kinds of concession 
contracts providing services to the general public, as provided herein. 
Specifically, concession contracts (such as those entered into by the 
National Park Service) principally for the furnishing of food, lodging, 
automobile fuel, souvenirs, newspaper stands, and recreational equipment 
to the general public, as distinguished from the United States 
Government or its personnel, are exempt. This exemption is necessary and 
proper in the public interest and is in accord with the remedial purpose 
of the Act. Where concession contracts, however, include substantial 
requirements for services other than those stated, those services are 
not exempt. The exemption provided does not affect a concession 
contractor's obligation to comply with the labor standards provisions of 
any other statutes such as the Contract Work Hours and Safety Standards 
Act (40 U.S.C. 327 et seq.), the Davis-Bacon Act (40 U.S.C. 276a et 
seq.; see part 5 of this title) and the Fair Labor Standards Act (29 
U.S.C. 201 et seq.).



Sec.  4.134  Contracts outside the Act's coverage.

    (a) Contracts entered into by agencies other than those of the 
Federal Government or the District of Columbia as described in 
Sec. Sec.  4.107-4.108 are not within the purview of the Act. Thus, the 
Act does not cover service contracts entered into with any agencies of 
Puerto Rico, the Virgin Islands, American Samoa, or Guam acting in 
behalf of their respective local governments. Similarly, it does not 
cover service contracts entered into by agencies of States or local 
public bodies, not acting as agents for or on behalf of the United 
States or the District of Columbia, even though Federal financial 
assistance may be provided for such contracts under Federal law or the 
terms and conditions specified in Federal law may govern the award and 
operation of the contract.
    (b) Further, as already noted in Sec. Sec.  4.111 through 4.113, the 
Act does not apply to Government contracts which do not have as their 
principal purpose the furnishing of services, or which call for no 
services to be furnished within the United States or through the use of 
service employees as those terms are defined in the Act. Clearly outside 
the Act's coverage for these reasons are such contracts as those for the 
purchase of tangible products which the Government needs (e.g. vehicles, 
office

[[Page 77]]

equipment, and supplies), for the logistic support of an air base in a 
foreign country, or for the services of a lawyer to examine the title to 
land. Similarly, where the Government contracts for a lease of building 
space for Government occupancy and the building owner furnishes general 
janitorial and other building services on an incidental basis through 
the use of service employees, the leasing of the space rather than the 
furnishing of the building services is the principal purpose of the 
contract, and the Act does not apply. Another type of contract which is 
outside the coverage of the Act because it is not for the principal 
purpose of furnishing services may be illustrated by a contract for the 
rental of parking space under which the Government agency is simply 
given a lease or license to use the contractor's real property. Such a 
contract is to be distinguished from contracts for the storage of 
vehicles which are delivered into the possession or custody of the 
contractor, who will provide the required services including the parking 
or retrieval of the vehicles.
    (c) There are a number of types of contracts which, while outside 
the Act's coverage in the usual case, may be subject to its provisions 
under the conditions and circumstances of a particular procurement, 
because these may be such as to require a different view of the 
principal purpose of the contract. Thus, the ordinary contract for the 
recapping of tires would have as its principal purpose the manufacture 
and furnishing of rebuilt tires for the Government rather than the 
furnishing of services through the use of service employees, and thus 
would be outside the Act's coverage. Similarly, contracts calling for 
printing, reproduction, and duplicating ordinarily would appear to have 
as their principal purpose the furnishing in quantity of printed, 
reproduced or duplicated written materials rather than the furnishing of 
reproduction services through the use of service employees. However, in 
a particular case, the terms, conditions, and circumstances of the 
procurement may be such that the facts would show its purpose to be 
chiefly the furnishing of services (e.g. repair services, typesetting, 
photocopying, editing, etc.), and where such services require the use of 
service employees the contract would be subject to the Act unless 
excluded therefrom for some other reason.



Sec. Sec.  4.135-4.139  [Reserved]

                     Determining Amount of Contract



Sec.  4.140  Significance of contract amount.

    As set forth in Sec.  4.104 and in the requirements of Sec. Sec.  
4.6-4.7, the obligations of a contractor with respect to labor standards 
differ in the case of a covered and nonexempt contract, depending on 
whether the contract is or is not in excess of $2,500. Rules for 
resolving questions that may arise as to whether a contract is or is not 
in excess of this figure are set forth in the following sections.



Sec.  4.141  General criteria for measuring amount.

    (a) In general, the contract amount is measured by the consideration 
agreed to be paid, whether in money or other valuable consideration, in 
return for the obligations assumed under the contract. Thus, even though 
a contractor, such as a wrecker entering into a contract with the 
Government to raze a building on a site which will remain vacant, may 
not be entitled to receive any money from the Government for such work 
under his contract or may even agree to pay the Government in return for 
the right to dispose of the salvaged materials, the contract will be 
deemed one in excess of $2,500 if the value of the property obtained by 
the contractor, less anything he might pay the Government, is in excess 
of such amount. In addition, concession contracts are considered to be 
contracts in excess of $2,500 if the contractor's gross receipts under 
the contract may exceed $2,500.
    (b) All bids from the same person on the same invitation for bids 
will constitute a single offer, and the total award to such person will 
determine the amount involved for purposes of the Act. Where the 
procurement is made without formal advertising, in arriving at the 
aggregate amount involved, there must be included all property and 
services which would properly

[[Page 78]]

be grouped together in a single transaction and which would be included 
in a single advertisement for bids if the procurement were being 
effected by formal advertising. Therefore, if an agency procures 
continuing services through the issuance of monthly purchase orders, the 
amount of the contract for purposes of application of the Act is not 
measured by the amount of an individual purchase order. In such cases, 
if the continuing services were procured through formal advertising, the 
contract term would typically be for one year, and the monthly purchase 
orders must be grouped together to determine whether the yearly amount 
may exceed $2,500. However, a purchase order for services which are not 
continuing but are performed on a one-time or sporadic basis and which 
are not performed under a requirements contract or under the terms of a 
basic ordering agreement or similar agreement need not be equated to a 
yearly amount. (See Sec.  4.142(b).) In addition, where an invitation is 
for services in an amount in excess of $2,500 and bidders are permitted 
to bid on a portion of the services not amounting to more than $2,500, 
the amounts of the contracts awarded separately to individual and 
unrelated bidders will be measured by the portions of the services 
covered by their respective contracts.
    (c) Where a contract is issued in an amount in excess of $2,500 this 
amount will govern for purposes of application of the Act even though 
penalty deductions, deductions for prompt payment, and similar 
deductions may reduce the amount actually expended by the Government to 
$2,500 or less.



Sec.  4.142  Contracts in an indefinite amount.

    (a) Every contract subject to this Act which is indefinite in amount 
is required to contain the clauses prescribed in Sec.  4.6 for contracts 
in excess of $2,500, unless the contracting officer has definite 
knowledge in advance that the contract will not exceed $2,500 in any 
event.
    (b) Where contracts or agreements between a Government agency and 
prospective purveyors of services are negotiated which provide terms and 
conditions under which services will be furnished through the use of 
service employees in response to individual purchase orders or calls, if 
any, which may be issued by the agency during the life of the agreement, 
these agreements would ordinarily constitute contracts within the 
intendment of the Act under principles judicially established in United 
Biscuit Co. v. Wirtz, 17 WH Cases 146 (C.A.D.C.), a case arising under 
the Walsh-Healey Public Contracts Act. Such a contract, which may be in 
the nature of a bilateral option contract or basic ordering agreement 
and not obligate the Government to order any services or the contractor 
to furnish any, nevertheless governs any procurement of services that 
may be made through purchase orders or calls issued under its terms. 
Since the amount of the contract is indefinite, it is subject to the 
rule stated in paragraph (a) of this section. The amount of the contract 
is not determined by the amount of any individual call or purchase 
order.

                      Changes in Contract Coverage



Sec.  4.143  Effects of changes or extensions of contracts, generally.

    (a) Sometimes an existing service contract is modified, amended, or 
extended in such a manner that the changed contract is considered to be 
a new contract for purposes of the application of the Act's provisions. 
The general rule with respect to such contracts is that, whenever 
changes affecting the labor requirements are made in the terms of the 
contract, the provisions of the Act and the regulations thereunder will 
apply to the changed contract in the same manner and to the same extent 
as they would to a wholly new contract. However, contract modifications 
or amendments (other than contract extensions) that are unrelated to the 
labor requirements of a contract will not be deemed to create a new 
contract for purposes of the Act. In addition, only significant changes 
related to labor requirements will be considered as creating new 
contracts. This limitation on the application of the Act has been found 
to be in accordance with the provisions of section 4(b) of the Act.
    (b) Also, whenever the term of an existing contract is extended, 
pursuant

[[Page 79]]

to an option clause or otherwise, so that the contractor furnishes 
services over an extended period of time, rather than being granted 
extra time to fulfill his original commitment, the contract extension is 
considered to be a new contract for purposes of the application of the 
Act's provisions. All such ``new'' contracts as discussed above require 
the insertion of a new or revised wage determination in the contract as 
provided in Sec.  4.5.



Sec.  4.144  Contract modifications affecting amount.

    Where a contract that was originally issued in an amount not in 
excess of $2,500 is later modified so that its amount may exceed that 
figure, all the provisions of section 2(a) of the Act, and the 
regulations thereunder, are applicable from the date of modification to 
the date of contract completion. In the event of such modification, the 
contracting officer shall immediately obtain a wage determination from 
the Department of Labor using the e98 application or directly from WDOL, 
and insert the required contract clauses and any wage determination 
issued into the contract. In the event that a contract for services 
subject to the Act in excess of $2,500 is modified so that it cannot 
exceed $2,500, compliance with the provisions of section 2(a) of the Act 
and the contract clauses required thereunder ceases to be an obligation 
of the contractor when such modification becomes effective.

[70 FR 50899, Aug. 26, 2005]



Sec.  4.145  Extended term contracts.

    (a) Sometimes service contracts are entered into for an extended 
term exceeding one year; however, their continuation in effect is 
subject to the appropriation by Congress of funds for each new fiscal 
year. In such event, for purposes of this Act, a contract shall be 
deemed entered into upon the contract anniversary date which occurs in 
each new fiscal year during which the terms of the original contract are 
made effective by an appropriation for that purpose. In other cases a 
service contract, entered into for a specified term by a Government 
agency, may contain a provision such as an option clause under which the 
agency may unilaterally extend the contract for a period of the same 
length or other stipulated period. Since the exercise of the option 
results in the rendition of services for a new or different period not 
included in the term for which the contractor is obligated to furnish 
services or for which the Government is obligated to pay under the 
original contract in the absence of such action to extend it, the 
contract for the additional period is a wholly new contract with respect 
to application of the Act's provisions and the regulations thereunder 
(see Sec.  4.143(b)).
    (b) With respect to multi-year service contracts which are not 
subject to annual appropriations (for example, concession contracts 
which are funded through the concessionaire's sales, certain operations 
and maintenance contracts which are funded with so-called ``no year 
money'' or contracts awarded by instrumentalities of the United States, 
such as the Federal Reserve Banks, which do not receive appropriated 
funds), section 4(d) of the Act allows such contracts to be awarded for 
a period of up to five years on the condition that the multi-year 
contracts will be amended no less often than once every two years to 
incorporate any new Service Contract Act wage determination which may be 
applicable. Accordingly, unless the contracting agency is notified to 
the contrary (see Sec.  4.4(d)), such contracts are treated as wholly 
new contracts for purposes of the application of the Act's provisions 
and regulations thereunder at the end of the second year and again at 
the end of the fourth year, etc. The two-year period is considered to 
begin on the date that the contractor commences performance on the 
contract (i.e., anniversary date) rather than on the date of contract 
award.

                           Period of Coverage



Sec.  4.146  Contract obligations after award, generally.

    A contractor's obligation to observe the provisions of the Act 
arises on the date the contractor is informed that award of the contract 
has been made, and not necessarily on the date of formal execution. 
However, the contractor is required to comply with the

[[Page 80]]

provisions of the Act and regulations thereunder only while the 
employees are performing on the contract, provided the contractor's 
records make clear the period of such performance. (See also Sec.  
4.179.) If employees of the contractor are required by the contract to 
complete certain preliminary training or testing prior to the 
commencement of the contract services, or if there is a phase-in period 
which allows the new contractor's employees to familiarize themselves 
with the contract work so as to provide a smooth transition between 
contractors, the time spent by employees undertaking such training or 
phase-in work is considered to be hours worked on the contract and must 
be compensated for even though the principal contract services may not 
commence until a later date.



Sec. Sec.  4.147-4.149  [Reserved]

                      Employees Covered by the Act



Sec.  4.150  Employee coverage, generally.

    The Act, in section 2(b), makes it clear that its provisions apply 
generally to all service employees engaged in performing work on a 
covered contract entered into by the contractor with the Federal 
Government, regardless of whether they are the contractor's employees or 
those of any subcontractor under such contract. All service employees 
who, on or after the date of award, are engaged in working on or in 
connection with the contract, either in performing the specific services 
called for by its terms or in performing other duties necessary to the 
performance of the contract, are thus subject to the Act unless a 
specific exemption (see Sec. Sec.  4.115 et seq.) is applicable. All 
such employees must be paid wages at a rate not less than the minimum 
wage specified under section 6(a)(1) of the Fair Labor Standards Act (29 
U.S.C. 206(a)(1)), as amended. Payment of a higher minimum monetary wage 
and the furnishing of fringe benefits may be required under the 
contract, pursuant to the provisions of sections 2 (a)(1), (2), and 4(c) 
of the Act.



Sec.  4.151  Employees covered by provisions of section 2(a).

    The provisions of sections 2(a) and 4(c) of the Act prescribe labor 
standards requirements applicable, except as otherwise specifically 
provided, to every contract in excess of $2,500 which is entered into by 
the United States or the District of Columbia for the principal purpose 
of furnishing services in the United States through the use of service 
employees. These provisions apply to all service employees engaged in 
the performance of such a contract or any subcontract thereunder. The 
Act, in section 8(b) defines the term service employee. The general 
scope of the definition is considered in Sec.  4.113(b) of this subpart.



Sec.  4.152  Employees subject to prevailing compensation provisions 
of sections 2(a)(1) and (2) and 4(c).

    (a) Under sections 2(a)(1) and (2) and 4(c) of the Act, minimum 
monetary wages and fringe benefits to be paid or furnished the various 
classes of service employees performing such contract work are 
determined by the Secretary of Labor or his authorized representative in 
accordance with prevailing rates and fringe benefits for such employees 
in the locality or in accordance with the rates contained in a 
predecessor contractor's collective bargaining agreement, as 
appropriate, and are required to be specified in such contracts and 
subcontracts thereunder. All service employees of the classes who 
actually perform the specific services called for by the contract (e.g., 
janitors performing on a contract for office cleaning; stenographers 
performing on a contract for stenographic reporting) are covered by the 
provisions specifying such minimum monetary wages and fringe benefits 
for such classes of service employees and must be paid not less than the 
applicable rate established for the classification(s) of work performed. 
Pursuant to section 4.6(b)(2), conforming procedures are required to be 
observed for all such classes of service employees not listed in the 
wage determination incorporated in the contract.
    (b) The duties which an employee actually performs govern the 
classification and the rate of pay to which the employee is entitled 
under the applicable wage determination. Some job classifications listed 
in an applicable wage determination are descriptive by title

[[Page 81]]

and have commonly understood meanings (e.g., janitors, security guards, 
pilots, etc.). In such situations, detailed position descriptions may 
not be included in the wage determination. However, in cases where 
additional descriptive information is needed to inform users of the 
scope of duties included in the classification, the wage determination 
will generally contain detailed position descriptions based on the data 
source relied upon for the issuance of the wage determination.
    (c)(1) Some wage determinations will list a series of classes within 
a job classification family, e.g., Computer Operators, Class A, B, and 
C, or Electronic Technicians, Class A, B, and C, or Clerk Typist, Class 
A and B. Generally, the lowest level listed for a job classification 
family is considered to be the entry level and establishment of a lower 
level through conformance (Sec.  4.6(b)(2)) is not permissible. Further, 
trainee classifications cannot be conformed. Helpers in skilled 
maintenance trades (e.g., electricians, machinists, automobile 
mechanics, etc.) whose duties constitute, in fact, separate and distinct 
jobs, may also be used if listed on the wage determination, but cannot 
be conformed. Conformance may not be used to artificially split or 
subdivide classifications listed in the wage determination. However, 
conforming procedures may be used if the work which an employee performs 
under the contract is not within the scope of any classification listed 
on the wage determination, regardless of job title.
    (2) Subminimum rates for apprentices, student learners, and 
handicapped workers are permissible under the conditions discussed in 
Sec.  4.6 (o) and (p).



Sec.  4.153  Inapplicability of prevailing compensation provisions 
to some employees.

    There may be employees used by a contractor or subcontractor in 
performing a service contract in excess of $2,500 which is subject to 
the Act, whose services, although necessary to the performance of the 
contract, are not subject to minimum monetary wage or fringe benefit 
provisions contained in the contract pursuant to section 2(a) because 
such employees are not directly engaged in performing the specified 
contract services. An example might be a laundry contractor's billing 
clerk performing billing work with respect to the items laundered. In 
all such situations, the employees who are necessary to the performance 
of the contract but not directly engaged in the performance of the 
specified contract services, are nevertheless subject to the minimum 
wage provision of section 2(b) (see Sec.  4.150) requiring payment of 
not less than the minimum wage specified under section 6(a)(1) of the 
Fair Labor Standards Act to all employees working on a covered contract, 
unless specifically exempt. However, in situations where minimum 
monetary wages and fringe benefits for a particular class or classes of 
service employees actually performing the services called for by the 
contract have not been specified in the contract because the wage and 
fringe benefit determination applicable to the contract has been made 
only for other classes of service employees who will perform the 
contract work, the employer will be required to pay the monetary wages 
and fringe benefits which may be specified for such classes of employees 
pursuant to the conformance procedures provided in Sec.  4.6(b).



Sec.  4.154  Employees covered by sections 2(a)(3) and (4).

    The safety and health standards of section 2(a)(3) and the notice 
requirements of section 2(a)(4) of the Act (see Sec.  4.183) are 
applicable, in the absence of a specific exemption, to every service 
employee engaged by a contractor or subcontractor to furnish services 
under a contract subject to section 2(a) of the Act.



Sec.  4.155  Employee coverage does not depend on form of employment contract.

    The Act, in section 8(b), makes it plain that the coverage of 
service employees depends on whether their work for the contractor or 
subcontractor on a covered contract is that of a service employee as 
defined in section 8(b) and not on any contractual relationship that may 
be alleged to exist between the contractor or subcontractor and

[[Page 82]]

such persons. In other words, any person, except those discussed in 
Sec.  4.156 below, who performs work called for by a contract or that 
portion of a contract subject to the Act is, per se, a service employee. 
Thus, for example, a person's status as an ``owner-operator'' or an 
``independent contractor'' is immaterial in determining coverage under 
the Act and all such persons performing the work of service employees 
must be compensated in accordance with the Act's requirements.



Sec.  4.156  Employees in bona fide executive, administrative, 
or professional capacity.

    The term service employee as defined in section 8(b) of the Act does 
not include persons employed in a bona fide executive, administrative, 
or professional capacity as those terms are defined in 29 CFR part 541. 
Employees within the definition of service employee who are employed in 
an executive, administrative, or professional capacity are not excluded 
from coverage, however, even though they are highly paid, if they fail 
to meet the tests set forth in 29 CFR part 541. Thus, such employees as 
laboratory technicians, draftsmen, and air ambulance pilots, though they 
require a high level of skill to perform their duties and may meet the 
salary requirements of the regulations in part 541 of this title, are 
ordinarily covered by the Act's provisions because they do not typically 
meet the other requirements of those regulations.



Sec. Sec.  4.157-4.158  [Reserved]



                    Subpart D_Compensation Standards



Sec.  4.159  General minimum wage.

    The Act, in section 2(b)(1), provides generally that no contractor 
or subcontractor under any Federal contract subject to the Act shall pay 
any employee engaged in performing work on such a contract less than the 
minimum wage specified under section 6(a)(1) of the Fair Labor Standards 
Act. Section 2(a)(1) provides that the minimum monetary wage specified 
in any such contract exceeding $2,500 shall in no case be lower than 
this Fair Labor Standards Act minimum wage. Section 2(b)(1) is a 
statutory provision which applies to the contractor or subcontractor 
without regard to whether it is incorporated in the contract; however, 
Sec. Sec.  4.6 and 4.7 provide for inclusion of its requirements in 
covered contracts and subcontracts. Because this statutory requirement 
specifies no fixed monetary wage rate and refers only to the minimum 
wage specified under section 6(a)(1) of the Fair Labor Standards Act, 
and because its application does not depend on provisions of the 
contract, any increase in such Fair Labor Standards Act minimum wage 
during the life of the contract is, on its effective date, also 
effective to increase the minimum wage payable under section 2(b)(1) to 
employees engaged in performing work on the contract.

[48 FR 49762, Oct. 27, 1983, as amended at 76 FR 18854, Apr. 5, 2011]



Sec.  4.160  Effect of section 6(e) of the Fair Labor Standards Act.

    Contractors and subcontractors performing work on contracts subject 
to the Service Contract Act are required to pay all employees, including 
those employees who are not performing work on or in connection with 
such contracts, not less than the general minimum wage standard provided 
in section 6(a)(1) of the Fair Labor Standards Act, as amended (Pub. L. 
95-151).



Sec.  4.161  Minimum monetary wages under contracts exceeding $2,500.

    The standards established pursuant to the Act for minimum monetary 
wages to be paid by contractors and subcontractors under service 
contracts in excess of $2,500 to service employees engaged in 
performance of the contract or subcontract are required to be specified 
in the contract and in all subcontracts (see Sec.  4.6). Pursuant to the 
statutory scheme provided by sections 2(a)(1) and 4(c) of the Act, every 
covered contract (and any bid specification therefor) which is in excess 
of $2,500 shall contain a provision specifying the minimum monetary 
wages to be paid the various classes of service employees engaged in the 
performance of the contract or any subcontract thereunder, as determined 
by the Secretary or his authorized representative

[[Page 83]]

in accordance with prevailing rates for such employees in the locality, 
or, where a collective bargaining agreement applied to the employees of 
a predecessor contractor in the same locality, in accordance with the 
rates for such employees provided for in such agreement, including 
prospective wage increases as provided in such agreement as a result of 
arm's-length negotiations. In no case may such wages be lower than the 
minimum wage specified under section 6(a)(1) of the Fair Labor Standards 
Act of 1938, as amended. (For a detailed discussion of the application 
of section 4(c) of the Act, see Sec.  4.163.) If some or all of the 
determined wages in a contract fall below the level of the Fair Labor 
Standards Act minimum by reason of a change in that rate by amendment of 
the law, these rates become obsolete and the employer is obligated under 
section 2(b)(1) of the Service Contract Act to pay the minimum wage rate 
established by the amendment as of the date it becomes effective. A 
change in the Fair Labor Standards Act minimum by operation of law would 
also have the same effect on advertised specifications or negotiations 
for covered service contracts, i.e., it would make ineffective and would 
supplant any lower rate or rates included in such specifications or 
negotiations whether or not determined. However, unless affected by such 
a change in the Fair Labor Standards Act minimum wage, by contract 
changes necessitating the insertion of new wage provisions (see 
Sec. Sec.  4.5(c) and 4.143-4.145) or by the requirements of section 
4(c) of the Act (see Sec.  4.163), the minimum monetary wage rate 
specified in the contract for each of the classes of service employees 
for which wage determinations have been made under section 2(a)(1) will 
continue to apply throughout the period of contract performance. No 
change in the obligation of the contractor or subcontractor with respect 
to minimum monetary wages will result from the mere fact that higher or 
lower wage rates may be determined to be prevailing for such employees 
in the locality after the award and before completion of the contract. 
Such wage determinations are effective for contracts not yet awarded, as 
provided in Sec.  4.5(a).



Sec.  4.162  Fringe benefits under contracts exceeding $2,500.

    (a) Pursuant to the statutory scheme provided by sections 2(a)(2) 
and 4(c) of the Act, every covered contract in excess of $2,500 shall 
contain a provision specifying the fringe benefits to be furnished the 
various classes of service employees, engaged in the performance of the 
contract or any subcontract thereunder, as determined by the Secretary 
or his authorized representative to be prevailing for such employees in 
the locality or, where a collective bargaining agreement applied to the 
employees of a predecessor contractor in the same locality, the various 
classes of service employees engaged in the performance of the contract 
or any subcontract must be provided the fringe benefits, including 
prospective or accrued fringe benefit increases, provided for in such 
agreement as a result of arm's-length negotiations. (For a detailed 
discussion of section 4(c) of the Act, see Sec.  4.163.) As provided by 
section 2(a)(2) of the Act, fringe benefits include medical or hospital 
care, pensions on retirement or death, compensation for injuries or 
illness resulting from occupational activity, or insurance to provide 
any of the foregoing, unemployment benefits, life insurance, disability 
and sickness insurance, accident insurance, vacation and holiday pay, 
costs of apprenticeship or other similar programs and other bona fide 
fringe benefits not otherwise required by Federal, State, or local law 
to be provided by the contractor or subcontractor.
    (b) Under this provision, the fringe benefits, if any, which the 
contractor or subcontractor is required to furnish the service employees 
engaged in the performance of the contract are specified in the contract 
documents (see Sec.  4.6). How the contractor may satisfy this 
obligation is dealt with in Sec. Sec.  4.170 through 4.177 of this part. 
A change in the fringe benefits required by the contract provision will 
not result from the mere fact that other or additional fringe benefits 
are determined to be prevailing for such employees in the locality at a 
time subsequent to the award but before completion of the contract. Such 
fringe benefit determinations are effective for contracts

[[Page 84]]

not yet awarded (see Sec.  4.5(a)), or in the event that changes in an 
existing contract requiring their insertion for prospective application 
have occurred (see Sec. Sec.  4.143 through 4.145). However, none of the 
provisions of this paragraph may be construed as altering a successor 
contractor's obligations under section 4(c) of the Act. (See Sec.  
4.163.)



Sec.  4.163  Section 4(c) of the Act.

    (a) Section 4(c) of the Act provides that no ``contractor or 
subcontractor under a contract, which succeeds a contract subject to 
this Act and under which substantially the same services are furnished, 
shall pay any service employee under such contract less than the wages 
and fringe benefits, including accrued wages and fringe benefits, and 
any prospective increases in wages and fringe benefits provided for in a 
collective-bargaining agreement as a result of arm's-length 
negotiations, to which such service employees would have been entitled 
if they were employed under the predecessor contract: Provided, That in 
any of the foregoing circumstances such obligations shall not apply if 
the Secretary finds after a hearing in accordance with regulations 
adopted by the Secretary that such wages and fringe benefits are 
substantially at variance with those which prevail for services of a 
character similar in the locality.'' Under this provision, the successor 
contractor's sole obligation is to insure that all service employees are 
paid no less than the wages and fringe benefits to which such employees 
would have been entitled if employed under the predecessor's collective 
bargaining agreement (i.e., irrespective of whether the successor's 
employees were or were not employed by the predecessor contractor). The 
obligation of the successor contractor is limited to the wage and fringe 
benefit requirements of the predecessor's collective bargaining 
agreement and does not extend to other items such as seniority, 
grievance procedures, work rules, overtime, etc.
    (b) Section 4(c) is self-executing. Under section 4(c), a successor 
contractor in the same locality as the predecessor contractor is 
statutorily obligated to pay no less than the wage rates and fringe 
benefits which were contained in the predecessor contractor's collective 
bargaining agreement. This is a direct statutory obligation and 
requirement placed on the successor contractor by section 4(c) and is 
not contingent or dependent upon the issuance or incorporation in the 
contract of a wage determination based on the predecessor contractor's 
collective bargaining agreement. Pursuant to section 4(b) of the Act, a 
variation has been granted which limits the self-executing application 
of section 4(c) in the circumstances and under the conditions described 
in Sec.  4.1b(b) of this part. It must be emphasized, however, that the 
variation in Sec.  4.1b(b) is applicable only if the contracting officer 
has given both the incumbent (predecessor) contractor and the employees' 
collective bargaining representative notification at least 30 days in 
advance of any estimated procurement date.
    (c) Variance hearings. The regulations and procedures for hearings 
pursuant to section 4(c) of the Act are contained in Sec.  4.10 of 
subpart A and parts 6 and 8 of this title. If, as the result of such 
hearing, some or all of the wage rate and/or fringe benefit provisions 
of a predecessor contractor's collective bargaining agreement are found 
to be substantially at variance with the wage rates and/or fringe 
benefits prevailing in the locality, the Administrator will cause a new 
wage determination to be issued in accordance with the decision of the 
Administrative Law Judge or the Administrative Review Board, as 
appropriate. Since ``it was the clear intent of Congress that any 
revised wage determinations resulting from a section 4(c) proceeding 
were to have validity with respect to the procurement involved'' (53 
Comp. Gen. 401, 402, 1973), the solicitation, or the contract if already 
awarded, must be amended to incorporate the newly issued wage 
determination. Such new wage determination shall be made applicable to 
the contract as of the date of the Administrative Law Judge's decision 
or, where the decision is reviewed by the Administrative Review Board, 
the date of that decision. The legislative history of the 1972 
Amendments makes clear that the collectively bargained ``wages and 
fringe benefits shall continue to be

[[Page 85]]

honored * * * unless and until the Secretary finds, after a hearing, 
that such wages and fringe benefits are substantially at variance with 
those prevailing in the locality for like services'' (S. Rept. 92-1131, 
92nd Cong., 2d Sess. 5). Thus, variance decisions do not have 
application retroactive to the commencement of the contract.
    (d) Sections 2(a) and 4(c) must be read in conjunction. The Senate 
report accompanying the bill which amended the Act in 1972 states that 
``Sections 2(a)(1), 2(a)(2), and 4(c) must be read in harmony to reflect 
the statutory scheme.'' (S. Rept. 92-1131, 92nd Cong., 2nd Sess. 4.) 
Therefore, since section 4(c) refers only to the predecessor 
contractor's collective bargaining agreement, the reference to 
collective bargaining agreements in sections 2(a)(1) and 2(a)(2) can 
only be read to mean a predecessor contractor's collective bargaining 
agreement. The fact that a successor contractor may have its own 
collective bargaining agreement does not negate the clear mandate of the 
statute that the wages and fringe benefits called for by the predecessor 
contractor's collective bargaining agreement shall be the minimum 
payable under a new (successor) contract nor does it negate the 
application of a prevailing wage determination issued pursuant to 
section 2(a) where there was no applicable predecessor collective 
bargaining agreement. 48 Comp. Gen. 22, 23-24 (1968). In addition, 
because section 2(a) only applies to covered contracts in excess of 
$2,500, the requirements of section 4(c) likewise apply only to 
successor contracts which may be in excess of $2,500. However, if the 
successor contract is in excess of $2,500, section 4(c) applies 
regardless of the amount of the predecessor contract. (See Sec. Sec.  
4.141-4.142 for determining contract amount.)
    (e) The operative words of section 4(c) refer to ``contract'' not 
``contractor''. Section 4(c) begins with the language, ``[n]o contractor 
or subcontractor under a contract, which succeeds a contract subject to 
this Act'' (emphasis supplied). Thus, the statute is applicable by its 
terms to a successor contract without regard to whether the successor 
contractor was also the predecessor contractor. A contractor may become 
its own successor because it was the successful bidder on a 
recompetition of an existing contract, or because the contracting agency 
exercises an option or otherwise extends the term of the existing 
contract, etc. (See Sec. Sec.  4.143-4.145.) Further, since sections 
2(a) and 4(c) must be read in harmony to reflect the statutory scheme, 
it is clear that the provisions of section 4(c) apply whenever the Act 
or the regulations require that a new wage determination be incorporated 
into the contract (53 Comp. Gen. 401, 404-6 (1973)).
    (f) Collective bargaining agreement must be applicable to work 
performed on the predecessor contract. Section 4(c) will be operative 
only if the employees who worked on the predecessor contract were 
actually paid in accordance with the wage and fringe benefit provisions 
of a predecessor contractor's collective bargaining agreement. Thus, for 
example, section 4(c) would not apply if the predecessor contractor 
entered into a collective bargaining agreement for the first time, which 
did not become effective until after the expiration of the predecessor 
contract. Likewise, the requirements of section 4(c) would not apply if 
the predecessor contractor's collective bargaining agreement applied 
only to other employees of the firm and not to the employees working on 
the contract.
    (g) Contract reconfigurations. As a result of changing priorities, 
mission requirements, or other considerations, contracting agencies may 
decide to restructure their support contracts. Thus, specific contract 
requirements from one contract may be broken out and placed in a new 
contract or combined with requirements from other contracts into a 
consolidated contract. The protections afforded service employees under 
section 4(c) are not lost or negated because of such contract 
reconfigurations, and the predecessor contractor's collectively 
bargained rates follow identifiable contract work requirements into new 
or consolidated contracts, provided that the new or consolidated 
contract is for services which were furnished in the same locality under 
a predecessor contract. See Sec.  4.163(i). However, where there is more 
than one predecessor contract to the new or consolidated contract, and

[[Page 86]]

where the predecessor contracts involve the same or similar function(s) 
of work, using substantially the same job classifications, the 
predecessor contract which covers the greater portion of the work in 
such function(s) shall be deemed to be the predecessor contract for 
purposes of section 4(c), and the collectively bargained wages and 
fringe benefits under that contract, if any, shall be applicable to such 
function(s). This limitation on the application of section 4(c) is 
necessary and proper in the public interest and is in accord with the 
remedial purpose of the Act to protect prevailing labor standards.
    (h) Interruption of contract services. Other than the requirement 
that substantially the same services be furnished, the requirement for 
arm's-length negotiations and the provision for variance hearings, the 
Act does not impose any other restrictions on the application of section 
4(c). Thus, the application of section 4(c) is not negated because the 
contracting authority may change and the successor contract is awarded 
by a different contracting agency. Also, there is no requirement that 
the successor contract commence immediately after the completion or 
termination of the predecessor contract, and an interruption of contract 
services does not negate the application of section 4(c). Contract 
services may be interrupted because the Government facility is 
temporarily closed for renovation, or because a predecessor defaulted on 
the contract or because a bid protest has halted a contract award 
requiring the Government to perform the services with its own employees. 
In all such cases, the requirements of section 4(c) would apply to any 
successor contract which may be awarded after the temporary interruption 
or hiatus. The basic principle in all of the preceding examples is that 
successorship provisions of section 4(c) apply to the full term 
successor contract. Therefore, temporary interim contracts, which allow 
a contracting agency sufficient time to solicit bids for a full term 
contract, also do not negate the application of section 4(c) to a full 
term successor contract.
    (i) Place of performance. The successorship requirements of section 
4(c) apply to all contracts for substantially the same services as were 
furnished under a predecessor contract in the same locality. As stated 
in Sec.  4.4(a)(2), a wage determination incorporated in the contract 
shall be applicable thereto regardless of whether the successful 
contractor subsequently changes the place(s) of contract performance. 
Similarly, the application of section 4(c) (and any wage determination 
issued pursuant to section 4(c) and included in the contract) is not 
negated by the fact that a successor prime contractor subsequently 
changes the place(s) of contract performance or subcontracts any part of 
the contract work to a firm which performs the work in a different 
locality.
    (j) Interpretation of wage and fringe benefit provisions of wage 
determinations issued pursuant to sections 2(a) and 4(c). Wage 
determinations which are issued for successor contracts subject to 
section 4(c) are intended to accurately reflect the rates and fringe 
benefits set forth in the predecessor's collective bargaining agreement. 
However, failure to include in the wage determination any job 
classification, wage rate, or fringe benefit encompassed in the 
collective bargaining agreement does not relieve the successor 
contractor of the statutory requirement to comply at a minimum with the 
terms of the collective bargaining agreement insofar as wages and fringe 
benefits are concerned. Since the successor's obligations are governed 
by the terms of the collective bargaining agreement, any interpretation 
of the wage and fringe benefit provisions of the collective bargaining 
agreement where its provisions are unclear must be based on the intent 
of the parties to the collective bargaining agreement, provided that 
such interpretation is not violative of law. Therefore, some of the 
principles discussed in Sec. Sec.  4.170 through 4.177 regarding 
specific interpretations of the fringe benefit provisions of prevailing 
wage determinations may not be applicable to wage determinations issued 
pursuant to section 4(c). As provided in section 2(a)(2), a contractor 
may satisfy its fringe benefit obligations under any wage determination 
``by furnishing any equivalent combinations of fringe benefits or by 
making equivalent or differential payments

[[Page 87]]

in cash'' in accordance with the rules and regulations set forth in 
Sec.  4.177 of this subpart.
    (k) No provision of this section shall be construed as permitting a 
successor contractor to pay its employees less than the wages and fringe 
benefits to which such employees would have been entitled under the 
predecessor contractor's collective bargaining agreement. Thus, some of 
the principles discussed in Sec.  4.167 may not be applicable in section 
4(c) successorship situations. For example, unless the predecessor 
contractor's collective bargaining agreement allowed the deduction from 
employees' wages of the reasonable cost or fair value for providing 
board, lodging, or other facilities, the successor may not include such 
costs as part of the applicable minimum wage specified in the wage 
determination. Likewise, unless the predecessor contractor's agreement 
allowed a tip credit (Sec.  4.6(q)), the successor contractor may not 
take a tip credit toward satisfying the minimum wage requirements under 
sections 2(a)(1) and 4(c).



Sec.  4.164  [Reserved]

                 Compliance with Compensation Standards



Sec.  4.165  Wage payments and fringe benefits--in general.

    (a)(1) Monetary wages specified under the Act shall be paid to the 
employees to whom they are due promptly and in no event later than one 
pay period following the end of the pay period in which they are earned. 
No deduction, rebate, or refund is permitted, except as hereinafter 
stated. The same rules apply to cash payments authorized to be paid with 
the statutory monetary wages as equivalents of determined fringe 
benefits (see Sec.  4.177).
    (2) The Act makes no distinction, with respect to its compensation 
provisions, between temporary, part-time, and full-time employees, and 
the wage and fringe benefit determinations apply, in the absence of an 
express limitation, equally to all such service employees engaged in 
work subject to the Act's provisions. (See Sec.  4.176 regarding fringe 
benefit payments to temporary and part-time employees.)
    (b) The Act does not prescribe the length of the pay period. 
However, for purposes of administration of the Act, and to conform with 
practices required under other statutes that may be applicable to the 
employment, wages and hours worked must be calculated on the basis of a 
fixed and regularly recurring workweek of seven consecutive 24-hour 
workday periods, and the records must be kept on this basis. It is 
appropriate to use this workweek for the pay period. A bi-weekly or 
semimonthly, pay period may, however, be used if advance notification is 
given to the affected employees. A pay period longer than semimonthly is 
not recognized as appropriate for service employees and wage payments at 
greater intervals will not be considered as constituting proper payments 
in compliance with the Act.
    (c) The prevailing rate established by a wage determination under 
the Act is a minimum rate. A contractor is not precluded from paying 
wage rates in excess of those determined to be prevailing in the 
particular locality. Nor does the Act affect or require the changing of 
any provisions of union contracts specifying higher monetary wages or 
fringe benefits than those contained in an applicable determination. 
However, if an applicable wage determination contains a wage or fringe 
benefit provision for a class of service employees which is higher than 
that specified in an existing union agreement, the determination's 
provision must be observed for any work performed on a contract subject 
to that determination.



Sec.  4.166  Wage payments--unit of payment.

    The standard by which monetary wage payments are measured under the 
Act is the wage rate per hour. An hourly wage rate is not, however, the 
only unit for payment of wages that may be used for employees subject to 
the Act. Employees may be paid on a daily, weekly, or other time basis, 
or by piece or task rates, so long as the measure of work and 
compensation used, when translated or reduced by computation to an 
hourly basis each workweek, will provide a rate per hour that will 
fulfill the statutory requirement. Whatever

[[Page 88]]

system of payment is used, however, must ensure that each hour of work 
in performance of the contract is compensated at not less than the 
required minimum rate. Failure to pay for certain hours at the required 
rate cannot be transformed into compliance with the Act by reallocating 
portions of payments made for other hours which are in excess of the 
specified minimum.



Sec.  4.167  Wage payments--medium of payment.

    The wage payment requirements under the Act for monetary wages 
specified under its provisions will be satisfied by the timely payment 
of such wages to the employee either in cash or negotiable instrument 
payable at par. Such payment must be made finally and unconditionally 
and ``free and clear.'' Scrip, tokens, credit cards, ``dope checks'', 
coupons, salvage material, and similar devices which permit the employer 
to retain and prevent the employee from acquiring control of money due 
for the work until some time after the pay day for the period in which 
it was earned, are not proper mediums of payment under the Act. If, as 
is permissible, they are used as a convenient device for measuring 
earnings or allowable deductions during a single pay period, the 
employee cannot be charged with the loss or destruction of any of them 
and the employer may not, because the employee has not actually redeemed 
them, credit itself with any which remain outstanding on the pay day in 
determining whether it has met the requirements of the Act. The employer 
may not include the cost of fringe benefits or equivalents furnished as 
required under section 2(a)(2) of the Act, as a credit toward the 
monetary wages it is required to pay under section 2(a)(1) or 2(b) of 
the Act (see Sec.  4.170). However, the employer may generally include, 
as a part of the applicable minimum wage which it is required to pay 
under the Act, the reasonable cost or fair value, as determined by the 
Administrator, of furnishing an employee with ``board, lodging, or other 
facilities,'' as defined in part 531 of this title, in situations where 
such facilities are customarily furnished to employees, for the 
convenience of the employees, not primarily for the benefit of the 
employer, and the employees' acceptance of them is voluntary and 
uncoerced. (See also Sec.  4.163(k).) The determination of reasonable 
cost or fair value will be in accordance with the Administrator's 
regulations under the Fair Labor Standards Act, contained in such part 
531 of this title. While employment on contracts subject to the Act 
would not ordinarily involve situations in which service employees would 
receive tips from third persons, the treatment of tips for wage purposes 
in the situations where this may occur should be understood. For 
purposes of this Act, tips may generally be included in wages in 
accordance with the regulations under the Fair Labor Standards Act, 
contained in part 531. (See also Sec.  4.6(q) and Sec.  4.163(k).) The 
general rule under that Act provides, when determining the wage an 
employer is required to pay a tipped employee, the maximum allowable 
hourly tip credit is limited to the difference between $2.13 and the 
applicable minimum wage specified in section 6(a)(1) of that Act. (See 
Sec.  4.163(k) for exceptions in section 4(c) situations.) In no event 
shall the sum credited as tips exceed the value of tips actually 
received by the employee. The tip credit is not available to an employer 
unless the employer has informed the employee of the tip credit 
provisions and all tips received by the employee have been retained by 
the employee (other than as part of a valid tip pooling arrangement 
among employees who customarily and regularly receive tips; see section 
3(m) of the Fair Labor Standards Act).

[48 FR 49762, Oct. 27, 1983; 48 FR 50529, Nov. 2, 1983, as amended at 76 
FR 18854, Apr. 5, 2011]



Sec.  4.168  Wage payments--deductions from wages paid.

    (a) The wage requirements of the Act will not be met where 
unauthorized deductions, rebates, or refunds reduce the wage payment 
made to the employee below the minimum amounts required under the 
provisions of the Act and the regulations thereunder, or where the 
employee fails to receive such amounts free and clear because he ``kicks 
back'' directly or indirectly to the employer or to another person for 
the employer's benefit the whole or part of the wage

[[Page 89]]

delivered to him. Authorized deductions are limited to those required by 
law, such as taxes payable by employees required to be withheld by the 
employer and amounts due employees which the employer is required by 
court order to pay to another; deductions allowable for the reasonable 
cost or fair value of board, lodging, and facilities furnished as set 
forth in Sec.  4.167; and deductions of amounts which are authorized to 
be paid to third persons for the employee's account and benefit pursuant 
to his voluntary assignment or order or a collective bargaining 
agreement with bona fide representatives of employees which is 
applicable to the employer. Deductions for amounts paid to third persons 
on the employee's account which are not so authorized or are contrary to 
law or from which the contractor, subcontractor or any affiliated person 
derives any payment, rebate, commission, profit, or benefit directly or 
indirectly, may not be made if they cut into the wage required to be 
paid under the Act. The principles applied in determining the 
permissibility of deductions for payments made to third persons are 
explained in more detail in Sec. Sec.  531.38-531.40 of this title.
    (b) Cost of maintaining and furnishing uniforms. (1) If the 
employees are required to wear uniforms either by the employer, the 
nature of the job, or the Government contract, then the cost of 
furnishing and maintaining the uniforms is deemed to be a business 
expense of the employer and such cost may not be borne by the employees 
to the extent that to do so would reduce the employees' compensation 
below that required by the Act. Since it may be administratively 
difficult and burdensome for employers to determine the actual cost 
incurred by all employees for maintaining their own uniforms, payment in 
accordance with the following standards is considered sufficient for the 
contractor to satisfy its wage obligations under the Act:
    (i) The contractor furnishes all employees with an adequate number 
of uniforms without cost to the employees or reimburses employees for 
the actual cost of the uniforms.
    (ii) Where uniform cleaning and maintenance is made the 
responsibility of the employee, the contractor reimburses all employees 
for such cleaning and maintenance at the rate of $3.35 a week (or 67 
cents a day). Since employees are generally required to wear a clean 
uniform each day regardless of the number of hours the employee may work 
that day, the preceding weekly amount generally may be reduced to the 
stated daily equivalent but not to an hourly equivalent. A contractor 
may reimburse employees at a different rate if the contractor furnishes 
affirmative proof as to the actual cost to the employees of maintaining 
their uniforms or if a different rate is provided for in a bona fide 
collective bargaining agreement covering the employees working on the 
contract.
    (2) However, there generally is no requirement that employees be 
reimbursed for uniform maintenance costs in those instances where the 
uniforms furnished are made of ``wash and wear'' materials which may be 
routinely washed and dried with other personal garments, and do not 
generally require daily washing, dry cleaning, commercial laundering, or 
any other special treatment because of heavy soiling in work usage or in 
order to meet the cleanliness or appearance standards set by the terms 
of the Government contract, by the contractor, by law, or by the nature 
of the work. This limitation does not apply where a different provision 
has been set forth on the applicable wage determination. In the case of 
wage determinations issued under section 4(c) of the Act for successor 
contracts, the amount established by the parties to the predecessor 
collective bargaining agreement is deemed to be the cost of laundering 
wash and wear uniforms.
    (c) Stipends, allowances or other payments made directly to an 
employee by a party other than the employer (such as a stipend for 
training paid by the Veterans Administration) are not part of ``wages'' 
and the employer may not claim credit for such payments toward its 
monetary obligations under the Act.



Sec.  4.169  Wage payments--work subject to different rates.

    If an employee during a workweek works in different capacities in 
the

[[Page 90]]

performance of the contract and two or more rates of compensation under 
section 2 of the Act are applicable to the classes of work which he or 
she performs, the employee must be paid the highest of such rates for 
all hours worked in the workweek unless it appears from the employer's 
records or other affirmative proof which of such hours were included in 
the periods spent in each class of work. The rule is the same where such 
an employee is employed for a portion of the workweek in work not 
subject to the Act, for which compensation at a lower rate would be 
proper if the employer by his records or other affirmative proof, 
segregated the worktime thus spent.



Sec.  4.170  Furnishing fringe benefits or equivalents.

    (a) General. Fringe benefits required under the Act shall be 
furnished, separate from and in addition to the specified monetary 
wages, by the contractor or subcontractor to the employees engaged in 
performance of the contract, as specified in the determination of the 
Secretary or his authorized representative and prescribed in the 
contract documents. Section 2(a)(2) of the Act provides that the 
obligation to furnish the specified benefits ``may be discharged by 
furnishing any equivalent combinations of fringe benefits or by making 
equivalent or differential payments in cash under rules and regulations 
established by the Secretary.'' The governing rules and regulations for 
furnishing such equivalents are set forth in Sec.  4.177 of this 
subpart. An employer cannot offset an amount of monetary wages paid in 
excess of the wages required under the determination in order to satisfy 
his fringe benefit obligations under the Act, and must keep appropriate 
records separately showing amounts paid for wages and amounts paid for 
fringe benefits.
    (b) Meeting the requirement, in general. The various fringe benefits 
listed in the Act and in Sec.  4.162(a) are illustrative of those which 
may be found to be prevailing for service employees in a particular 
locality. The benefits which an employer will be required to furnish 
employees performing on a particular contract will be specified in the 
contract documents. A contractor may dispose of certain of the fringe 
benefit obligations which may be required by an applicable fringe 
benefit determination, such as pension, retirement, or health insurance, 
by irrevocably paying the specified contributions for fringe benefits to 
an independent trustee or other third person pursuant to an existing 
``bona fide'' fund, plan, or program on behalf of employees engaged in 
work subject to the Act's provisions. Where such a plan or fund does not 
exist, a contractor must discharge his obligation relating to fringe 
benefits by furnishing either an equivalent combination of ``bona fide'' 
fringe benefits or by making equivalent payments in cash to the 
employee, in accordance with the regulations in Sec.  4.177.



Sec.  4.171  ``Bona fide'' fringe benefits.

    (a) To be considered a ``bona fide'' fringe benefit for purposes of 
the Act, a fringe benefit plan, fund, or program must constitute a 
legally enforceable obligation which meets the following criteria:
    (1) The provisions of a plan, fund, or program adopted by the 
contractor, or by contract as a result of collective bargaining, must be 
specified in writing, and must be communicated in writing to the 
affected employees. Contributions must be made pursuant to the terms of 
such plan, fund, or program. The plan may be either contractor-financed 
or a joint contractor-employee contributory plan. For example, employer 
contributions to Individual Retirement Accounts (IRAs) approved by IRS 
are permissible. However, any contributions made by employees must be 
voluntary, and if such contributions are made through payroll 
deductions, such deductions must be made in accordance with Sec.  4.168. 
No contribution toward fringe benefits made by the employees themselves, 
or fringe benefits provided from monies deducted from the employee's 
wages may be included or used by an employer in satisfying any part of 
any fringe benefit obligation under the Act.
    (2) The primary purpose of the plan must be to provide 
systematically for the payment of benefits to employees

[[Page 91]]

on account of death, disability, advanced age, retirement, illness, 
medical expenses, hospitalization, supplemental unemployment benefits, 
and the like.
    (3) The plan must contain a definite formula for determining the 
amount to be contributed by the contractor and a definite formula for 
determining the benefits for each of the employees participating in the 
plan.
    (4) Except as provided in paragraph (b), the contractor's 
contributions must be paid irrevocably to a trustee or third person 
pursuant to an insurance agreement, trust or other funded arrangement. 
The trustee must assume the usual fiduciary responsibilities imposed 
upon trustees by applicable law. The trust or fund must be set up in 
such a way that the contractor will not be able to recapture any of the 
contributions paid in nor in any way divert the funds to its own use or 
benefit.
    (5) Benefit plans or trusts of the types listed in 26 U.S.C. 401(a) 
which are disapproved by the Internal Revenue Service as not satisfying 
the requirements of section 401(a) of the Internal Revenue Code or which 
do not meet the requirements of the Employee Retirement Income Security 
Act of 1974, 29 U.S.C. 1001, et seq. and regulations thereunder, are not 
deemed to be ``bona fide'' plans for purposes of the Service Contract 
Act.
    (6) It should also be noted that such plans must meet certain other 
criteria as set forth in Sec.  778.215 of 29 CFR part 778 in order for 
any contributions to be excluded from computation of the regular rate of 
pay for overtime purposes under the Fair Labor Standards Act (Sec. Sec.  
4.180-4.182).
    (b)(1) Unfunded self-insured fringe benefit plans (other than fringe 
benefits such as vacations and holidays which by their nature are 
normally unfunded) under which contractors allegedly make ``out of 
pocket'' payments to provide benefits as expenses may arise, rather than 
making irrevocable contributions to a trust or other funded arrangement 
as required under Sec.  4.171(a)(4), are not normally considered ``bona 
fide'' plans or equivalent benefits for purposes of the Act.
    (2) A contractor may request approval by the Administrator of an 
unfunded self-insured plan in order to allow credit for payments under 
the plan to meet the fringe benefit requirements of the Act. In 
considering whether such a plan is bona fide, the Administrator will 
consider such factors as whether it could be reasonably anticipated to 
provide the prescribed benefits, whether it represents a legally 
enforceable commitment to provide such benefits, whether it is carried 
out under a financially responsible program, and whether the plan has 
been communicated to the employees in writing. The Administrator in his/
her discretion may direct that assets be set aside and preserved in an 
escrow account or that other protections be afforded to meet the plan's 
future obligation.
    (c) No benefit required by any other Federal law or by any State or 
local law, such as unemployment compensation, workers' compensation, or 
social security, is a fringe benefit for purposes of the Act.
    (d) The furnishing to an employee of board, lodging, or other 
facilities under the circumstances described in Sec.  4.167, the cost or 
value of which is creditable toward the monetary wages specified under 
the Act, may not be used to offset any fringe benefit obligations, as 
such items and facilities are not fringe benefits or equivalent benefits 
for purposes of the Act.
    (e) The furnishing of facilities which are primarily for the benefit 
or convenience of the contractor or the cost of which is properly a 
business expense of the contractor is not the furnishing of a ``bona 
fide'' fringe benefit or equivalent benefit or the payment of wages. 
This would be true of such items, for example, as relocation expenses, 
travel and transportation expenses incident to employment, incentive or 
suggestion awards, and recruitment bonuses, as well as tools and other 
materials and services incidental to the employer's performance of the 
contract and the carrying on of his business, and the cost of 
furnishing, laundering, and maintaining uniforms and/or related apparel 
or equipment where employees are required by the contractor, by the 
contractor's Government contract, by law, or by the nature of the work 
to wear such items. See also Sec.  4.168.

[[Page 92]]

    (f) Contributions by contractors for such items as social functions 
or parties for employees, flowers, cards, or gifts on employee 
birthdays, anniversaries, etc. (sunshine funds), employee rest or 
recreation rooms, paid coffee breaks, magazine subscriptions, and 
professional association or club dues, may not be used to offset any 
wages or fringe benefits specified in the contract, as such items are 
not ``bona fide'' wages or fringe benefits or equivalent benefits for 
purposes of the Act.



Sec.  4.172  Meeting requirements for particular fringe benefits--in general.

    Where a fringe benefit determination specifies the amount of the 
employer's contribution to provide the benefit, the amount specified is 
the actual minimum cash amount that must be provided by the employer for 
the employee. No deduction from the specified amount may be made to 
cover any administrative costs which may be incurred by the contractor 
in providing the benefits, as such costs are properly a business expense 
of the employer. If prevailing fringe benefits for insurance or 
retirement are determined in a stated amount, and the employer provides 
such benefits through contribution in a lesser amount, he will be 
required to furnish the employee with the difference between the amount 
stated in the determination and the actual cost of the benefits which he 
provides. Unless otherwise specified in the particular wage 
determination, such as one reflecting collectively bargained fringe 
benefit requirements, issued pursuant to section 4(c) of the Act, every 
employee performing on a covered contract must be furnished the fringe 
benefits required by that determination for all hours spent working on 
that contract up to a maximum of 40 hours per week and 2,080 (i.e., 52 
weeks of 40 hours each) per year, as these are the typical number of 
nonovertime hours of work in a week, and in a year, respectively. Since 
the Act's fringe benefit requirements are applicable on a contract-by-
contract basis, employees performing on more than one contract subject 
to the Act must be furnished the full amount of fringe benefits to which 
they are entitled under each contract and applicable wage determination. 
Where a fringe benefit determination has been made requiring employer 
contributions for a specified fringe benefit in a stated amount per 
hour, a contractor employing employees part of the time on contract work 
and part of the time on other work, may only credit against the hourly 
amount required for the hours spent on the contract work, the 
corresponding proportionate part of a weekly, monthly, or other amount 
contributed by him for such fringe benefits or equivalent benefits for 
such employees. If, for example, the determination requires health and 
welfare benefits in the amount of 30 cents an hour and the employer 
provides hospitalization insurance for such employees at a cost of 
$10.00 a week, the employer may credit 25 cents an hour ($10.00 / 40) 
toward his fringe benefit obligation for such employees. If an employee 
works 25 hours on the contract work and 15 hours on other work, the 
employer cannot allocate the entire $10.00 to the 25 hours spent on 
contract work and take credit for 30 cents per hour in that manner, but 
must spread the cost over the full forty hours.



Sec.  4.173  Meeting requirements for vacation fringe benefits.

    (a) Determining length of service for vacation eligibility. It has 
been found that for many types of service contracts performed at Federal 
facilities a successor contractor will utilize the employees of the 
previous contractor in the performance of the contract. The employees 
typically work at the same location providing the same services to the 
same clientele over a period of years, with periodic, often annual, 
changes of employer. The incumbent contractor, when bidding on a 
contract, must consider his liability for vacation benefits for those 
workers in his employ. If prospective contractors who plan to employ the 
same personnel were not required to furnish these employees with the 
same prevailing vacation benefits, it would place the incumbent 
contractor at a distinct competitive disadvantage as well as denying 
such employees entitlement to prevailing vacation benefits.
    (1) Accordingly, most vacation fringe benefit determinations issued 
under

[[Page 93]]

the Act require an employer to furnish to employees working on the 
contract a specified amount of paid vacation upon completion of a 
specified length of service with a contractor or successor. This 
requirement may be stated in the determination, for example, as ``one 
week paid vacation after one year of service with a contractor or 
successor'' or by a determination which calls for ``one week's paid 
vacation after one year of service''. Unless specified otherwise in an 
applicable fringe benefit determination, an employer must take the 
following two factors into consideration in determining when an employee 
has completed the required length of service to be eligible for vacation 
benefits:
    (i) The total length of time spent by an employee in any capacity in 
the continuous service of the present (successor) contractor, including 
both the time spent in performing on regular commercial work and the 
time spent in performing on the Government contract itself, and
    (ii) Where applicable, the total length of time spent in any 
capacity as an employee in the continuous service of any predecessor 
contractor(s) who carried out similar contract functions at the same 
Federal facility.
    (2) The application of these principles may be illustrated by the 
example given above of a fringe benefit determination calling for ``one 
week paid vacation after one year of service with a contractor or 
successor''. In that example, if a contractor has an employee who has 
worked for him for 18 months on regular commercial work and only for 6 
months on a Government service contract, that employee would be eligible 
for the one week vacation since his total service with the employer adds 
up to more than 1 year. Similarly, if a contractor has an employee who 
worked for 16 months under a janitorial service contract at a particular 
Federal base for two different predecessor contractors, and only 8 
months with the present employer, that employee would also be considered 
as meeting the ``after one year of service'' test and would thus be 
eligible for the specified vacation.
    (3) The ``contractor or successor'' requirement set forth in 
paragraph (a)(1) of this section is not affected by the fact that a 
different contracting agency may have contracted for the services 
previously or by the agency's dividing and/or combining the contract 
services. However, prior service as a Federal employee is not counted 
toward an employee's eligibility for vacation benefits under fringe 
benefit determinations issued pursuant to the Act.
    (4) Some fringe benefit determinations may require an employer to 
furnish a specified amount of paid vacation upon completion of a 
specified length of service with the employer, for example, ``one week 
paid vacation after one year of service with an employer''. Under such 
determinations, only the time spent in performing on commercial work and 
on Government contract work in the employment of the present contractor 
need be considered in computing the length of service for purposes of 
determining vacation eligibility.
    (5) Whether or not the predecessor contract(s) was covered by a 
fringe benefit determination is immaterial in determining whether the 
one year of service test has been met. This qualification refers to work 
performed before, as well as after, an applicable fringe benefit 
determination is incorporated into a contract. Also, the fact that the 
labor standards in predecessor service contract(s) were only those 
required under the Fair Labor Standards Act has no effect on the 
applicable fringe benefit determination contained in a current contract.
    (b) Eligibility requirement--continuous service. Under the 
principles set forth above, if an employee's total length of service 
adds up to at least one year, the employee is eligible for vacation with 
pay. However, such service must have been rendered continuously for a 
period of not less than one year for vacation eligibility. The term 
``continuous service'' does not require the combination of two entirely 
separate periods of employment. Whether or not there is a break in the 
continuity of service so as to make an employee ineligible for a 
vacation benefit is dependent upon all the facts in the particular case. 
No fixed time period has been established for determining

[[Page 94]]

whether an employee has a break in service. Rather, as illustrated 
below, the reason(s) for an employee's absence from work is the primary 
factor in determining whether a break in service occurred.
    (1) In cases where employees have been granted leave with or without 
pay by their employer, or are otherwise absent with permission for such 
reasons as sickness or injury, or otherwise perform no work on the 
contract because of reasons beyond their control, there would not be a 
break in service. Likewise, the absence from work for a few days, with 
or without notice, does not constitute a break in service, without a 
formal termination of employment. The following specific examples are 
illustrative situations where it has been determined that a break in 
service did not occur:
    (i) An employee absent for five months due to illness but employed 
continuously for three years.
    (ii) A strike after which employees returned to work.
    (iii) An interim period of three months between contracts caused by 
delays in the procurement process during which time personnel hired 
directly by the Government performed the necessary services. However, 
the successor contractor in this case was not held liable for vacation 
benefits for those employees who had anniversary dates of employment 
during the interim period because no employment relationship existed 
during such period.
    (iv) A mess hall closed three months for renovation. Contractor 
employees were considered to be on temporary layoff during the 
renovation period and did not have a break in service.
    (2) Where an employee quits, is fired for cause, or is otherwise 
terminated (except for temporary layoffs), there would be a break in 
service even if the employee were rehired at a later date. However, an 
employee may not be discharged and rehired as a subterfuge to evade the 
vacation requirement.
    (c) Vesting and payment of vacation benefits. (1) In the example 
given in paragraph (a)(1) of this section of a fringe benefit 
determination calling for ``one week paid vacation after 1 year of 
service with a contractor or successor'', an employee who renders the 
``one year of service'' continuously becomes eligible for the ``one week 
paid vacation'' (i.e., 40 hours of paid vacation, unless otherwise 
specified in an applicable wage determination) upon his anniversary date 
of employment and upon each succeeding anniversary date thereafter. 
However, there is no accrual or vesting of vacation eligibility before 
the employee's anniversary date of employment, and no segment of time 
smaller than one year need be considered in computing the employer's 
vacation liability, unless specifically provided for in a particular 
fringe benefit determination. For example, an employee who has worked 13 
months for an employer subject to such stipulations and is separated 
without receiving any vacation benefit is entitled only to one full 
week's (40 hours) paid vacation. He would not be entitled to the 
additional fraction of one-twelfth of one week's paid vacation for the 
month he worked in the second year unless otherwise stated in the 
applicable wage determination. An employee who has not met the ``one 
year of service'' requirement would not be entitled to any portion of 
the ``one week paid vacation''.
    (2) Eligibility for vacation benefits specified in a particular wage 
determination is based on completion of the stated period of past 
service. The individual employee's anniversary date (and each annual 
anniversary date of employment thereafter) is the reference point for 
vesting of vacation eligibility, but does not necessarily mean that the 
employee must be given the vacation or paid for it on the date on which 
it is vested. The vacation may be scheduled according to a reasonable 
plan mutually agreed to and communicated to the employees. A 
``reasonable'' plan may be interpreted to be a plan which allows the 
employer to maintain uninterrupted contract services but allows the 
employee some choice, by seniority or similar factor, in the scheduling 
of vacations. However, the required vacation must be given or payment 
made in lieu thereof before the next anniversary date, before completion 
of the current contract, or before the employee terminates employment, 
whichever occurs first.

[[Page 95]]

    (d) Contractor liability for vacation benefits. (1) The liability 
for an employee's vacation is not prorated among contractors unless 
specifically provided for under a particular fringe benefit 
determination. The contractor by whom a person is employed at the time 
the vacation right vests, i.e., on the employee's anniversary date of 
employment, must provide the full benefit required by the determination 
which is applicable on that date. For example, an employee, who had not 
previously performed similar contract work at the same facility, was 
first hired by a predecessor contractor on July 1, 1978. July 1 is the 
employee's anniversary date. The predecessor's contract ended June 30, 
1979, but the employee continued working on the contract for the 
successor. Since the employee did not have an anniversary date of 
employment during the predecessor's contract, the predecessor would not 
have any vacation liability with respect to this employee. However, on 
July 1, 1979 the employee's entitlement to the full vacation benefit 
vested and the successor contractor would be liable for the full amount 
of the employee's vacation benefit.
    (2) The requirements for furnishing data relative to employee hiring 
dates in situations where such employees worked for ``predecessor'' 
contractors are set forth in Sec.  4.6. However, a contractor is not 
relieved from any obligation to provide vacation benefits because of any 
difficulty in obtaining such data.
    (e) Rate applicable to computation of vacation benefits. (1) If an 
applicable wage determination requires that the hourly wage rate be 
increased during the period of the contract, the rate applicable to the 
computation of any required vacation benefits is the hourly rate in 
effect in the workweek in which the actual paid vacation is provided or 
the equivalent is paid, as the case may be, and would not be the average 
of the two hourly rates. This rule would not apply to situations where a 
wage determination specified the method of computation and the rate to 
be used.
    (2) As set forth in Sec.  4.172, unless specified otherwise in an 
applicable fringe benefit determination, service employees must be 
furnished the required amount of fringe benefits for all hours paid for 
up to a maximum of 40 hours per week and 2,080 hours per year. Thus, an 
employee on paid vacation leave would accrue and must be compensated for 
any other applicable fringe benefits specified in the fringe benefit 
determination, and if any of the other benefits are furnished in the 
form of cash equivalents, such equivalents must be included with the 
applicable hourly wage rate in computing vacation benefits or a cash 
equivalent therefor. The rules and regulations for computing cash 
equivalents are set forth in Sec.  4.177.



Sec.  4.174  Meeting requirements for holiday fringe benefits.

    (a) Determining eligibility for holiday benefits--in general. (1) 
Most fringe benefit determinations list a specific number of named 
holidays for which payment is required. Unless specified otherwise in an 
applicable determination, an employee who performs any work during the 
workweek in which a named holiday occurs is entitled to the holiday 
benefit, regardless of whether the named holiday falls on a Sunday, 
another day during the workweek on which the employee is not normally 
scheduled to work, or on the employee's day off. In addition, holiday 
benefits cannot be denied because the employee has not been employed by 
the contractor for a designated period prior to the named holiday or 
because the employee did not work the day before or the day after the 
holiday, unless such qualifications are specifically included in the 
determination.
    (2) An employee who performs no work during the workweek in which a 
named holiday occurs is generally not entitled to the holiday benefit. 
However, an employee who performs no work during the workweek because he 
is on paid vacation or sick leave in accordance with the terms of the 
applicable fringe benefit determination is entitled to holiday pay or 
another day off with pay to substitute for the named holiday. In 
addition, an employee who performs no work during the workweek because 
of a layoff does not forfeit his entitlement to holiday benefits if the 
layoff is merely a subterfuge by the

[[Page 96]]

contractor to avoid the payment of such benefits.
    (3) The obligation to furnish holiday pay for the named holiday may 
be discharged if the contractor furnishes another day off with pay in 
accordance with a plan communicated to the employees involved. However, 
in such instances the holidays named in the fringe benefit determination 
are the reference points for determining whether an employee is eligible 
to receive holiday benefits. In other words, if an employee worked in a 
workweek in which a listed holiday occurred, the employee is entitled to 
pay for that holiday. Some determinations may provide for a specific 
number of holidays without naming them. In such instances the contractor 
is free to select the holidays to be taken in accordance with a plan 
communicated to the employees involved, and the agreed-upon holidays are 
the reference points for determining whether an employee is eligible to 
receive holiday benefits.
    (b) Determining eligibility for holiday benefits--newly hired 
employees. The contractor generally is not required to compensate a 
newly hired employee for the holiday occurring prior to the hiring of 
the employee. However, in the one situation where a named holiday falls 
in the first week of a contract, all employees who work during the first 
week would be entitled to holiday pay for that day. For example, if a 
contract to provide services for the period January 1 through December 
31 contained a fringe benefit determination listing New Year's Day as a 
named holiday, and if New Year's Day were officially celebrated on 
January 2 in the year in question because January 1 fell on a Sunday, 
employees hired to begin work on January 3 would be entitled to holiday 
pay for New Year's Day.
    (c) Payment of holiday benefits. (1) A full-time employee who is 
eligible to receive payment for a named holiday must receive a full 
day's pay up to 8 hours unless a different standard is used in the 
fringe benefit determination, such as one reflecting collectively 
bargained holiday benefit requirements issued pursuant to section 4(c) 
of the Act or a different historic practice in an industry or locality. 
Thus, for example, a contractor must furnish 7 hours of holiday pay to a 
full-time employee whose scheduled workday consists of 7 hours. An 
employee whose scheduled workday is 10 hours would be entitled to a 
holiday payment of 8 hours unless a different standard is used in the 
determination. As discussed in Sec.  4.172, such holiday pay must 
include the full amount of other fringe benefits to which the employee 
is entitled.
    (2) Unless a different standard is used in the wage determination, a 
full-time employee who works on the day designated as a holiday must be 
paid, in addition to the amount he ordinarily would be entitled to for 
that day's work, the cash equivalent of a full-day's pay up to 8 hours 
or be furnished another day off with pay.
    (3) If the fringe benefit determination lists the employee's 
birthday as a paid holiday and that day coincides with another listed 
holiday, the contractor may discharge his obligation to furnish payment 
for the second holiday by either substituting another day off with pay 
with the consent of the employee, furnishing holiday benefits of an 
extra day's pay, or if the employee works on the holiday in question, 
furnish holiday benefits of two extra days' pay.
    (4) As stated in paragraph (a)(1) of this section, an employee's 
entitlement to holiday pay fully vests by working in the workweek in 
which the named holiday occurs. Accordingly, any employee who is 
terminated before receiving the full amount of holiday benefits due him 
must be paid the holiday benefits as a final cash payment.
    (5) The rules and regulations for furnishing holiday pay to 
temporary and part-time employees are discussed in Sec.  4.176.
    (6) The rules and regulations for furnishing equivalent fringe 
benefits or cash equivalents in lieu of holiday pay are discussed in 
Sec.  4.177.



Sec.  4.175  Meeting requirements for health, welfare, 
and/or pension benefits.

    (a) Determining the required amount of benefits. (1) Most fringe 
benefit determinations containing health and welfare and/or pension 
requirements specify a fixed payment per hour on behalf

[[Page 97]]

of each service employee. These payments are usually also stated as 
weekly or monthly amounts. As set forth in Sec.  4.172, unless specified 
otherwise in the applicable determination such payments are due for all 
hours paid for, including paid vacation, sick leave, and holiday hours, 
up to a maximum of 40 hours per week and 2,080 hours per year on each 
contract. The application of this rule can be illustrated by the 
following examples:
    (i) An employee who works 4 days a week, 10 hours a day is entitled 
to 40 hours of health and welfare and/or pension fringe benefits. If an 
employee works 3 days a week, 12 hours a day, then such employee is 
entitled to 36 hours of these benefits.
    (ii) An employee who works 32 hours in a workweek and also receives 
8 hours of holiday pay is entitled to the maximum of 40 hours of health 
and welfare and/or pension payments in that workweek. If the employee 
works more than 32 hours and also received 8 hours of holiday pay, the 
employee is still only entitled to the maximum of 40 hours of health and 
welfare and/or pension payments.
    (iii) If an employee is off work for two weeks on vacation and 
received 80 hours of vacation pay, the employee must also receive 
payment for the 80 hours of health and welfare and/or pension benefits 
which accrue during the vacation period.
    (iv) An employee entitled to two weeks paid vacation who instead 
works the full 52 weeks in the year, receiving the full 2,080 hours 
worth of health and welfare and/or pension benefits, would be due an 
extra 80 hours of vacation pay in lieu of actually taking the vacation; 
however, such an employee would not be entitled to have an additional 80 
hours of health and welfare and/or pension benefits included in his 
vacation pay.
    (2) A fringe benefit determination calling for a specified benefit 
such as health insurance contemplates a fixed and definite contribution 
to a ``bona fide'' plan (as that term is defined in Sec.  4.171) by an 
employer on behalf of each employee, based on the monetary cost to the 
employer rather than on the level of benefits provided. Therefore, in 
determining compliance with an applicable fringe benefit determination, 
the amount of the employer's contribution on behalf of each individual 
employee governs. Thus, as set forth in Sec.  4.172, if a determination 
should require a contribution to a plan providing a specified fringe 
benefit and that benefit can be obtained for less than the required 
contribution, it would be necessary for the employer to make up the 
difference in cash to the employee, or furnish equivalent benefits, or a 
combination thereof. The following illustrates the application of this 
principle: A fringe benefit determination requires a rate of $36.40 per 
month per employee for a health insurance plan. The employer obtains the 
health insurance coverage specified at a rate of $20.45 per month for a 
single employee, $30.60 for an employee with spouse, and $40.90 for an 
employee with a family. The employer is required to make up the 
difference in cash or equivalent benefits to the first two classes of 
employees in order to satisfy the determination, notwithstanding that 
coverage for an employee would be automatically changed by the employer 
if the employee's status should change (e.g., single to married) and 
notwithstanding that the employer's average contribution per employee 
may be equal to or in excess of $36.40 per month.
    (3) In determining eligibility for benefits under certain wage 
determinations containing hours or length of service requirements (such 
as having to work 40 hours in the preceding month), the contractor must 
take into account time spent by employees on commercial work as well as 
time spent on the Government contract.
    (b) Some fringe benefit determinations specifically provide for 
health and welfare and/or pension benefits in terms of average cost. 
Under this concept, a contractor's contributions per employee to a 
``bona fide'' fringe benefit plan are permitted to vary depending upon 
the individual employee's marital or employment status. However, the 
firm's total contributions for all service employees enrolled in the 
plan must average at least the fringe benefit determination requirement 
per hour per service employee. If the contractor's contributions average 
less

[[Page 98]]

than the amount required by the determination, then the firm must make 
up the deficiency by making cash equivalent payments or equivalent 
fringe benefit payments to all service employees in the plan who worked 
on the contract during the payment period. Where such deficiencies are 
made up by means of cash equivalent payments, the payments must be made 
promptly on the following payday. The following illustrates the 
application of this principle: The determination requires an average 
contribution of $0.84 an hour. The contractor makes payments to bona 
fide fringe benefit plans on a monthly basis. During a month the firm 
contributes $15,000 for the service employees employed on the contract 
who are enrolled in the plan, and a total of 20,000 man-hours had been 
worked by all service employees during the month. Accordingly, the 
firm's average cost would have been $15,000/20,000 hours or $0.75 per 
hour, resulting in a deficiency of $0.09 per hour. Therefore, the 
contractor owes the service employees in the plan who worked on the 
contract during the month an additional $0.09 an hour for each hour 
worked on the contract, payable on the next regular payday for wages. 
Unless otherwise provided in the applicable wage determination, 
contributions made by the employer for non-service employees may not be 
credited toward meeting Service Contract Act fringe benefit obligations.
    (c) Employees not enrolled in or excluded from participating in 
fringe benefit plans. (1) Some health and welfare and pension plans 
contain eligibility exclusions for certain employees. For example, 
temporary and part-time employees may be excluded from participating in 
such plans. Also, employees receiving benefits through participation in 
plans of an employer other than the Government contractor or by a 
spouse's employer may be prevented from receiving benefits from the 
contractor's plan because of prohibitions against ``double coverage''. 
While such exclusions do not invalidate an otherwise bona fide insurance 
plan, employer contributions to such a plan cannot be considered to be 
made on behalf of the excluded employees. Accordingly, under fringe 
benefit determination requirements as described in paragraph (a)(2) of 
this section, the employees excluded from participation in the health 
insurance plan must be furnished equivalent bona fide fringe benefits or 
be paid a cash equivalent payment during the period that they are not 
eligible to participate in the plan.
    (2) It is not required that all employees participating in a fringe 
benefit plan be entitled to receive benefits from that plan at all 
times. For example, under some plans, newly hired employees who are 
eligible to participate in an insurance plan from their first day of 
employment may be prohibited from receiving benefits from the plan 
during a specified ``waiting period''. Contributions made on behalf of 
such employees would serve to discharge the contractor's obligation to 
furnish the fringe benefit. However, if no contributions are made for 
such employees, no credit may be taken toward the contractor's fringe 
benefit obligations.
    (d) Payment of health and welfare and pension benefits. (1) Health 
and welfare and/or pension payments to a ``bona fide'' insurance plan or 
trust program may be made on a periodic payment basis which is not less 
often than quarterly. However, where fringe benefit determinations 
contemplate a fixed contribution on behalf of each employee, and a 
contractor exercises his option to make hourly cash equivalent or 
differential payments, such payments must be made promptly on the 
regular payday for wages. (See Sec.  4.165.)
    (2) The rules and regulations for furnishing health and welfare and 
pension benefits to temporary and part-time employees are discussed in 
Sec.  4.176.
    (3) The rules and regulations for furnishing equivalent fringe 
benefits or cash equivalents in lieu of health and welfare and pension 
benefits are discussed in Sec.  4.177.



Sec.  4.176  Payment of fringe benefits to temporary and part-time employees.

    (a) As set forth in Sec.  4.165(a)(2), the Act makes no distinction, 
with respect to its compensation provisions, between temporary, part-
time, and full-time employees. Accordingly, in the absence of express 
limitations, the provisions of

[[Page 99]]

an applicable fringe benefit determination apply to all temporary and 
part-time service employees engaged in covered work. However, in 
general, such temporary and part-time employees are only entitled to an 
amount of the fringe benefits specified in an applicable determination 
which is proportionate to the amount of time spent in covered work. The 
application of these principles may be illustrated by the following 
examples:
    (1) Assuming the paid vacation for full-time employees is one week 
of 40 hours, a part-time employee working a regularly scheduled workweek 
of 16 hours is entitled to 16 hours of paid vacation time or its 
equivalent each year, if all other qualifications are met.
    (2) In the case of holidays, a part-time employee working a 
regularly scheduled workweek of 16 hours would be entitled to two-fifths 
of the holiday pay due full-time employees. It is immaterial whether or 
not the holiday falls on a normal workday of the part-time employee. 
Except as provided in Sec.  4.174(b), a temporary or casual employee 
hired during a holiday week, but after the holiday, would be due no 
holiday benefits for that week.
    (3) Holiday or vacation pay obligations to temporary and part-time 
employees working an irregular schedule of hours may be discharged by 
paying such employees a proportion of the holiday or vacation benefits 
due full-time employees based on the number of hours each such employee 
worked in the workweek prior to the workweek in which the holiday occurs 
or, with respect to vacations, the number of hours which the employee 
worked in the year preceding the employee's anniversary date of 
employment. For example:
    (i) An employee works 10 hours during the week preceding July 4, a 
designated holiday. The employee is entitled to 10/40 of the holiday pay 
to which a full-time employee is entitled (i.e., 10/40 times 8 = 2 hours 
holiday pay).
    (ii) A part-time employee works 520 hours during the 12 months 
preceding the employee's anniversary date. Since the typical number of 
nonovertime hours in a year of work is 2,080, if a full-time employee 
would be entitled to one week (40 hours) paid vacation under the 
applicable fringe benefit determination, then the part-time employee 
would be entitled to 520/2,080 times 40 = 10 hours paid vacation.
    (4) A part-time employee working a regularly scheduled workweek of 
20 hours would be entitled to one-half of the health and welfare and/or 
pension benefits specified in the applicable fringe benefit 
determination. Thus, if the determination requires $36.40 per month for 
health insurance, the contractor could discharge his obligation towards 
the employee in question by providing a health insurance policy costing 
$18.20 per month.
    (b) A contractor's obligation to furnish the specified fringe 
benefits to temporary and part-time employees may be discharged by 
furnishing equivalent benefits, cash equivalents, or a combination 
thereof in accordance with the rules and regulations set forth in Sec.  
4.177.



Sec.  4.177  Discharging fringe benefit obligations by equivalent means.

    (a) In general. (1) Section 2(a)(2) of the Act, which provides for 
fringe benefits that are separate from and in addition to the monetary 
compensation required under section 2(a)(1), permits an employer to 
discharge his obligation to furnish the fringe benefits specified in an 
applicable fringe benefit determination by furnishing any equivalent 
combinations of ``bona fide'' fringe benefits or by making equivalent or 
differential payments in cash. However, credit for such payments is 
limited to the employer's fringe benefit obligations under section 
2(a)(2), since the Act does not authorize any part of the monetary wage 
required by section 2(a)(1) and specified in the wage determination and 
the contract, to be offset by the fringe benefit payments or equivalents 
which are furnished or paid pursuant to section 2(a)(2).
    (2) When a contractor substitutes fringe benefits not specified in 
the fringe benefit determination contained in the contract for fringe 
benefits which are so specified, the substituted fringe benefits, like 
those for which the contract provisions are prescribed, must be ``bona 
fide'' fringe benefits, as that term is defined in Sec.  4.171.
    (3) When a contractor discharges his fringe benefit obligation by 
furnishing,

[[Page 100]]

in lieu of those benefits specified in the applicable fringe benefit 
determination, other ``bona fide'' fringe benefits, cash payments, or a 
combination thereof, the substituted fringe benefits and/or cash 
payments must be ``equivalent'' to the benefits specified in the 
determination. As used in this subpart, the terms equivalent fringe 
benefit and cash equivalent mean equal in terms of monetary cost to the 
contractor. Thus, as set forth in Sec.  4.172, if an applicable fringe 
benefit determination calls for a particular fringe benefit in a stated 
amount and the contractor furnished this benefit through contributions 
in a lesser amount, the contractor must furnish the employee with the 
difference between the amount stated in the determination and the actual 
cost of the benefit which the contractor provides. This principle may be 
illustrated by the example given in Sec.  4.175(a)(2).
    (b) Furnishing equivalent fringe benefits. (1) A contractor's 
obligation to furnish fringe benefits which are stated in a specified 
cash amount may be discharged by furnishing any combination of ``bona 
fide'' fringe benefits costing an equal amount. Thus, if an applicable 
determination specifies that 20 cents per hour is to be paid into a 
pension fund, this fringe benefit obligation will be deemed to be met 
if, instead, hospitalization benefits costing not less than 20 cents per 
hour are provided. The same obligation will be met if hospitalization 
benefits costing 10 cents an hour and life insurance benefits costing 10 
cents an hour are provided. As set forth in Sec.  4.171(c), no benefit 
required to be furnished the employee by any other law, such as workers' 
compensation, may be credited toward satisfying the fringe benefit 
requirements of the Act.
    (2) A contractor who wishes to furnish equivalent fringe benefits in 
lieu of those benefits which are not stated in a specified cash amount, 
such as ``one week paid vacation'', must first determine the equivalent 
cash value of such benefits in accordance with the rules set forth in 
paragraph (c) of this section.
    (c) Furnishing cash equivalents. (1) Fringe benefit obligations may 
be discharged by paying to the employee on his regular payday, in 
addition to the monetary wage required, a cash amount per hour in lieu 
of the specified fringe benefits, provided such amount is equivalent to 
the cost of the fringe benefits required. If, for example, an employee's 
monetary rate under an applicable determination is $4.50 an hour, and 
the fringe benefits to be furnished are hospitalization benefits costing 
20 cents an hour and retirement benefits costing 20 cents an hour, the 
fringe benefit obligation is discharged if instead of furnishing the 
required fringe benefits, the employer pays the employee, in cash, 40 
cents per hour as the cash equivalent of the fringe benefits in addition 
to the $4.50 per hour wage rate required under the applicable wage 
determination.
    (2) The hourly cash equivalent of those fringe benefits which are 
not stated in the applicable determination in terms of hourly cash 
amounts may be obtained by mathematical computation through the use of 
pertinent factors such as the monetary wages paid the employee and the 
hours of work attributable to the period, if any, by which fringe 
benefits are measured in the determination. If the employee's regular 
rate of pay is greater than the minimum monetary wage specified in the 
wage determination and the contract, the former must be used for this 
computation, and if the fringe benefit determination does not specify 
any daily or weekly hours of work by which benefits are to be measured, 
a standard 8-hour day and 40-hour week will be considered applicable. 
The application of these rules in typical situations is illustrated in 
paragraphs (c)(3) through (7) of this section.
    (3) Where fringe benefits are stated as a percentage of the monetary 
rate, the hourly cash equivalent is determined by multiplying the stated 
percentage by the employees' regular or basic (i.e., wage determination) 
rate of pay, whichever is greater. For example, if the determination 
calls for a 5 percent pension fund payment and the employee is paid a 
monetary rate of $4.50 an hour, or if the employee earns $4.50 an hour 
on a piece-work basis in a particular workweek, the cash equivalent of 
that payment would be 22\1/2\ cents an hour.

[[Page 101]]

    (4) If the determination lists a particular fringe benefit in such 
terms as $8 a week, the hourly cash equivalent is determined by dividing 
the amount stated in the determination by the number of working hours to 
which the amount is attributable. For example, if a determination lists 
a fringe benefit as ``pension--$8 a week'', and does not specify weekly 
hours, the hourly cash equivalent is 20 cents per hour, i.e., $8 divided 
by 40, the standard number of non-overtime working hours in a week.
    (5) In determining the hourly cash equivalent of those fringe 
benefits which are not stated in the determination in terms of a cash 
amount, but are stated, for example, as ``nine paid holidays per year'' 
or ``1 week paid vacation after one year of service'', the employee's 
hourly monetary rate of pay is multiplied by the number of hours making 
up the paid holidays or vacation. Unless the hours contemplated in the 
fringe benefit are specified in the determination, a standard 8-hour day 
and 40-hour week is considered applicable. The total annual cost so 
determined is divided by 2,080, the standard number of non-overtime 
hours in a year of work, to arrive at the hourly cash equivalent. This 
principle may be illustrated by the following examples:
    (i) If a particular determination lists as a fringe benefit ``nine 
holidays per year'' and the employee's hourly rate of pay is $4.50, the 
$4.50 is multiplied by 72 (9 days of 8 hours each) and the result, $324, 
is then divided by 2,080 to arrive at the hourly cash equivalent, 
$0.1557 an hour. See Sec.  4.174(c)(4).
    (ii) If the determination requires ``one week paid vacation after 
one year of service'', and the employee's hourly rate of pay is $4.50, 
the $4.50 is multiplied by 40 and the result, $180.00, is then divided 
by 2,080 to arrive at the hourly cash equivalent, $0.0865 an hour.
    (6) Where an employer elects to pay an hourly cash equivalent in 
lieu of a paid vacation, which is computed in accordance with paragraph 
(c)(5) of this section, such payments need commence only after the 
employee has satisfied the ``after one year of service'' requirement. 
However, should the employee terminate employment for any reason before 
receiving the full amount of vested vacation benefits due, the employee 
must be paid the full amount of any difference remaining as the final 
cash payment. For example, an employee becomes eligible for a week's 
vacation pay on March 1. The employer elects to pay this employee an 
hourly cash equivalent beginning that date; the employee terminates 
employment on March 31. Accordingly, as this employee has received only 
\1/12\ of the vacation pay to which he/she is entitled, the employee is 
due the remaining \11/12\ upon termination. As set forth in Sec.  
4.173(e), the rate applicable to the computation of cash equivalents for 
vacation benefits is the hourly wage rate in effect at the time such 
equivalent payments are actually made.
    (d) Furnishing a combination of equivalent fringe benefits and cash 
payments. Fringe benefit obligations may be discharged by furnishing any 
combination of cash or fringe benefits as illustrated in the preceding 
paragraphs of this section, in monetary amounts the total of which is 
equivalent, under the rules therein stated, to the determined fringe 
benefits specified in the contract. For example, if an applicable 
determination specifies that 20 cents per hour is to be paid into a 
pension fund, this fringe benefit obligation will be deemed to be met if 
instead, hospitalization benefits costing 15 cents an hour and a cash 
equivalent payment of 5 cents an hour are provided.
    (e) Effect of equivalents in computing overtime pay. Section 6 of 
the Act excludes from the regular or basic hourly rate of an employee, 
for purposes of determining the overtime pay to which the employee is 
entitled under any other Federal law, those fringe benefit payments 
computed under the Act which are excluded from the regular rate under 
the Fair Labor Standards Act by provisions of section 7(e) (formerly 
designated as section 7(d)) of that Act (29 U.S.C. 207(e)). Fringe 
benefit payments which qualify for such exclusion are described in 
subpart C of Regulations, 29 CFR part 778. When such fringe benefits are 
required to be furnished to service employees engaged in contract 
performance, the right to compute overtime pay in accordance with the 
above rule is not lost to a contractor or subcontractor because it 
discharges its obligation under this Act to

[[Page 102]]

furnish such fringe benefits through alternative equivalents as provided 
in this section. If it furnishes equivalent benefits or makes cash 
payments, or both, to such an employee as authorized herein, the amounts 
thereof, which discharge the employer's obligation to furnish such 
specified fringe benefits, may be excluded pursuant to this Act from the 
employee's regular or basic rate of pay in computing any overtime pay 
due the employee under any other Federal law. No such exclusion can 
operate, however, to reduce an employee's regular or basic rate of pay 
below the monetary wage rate specified as the applicable minimum wage 
rates under sections 2(a)(1), 2(b), or 4(c) of this Act or under other 
law or an employment contract.



Sec.  4.178  Computation of hours worked.

    Since employees subject to the Act are entitled to the minimum 
compensation specified under its provisions for each hour worked in 
performance of a covered contract, a computation of their hours worked 
in each workweek when such work under the contract is performed is 
essential. Determinations of hours worked will be made in accordance 
with the principles applied under the Fair Labor Standards Act as set 
forth in part 785 of this title which is incorporated herein by 
reference. In general, the hours worked by an employee include all 
periods in which the employee is suffered or permitted to work whether 
or not required to do so, and all time during which the employee is 
required to be on duty or to be on the employer's premises or to be at a 
prescribed workplace. The hours worked which are subject to the 
compensation provisions of the Act are those in which the employee is 
engaged in performing work on contracts subject to the Act. However, 
unless such hours are adequately segregated, as indicated in Sec.  
4.179, compensation in accordance with the Act will be required for all 
hours of work in any workweek in which the employee performs any work in 
connection with the contract, in the absence of affirmative proof to the 
contrary that such work did not continue throughout the workweek.



Sec.  4.179  Identification of contract work.

    Contractors and subcontractors under contracts subject to the Act 
are required to comply with its compensation requirements throughout the 
period of performance on the contract and to do so with respect to all 
employees who in any workweek are engaged in performing work on such 
contracts. If such a contractor during any workweek is not exclusively 
engaged in performing such contracts, or if while so engaged it has 
employees who spend a portion but not all of their worktime in the 
workweek in performing work on such contracts, it is necessary for the 
contractor to identify accurately in its records, or by other means, 
those periods in each such workweek when the contractor and each such 
employee performed work on such contracts. In cases where contractors 
are not exclusively engaged in Government contract work, and there are 
adequate records segregating the periods in which work was performed on 
contracts subject to the Act from periods in which other work was 
performed, the compensation specified under the Act need not be paid for 
hours spent on non-contract work. However, in the absence of records 
adequately segregating non-covered work from the work performed on or in 
connection with the contract, all employees working in the establishment 
or department where such covered work is performed shall be presumed to 
have worked on or in connection with the contract during the period of 
its performance, unless affirmative proof establishing the contrary is 
presented. Similarly, in the absence of such records, an employee 
performing any work on or in connection with the contract in a workweek 
shall be presumed to have continued to perform such work throughout the 
workweek, unless affirmative proof establishing the contrary is 
presented. Even where a contractor can segregate Government from non-
Government work, it is necessary that the contractor comply with the 
requirements of section 6(e) of the FLSA discussed in Sec.  4.160.

[[Page 103]]

                    Overtime Pay of Covered Employees



Sec.  4.180  Overtime pay--in general.

    The Act does not provide for compensation of covered employees at 
premium rates for overtime hours of work. Section 6 recognizes, however, 
that other Federal laws may require such compensation to be paid to 
employees working on or in connection with contracts subject to the Act 
(see Sec.  4.181) and prescribes, for purposes of such laws, the manner 
in which fringe benefits furnished pursuant to the Act shall be treated 
in computing such overtime compensation as follows: ``In determining any 
overtime pay to which such service employees are entitled under any 
Federal law, the regular or basic hourly rate of such an employee shall 
not include any fringe benefit payments computed hereunder which are 
excluded from the regular rate under the Fair Labor Standards Act by 
provisions of section 7(d) [now section 7(e)] thereof.'' Fringe benefit 
payments which qualify for such exclusion are described in part 778, 
subpart C of this title. The interpretations there set forth will be 
applied in determining the overtime pay to which covered service 
employees are entitled under other Federal statutes. The effect of 
section 6 of the Act in situations where equivalent fringe benefits or 
cash payments are provided in lieu of the specified fringe benefits is 
stated in Sec.  4.177(e) of this part, and illustrated in Sec.  4.182.



Sec.  4.181  Overtime pay provisions of other Acts.

    (a) Fair Labor Standards Act. Although provision has not been made 
for insertion in Government contracts of stipulations requiring 
compliance with the overtime provisions of the Fair Labor Standards Act, 
contractors and subcontractors performing contracts subject to the 
McNamara-O'Hara Service Contract Act may be required to compensate their 
employees working on or in connection with such contracts for overtime 
work pursuant to the overtime pay standards of the Fair Labor Standards 
Act. This is true with respect to employees engaged in interstate or 
foreign commerce or in the production of goods for such commerce 
(including occupations and processes closely related and directly 
essential to such production) and employees employed in enterprises 
which are so engaged, subject to the definitions and exceptions provided 
in such Act. Such employees, except as otherwise specifically provided 
in such Act, must receive overtime compensation at a rate of not less 
than 1\1/2\ times their regular rate of pay for all hours worked in 
excess of the applicable standard in a workweek. See part 778 of this 
title. However, the Fair Labor Standards Act provides no overtime pay 
requirements for employees, not within such interstate commerce coverage 
of the Act, who are subject to its minimum wage provisions only by 
virtue of the provisions of section 6(e), as explained in Sec.  4.180.
    (b) Contract Work Hours and Safety Standards Act. (1) The Contract 
Work Hours and Safety Standards Act (40 U.S.C. 327-332) applies 
generally to Government contracts, including service contracts in excess 
of $100,000, which may require or involve the employment of laborers and 
mechanics. Guards, watchmen, and many other classes of service employees 
are laborers or mechanics within the meaning of such Act. However, 
employees rendering only professional services, seamen, and as a general 
rule those whose work is only clerical or supervisory or nonmanual in 
nature, are not deemed laborers or mechanics for purposes of the Act. 
The wages of every laborer and mechanic for performance of work on such 
contracts must include compensation at a rate not less than 1\1/2\ times 
the employees' basic rate of pay for all hours worked in any workweek in 
excess of 40. Exemptions are provided for certain transportation and 
communications contracts, contracts for the purchase of supplies 
ordinarily available in the open market, and work, required to be done 
in accordance with the provisions of the Walsh-Healey Act.
    (2) Regulations concerning this Act are contained in 29 CFR part 5 
which permit overtime pay to be computed in the same manner as under the 
Fair Labor Standards Act.
    (c) Walsh-Healey Public Contracts Act. As pointed out in Sec.  
4.117, while some Government contracts may be subject

[[Page 104]]

both to the McNamara-O'Hara Service Contract Act and to the Walsh-Healey 
Public Contracts Act, the employees performing work on the contract 
which is subject to the latter Act are, when so engaged, exempt from the 
provisions of the former. They are, however, subject to the overtime 
provisions of the Walsh-Healey Act if, in any workweek, any of the work 
performed for the employer is subject to such Act and if, in such 
workweek, the total hours worked by the employee for the employer 
(whether wholly or only partly on such work) exceed 40 hours in the 
workweek. In any such workweek the Walsh-Healey Act requires payment of 
overtime compensation at a rate not less than 1\1/2\ times the 
employee's basic rate for such weekly overtime hours. The overtime pay 
provisions of the Walsh-Healey Act are discussed in greater detail in 41 
CFR part 50-201.

[48 FR 49762, Oct. 27, 1983, as amended at 51 FR 12265, Apr. 9, 1986; 61 
FR 40716, Aug. 5, 1996]



Sec.  4.182  Overtime pay of service employees entitled to fringe benefits.

    Reference is made in Sec.  4.180 to the rules prescribed by section 
6 of the Act which permit exclusion of certain fringe benefits and 
equivalents provided pursuant to section 2(a)(2) of the Act from the 
regular or basic rate of pay when computing overtime compensation of a 
service employee under the provisions of any other Federal law. As 
provided in Sec.  4.177, not only those fringe benefits excludable under 
section 6 as benefits determined and specified under section 2(a)(2), 
but also equivalent fringe benefits and cash payments furnished in lieu 
of the specified benefits may be excluded from the regular or basic rate 
of such an employee. The application of this rule may be illustrated by 
the following examples:
    (a) The A company pays a service employee $4.50 an hour in cash 
under a wage determination which requires a monetary rate of not less 
than $4 and a fringe benefit contribution of 50 cents which would 
qualify for exclusion from the regular rate under section 7(e) of the 
Fair Labor Standards Act. The contractor pays the 50 cents in cash 
because he made no contributions for fringe benefits specified in the 
determination and the contract. Overtime compensation in this case would 
be computed on a regular or basic rate of $4 an hour.
    (b) The B company has for some time been paying $4.25 an hour to a 
service employee as his basic cash wage plus 25 cents an hour as a 
contribution to a welfare and pension plan, which contribution qualifies 
for exclusion from the regular rate under the Fair Labor Standards Act. 
For performance of work under a contract subject to the Act a monetary 
rate of $4 and a fringe benefit contribution of 50 cents (also 
qualifying for such exclusion) are specified because they are found to 
be prevailing for such employees in the locality. The contractor may 
credit the 25 cent welfare and pension contribution toward the discharge 
of his fringe benefit obligation under the contract but must also make 
an additional contribution of 25 cents for the specified or equivalent 
fringe benefits or pay the employee an additional 25 cents in cash. 
These contributions or equivalent payments may be excluded from the 
employee's regular rate which remains $4.25, the rate agreed upon as the 
basic cash wage.
    (c) The C company has been paying $4 an hour as its basic cash wage 
on which the firm has been computing overtime compensation. For 
performance of work on a contract subject to the Act the same rate of 
monetary wages and a fringe benefit contribution of 50 cents an hour 
(qualifying for exclusion from the regular rate under the Fair Labor 
Standards Act) are specified in accordance with a determination that 
these are the monetary wages and fringe benefits prevailing for such 
employees in the locality. The contractor is required to continue to pay 
at least $4 an hour in monetary wages and at least this amount must be 
included in the employee's regular or basic rate for overtime purposes 
under applicable Federal law. The fringe benefit obligation under the 
contract would be discharged if 50 cents of the contributions for fringe 
benefits were for the fringe benefits specified in the contract or 
equivalent benefits as defined in Sec.  4.177. The company may exclude 
such fringe benefit contributions from the regular or

[[Page 105]]

basic rate of pay of the service employee in computing overtime pay due.

                           Notice to Employees



Sec.  4.183  Employees must be notified of compensation required.

    The Act, in section 2(a)(4), and the regulations thereunder in Sec.  
4.6(e), require all contracts subject to the Act which are in excess of 
$2,500 to contain a clause requiring the contractor or subcontractor to 
notify each employee commencing work on a contract to which the Act 
applies of the compensation required to be paid such employee under 
section 2(a)(1) and the fringe benefits required to be furnished under 
section 2(a)(2). A notice form (WH Publication 1313 and any applicable 
wage determination) provided by the Wage and Hour Division is to be used 
for this purpose. It may be delivered to the employee or posted as 
stated in Sec.  4.184.



Sec.  4.184  Posting of notice.

    Posting of the notice provided by the Wage and Hour Division shall 
be in a prominent and accessible place at the worksite, as required by 
Sec.  4.6(e). The display of the notice in a place where it may be seen 
by employees performing on the contract will satisfy the requirement 
that it be in a ``prominent and accessible place''. Should display be 
necessary at more than one site, in order to assure that it is seen by 
such employees, additional copies of the poster may be obtained without 
cost from the Division. The contractor or subcontractor is required to 
notify each employee of the compensation due or attach to the poster any 
applicable wage determination specified in the contract listing all 
minimum monetary wages and fringe benefits to be paid or furnished to 
the classes of service employees performing on the contract.

                                 Records



Sec.  4.185  Recordkeeping requirements.

    The records which a contractor or subcontractor is required to keep 
concerning employment of employees subject to the Act are specified in 
Sec.  4.6(g) of subpart A of this part. They are required to be 
maintained for 3 years from the completion of the work, and must be made 
available for inspection and transcription by authorized representatives 
of the Administrator. Such records must be kept for each service 
employee performing work under the contract, for each workweek during 
the performance of the contract. If the required records are not 
separately kept for the service employees performing on the contract, it 
will be presumed, in the absence of affirmative proof to the contrary, 
that all service employees in the department or establishment where the 
contract was performed were engaged in covered work during the period of 
performance. (See Sec.  4.179.)



Sec.  4.186  [Reserved]



                          Subpart E_Enforcement



Sec.  4.187  Recovery of underpayments.

    (a) The Act, in section 3(a), provides that any violations of any of 
the contract stipulations required by sections 2(a)(1), 2(a)(2), or 2(b) 
of the Act, shall render the party responsible liable for the amount of 
any deductions, rebates, refunds, or underpayments (which includes non-
payment) of compensation due to any employee engaged in the performance 
of the contract. So much of the accrued payments due either on the 
contract or on any other contract (whether subject to the Service 
Contract Act or not) between the same contractor and the Government may 
be withheld in a deposit fund as is necessary to pay the employees. In 
the case of requirements-type contracts, it is the contracting agency, 
and not the using agencies, which has the responsibility for complying 
with a withholding request by the Secretary or authorized 
representative. The Act further provides that on order of the Secretary 
(or authorized representatives), any compensation which the head of the 
Federal agency or the Secretary has found to be due shall be paid 
directly to the underpaid employees from any accrued payments withheld. 
In order to effectuate the efficient administration of this provision of 
the Act, such withheld funds shall be transferred to the Department of 
Labor for

[[Page 106]]

disbursement to the underpaid employees on order of the Secretary or his 
or her authorized representatives, an Administrative Law Judge, or the 
Administrative Review Board, and are not paid directly to such employees 
by the contracting agency without the express prior consent of the 
Department of Labor. (See Decision of the Comptroller General, B-170784, 
February 17, 1971.) It is mandatory for a contracting officer to adhere 
to a request from the Department of Labor to withhold funds where such 
funds are available. (See Decision of the Comptroller General, B-109257, 
October 14, 1952, arising under the Walsh-Healey Act.) Contract funds 
which are or may become due a contractor under any contract with the 
United States may be withheld prior to the institution of administrative 
proceedings by the Secretary. (McCasland v. U.S. Postal Service, 82 CCH 
Labor Cases ] 33,607 (N.D. N.Y. 1977); G & H Machinery Co. v. Donovan, 
96 CCH Labor Cases ] 34,354 (S.D. Ill. 1982).)
    (b) Priority to withheld funds. The Comptroller General has afforded 
employee wage claims priority over an Internal Revenue Service levy for 
unpaid taxes. (See Decisions of the Comptroller General, B-170784, 
February 17, 1971; B-189137, August 1, 1977; 56 Comp. Gen. 499 (1977); 
55 Comp. Gen. 744 (1976), arising under the Davis-Bacon Act; B-178198, 
August 30, 1973; B-161460, May 25, 1967.)
    (1) As the Comptroller General has stated, ``[t]he legislative 
histories of these labor statutes [Service Contract Act and Contract 
Work Hours and Safety Standards Act, 41 U.S.C. 327, et seq.] disclose a 
progressive tendency to extend a more liberal interpretation and 
construction in successive enactments with regard to worker's benefits, 
recovery and repayment of wage underpayments. Further, as remedial 
legislation, it is axiomatic that they are to be liberally construed''. 
(Decision of the Comptroller General, B-170784, February 17, 1971.)
    (2) Since section 3(a) of the Act provides that accrued contract 
funds withheld to pay employees wages must be held in a deposit fund, it 
is the position of the Department of Labor that monies so held may not 
be used or set aside for agency reprocurement costs. To hold otherwise 
would be inequitable and contrary to public policy, since the employees 
have performed work from which the Government has received the benefit 
(see National Surety Corporation v. U.S., 132 Ct. Cl. 724, 728, 135 F. 
Supp. 381 (1955), cert. denied, 350 U.S. 902), and to give contracting 
agency reprocurement claims priority would be to require employees to 
pay for the breach of contract between the employer and the agency. The 
Comptroller General has sanctioned priority being afforded wage 
underpayments over the reprocurement costs of the contracting agency 
following a contractor's default or termination for cause. Decision of 
the Comptroller General, B-167000, June 26, 1969; B-178198, August 30, 
1973; and B-189137, August 1, 1977.
    (3) Wage claims have priority over reprocurement costs and tax liens 
without regard to when the competing claims were raised. See Decisions 
of the Comptroller General, B-161460, May 25, 1967; B-189137, August 1, 
1977.
    (4) Wages due workers underpaid on the contract have priority over 
any assignee of the contractor, including assignments made under the 
Assignment of Claims Act, 31 U.S.C. 203, 41 U.S.C. 15, to funds withheld 
under the contract, since an assignee can acquire no greater rights to 
withheld funds than the assignor has in the absence of an assignment. 
See Modern Industrial Bank v. U.S., 101 Ct. Cl. 808 (1944); Royal 
Indemnity Co. v. United States, 178 Ct. Cl. 46, 371 F. 2d 462 (1967), 
cert. denied, 389 U.S. 833; Newark Insurance Co. v. U.S., 149 Ct. Cl. 
170, 181 F. Supp. 246 (1960); Henningsen v. United States Fidelity and 
Guaranty Company, 208 U.S. 404 (1908). Where employees have been 
underpaid, the assignor has no right to assign funds since the assignor 
has no property rights to amounts withheld from the contract to cover 
underpayments of workers which constitute a violation of the law and the 
terms, conditions, and obligations under the contract. (Decision of the 
Comptroller General, B-164881, August 14, 1968; B-178198, August 30, 
1973; 56 Comp. Gen. 499 (1977); 55 Comp. Gen. 744 (1976); The National 
City Bank of Evansville v. United States, 143 Ct. Cl. 154, 163 F. Supp. 
846 (1958); National Surety Corporation v. United

[[Page 107]]

States, 132 Ct. Cl. 724, 135 F. Supp. 381 (1955), cert. denied, 350 U.S. 
902.)
    (5) The Comptroller General, recognizing that unpaid laborers have 
an equitable right to be paid from contract retainages, has also held 
that wage underpayments under the Act have priority over any claim by 
the trustee in bankruptcy. 56 Comp. Gen. 499 (1977), citing Pearlman v. 
Reliance Insurance Company, 371 U.S. 132 (1962); Hadden v. United 
States, 132 Ct. Cl. 529 (1955), in which the courts gave priority to 
sureties who had paid unpaid laborers over the trustee in bankruptcy.
    (c) Section 5(b) of the Act provides that if the accrued payments 
withheld under the terms of the contract are insufficient to reimburse 
all service employees with respect to whom there has been a failure to 
pay the compensation required pursuant to the Act, the United States may 
bring action against the contractor, subcontractor, or any sureties in 
any court of competent jurisdiction to recover the remaining amount of 
underpayments. The Service Contract Act is not subject to the statute of 
limitations in the Portal to Portal Act, 29 U.S.C. 255, and contains no 
prescribed period within which such an action must be instituted; it has 
therefore been held that the general period of six years prescribed by 
28 U.S.C. 2415 applies to such actions, United States of America v. 
Deluxe Cleaners and Laundry, Inc., 511 F. 2d 929 (C.A. 4, 1975). Any 
sums thus recovered by the United States shall be held in the deposit 
fund and shall be paid, on the order of the Secretary, directly to the 
underpaid employees. Any sum not paid to an employee because of 
inability to do so within 3 years shall be covered into the Treasury of 
the United States as miscellaneous receipts.
    (d) Releases or waivers executed by employees for unpaid wages and 
fringe benefits due them are without legal effect. As stated by the 
Supreme Court in Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 704, 
(1945), arising under the Fair Labor Standards Act:

    ``Where a private right is granted in the public interest to 
effectuate a legislative policy, waiver of a right so charged or colored 
with the public interest will not be allowed where it would thwart the 
legislative policy which it was designed to effectuate.''


See also Schulte, Inc. v. Gangi, 328 U.S. 108 (1946); United States v. 
Morley Construction Company, 98 F. 2d 781 (C.A. 2, 1938), cert. denied, 
305 U.S. 651.

Further, as noted above, monies not paid to employees to whom they are 
due because of violation are covered into the U.S. Treasury as provided 
by section 5(b) of the Act.
    (e)(1) The term party responsible for violations in section 3(a) of 
the Act is the same term as contained in the Walsh-Healey Public 
Contracts Act, and therefore, the same principles are applied under both 
Acts. An officer of a corporation who actively directs and supervises 
the contract performance, including employment policies and practices 
and the work of the employees working on the contract, is a party 
responsible and liable for the violations, individually and jointly with 
the company (S & G Coal Sales, Inc., Decision of the Hearing Examiner, 
PC-946, January 21, 1965, affirmed by the Administrator June 8, 1965; 
Tennessee Processing Co., Inc., Decision of the Hearing Examiner, PC-
790, September 28, 1965).
    (2) The failure to perform a statutory public duty under the Service 
Contract Act is not only a corporate liability but also the personal 
liability of each officer charged by reason of his or her corporate 
office while performing that duty. United States v. Sancolmar 
Industries, Inc., 347 F. Supp. 404, 408 (E.D. N.Y. 1972). Accordingly, 
it has been held by administrative decisions and by the courts that the 
term party responsible, as used in section 3(a) of the Act, imposes 
personal liability for violations of any of the contract stipulations 
required by sections 2(a)(1) and (2) and 2(b) of the Act on corporate 
officers who control, or are responsible for control of, the corporate 
entity, as they, individually, have an obligation to assure compliance 
with the requirements of the Act, the regulations, and the contracts. 
See, for example, Waite, Inc., Decision of the ALJ, SCA 530-566, October 
19, 1976, Spruce-Up Corp., Decision of the Administrator SCA 368-370, 
August 19, 1976, Ventilation and Cleaning Engineers, Inc., Decision of 
the ALJ, SCA 176, August 23, 1973, Assistant Secretary, May 17, 1974, 
Secretary, September 27, 1974; Fred Van Elk, Decision

[[Page 108]]

of the ALJ, SCA 254-58, May 28, 1974, Administrator, November 25, 1974; 
Murcole, Inc., Decision of the ALJ, SCA 195-198, April 11, 1974; Emile 
J. Bouchet, Decision of the ALJ, SCA 38, February 24, 1970; Darwyn L. 
Grover, Decision of the ALJ, SCA 485, August 15, 1976; United States v. 
Islip Machine Works, Inc., 179 F. Supp. 585 (E.D. N.Y. 1959); United 
States v. Sancolmar Industries, Inc., 347 F. Supp. 404 (E.D. N.Y. 1972).
    (3) In essence, individual liability attaches to the corporate 
official who is responsible for, and therefore causes or permits, the 
violation of the contract stipulations required by the Act, i.e., 
corporate officers who control the day-to-day operations and management 
policy are personally liable for underpayments because they cause or 
permit violations of the Act.
    (4) It has also been held that the personal responsibility and 
liability of individuals for violations of the Act is not limited to the 
officers of a contracting firm or to signatories to the Government 
contract who are bound by and accept responsibility for compliance with 
the Act and imposition of its sanctions set forth in the contract 
clauses in Sec.  4.6, but includes all persons, irrespective of 
proprietary interest, who exercise control, supervision, or management 
over the performance of the contract, including the labor policy or 
employment conditions regarding the employees engaged in contract 
performance, and who, by action or inaction, cause or permit a contract 
to be breached. U.S. v. Islip Machine Works, Inc., 179 F. Supp. 585 
(E.D. N.Y. 1959); U.S. v. Sancolmar Industries, Inc., 347 F. Supp. 404 
(E.D. N.Y. 1972); Oscar Hestrom Corp., Decision of the Administrator, 
PC-257, May 7, 1946, affirmed, U.S. v. Hedstrom, 8 Wage Hour Cases 302 
(N.D. Ill. 1948); Craddock-Terry Shoe Corp., Decision of the 
Administrator, PC-330, October 3, 1947; Reynolds Research Corp., 
Decision of the Administrator, PC-381, October 24, 1951; Etowah Garment 
Co., Inc., Decision of the Hearing Examiner, PC-632, August 9, 1957, 
Decision of the Administrator, April 29, 1958; Cardinal Fuel and Supply 
Co., Decision of the Hearing Examiner, PC-890, June 17, 1963.
    (5) Reliance on advice from contracting agency officials (or 
Department of Labor officials without the authority to issue rulings 
under the Act) is not a defense against a contractor's liability for 
back wages under the Act. Standard Fabrication Ltd., Decision of the 
Secretary, PC-297, August 3, 1948; Airport Machining Corp., Decision of 
the ALJ, PC-1177, June 15, 1973; James D. West, Decision of the ALJ, SCA 
397-398, November 17, 1975; Metropolitan Rehabilitation Corp., WAB Case 
No. 78-25, August 2, 1979; Fry Brothers Corp., WAB Case No. 76-6, June 
14, 1977.
    (f) The procedures for a contractor or subcontractor to dispute 
findings regarding violations of the Act, including back wage liability 
or the disposition of funds withheld by the agency for such liability, 
are contained in parts 6 and 8 of this title. Appeals in such matters 
have not been delegated to the contracting agencies and such matters 
cannot be appealed under the disputes clause in the contractor's 
contract.
    (g) While the Act provides that action may be brought against a 
surety to recover underpayments of compensation, there is no statutory 
provision requiring that contractors furnish either payment or 
performance bonds before an award can be made. The courts have held, 
however, that when such a bond has been given, including one denominated 
as a performance rather than payment bond, and such a bond guarantees 
that the principal shall fulfill ``all the undertakings, covenants, 
terms, conditions, and agreements'' of the contract, or similar words to 
the same effect, the surety-guarantor is jointly liable for 
underpayments by the contractor of the wages and fringe benefits 
required by the Act up to the amount of the bond. U.S. v. Powers 
Building Maintenance Co., 366 F. Supp. 819 (W.D. Okla. 1972); U.S. v. 
Gillespie, 72 CCH Labor Cases ] 33,986 (C.D. Cal. 1973) U.S. v. Glens 
Falls Insurance Co., 279 F. Supp. 236 (E.D. Tenn. 1967); United States 
v. Hudgins-Dize Co., 83 F. Supp. 593 (E.D. Va. 1949); U.S. v. 
Continental Casualty Company, 85 F. Supp. 573 (E.D. Pa. 1949), affirmed 
per curiam, 182 F.2d 941 (3rd Cir. 1950).

[[Page 109]]



Sec.  4.188  Ineligibility for further contracts when violations occur.

    (a) Section 5 of the Act provides that any person or firm found by 
the Secretary or the Federal agencies to have violated the Act shall be 
declared ineligible to receive further Federal contracts unless the 
Secretary recommends otherwise because of unusual circumstances. It also 
directs the Comptroller General to distribute a list to all agencies of 
the Government giving the names of persons or firms that have been 
declared ineligible. No contract of the United States or the District of 
Columbia (whether or not subject to the Act) shall be awarded to the 
persons or firms appearing on this list or to any firm, corporation, 
partnership, or association in which such persons or firms have a 
substantial interest until 3 years have elapsed from the date of 
publication of the list containing the names of such persons or firms. 
This prohibition against the award of a contract to an ineligible 
contractor applies to the contractor in its capacity as either a prime 
contractor or a subcontractor. Because the Act contains no provision 
authorizing removal from the list of the names of such persons or firms 
prior to the expiration of the three-year statutory period, the 
Secretary is without authority to accomplish such removal (other than in 
situations involving mistake or legal error). On the other hand, there 
may be situations in which persons or firms already on the list are 
found in a subsequent administrative proceeding to have again violated 
the Act and their debarment ordered. In such circumstances, a new, 
three-year debarment term will commence with the republication of such 
names on the list.
    (b)(1) The term unusual circumstances is not defined in the Act. 
Accordingly, the determination must be made on a case-by-case basis in 
accordance with the particular facts present. It is clear, however, that 
the effect of the 1972 Amendments is to limit the Secretary's discretion 
to relieve violators from the debarred list (H. Rept. 92-1251, 92d 
Cong., 2d Sess. 5; S. Rept. 92-1131, 92d Cong., 2d Sess. 3-4) and that 
the violator of the Act has the burden of establishing the existence of 
unusual circumstances to warrant relief from the debarment sanction, 
Ventilation and Cleaning Engineers, Inc., SCA-176, Administrative Law 
Judge, August 23, 1973, Assistant Secretary, May 22, 1974, Secretary, 
October 2, 1974. It is also clear that unusual circumstances do not 
include any circumstances which would have been insufficient to relieve 
a contractor from the ineligible list prior to the 1972 amendments, or 
those circumstances which commonly exist in cases where violations are 
found, such as negligent or willful disregard of the contract 
requirements and of the Act and regulations, including a contractor's 
plea of ignorance of the Act's requirements where the obligation to 
comply with the Act is plain from the contract, failure to keep 
necessary records and the like. Emerald Maintenance Inc., Supplemental 
Decision of the ALJ, SCA-153, April 5, 1973.
    (2) The Subcommittee report following the oversight hearings 
conducted just prior to the 1972 amendments makes it plain that the 
limitation of the Secretary's discretion through the unusual 
circumstances language was designed in part to prevent the Secretary 
from relieving a contractor from the ineligible list provisions merely 
because the contractor paid what he was required by his contract to pay 
in the first place and promised to comply with the Act in the future. 
See, House Committee on Education and Labor, Special Subcommittee on 
Labor, The Plight of Service Workers under Government Contracts 12-13 
(Comm. Print 1971). As Congressman O'Hara stated: ``Restoration * * * 
[of wages and benefits] is not in and of itself a penalty. The penalty 
for violation is the suspension from the right to bid on Government 
contracts * * *. The authority [to relieve from blacklisting] was 
intended to be used in situations where the violation was a minor one, 
or an inadvertent one, or one in which disbarment * * * would have been 
wholly disproportionate to the offense.'' House Committee on Education 
and Labor, Special Subcommittee on Labor, Hearings on H.R. 6244 and H.R. 
6245, 92d Cong., 1st Sess. 3 (1971).
    (3)(i) The Department of Labor has developed criteria for 
determining when there are unusual circumstances

[[Page 110]]

within the meaning of the Act. See, e.g., Washington Moving & Storage 
Co., Decision of the Assistant Secretary, SCA 68, August 16, 1973, 
Secretary, March 12, 1974; Quality Maintenance Co., Decision of the 
Assistant Secretary, SCA 119, January 11, 1974. Thus, where the 
respondent's conduct in causing or permitting violations of the Service 
Contract Act provisions of the contract is willful, deliberate or of an 
aggravated nature or where the violations are a result of culpable 
conduct such as culpable neglect to ascertain whether practices are in 
violation, culpable disregard of whether they were in violation or not, 
or culpable failure to comply with recordkeeping requirements (such as 
falsification of records), relief from the debarment sanction cannot be 
in order. Furthermore, relief from debarment cannot be in order where a 
contractor has a history of similar violations, where a contractor has 
repeatedly violated the provisions of the Act, or where previous 
violations were serious in nature.
    (ii) A good compliance history, cooperation in the investigation, 
repayment of moneys due, and sufficient assurances of future compliance 
are generally prerequisites to relief. Where these prerequisites are 
present and none of the aggravated circumstances in the preceding 
paragraph exist, a variety of factors must still be considered, 
including whether the contractor has previously been investigated for 
violations of the Act, whether the contractor has committed 
recordkeeping violations which impeded the investigation, whether 
liability was dependent upon resolution of a bona fide legal issue of 
doubtful certainty, the contractor's efforts to ensure compliance, the 
nature, extent, and seriousness of any past or present violations, 
including the impact of violations on unpaid employees, and whether the 
sums due were promptly paid.
    (4) A contractor has an affirmative obligation to ensure that its 
pay practices are in compliance with the Act, and cannot itself resolve 
questions which arise, but rather must seek advice from the Department 
of Labor. Murcole, Inc., Decision of the ALJ, SCA 195-198, April 10, 
1974; McLaughlin Storage, Inc., Decision of the ALJ, SCA 362-365, 
November 5, 1975, Administrator, March 25, 1976; Able Building & 
Maintenance & Service Co., Decision of the ALJ, SCA 389-390, May 29, 
1975, Assistant Secretary, January 13, 1976; Aarid Van Lines, Inc., 
Decision of the Administrator, SCA 423-425, May 13, 1977.
    (5) Furthermore, a contractor cannot be relieved from debarment by 
attempting to shift his/her responsibility to subordinate employees. 
Security Systems, Inc., Decision of the ALJ, SCA 774-775, April 10, 
1978; Ventilation & Cleaning Engineers, Inc., Decision of the Secretary, 
SCA 176, September 27, 1974; Ernest Roman, Decision of the Secretary, 
SCA 275, May 6, 1977. As the Comptroller General has stated in 
considering debarment under the Davis-Bacon Act, ``[n]egligence of the 
employer to instruct his employees as to the proper method of performing 
his work or to see that the employee obeys his instructions renders the 
employer liable for injuries to third parties resulting therefrom. * * * 
The employer will be liable for acts of his employee within the scope of 
the employment regardless of whether the acts were expressly or 
impliedly authorized. * * * Willful and malicious acts of the employee 
are imputable to the employer under the doctrine of respondeat superior 
although they might not have been consented to or expressly authorized 
or ratified by the employer.'' (Decision of the Comptroller General, B-
145608, August 1, 1961.)
    (6) Negligence per se does not constitute unusual circumstances. 
Relief on no basis other than negligence would render the effect of 
section 5(a) a nullity, since it was intended that only responsible 
bidders be awarded Government contracts. Greenwood's Transfer & Storage, 
Inc., Decision of the Secretary, SCA 321-326, June 1, 1976; Ventilation 
& Cleaning Engineers, Inc., Decision of the Secretary, SCA 176, 
September 27, 1974.
    (c) Similarly, the term substantial interest is not defined in the 
Act. Accordingly, this determination, too, must be made on a case-by-
case basis in light of the particular facts, and cognizant of the 
legislative intent ``to provide to service employees safeguards similar 
to those given to employees covered by the Walsh-Healey Public Contracts

[[Page 111]]

Act''. Federal Food Services, Inc., Decision of the ALJ, SCA 585-592, 
November 22, 1977. Thus, guidance can be obtained from cases arising 
under the Walsh-Healey Act, which uses the concept ``controlling 
interest''. See Regal Mfg. Co., Decision of the Administrator, PC-245, 
March 1, 1946; Acme Sportswear Co., Decision of the Hearing Examiner, 
PC-275, May 8, 1946; Gearcraft, Inc., Decision of the ALJ, PCX-1, May 3, 
1972. In a supplemental decision of February 23, 1979, in Federal Food 
Services, Inc. the Judge ruled as a matter of law that the term ``does 
not preclude every employment or financial relationship between a party 
under sanction and another * * * [and that] it is necessary to look 
behind titles, payments, and arrangements and examine the existing 
circumstances before reaching a conclusion in this matter.''
    (1) Where a person or firm has a direct or beneficial ownership or 
control of more than 5 percent of any firm, corporation, partnership, or 
association, a ``substantial interest'' will be deemed to exist. 
Similarly, where a person is an officer or director in a firm or the 
debarred firm shares common management with another firm, a 
``substantial interest'' will be deemed to exist. Furthermore, wherever 
a firm is an affiliate as defined in Sec.  4.1a(g) of subpart A, a 
``substantial interest'' will be deemed to exist, or where a debarred 
person forms or participates in another firm in which he/she has 
comparable authority, he/she will be deemed to have a ``substantial 
interest'' in the new firm and such new firm would also be debarred 
(Etowah Garment Co., Inc., Decision of the Hearing Examiner, PC-632, 
August 9, 1957).
    (2) Nor is interest determined by ownership alone. A debarred person 
will also be deemed to have a ``substantial interest'' in a firm if such 
person has participated in contract negotiations, is a signatory to a 
contract, or has the authority to establish, control, or manage the 
contract performance and/or the labor policies of a firm. A 
``substantial interest'' may also be deemed to exist, in other 
circumstances, after consideration of the facts of the individual case. 
Factors to be examined include, among others, sharing of common premises 
or facilities, occupying any position such as manager, supervisor, or 
consultant to, any such entity, whether compensated on a salary, bonus, 
fee, dividend, profit-sharing, or other basis of remuneration, including 
indirect compensation by virtue of family relationships or otherwise. A 
firm will be particularly closely examined where there has been an 
attempt to sever an association with a debarred firm or where the firm 
was formed by a person previously affiliated with the debarred firm or a 
relative of the debarred person.
    (3) Firms with such identity of interest with a debarred person or 
firm will be placed on the debarred bidders list after the determination 
is made pursuant to procedures in Sec.  4.12 and parts 6 and 8 of this 
title. Where a determination of such ``substantial interest'' is made 
after the initiation of the debarment period, contracting agencies are 
to terminate any contract with such firm entered into after the 
initiation of the original debarment period since all persons or firms 
in which the debarred person or firm has a substantial interest were 
also ineligible to receive Government contracts from the date of 
publication of the violating person's or firm's name on the debarred 
bidders list.



Sec.  4.189  Administrative proceedings relating to enforcement 
of labor standards.

    The Secretary is authorized pursuant to the provisions of section 
4(a) of the Act to hold hearings and make decisions based upon findings 
of fact as are deemed to be necessary to enforce the provisions of the 
Act. Pursuant to section 4(a) of the Act, the Secretary's findings of 
fact after notice and hearing are conclusive upon all agencies of the 
United States and, if supported by the preponderance of the evidence, 
conclusive in any court of the United States, without a trial de novo. 
United States v. Powers Building Maintenance Co., 336 F. Supp. 819 (W.D. 
Okla. 1972). Rules of practice for administrative proceedings are set 
forth in parts 6 and 8 of this title.



Sec.  4.190  Contract cancellation.

    (a) As provided in section 3 of the Act, where a violation is found 
of any

[[Page 112]]

contract stipulation, the contract is subject upon written notice to 
cancellation by the contracting agency, whereupon the United States may 
enter into other contracts or arrangements for the completion of the 
original contract, charging any additional cost to the original 
contractor.
    (b) Every contractor shall certify pursuant to Sec.  4.6(n) of 
subpart A that it is not disqualified for the award of a contract by 
virtue of its name appearing on the debarred bidders list or because any 
such currently listed person or firm has a substantial interest in said 
contractor, as described in Sec.  4.188. Upon discovery of such false 
certification or determination of substantial interest in a firm 
performing on a Government contract, as the case may be, the contract is 
similarly subject upon written notice to immediate cancellation by the 
contracting agency and any additional cost for the completion of the 
contract charged to the original contractor as specified in paragraph 
(a). Such contract is without warrant of law and has no force and effect 
and is void ab initio, 33 Comp Gen. 63; Decision of the Comptroller 
General, B-115051, August 6, 1953. Furthermore, any profit derived from 
said illegal contract is forfeited (Paisner v. U.S., 138 Ct. Cl. 420, 
150 F. Supp. 835 (1957), cert. denied, 355 U.S. 941).



Sec.  4.191  Complaints and compliance assistance.

    (a) Any employer, employee, labor or trade organization, contracting 
agency, or other interested person or organization may report to any 
office of the Wage and Hour Division (or to any office of the 
Occupational Safety and Health Administration, in instances involving 
the safety and health provisions), a violation, or apparent violation, 
of the Act, or of any of the rules or regulations prescribed thereunder. 
Such offices are also available to assist or provide information to 
contractors or subcontractors desiring to insure that their practices 
are in compliance with the Act. Information furnished is treated 
confidentially. It is the policy of the Department of Labor to protect 
the identity of its confidential sources and to prevent an unwarranted 
invasion of personal privacy. Accordingly, the identity of an employee 
who makes a confidential written or oral statement as a complaint or in 
the course of an investigation, as well as portions of the statement 
which would reveal his identity, will not be disclosed without the prior 
consent of the employee. Disclosure of employee statements shall be 
governed by the provisions of the ``Freedom of Information Act'' (5 
U.S.C. 552, see 29 CFR part 70) and the ``Privacy Act of 1974'' (5 
U.S.C. 552a).
    (b) A report of breach or violation relating solely to safety and 
health requirements may be in writing and addressed to the Regional 
Administrator of an Occupational Safety and Health Administration 
Regional Office, U.S. Department of Labor, or to the Assistant Secretary 
for Occupational Safety and Health, U.S. Department of Labor, 
Washington, DC 20210.
    (c) Any other report of breach or violation may be in writing and 
addressed to the Assistant Regional Administrator of a Wage and Hour 
Division's regional office, U.S. Department of Labor, or to the 
Administrator of the Wage and Hour Division, U.S. Department of Labor, 
Washington, DC 20210.
    (d) In the event that an Assistant Regional Administrator for the 
Wage and Hour Division, is notified of a breach or violation which also 
involves safety and health standards, the Regional Administrator of the 
Wage and Hour Division shall notify the appropriate Regional 
Administrator of the Occupational Safety and Health Administration who 
shall with respect to the safety and health violations take action 
commensurate with his responsibilities pertaining to safety and health 
standards.
    (e) Any report should contain the following:
    (1) The full name and address of the person or organization 
reporting the breach or violations.
    (2) The full name and address of the person against whom the report 
is made.
    (3) A clear and concise statement of the facts constituting the 
alleged breach or violation of any of the provisions of the McNamara-
O'Hara Service

[[Page 113]]

Contract Act, or of any of the rules or regulations prescribed 
thereunder.

[48 FR 49762, Oct. 27, 1983, as amended at 82 FR 2225, Jan. 9, 2017]



 PART 5_LABOR STANDARDS PROVISIONS APPLICABLE TO CONTRACTS COVERING 
 FEDERALLY FINANCED AND ASSISTED CONSTRUCTION (ALSO LABOR STANDARDS 
 PROVISIONS APPLICABLE TO NONCONSTRUCTION CONTRACTS SUBJECT TO 
 THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT)--Table of Contents



    Subpart A_Davis-Bacon and Related Acts Provisions and Procedures

Sec.
5.1 Purpose and scope.
5.2 Definitions.
5.3-5.4 [Reserved]
5.5 Contract provisions and related matters.
5.6 Enforcement.
5.7 Reports to the Secretary of Labor.
5.8 Liquidated damages under the Contract Work Hours and Safety 
          Standards Act.
5.9 Suspension of funds.
5.10 Restitution, criminal action.
5.11 Disputes concerning payment of wages.
5.12 Debarment proceedings.
5.13 Rulings and interpretations.
5.14 Variations, tolerances, and exemptions from parts 1 and 3 of this 
          subtitle and this part.
5.15 Limitations, variations, tolerances, and exemptions under the 
          Contract Work Hours and Safety Standards Act.
5.16 Training plans approved or recognized by the Department of Labor 
          prior to August 20, 1975.
5.17 Withdrawal of approval of a training program.

Subpart B_Interpretation of the Fringe Benefits Provisions of the Davis-
                                Bacon Act

5.20 Scope and significance of this subpart.
5.21 [Reserved]
5.22 Effect of the Davis-Bacon fringe benefits provisions.
5.23 The statutory provisions.
5.24 The basic hourly rate of pay.
5.25 Rate of contribution or cost for fringe benefits.
5.26 ``* * * contribution irrevocably made * * * to a trustee or to a 
          third person''.
5.27 ``* * * fund, plan, or program.''
5.28 Unfunded plans.
5.29 Specific fringe benefits.
5.30 Types of wage determinations.
5.31 Meeting wage determination obligations.
5.32 Overtime payments.

    Authority: 5 U.S.C. 301; R.S. 161, 64 Stat. 1267; Reorganization 
Plan No. 14 of 1950, 5 U.S.C. appendix; 40 U.S.C. 3141 et seq.; 40 
U.S.C. 3145; 40 U.S.C. 3148; 40 U.S.C. 3701 et seq.; and the laws listed 
in 5.1(a) of this part; Secretary's Order No. 01-2014 (Dec. 19, 2014), 
79 FR 77527 (Dec. 24, 2014); 28 U.S.C. 2461 note (Federal Civil 
Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at Sec.  
701, 129 Stat 584.

    Source: 48 FR 19541, Apr. 29, 1983, unless otherwise noted.



    Subpart A_Davis-Bacon and Related Acts Provisions and Procedures

    Source: 48 FR 19540, Apr. 29, 1983, unless otherwise noted.

    Editorial Note: Nomenclature changes to subpart A of part 5 appear 
at 61 FR 19984, May 3, 1996.



Sec.  5.1  Purpose and scope.

    (a) The regulations contained in this part are promulgated under the 
authority conferred upon the Secretary of Labor by Reorganization Plan 
No. 14 of 1950 and the Copeland Act in order to coordinate the 
administration and enforcement of the labor standards provisions of each 
of the following acts by the Federal agencies responsible for their 
administration and of such additional statutes as may from time to time 
confer upon the Secretary of Labor additional duties and 
responsibilities similar to those conferred upon the Secretary of Labor 
under Reorganization Plan No. 14 of 1950:

    1. The Davis-Bacon Act (sec. 1-7, 46 Stat. 1949, as amended; Pub. L. 
74-403, 40 U.S.C. 276a-276a-7).
    2. Copeland Act (40 U.S.C. 276c).
    3. The Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
332).
    4. National Housing Act (sec. 212 added to c. 847, 48 Stat. 1246, by 
sec. 14, 53 Stat. 807; 12 U.S.C. 1715c and repeatedly amended).
    5. Housing Act of 1950 (college housing) (amended by Housing Act of 
1959 to add labor provisions, 73 Stat. 681; 12 U.S.C. 1749a(f)).
    6. Housing Act of 1959 (sec. 401(f) of the Housing Act of 1950 as 
amended by Pub. L. 86-372, 73 Stat. 681; 12 U.S.C. 1701q(c)(3)).
    7. Commercial Fisheries Research and Development Act of 1964 (sec. 
7, 78 Stat. 199; 16 U.S.C. 779e(b)).

[[Page 114]]

    8. Library Services and Construction Act (sec. 7(a), 78 Stat. 13; 20 
U.S.C. 355c(a)(4), as amended).
    9. National Technical Institute for the Deaf Act (sec. 5(b)(5), 79 
Stat. 126; 20 U.S.C. 684(b)(5)).
    10. National Foundation on the Arts and Humanities Act of 1965 (sec. 
5(k), 79 Stat. 846 as amended; 20 U.S.C. 954(j)).
    11. Elementary and Secondary Education Act of 1965 as amended by 
Elementary and Secondary and other Education Amendments of 1969 (sec. 
423 as added by Pub. L. 91-230, title IV, sec. 401(a)(10), 84 Stat. 169, 
and renumbered sec. 433, by Pub. L. 92-318; title III, sec. 301(a)(1), 
86 Stat. 326; 20 U.S.C. 1232(b)). Under the amendment coverage is 
extended to all programs administered by the Commissioner of Education.
    12. The Federal-Aid Highway Acts (72 Stat. 895, as amended by 82 
Stat. 821; 23 U.S.C. 113, as amended by the Surface Transportation 
Assistance Act of 1982, Pub. L. 97-424).
    13. Indian Self-Determination and Education Assistance Act (sec. 7, 
88 Stat. 2205; 25 U.S.C. 450e).
    14. Indian Health Care Improvement Act (sec. 303(b), 90 Stat. 1407; 
25 U.S.C. 1633(b)).
    15. Rehabilitation Act of 1973 (sec. 306(b)(5) 87 Stat. 384, 29 
U.S.C. 776(b)(5)).
    16. Comprehensive Employment and Training Act of 1973 (sec. 606, 87 
Stat. 880, renumbered sec. 706 by 88 Stat. 1845; 29 U.S.C. 986; also 
sec. 604, 88 Stat. 1846; 29 U.S.C. 964(b)(3)).
    17. State and Local Fiscal Assistance Act of 1972 (sec. 123(a)(6), 
86 Stat. 933; 31 U.S.C. 1246(a)(6)).
    18. Federal Water Pollution Control Act (sec. 513 of sec. 2, 86 
Stat. 894; 33 U.S.C. 1372).
    19. Veterans Nursing Home Care Act of 1964 (78 Stat. 502, as 
amended; 38 U.S.C. 5035(a)(8)).
    20. Postal Reorganization Act (sec. 410(b)(4)(C); 84 Stat. 726 as 
amended; 39 U.S.C. 410(b)(4)(C)).
    21. National Visitors Center Facilities Act of 1966 (sec. 110, 32 
Stat. 45; 40 U.S.C. 808).
    22. Appalachian Regional Development Act of 1965 (sec. 402, 79 Stat. 
21; 40 U.S.C. App. 402).
    23. Health Services Research, Health Statistics, and Medical 
Libraries Act of 1974 (sec. 107, see sec. 308(h)(2) thereof, 88 Stat. 
370, as amended by 90 Stat. 378; 42 U.S.C. 242m(h)(2)).
    24. Hospital Survey and Construction Act, as amended by the Hospital 
and Medical Facilities Amendments of 1964 (sec. 605(a)(5), 78 Stat. 453; 
42 U.S.C. 291e(a)(5)).
    25. Health Professions Educational Assistance Act (sec. 303(b), 90 
Stat. 2254; 42 U.S.C. 293a(g)(1)(C); also sec. 308a, 90 Stat. 2258, 42 
U.S.C. 293a(c)(7)).
    26. Nurse Training Act of 1964 (sec. 941(a)(1)(C), 89 Stat. 384; 42 
U.S.C. 296a(b)(5)).
    27. Heart Disease, Cancer, and Stroke Amendments of 1965 (sec. 904, 
as added by sec. 2, 79 Stat. 928; 42 U.S.C. 299d(b)(4)).
    28. Safe Drinking Water Act (sec. 2(a) see sec. 1450e thereof, 88 
Stat. 1691; 42 U.S.C. 300j-9(e)).
    29. National Health Planning and Resources Act (sec. 4, see sec. 
1604(b)(1)(H), 88 Stat. 2261, 42 U.S.C. 300o-3(b)(1)(H)).
    30. U.S. Housing Act of 1937, as amended and recodified (88 Stat. 
667; 42 U.S.C. 1437j).
    31. Demonstration Cities and Metropolitan Development Act of 1966 
(secs. 110, 311, 503, 1003, 80 Stat. 1259, 1270, 1277, 1284; 42 U.S.C. 
3310; 12 U.S.C. 1715c; 42 U.S.C. 1437j).
    32. Slum clearance program: Housing Act of 1949 (sec. 109, 63 Stat. 
419, as amended; 42 U.S.C. 1459).
    33. Farm housing: Housing Act of 1964 (adds sec. 516(f) to Housing 
Act of 1949 by sec. 503, 78 Stat. 797; 42 U.S.C. 1486(f)).
    34. Housing Act of 1961 (sec. 707, added by sec. 907, 79 Stat. 496, 
as amended; 42 U.S.C. 1500c-3).
    35. Defense Housing and Community Facilities and Services Act of 
1951 (sec. 310, 65 Stat. 307; 42 U.S.C. 1592i).
    36. Special Health Revenue Sharing Act of 1975 (sec. 303, see sec. 
222(a)(5) thereof, 89 Stat. 324; 42 U.S.C. 2689j(a)(5)).
    37. Economic Opportunity Act of 1964 (sec. 607, 78 Stat. 532; 42 
U.S.C. 2947).
    38. Headstart, Economic Opportunity, and Community Partnership Act 
of 1974 (sec. 11, see sec. 811 thereof, 88 Stat. 2327; 42 U.S.C. 2992a).
    39. Housing and Urban Development Act of 1965 (sec. 707, 79 Stat. 
492 as amended; 42 U.S.C. 3107).
    40. Older Americans Act of 1965 (sec. 502, Pub. L. 89-73, as amended 
by sec. 501, Pub. L. 93-29; 87 Stat. 50; 42 U.S.C. 3041a(a)(4)).
    41. Public Works and Economic Development Act of 1965 (sec. 712; 79 
Stat. 575 as amended; 42 U.S.C. 3222).
    42. Juvenile Delinquency Prevention Act (sec. 1, 86 Stat. 536; 42 
U.S.C. 3884).
    43. New Communities Act of 1968 (sec. 410, 82 Stat. 516; 42 U.S.C. 
3909).
    44. Urban Growth and New Community Development Act of 1970 (sec. 
727(f), 84 Stat. 1803; 42 U.S.C. 4529).
    45. Domestic Volunteer Service Act of 1973 (sec. 406, 87 Stat. 410; 
42 U.S.C. 5046).
    46. Housing and Community Development Act of 1974 (secs. 110, 
802(g), 88 Stat. 649, 724; 42 U.S.C. 5310, 1440(g)).
    47. Developmentally Disabled Assistance and Bill of Rights Act (sec. 
126(4), 89 Stat. 488; 42 U.S.C. 6042(4); title I, sec. 111, 89 Stat. 
491; 42 U.S.C. 6063(b)(19)).
    48. National Energy Conservation Policy Act (sec. 312, 92 Stat. 
3254; 42 U.S.C. 6371j).
    49. Public Works Employment Act of 1976 (sec. 109, 90 Stat. 1001; 42 
U.S.C. 6708; also sec. 208, 90 Stat. 1008; 42 U.S.C. 6728).

[[Page 115]]

    50. Energy Conservation and Production Act (sec. 451(h), 90 Stat. 
1168; 42 U.S.C. 6881(h)).
    51. Solid Waste Disposal Act (sec. 2, 90 Stat. 2823; 42 U.S.C. 
6979).
    52. Rail Passenger Service Act of 1970 (sec. 405d, 84 Stat. 1337; 45 
U.S.C. 565(d)).
    53. Urban Mass Transportation Act of 1964 (sec. 10, 78 Stat. 307; 
renumbered sec. 13 by 88 Stat. 715; 49 U.S.C. 1609).
    54. Highway Speed Ground Transportation Study (sec. 6(b), 79 Stat. 
893; 49 U.S.C. 1636(b)).
    55. Airport and Airway Development Act of 1970 (sec. 22(b), 84 Stat. 
231; 49 U.S.C. 1722(b)).
    56. Federal Civil Defense Act of 1950 (50 U.S.C. App. 2281i).
    57. National Capital Transportation Act of 1965 (sec. 3(b)(4), 79 
Stat. 644; 40 U.S.C. 682(b)(4).

    Note. Repealed December 9, 1969, and labor standards incorporated in 
sec. 1-1431 of the District of Columbia Code).

    58. Model Secondary School for the Deaf Act (sec. 4, 80 Stat. 1027, 
Pub. L. 89-694, but not in the United States Code).
    59. Delaware River Basin Compact (sec. 15.1, 75 Stat. 714, Pub. L. 
87-328) (considered a statute for purposes of the plan but not in the 
United States Code).
    60. Energy Security Act (sec. 175(c), Pub. L. 96-294, 94 Stat. 611; 
42 U.S.C. 8701 note).

    (b) Part 1 of this subtitle contains the Department's procedural 
rules governing requests for wage determinations and the issuance and 
use of such wage determinations under the Davis-Bacon Act and its 
related statutes as listed in that part.



Sec.  5.2  Definitions.

    (a) The term Secretary includes the Secretary of Labor, the Deputy 
Under Secretary for Employment Standards, and their authorized 
representatives.
    (b) The term Administrator means the Administrator of the Wage and 
Hour Division, U.S. Department of Labor, or authorized representative.
    (c) The term Federal agency means the agency or instrumentality of 
the United States which enters into the contract or provides assistance 
through loan, grant, loan guarantee or insurance, or otherwise, to the 
project subject to a statute listed in Sec.  5.1.
    (d) The term Agency Head means the principal official of the Federal 
agency and includes those persons duly authorized to act in the behalf 
of the Agency Head.
    (e) The term Contracting Officer means the individual, a duly 
appointed successor, or authorized representative who is designated and 
authorized to enter into contracts on behalf of the Federal agency.
    (f) The term labor standards as used in this part means the 
requirements of the Davis-Bacon Act, the Contract Work Hours and Safety 
Standards Act (other than those relating to safety and health), the 
Copeland Act, and the prevailing wage provisions of the other statutes 
listed in Sec.  5.1, and the regulations in parts 1 and 3 of this 
subtitle and this part.
    (g) The term United States or the District of Columbia means the 
United States, the District of Columbia, and all executive departments, 
independent establishments, administrative agencies, and 
instrumentalities of the United States and of the District of Columbia, 
including corporations, all or substantially all of the stock of which 
is beneficially owned by the United States, by the foregoing 
departments, establishments, agencies, instrumentalities, and including 
nonappropriated fund instrumentalities.
    (h) The term contract means any prime contract which is subject 
wholly or in part to the labor standards provisions of any of the acts 
listed in Sec.  5.1 and any subcontract of any tier thereunder, let 
under the prime contract. A State or local Government is not regarded as 
a contractor under statutes providing loans, grants, or other Federal 
assistance in situations where construction is performed by its own 
employees. However, under statutes requiring payment of prevailing wages 
to all laborers and mechanics employed on the assisted project, such as 
the U.S. Housing Act of 1937, State and local recipients of Federal-aid 
must pay these employees according to Davis-Bacon labor standards.
    (i) The terms building or work generally include construction 
activity as distinguished from manufacturing, furnishing of materials, 
or servicing and maintenance work. The terms include without limitation, 
buildings, structures, and improvements of all types,

[[Page 116]]

such as bridges, dams, plants, highways, parkways, streets, subways, 
tunnels, sewers, mains, power lines, pumping stations, heavy generators, 
railways, airports, terminals, docks, piers, wharves, ways, lighthouses, 
buoys, jetties, breakwaters, levees, canals, dredging, shoring, 
rehabilitation and reactivation of plants, scaffolding, drilling, 
blasting, excavating, clearing, and landscaping. The manufacture or 
furnishing of materials, articles, supplies or equipment (whether or not 
a Federal or State agency acquires title to such materials, articles, 
supplies, or equipment during the course of the manufacture or 
furnishing, or owns the materials from which they are manufactured or 
furnished) is not a building or work within the meaning of the 
regulations in this part unless conducted in connection with and at the 
site of such a building or work as is described in the foregoing 
sentence, or under the United States Housing Act of 1937 and the Housing 
Act of 1949 in the construction or development of the project.
    (j) The terms construction, prosecution, completion, or repair mean 
the following:
    (1) All types of work done on a particular building or work at the 
site thereof, including work at a facility which is deemed a part of the 
site of the work within the meaning of (paragraph (l) of this section by 
laborers and mechanics employed by a construction contractor or 
construction subcontractor (or, under the United States Housing Act of 
1937; the Housing Act of 1949; and the Native American Housing 
Assistance and Self-Determination Act of 1996, all work done in the 
construction or development of the project), including without 
limitation--
    (i) Altering, remodeling, installation (where appropriate) on the 
site of the work of items fabricated off-site;
    (ii) Painting and decorating;
    (iii) Manufacturing or furnishing of materials, articles, supplies 
or equipment on the site of the building or work (or, under the United 
States Housing Act of 1937; the Housing Act of 1949; and the Native 
American Housing Assistance and Self-Determination Act of 1996 in the 
construction or development of the project);
    (iv)(A) Transportation between the site of the work within the 
meaning of paragraph (l)(1) of this section and a facility which is 
dedicated to the construction of the building or work and deemed a part 
of the site of the work within the meaning of paragraph (l)(2) of this 
section; and
    (B) Transportation of portion(s) of the building or work between a 
site where a significant portion of such building or work is 
constructed, which is a part of the site of the work within the meaning 
of paragraph (l)(1) of this section, and the physical place or places 
where the building or work will remain.
    (2) Except for laborers and mechanics employed in the construction 
or development of the project under the United States Housing Act of 
1937; the Housing Act of 1949; and the Native American Housing 
Assistance and Self-Determination Act of 1996, and except as provided in 
paragraph (j)(1)(iv)(A) of this section, the transportation of materials 
or supplies to or from the site of the work by employees of the 
construction contractor or a construction subcontractor is not 
``construction, prosecution, completion, or repair'' (see Building and 
Construction Trades Department, AFL-CIO v. United States Department of 
Labor Wage Appeals Board (Midway Excavators, Inc.), 932 F.2d 985 (D.C. 
Cir. 1991)).
    (k) The term public building or public work includes building or 
work, the construction, prosecution, completion, or repair of which, as 
defined above, is carried on directly by authority of or with funds of a 
Federal agency to serve the interest of the general public regardless of 
whether title thereof is in a Federal agency.
    (l) The term site of the work is defined as follows:
    (1) The site of the work is the physical place or places where the 
building or work called for in the contract will remain; and any other 
site where a significant portion of the building or work is constructed, 
provided that such site is established specifically for the performance 
of the contract or project;
    (2) Except as provided in paragraph (l)(3) of this section, job 
headquarters, tool yards, batch plants, borrow pits,

[[Page 117]]

etc., are part of the site of the work, provided they are dedicated 
exclusively, or nearly so, to performance of the contract or project, 
and provided they are adjacent or virtually adjacent to the site of the 
work as defined in paragraph (l)(1) of this section;
    (3) Not included in the site of the work are permanent home offices, 
branch plant establishments, fabrication plants, tool yards, etc., of a 
contractor or subcontractor whose location and continuance in operation 
are determined wholly without regard to a particular Federal or 
federally assisted contract or project. In addition, fabrication plants, 
batch plants, borrow pits, job headquarters, tool yards, etc., of a 
commercial or material supplier, which are established by a supplier of 
materials for the project before opening of bids and not on the site of 
the work as stated in paragraph (l)(1) of this section, are not included 
in the site of the work. Such permanent, previously established 
facilities are not part of the site of the work, even where the 
operations for a period of time may be dedicated exclusively, or nearly 
so, to the performance of a contract.
    (m) The term laborer or mechanic includes at least those workers 
whose duties are manual or physical in nature (including those workers 
who use tools or who are performing the work of a trade), as 
distinguished from mental or managerial. The term laborer or mechanic 
includes apprentices, trainees, helpers, and, in the case of contracts 
subject to the Contract Work Hours and Safety Standards Act, watchmen or 
guards. The term does not apply to workers whose duties are primarily 
administrative, executive, or clerical, rather than manual. Persons 
employed in a bona fide executive, administrative, or professional 
capacity as defined in part 541 of this title are not deemed to be 
laborers or mechanics. Working foremen who devote more than 20 percent 
of their time during a workweek to mechanic or laborer duties, and who 
do not meet the criteria of part 541, are laborers and mechanics for the 
time so spent.
    (n) The terms apprentice, trainee, and helper are defined as 
follows:
    (1) Apprentice means (i) a person employed and individually 
registered in a bona fide apprenticeship program registered with the 
U.S. Department of Labor, Employment and Training Administration, Office 
of Apprenticeship Training, Employer and Labor Services, or with a State 
Apprenticeship Agency recognized by the Bureau, or (ii) a person in the 
first 90 days of probationary employment as an apprentice in such an 
apprenticeship program, who is not individually registered in the 
program, but who has been certified by the Office of Apprenticeship 
Training, Employer and Labor Services or a State Apprenticeship Agency 
(where appropriate) to be eligible for probationary employment as an 
apprentice;
    (2) Trainee means a person registered and receiving on-the-job 
training in a construction occupation under a program which has been 
approved in advance by the U.S. Department of Labor, Employment and 
Training Administration, as meeting its standards for on-the-job 
training programs and which has been so certified by that 
Administration.
    (3) These provisions do not apply to apprentices and trainees 
employed on projects subject to 23 U.S.C. 113 who are enrolled in 
programs which have been certified by the Secretary of Transportation in 
accordance with 23 U.S.C. 113(c).
    (4) A distinct classification of ``helper'' will be issued in wage 
determinations applicable to work performed on construction projects 
covered by the labor standards provisions of the Davis-Bacon and Related 
Acts only where:
    (i) The duties of the helper are clearly defined and distinct from 
those of any other classification on the wage determination;
    (ii) The use of such helpers is an established prevailing practice 
in the area; and
    (iii) The helper is not employed as a trainee in an informal 
training program. A ``helper'' classification will be added to wage 
determinations pursuant to Sec.  5.5(a)(1)(ii)(A) only where, in 
addition, the work to be performed by the helper is not performed by a 
classification in the wage determination.
    (o) Every person performing the duties of a laborer or mechanic in 
the

[[Page 118]]

construction, prosecution, completion, or repair of a public building or 
public work, or building or work financed in whole or in part by loans, 
grants, or guarantees from the United States is employed regardless of 
any contractual relationship alleged to exist between the contractor and 
such person.
    (p) The term wages means the basic hourly rate of pay; any 
contribution irrevocably made by a contractor or subcontractor to a 
trustee or to a third person pursuant to a bona fide fringe benefit 
fund, plan, or program; and the rate of costs to the contractor or 
subcontractor which may be reasonably anticipated in providing bona fide 
fringe benefits to laborers and mechanics pursuant to an enforceable 
commitment to carry out a financially responsible plan of program, which 
was communicated in writing to the laborers and mechanics affected. The 
fringe benefits enumerated in the Davis-Bacon Act include medical or 
hospital care, pensions on retirement or death, compensation for 
injuries or illness resulting from occupational activity, or insurance 
to provide any of the foregoing; unemployment benefits; life insurance, 
disability insurance, sickness insurance, or accident insurance; 
vacation or holiday pay; defraying costs of apprenticeship or other 
similar programs; or other bona fide fringe benefits. Fringe benefits do 
not include benefits required by other Federal, State, or local law.
    (q) The term wage determination includes the original decision and 
any subsequent decisions modifying, superseding, correcting, or 
otherwise changing the provisions of the original decision. The 
application of the wage determination shall be in accordance with the 
provisions of Sec.  1.6 of this title.

[48 FR 19541, Apr. 29, 1983, as amended at 48 FR 50313, Nov. 1, 1983; 55 
FR 50149, Dec. 4, 1990; 57 FR 19206, May 4, 1992; 65 FR 69693, Nov. 20, 
2000; 65 FR 80278, Dec. 20, 2000; 82 FR 2225, Jan. 9, 2017]



Sec. Sec.  5.3-5.4  [Reserved]



Sec.  5.5  Contract provisions and related matters.

    (a) The Agency head shall cause or require the contracting officer 
to insert in full in any contract in excess of $2,000 which is entered 
into for the actual construction, alteration and/or repair, including 
painting and decorating, of a public building or public work, or 
building or work financed in whole or in part from Federal funds or in 
accordance with guarantees of a Federal agency or financed from funds 
obtained by pledge of any contract of a Federal agency to make a loan, 
grant or annual contribution (except where a different meaning is 
expressly indicated), and which is subject to the labor standards 
provisions of any of the acts listed in Sec.  5.1, the following clauses 
(or any modifications thereof to meet the particular needs of the 
agency, Provided, That such modifications are first approved by the 
Department of Labor):
    (1) Minimum wages. (i) All laborers and mechanics employed or 
working upon the site of the work (or under the United States Housing 
Act of 1937 or under the Housing Act of 1949 in the construction or 
development of the project), will be paid unconditionally and not less 
often than once a week, and without subsequent deduction or rebate on 
any account (except such payroll deductions as are permitted by 
regulations issued by the Secretary of Labor under the Copeland Act (29 
CFR part 3)), the full amount of wages and bona fide fringe benefits (or 
cash equivalents thereof) due at time of payment computed at rates not 
less than those contained in the wage determination of the Secretary of 
Labor which is attached hereto and made a part hereof, regardless of any 
contractual relationship which may be alleged to exist between the 
contractor and such laborers and mechanics. Contributions made or costs 
reasonably anticipated for bona fide fringe benefits under section 
1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are 
considered wages paid to such laborers or mechanics, subject to the 
provisions of paragraph (a)(1)(iv) of this section; also, regular 
contributions made or costs incurred for more than a weekly period (but 
not less often than quarterly) under plans, funds, or programs which 
cover the particular weekly period, are deemed to be constructively made 
or incurred

[[Page 119]]

during such weekly period. Such laborers and mechanics shall be paid the 
appropriate wage rate and fringe benefits on the wage determination for 
the classification of work actually performed, without regard to skill, 
except as provided in Sec.  5.5(a)(4). Laborers or mechanics performing 
work in more than one classification may be compensated at the rate 
specified for each classification for the time actually worked therein: 
Provided, That the employer's payroll records accurately set forth the 
time spent in each classification in which work is performed. The wage 
determination (including any additional classification and wage rates 
conformed under paragraph (a)(1)(ii) of this section) and the Davis-
Bacon poster (WH-1321) shall be posted at all times by the contractor 
and its subcontractors at the site of the work in a prominent and 
accessible place where it can be easily seen by the workers.
    (ii)(A) The contracting officer shall require that any class of 
laborers or mechanics, including helpers, which is not listed in the 
wage determination and which is to be employed under the contract shall 
be classified in conformance with the wage determination. The 
contracting officer shall approve an additional classification and wage 
rate and fringe benefits therefore only when the following criteria have 
been met:
    (1) The work to be performed by the classification requested is not 
performed by a classification in the wage determination; and
    (2) The classification is utilized in the area by the construction 
industry; and
    (3) The proposed wage rate, including any bona fide fringe benefits, 
bears a reasonable relationship to the wage rates contained in the wage 
determination.
    (B) If the contractor and the laborers and mechanics to be employed 
in the classification (if known), or their representatives, and the 
contracting officer agree on the classification and wage rate (including 
the amount designated for fringe benefits where appropriate), a report 
of the action taken shall be sent by the contracting officer to the 
Administrator of the Wage and Hour Division, U.S. Department of Labor, 
Washington, DC 20210. The Administrator, or an authorized 
representative, will approve, modify, or disapprove every additional 
classification action within 30 days of receipt and so advise the 
contracting officer or will notify the contracting officer within the 
30-day period that additional time is necessary.
    (C) In the event the contractor, the laborers or mechanics to be 
employed in the classification or their representatives, and the 
contracting officer do not agree on the proposed classification and wage 
rate (including the amount designated for fringe benefits, where 
appropriate), the contracting officer shall refer the questions, 
including the views of all interested parties and the recommendation of 
the contracting officer, to the Administrator for determination. The 
Administrator, or an authorized representative, will issue a 
determination within 30 days of receipt and so advise the contracting 
officer or will notify the contracting officer within the 30-day period 
that additional time is necessary.
    (D) The wage rate (including fringe benefits where appropriate) 
determined pursuant to paragraphs (a)(1)(ii) (B) or (C) of this section, 
shall be paid to all workers performing work in the classification under 
this contract from the first day on which work is performed in the 
classification.
    (iii) Whenever the minimum wage rate prescribed in the contract for 
a class of laborers or mechanics includes a fringe benefit which is not 
expressed as an hourly rate, the contractor shall either pay the benefit 
as stated in the wage determination or shall pay another bona fide 
fringe benefit or an hourly cash equivalent thereof.
    (iv) If the contractor does not make payments to a trustee or other 
third person, the contractor may consider as part of the wages of any 
laborer or mechanic the amount of any costs reasonably anticipated in 
providing bona fide fringe benefits under a plan or program, Provided, 
That the Secretary of Labor has found, upon the written request of the 
contractor, that the applicable standards of the Davis-Bacon Act have 
been met. The Secretary of Labor may require the contractor to set aside 
in a separate account assets for the

[[Page 120]]

meeting of obligations under the plan or program.
    (2) Withholding. The (write in name of Federal Agency or the loan or 
grant recipient) shall upon its own action or upon written request of an 
authorized representative of the Department of Labor withhold or cause 
to be withheld from the contractor under this contract or any other 
Federal contract with the same prime contractor, or any other federally-
assisted contract subject to Davis-Bacon prevailing wage requirements, 
which is held by the same prime contractor, so much of the accrued 
payments or advances as may be considered necessary to pay laborers and 
mechanics, including apprentices, trainees, and helpers, employed by the 
contractor or any subcontractor the full amount of wages required by the 
contract. In the event of failure to pay any laborer or mechanic, 
including any apprentice, trainee, or helper, employed or working on the 
site of the work (or under the United States Housing Act of 1937 or 
under the Housing Act of 1949 in the construction or development of the 
project), all or part of the wages required by the contract, the 
(Agency) may, after written notice to the contractor, sponsor, 
applicant, or owner, take such action as may be necessary to cause the 
suspension of any further payment, advance, or guarantee of funds until 
such violations have ceased.
    (3) Payrolls and basic records. (i) Payrolls and basic records 
relating thereto shall be maintained by the contractor during the course 
of the work and preserved for a period of three years thereafter for all 
laborers and mechanics working at the site of the work (or under the 
United States Housing Act of 1937, or under the Housing Act of 1949, in 
the construction or development of the project). Such records shall 
contain the name, address, and social security number of each such 
worker, his or her correct classification, hourly rates of wages paid 
(including rates of contributions or costs anticipated for bona fide 
fringe benefits or cash equivalents thereof of the types described in 
section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of 
hours worked, deductions made and actual wages paid. Whenever the 
Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages 
of any laborer or mechanic include the amount of any costs reasonably 
anticipated in providing benefits under a plan or program described in 
section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain 
records which show that the commitment to provide such benefits is 
enforceable, that the plan or program is financially responsible, and 
that the plan or program has been communicated in writing to the 
laborers or mechanics affected, and records which show the costs 
anticipated or the actual cost incurred in providing such benefits. 
Contractors employing apprentices or trainees under approved programs 
shall maintain written evidence of the registration of apprenticeship 
programs and certification of trainee programs, the registration of the 
apprentices and trainees, and the ratios and wage rates prescribed in 
the applicable programs.
    (ii)(A) The contractor shall submit weekly for each week in which 
any contract work is performed a copy of all payrolls to the (write in 
name of appropriate federal agency) if the agency is a party to the 
contract, but if the agency is not such a party, the contractor will 
submit the payrolls to the applicant, sponsor, or owner, as the case may 
be, for transmission to the (write in name of agency). The payrolls 
submitted shall set out accurately and completely all of the information 
required to be maintained under 29 CFR 5.5(a)(3)(i), except that full 
social security numbers and home addresses shall not be included on 
weekly transmittals. Instead the payrolls shall only need to include an 
individually identifying number for each employee (e.g., the last four 
digits of the employee's social security number). The required weekly 
payroll information may be submitted in any form desired. Optional Form 
WH-347 is available for this purpose from the Wage and Hour Division Web 
site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor 
site. The prime contractor is responsible for the submission of copies 
of payrolls by all subcontractors. Contractors and subcontractors shall 
maintain the full social security number and current address of each 
covered

[[Page 121]]

worker, and shall provide them upon request to the (write in name of 
appropriate federal agency) if the agency is a party to the contract, 
but if the agency is not such a party, the contractor will submit them 
to the applicant, sponsor, or owner, as the case may be, for 
transmission to the (write in name of agency), the contractor, or the 
Wage and Hour Division of the Department of Labor for purposes of an 
investigation or audit of compliance with prevailing wage requirements. 
It is not a violation of this section for a prime contractor to require 
a subcontractor to provide addresses and social security numbers to the 
prime contractor for its own records, without weekly submission to the 
sponsoring government agency (or the applicant, sponsor, or owner).
    (B) Each payroll submitted shall be accompanied by a ``Statement of 
Compliance,'' signed by the contractor or subcontractor or his or her 
agent who pays or supervises the payment of the persons employed under 
the contract and shall certify the following:
    (1) That the payroll for the payroll period contains the information 
required to be provided under Sec.  5.5 (a)(3)(ii) of Regulations, 29 
CFR part 5, the appropriate information is being maintained under Sec.  
5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information 
is correct and complete;
    (2) That each laborer or mechanic (including each helper, 
apprentice, and trainee) employed on the contract during the payroll 
period has been paid the full weekly wages earned, without rebate, 
either directly or indirectly, and that no deductions have been made 
either directly or indirectly from the full wages earned, other than 
permissible deductions as set forth in Regulations, 29 CFR part 3;
    (3) That each laborer or mechanic has been paid not less than the 
applicable wage rates and fringe benefits or cash equivalents for the 
classification of work performed, as specified in the applicable wage 
determination incorporated into the contract.
    (C) The weekly submission of a properly executed certification set 
forth on the reverse side of Optional Form WH-347 shall satisfy the 
requirement for submission of the ``Statement of Compliance'' required 
by paragraph (a)(3)(ii)(B) of this section.
    (D) The falsification of any of the above certifications may subject 
the contractor or subcontractor to civil or criminal prosecution under 
section 1001 of title 18 and section 231 of title 31 of the United 
States Code.
    (iii) The contractor or subcontractor shall make the records 
required under paragraph (a)(3)(i) of this section available for 
inspection, copying, or transcription by authorized representatives of 
the (write the name of the agency) or the Department of Labor, and shall 
permit such representatives to interview employees during working hours 
on the job. If the contractor or subcontractor fails to submit the 
required records or to make them available, the Federal agency may, 
after written notice to the contractor, sponsor, applicant, or owner, 
take such action as may be necessary to cause the suspension of any 
further payment, advance, or guarantee of funds. Furthermore, failure to 
submit the required records upon request or to make such records 
available may be grounds for debarment action pursuant to 29 CFR 5.12.
    (4) Apprentices and trainees--(i) Apprentices. Apprentices will be 
permitted to work at less than the predetermined rate for the work they 
performed when they are employed pursuant to and individually registered 
in a bona fide apprenticeship program registered with the U.S. 
Department of Labor, Employment and Training Administration, Office of 
Apprenticeship Training, Employer and Labor Services, or with a State 
Apprenticeship Agency recognized by the Office, or if a person is 
employed in his or her first 90 days of probationary employment as an 
apprentice in such an apprenticeship program, who is not individually 
registered in the program, but who has been certified by the Office of 
Apprenticeship Training, Employer and Labor Services or a State 
Apprenticeship Agency (where appropriate) to be eligible for 
probationary employment as an apprentice. The allowable ratio of 
apprentices to journeymen on the job site in any craft classification 
shall not be greater than the ratio permitted to the contractor as to 
the entire work force under the registered program. Any

[[Page 122]]

worker listed on a payroll at an apprentice wage rate, who is not 
registered or otherwise employed as stated above, shall be paid not less 
than the applicable wage rate on the wage determination for the 
classification of work actually performed. In addition, any apprentice 
performing work on the job site in excess of the ratio permitted under 
the registered program shall be paid not less than the applicable wage 
rate on the wage determination for the work actually performed. Where a 
contractor is performing construction on a project in a locality other 
than that in which its program is registered, the ratios and wage rates 
(expressed in percentages of the journeyman's hourly rate) specified in 
the contractor's or subcontractor's registered program shall be 
observed. Every apprentice must be paid at not less than the rate 
specified in the registered program for the apprentice's level of 
progress, expressed as a percentage of the journeymen hourly rate 
specified in the applicable wage determination. Apprentices shall be 
paid fringe benefits in accordance with the provisions of the 
apprenticeship program. If the apprenticeship program does not specify 
fringe benefits, apprentices must be paid the full amount of fringe 
benefits listed on the wage determination for the applicable 
classification. If the Administrator determines that a different 
practice prevails for the applicable apprentice classification, fringes 
shall be paid in accordance with that determination. In the event the 
Office of Apprenticeship Training, Employer and Labor Services, or a 
State Apprenticeship Agency recognized by the Office, withdraws approval 
of an apprenticeship program, the contractor will no longer be permitted 
to utilize apprentices at less than the applicable predetermined rate 
for the work performed until an acceptable program is approved.
    (ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not 
be permitted to work at less than the predetermined rate for the work 
performed unless they are employed pursuant to and individually 
registered in a program which has received prior approval, evidenced by 
formal certification by the U.S. Department of Labor, Employment and 
Training Administration. The ratio of trainees to journeymen on the job 
site shall not be greater than permitted under the plan approved by the 
Employment and Training Administration. Every trainee must be paid at 
not less than the rate specified in the approved program for the 
trainee's level of progress, expressed as a percentage of the journeyman 
hourly rate specified in the applicable wage determination. Trainees 
shall be paid fringe benefits in accordance with the provisions of the 
trainee program. If the trainee program does not mention fringe 
benefits, trainees shall be paid the full amount of fringe benefits 
listed on the wage determination unless the Administrator of the Wage 
and Hour Division determines that there is an apprenticeship program 
associated with the corresponding journeyman wage rate on the wage 
determination which provides for less than full fringe benefits for 
apprentices. Any employee listed on the payroll at a trainee rate who is 
not registered and participating in a training plan approved by the 
Employment and Training Administration shall be paid not less than the 
applicable wage rate on the wage determination for the classification of 
work actually performed. In addition, any trainee performing work on the 
job site in excess of the ratio permitted under the registered program 
shall be paid not less than the applicable wage rate on the wage 
determination for the work actually performed. In the event the 
Employment and Training Administration withdraws approval of a training 
program, the contractor will no longer be permitted to utilize trainees 
at less than the applicable predetermined rate for the work performed 
until an acceptable program is approved.
    (iii) Equal employment opportunity. The utilization of apprentices, 
trainees and journeymen under this part shall be in conformity with the 
equal employment opportunity requirements of Executive Order 11246, as 
amended, and 29 CFR part 30.
    (5) Compliance with Copeland Act requirements. The contractor shall 
comply with the requirements of 29 CFR part 3, which are incorporated by 
reference in this contract.

[[Page 123]]

    (6) Subcontracts. The contractor or subcontractor shall insert in 
any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) 
and such other clauses as the (write in the name of the Federal agency) 
may by appropriate instructions require, and also a clause requiring the 
subcontractors to include these clauses in any lower tier subcontracts. 
The prime contractor shall be responsible for the compliance by any 
subcontractor or lower tier subcontractor with all the contract clauses 
in 29 CFR 5.5.
    (7) Contract termination: debarment. A breach of the contract 
clauses in 29 CFR 5.5 may be grounds for termination of the contract, 
and for debarment as a contractor and a subcontractor as provided in 29 
CFR 5.12.
    (8) Compliance with Davis-Bacon and Related Act requirements. All 
rulings and interpretations of the Davis-Bacon and Related Acts 
contained in 29 CFR parts 1, 3, and 5 are herein incorporated by 
reference in this contract.
    (9) Disputes concerning labor standards. Disputes arising out of the 
labor standards provisions of this contract shall not be subject to the 
general disputes clause of this contract. Such disputes shall be 
resolved in accordance with the procedures of the Department of Labor 
set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of 
this clause include disputes between the contractor (or any of its 
subcontractors) and the contracting agency, the U.S. Department of 
Labor, or the employees or their representatives.
    (10) Certification of eligibility. (i) By entering into this 
contract, the contractor certifies that neither it (nor he or she) nor 
any person or firm who has an interest in the contractor's firm is a 
person or firm ineligible to be awarded Government contracts by virtue 
of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
    (ii) No part of this contract shall be subcontracted to any person 
or firm ineligible for award of a Government contract by virtue of 
section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
    (iii) The penalty for making false statements is prescribed in the 
U.S. Criminal Code, 18 U.S.C. 1001.
    (b) Contract Work Hours and Safety Standards Act. The Agency Head 
shall cause or require the contracting officer to insert the following 
clauses set forth in paragraphs (b)(1), (2), (3), and (4) of this 
section in full in any contract in an amount in excess of $100,000 and 
subject to the overtime provisions of the Contract Work Hours and Safety 
Standards Act. These clauses shall be inserted in addition to the 
clauses required by Sec.  5.5(a) or Sec.  4.6 of part 4 of this title. 
As used in this paragraph, the terms laborers and mechanics include 
watchmen and guards.
    (1) Overtime requirements. No contractor or subcontractor 
contracting for any part of the conract work which may require or 
involve the employment of laborers or mechanics shall require or permit 
any such laborer or mechanic in any workweek in which he or she is 
employed on such work to work in excess of forty hours in such workweek 
unless such laborer or mechanic receives compensation at a rate not less 
than one and one-half times the basic rate of pay for all hours worked 
in excess of forty hours in such workweek.
    (2) Violation; liability for unpaid wages; liquidated damages. In 
the event of any violation of the clause set forth in paragraph (b)(1) 
of this section the contractor and any subcontractor responsible 
therefor shall be liable for the unpaid wages. In addition, such 
contractor and subcontractor shall be liable to the United States (in 
the case of work done under contract for the District of Columbia or a 
territory, to such District or to such territory), for liquidated 
damages. Such liquidated damages shall be computed with respect to each 
individual laborer or mechanic, including watchmen and guards, employed 
in violation of the clause set forth in paragraph (b)(1) of this 
section, in the sum of $26 for each calendar day on which such 
individual was required or permitted to work in excess of the standard 
workweek of forty hours without payment of the overtime wages required 
by the clause set forth in paragraph (b)(1) of this section.
    (3) Withholding for unpaid wages and liquidated damages. The (write 
in the name of the Federal agency or the loan or grant recipient) shall 
upon its own action or upon written request of an

[[Page 124]]

authorized representative of the Department of Labor withhold or cause 
to be withheld, from any moneys payable on account of work performed by 
the contractor or subcontractor under any such contract or any other 
Federal contract with the same prime contractor, or any other federally-
assisted contract subject to the Contract Work Hours and Safety 
Standards Act, which is held by the same prime contractor, such sums as 
may be determined to be necessary to satisfy any liabilities of such 
contractor or subcontractor for unpaid wages and liquidated damages as 
provided in the clause set forth in paragraph (b)(2) of this section.
    (4) Subcontracts. The contractor or subcontractor shall insert in 
any subcontracts the clauses set forth in paragraph (b)(1) through (4) 
of this section and also a clause requiring the subcontractors to 
include these clauses in any lower tier subcontracts. The prime 
contractor shall be responsible for compliance by any subcontractor or 
lower tier subcontractor with the clauses set forth in paragraphs (b)(1) 
through (4) of this section.
    (c) In addition to the clauses contained in paragraph (b), in any 
contract subject only to the Contract Work Hours and Safety Standards 
Act and not to any of the other statutes cited in Sec.  5.1, the Agency 
Head shall cause or require the contracting officer to insert a clause 
requiring that the contractor or subcontractor shall maintain payrolls 
and basic payroll records during the course of the work and shall 
preserve them for a period of three years from the completion of the 
contract for all laborers and mechanics, including guards and watchmen, 
working on the contract. Such records shall contain the name and address 
of each such employee, social security number, correct classifications, 
hourly rates of wages paid, daily and weekly number of hours worked, 
deductions made, and actual wages paid. Further, the Agency Head shall 
cause or require the contracting officer to insert in any such contract 
a clause providing that the records to be maintained under this 
paragraph shall be made available by the contractor or subcontractor for 
inspection, copying, or transcription by authorized representatives of 
the (write the name of agency) and the Department of Labor, and the 
contractor or subcontractor will permit such representatives to 
interview employees during working hours on the job.

(The information collection, recordkeeping, and reporting requirements 
contained in the following paragraphs of this section were approved by 
the Office of Management and Budget:

------------------------------------------------------------------------
                                                            OMB Control
                        Paragraph                               No.
------------------------------------------------------------------------
(a)(1)(ii)(B)...........................................       1235-0023
(a)(1)(ii)(C)...........................................       1235-0023
(a)(1)(iv)..............................................       1235-0023
(a)(3)(i)...............................................       1235-0023
(a)(3)(ii)(A)...........................................       1235-0023
                                                               1235-0008
(c).....................................................       1235-0023
------------------------------------------------------------------------


[48 FR 19540, Apr. 29, 1983, as amended at 51 FR 12265, Apr. 9, 1986; 55 
FR 50150, Dec. 4, 1990; 57 FR 28776, June 26, 1992; 58 FR 58955, Nov. 5, 
1993; 61 FR 40716, Aug. 5, 1996; 65 FR 69693, Nov. 20, 2000; 73 FR 
77511, Dec. 19, 2008; 81 FR 43450, July 1, 2016; 82 FR 2225, 2226, Jan. 
9, 2017; 83 FR 12, Jan 2, 2018]



Sec.  5.6  Enforcement.

    (a)(1) It shall be the responsibility of the Federal agency to 
ascertain whether the clauses required by Sec.  5.5 have been inserted 
in the contracts subject to the labor standards provisions of the Acts 
contained in Sec.  5.1. Agencies which do not directly enter into such 
contracts shall promulgate the necessary regulations or procedures to 
require the recipient of the Federal assistance to insert in its 
contracts the provisions of Sec.  5.5. No payment, advance, grant, loan, 
or guarantee of funds shall be approved by the Federal agency unless the 
agency insures that the clauses required by Sec.  5.5 and the 
appropriate wage determination of the Secretary of Labor are contained 
in such contracts. Furthermore, no payment, advance, grant, loan, or 
guarantee of funds shall be approved by the Federal agency after the 
beginning of construction unless there is on file with the agency a 
certification by the contractor that the contractor and its 
subcontractors have complied with the provisions of Sec.  5.5 or unless 
there is on file with the agency a certification by the contractor that 
there is a substantial dispute with respect to the required provisions.

[[Page 125]]

    (2) Payrolls and Statements of Compliance submitted pursuant to 
Sec.  5.5(a)(3)(ii) shall be preserved by the Federal agency for a 
period of 3 years from the date of completion of the contract and shall 
be produced at the request of the Department of Labor at any time during 
the 3-year period.
    (3) The Federal agency shall cause such investigations to be made as 
may be necessary to assure compliance with the labor standards clauses 
required by Sec.  5.5 and the applicable statutes listed in Sec.  5.1. 
Investigations shall be made of all contracts with such frequency as may 
be necessary to assure compliance. Such investigations shall include 
interviews with employees, which shall be taken in confidence, and 
examinations of payroll data and evidence of registration and 
certification with respect to apprenticeship and training plans. In 
making such examinations, particular care shall be taken to determine 
the correctness of classifications and to determine whether there is a 
disproportionate employment of laborers and of apprentices or trainees 
registered in approved programs. Such investigations shall also include 
evidence of fringe benefit plans and payments thereunder. Complaints of 
alleged violations shall be given priority.
    (4) In accordance with normal operating procedures, the contracting 
agency may be furnished various investigatory material from the 
investigation files of the Department of Labor. None of the material, 
other than computations of back wages and liquidated damages and the 
summary of back wages due, may be disclosed in any manner to anyone 
other than Federal officials charged with administering the contract or 
program providing Federal assistance to the contract, without requesting 
the permission and views of the Department of Labor.
    (5) It is the policy of the Department of Labor to protect the 
identity of its confidential sources and to prevent an unwarranted 
invasion of personal privacy. Accordingly, the identity of an employee 
who makes a written or oral statement as a complaint or in the course of 
an investigation, as well as portions of the statement which would 
reveal the employee's identity, shall not be disclosed in any manner to 
anyone other than Federal officials without the prior consent of the 
employee. Disclosure of employee statements shall be governed by the 
provisions of the ``Freedom of Information Act'' (5 U.S.C. 552, see 29 
CFR part 70) and the ``Privacy Act of 1974'' (5 U.S.C. 552a).
    (b) The Administrator shall cause to be made such investigations as 
deemed necessary, in order to obtain compliance with the labor standards 
provisions of the applicable statutes listed in Sec.  5.1, or to affirm 
or reject the recommendations by the Agency Head with respect to labor 
standards matters arising under the statutes listed in Sec.  5.1. 
Federal agencies, contractors, subcontractors, sponsors, applicants, or 
owners shall cooperate with any authorized representative of the 
Department of Labor in the inspection of records, in interviews with 
workers, and in all other aspects of the investigations. The findings of 
such an investigation, including amounts found due, may not be altered 
or reduced without the approval of the Department of Labor. Where the 
underpayments disclosed by such an investigation total $1,000 or more, 
where there is reason to believe that the violations are aggravated or 
willful (or, in the case of the Davis-Bacon Act, that the contractor has 
disregarded its obligations to employees and subcontractors), or where 
liquidated damages may be assessed under the Contract Work Hours and 
Safety Standards Act, the Department of Labor will furnish the Federal 
agency an enforcement report detailing the labor standards violations 
disclosed by the investigation and any action taken by the contractor to 
correct the violative practices, including any payment of back wages. In 
other circumstances, the Federal agency will be furnished a letter of 
notification summarizing the findings of the investigation.



Sec.  5.7  Reports to the Secretary of Labor.

    (a) Enforcement reports. (1) Where underpayments by a contractor or 
subcontractor total less than $1,000, and where there is no reason to 
believe that the violations are aggravated or willful (or, in the case 
of the Davis-Bacon Act that the contractor has disregarded its

[[Page 126]]

obligations to employees and subcontractors), and where restitution has 
been effected and future compliance assured, the Federal agency need not 
submit its investigative findings and recommendations to the 
Administrator, unless the investigation was made at the request of the 
Department of Labor. In the latter case, the Federal agency shall submit 
a factual summary report detailing any violations including any data on 
the amount of restitution paid, the number of workers who received 
restitution, liquidated damages assessed under the Contract Work Hours 
and Safety Standards Act, corrective measures taken (such as ``letters 
of notice''), and any information that may be necessary to review any 
recommendations for an appropriate adjustment in liquidated damages 
under Sec.  5.8.
    (2) Where underpayments by a contractor or subcontractor total 
$1,000 or more, or where there is reason to believe that the violations 
are aggravated or willful (or, in the case of the Davis-Bacon Act, that 
the contractor has disregarded its obligations to employees and 
subcontractors), the Federal agency shall furnish within 60 days after 
completion of its investigation, a detailed enforcement report to the 
Administrator.
    (b) Semi-annual enforcement reports. To assist the Secretary in 
fulfilling the responsibilities under Reorganization Plan No. 14 of 
1950, Federal agencies shall furnish to the Administrator by April 30 
and October 31 of each calendar year semi-annual reports on compliance 
with and enforcement of the labor standards provisions of the Davis-
Bacon Act and its related acts covering the periods of October 1 through 
March 31 and April 1 through September 30, respectively. Such reports 
shall be prepared in the manner prescribed in memoranda issued to 
Federal agencies by the Administrator. This report has been cleared in 
accordance with FPMR 101-11.11 and assigned interagency report control 
number 1482-DOL-SA.
    (c) Additional information. Upon request, the Agency Head shall 
transmit to the Administrator such information available to the Agency 
with respect to contractors and subcontractors, their contracts, and the 
nature of the contract work as the Administrator may find necessary for 
the performance of his or her duties with respect to the labor standards 
provisions referred to in this part.
    (d) Contract termination. Where a contract is terminated by reason 
of violations of the labor standards provisions of the statutes listed 
in Sec.  5.1, a report shall be submitted promptly to the Administrator 
and to the Comptroller General (if the contract is subject to the Davis-
Bacon Act), giving the name and address of the contractor or 
subcontractor whose right to proceed has been terminated, and the name 
and address of the contractor or subcontractor, if any, who is to 
complete the work, the amount and number of the contract, and the 
description of the work to be performed.



Sec.  5.8  Liquidated damages under the Contract Work Hours 
and Safety Standards Act.

    (a) The Contract Work Hours and Safety Standards Act requires that 
laborers or mechanics shall be paid wages at a rate not less than one 
and one-half times the basic rate of pay for all hours worked in excess 
of forty hours in any workweek. In the event of violation of this 
provision, the contractor and any subcontractor shall be liable for the 
unpaid wages and in addition for liquidated damages, computed with 
respect to each laborer or mechanic employed in violation of the Act in 
the amount of $26 for each calendar day in the workweek on which such 
individual was required or permitted to work in excess of forty hours 
without payment of required overtime wages. Any contractor of 
subcontractor aggrieved by the withholding of liquidated damages shall 
have the right to appeal to the head of the agency of the United States 
(or the territory of District of Columbia, as appropriate) for which the 
contract work was performed or for which financial assistance was 
provided.
    (b) Findings and recommendations of the Agency Head. The Agency Head 
has the authority to review the administrative determination of 
liquidated damages and to issue a final order affirming the 
determination. It is not

[[Page 127]]

necessary to seek the concurrence of the Administrator but the 
Administrator shall be advised of the action taken. Whenever the Agency 
Head finds that a sum of liquidated damages administratively determined 
to be due is incorrect or that the contractor or subcontractor violated 
inadvertently the provisions of the Act notwithstanding the exercise of 
due care upon the part of the contractor or subcontractor involved, and 
the amount of the liquidated damages computed for the contract is in 
excess of $500, the Agency Head may make recommendations to the 
Secretary that an appropriate adjustment in liquidated damages be made 
or that the contractor or subcontractor be relieved of liability for 
such liquidated damages. Such findings with respect to liquidated 
damages shall include findings with respect to any wage underpayments 
for which the liquidated damages are determined.
    (c) The recommendations of the Agency Head for adjustment or relief 
from liquidated damages under paragraph (a) of this section shall be 
reviewed by the Administrator or an authorized representative who shall 
issue an order concurring in the recommendations, partially concurring 
in the recommendations, or rejecting the recommendations, and the 
reasons therefor. The order shall be the final decision of the 
Department of Labor, unless a petition for review is filed pursuant to 
part 7 of this title, and the Administrative Review Board in its 
discretion reviews such decision and order; or, with respect to 
contracts subject to the Service Contract Act, unless petition for 
review is filed pursuant to part 8 of this title, and the Administrative 
Review Board in its discretion reviews such decision and order.
    (d) Whenever the Agency Head finds that a sum of liquidated damages 
administratively determined to be due under section 104(a) of the 
Contract Work Hours and Safety Standards Act for a contract is $500 or 
less and the Agency Head finds that the sum of liquidated damages is 
incorrect or that the contractor or subcontractor violated inadvertently 
the provisions of the Contract Work Hours and Safety Standards Act 
notwithstanding the exercise of due care upon the part of the contractor 
or subcontractor involved, an appropriate adjustment may be made in such 
liquidated damages or the contractor or subcontractor may be relieved of 
liability for such liquidated damages without submitting recommendations 
to this effect or a report to the Department of Labor. This delegation 
of authority is made under section 105 of the Contract Work Hours and 
Safety Standards Act and has been found to be necessary and proper in 
the public interest to prevent undue hardship and to avoid serious 
impairment of the conduct of Government business.

[48 FR 19541, Apr. 29, 1983, as amended at 51 FR 12265, Apr. 9, 1986; 51 
FR 13496, Apr. 21, 1986; 81 FR 43450, July 1, 2016; 83 FR 12, Jan. 2, 
2018]



Sec.  5.9  Suspension of funds.

    In the event of failure or refusal of the contractor or any 
subcontractor to comply with the labor standards clauses contained in 
Sec.  5.5 and the applicable statutes listed in Sec.  5.1, the Federal 
agency, upon its own action or upon written request of an authorized 
representative of the Department of Labor, shall take such action as may 
be necessary to cause the suspension of the payment, advance or 
guarantee of funds until such time as the violations are discontinued or 
until sufficient funds are withheld to compensate employees for the 
wages to which they are entitled and to cover any liquidated damages 
which may be due.



Sec.  5.10  Restitution, criminal action.

    (a) In cases other than those forwarded to the Attorney General of 
the United States under paragraph (b), of this section, where violations 
of the labor standards clauses contained in Sec.  5.5 and the applicable 
statutes listed in Sec.  5.1 result in underpayment of wages to 
employees, the Federal agency or an authorized representative of the 
Department of Labor shall request that restitution be made to such 
employees or on their behalf to plans, funds, or programs for any type 
of bona fide fringe benefits within the meaning of section 1(b)(2) of 
the Davis-Bacon Act.
    (b) In cases where the Agency Head or the Administrator finds 
substantial

[[Page 128]]

evidence that such violations are willful and in violation of a criminal 
statute, the matter shall be forwarded to the Attorney General of the 
United States for prosecution if the facts warrant. In all such cases 
the Administrator shall be informed simultaneously of the action taken.



Sec.  5.11  Disputes concerning payment of wages.

    (a) This section sets forth the procedure for resolution of disputes 
of fact or law concerning payment of prevailing wage rates, overtime 
pay, or proper classification. The procedures in this section may be 
initiated upon the Administrator's own motion, upon referral of the 
dispute by a Federal agency pursuant to Sec.  5.5(a)(9), or upon request 
of the contractor or subcontractor(s).
    (b)(1) In the event of a dispute described in paragraph (a) of this 
section in which it appears that relevant facts are at issue, the 
Administrator will notify the affected contractor and subcontractor(s) 
(if any), by registered or certified mail to the last known address, of 
the investigation findings. If the Administrator determines that there 
is reasonable cause to believe that the contractor and/or 
subcontractor(s) should also be subject to debarment under the Davis-
Bacon Act or Sec.  5.12(a)(1), the letter will so indicate.
    (2) A contractor and/or subcontractor desiring a hearing concerning 
the Administrator's investigative findings shall request such a hearing 
by letter postmarked within 30 days of the date of the Administrator's 
letter. The request shall set forth those findings which are in dispute 
and the reasons therefor, including any affirmative defenses, with 
respect to the violations and/or debarment, as appropriate.
    (3) Upon receipt of a timely request for a hearing, the 
Administrator shall refer the case to the Chief Administrative Law Judge 
by Order of Reference, to which shall be attached a copy of the letter 
from the Administrator and response thereto, for designation of an 
Administrative Law Judge to conduct such hearings as may be necessary to 
resolve the disputed matters. The hearing shall be conducted in 
accordance with the procedures set forth in 29 CFR part 6.
    (c)(1) In the event of a dispute described in paragraph (a) of this 
section in which it appears that there are no relevant facts at issue, 
and where there is not at that time reasonable cause to institute 
debarment proceedings under Sec.  5.12, the Administrator shall notify 
the contractor and subcontractor(s) (if any), by registered or certified 
mail to the last known address, of the investigation findings, and shall 
issue a ruling on any issues of law known to be in dispute.
    (2)(i) If the contractor and/or subcontractor(s) disagree with the 
factual findings of the Administrator or believe that there are relevant 
facts in dispute, the contractor or subcontractor(s) shall so advise the 
Administrator by letter postmarked within 30 days of the date of the 
Administrator's letter. In the response, the contractor and/or 
subcontractor(s) shall explain in detail the facts alleged to be in 
dispute and attach any supporting documentation.
    (ii) Upon receipt of a response under paragraph (c)(2)(i) of this 
section alleging the existence of a factual dispute, the Administrator 
shall examine the information submitted. If the Administrator determines 
that there is a relevant issue of fact, the Administrator shall refer 
the case to the Chief Administrative Law Judge in accordance with 
paragraph (b)(3) of this section. If the Administrator determines that 
there is no relevant issue of fact, the Administrator shall so rule and 
advise the contractor and subcontractor(s) (if any) accordingly.
    (3) If the contractor and/or subcontractor(s) desire review of the 
ruling issued by the Administrator under paragraph (c)(1) or (2) of this 
section, the contractor and/or subcontractor(s) shall file a petition 
for review thereof with the Administrative Review Board within 30 days 
of the date of the ruling, with a copy thereof the Administrator. The 
petition for review shall be filed in accordance with part 7 of this 
title.
    (d) If a timely response to the Administrator's findings or ruling 
is not made or a timely petition for review is not filed, the 
Administrator's findings and/or ruling shall be final, except that

[[Page 129]]

with respect to debarment under the Davis-Bacon Act, the Administrator 
shall advise the Comptroller General of the Administrator's 
recommendation in accordance with Sec.  5.12(a)(1). If a timely response 
or petition for review is filed, the findings and/or ruling of the 
Administrator shall be inoperative unless and until the decision is 
upheld by the Administrative Law Judge or the Administrative Review 
Board.



Sec.  5.12  Debarment proceedings.

    (a)(1) Whenever any contractor or subcontractor is found by the 
Secretary of Labor to be in aggravated or willful violation of the labor 
standards provisions of any of the applicable statutes listed in Sec.  
5.1 other than the Davis-Bacon Act, such contractor or subcontractor or 
any firm, corporation, partnership, or association in which such 
contractor or subcontractor has a substantial interest shall be 
ineligible for a period not to exceed 3 years (from the date of 
publication by the Comptroller General of the name or names of said 
contractor or subcontractor on the ineligible list as provided below) to 
receive any contracts or subcontracts subject to any of the statutes 
listed in Sec.  5.1.
    (2) In cases arising under contracts covered by the Davis-Bacon Act, 
the Administrator shall transmit to the Comptroller General the names of 
the contractors or subcontractors and their responsible officers, if any 
(and any firms in which the contractors or subcontractors are known to 
have an interest), who have been found to have disregarded their 
obligations to employees, and the recommendation of the Secretary of 
Labor or authorized representative regarding debarment. The Comptroller 
General will distribute a list to all Federal agencies giving the names 
of such ineligible person or firms, who shall be ineligible to be 
awarded any contract or subcontract of the United States or the District 
of Columbia and any contract or subcontract subject to the labor 
standards provisions of the statutes listed in Sec.  5.1.
    (b)(1) In addition to cases under which debarment action is 
initiated pursuant to Sec.  5.11, whenever as a result of an 
investigation conducted by the Federal agency or the Department of 
Labor, and where the Administrator finds reasonable cause to believe 
that a contractor or subcontractor has committed willful or aggravated 
violations of the labor standards provisions of any of the statutes 
listed in Sec.  5.1 (other than the Davis-Bacon Act), or has committed 
violations of the Davis-Bacon Act which constitute a disregard of its 
obligations to employees or subcontractors under section 3(a) thereof, 
the Administrator shall notify by registered or certified mail to the 
last known address, the contractor or subcontractor and its responsible 
officers, if any (and any firms in which the contractor or subcontractor 
are known to have a substantial interest), of the finding. The 
Administrator shall afford such contractor or subcontractor and any 
other parties notified an opportunity for a hearing as to whether 
debarment action should be taken under paragraph (a)(1) of this section 
or section 3(a) of the Davis-Bacon Act. The Administrator shall furnish 
to those notified a summary of the investigative findings. If the 
contractor or subcontractor or any other parties notified wish to 
request a hearing as to whether debarment action should be taken, such a 
request shall be made by letter postmarked within 30 days of the date of 
the letter from the Administrator, and shall set forth any findings 
which are in dispute and the reasons therefor, including any affirmative 
defenses to be raised. Upon receipt of such request for a hearing, the 
Administrator shall refer the case to the Chief Administrative Law Judge 
by Order of Reference, to which shall be attached a copy of the letter 
from the Administrator and the response thereto, for designation of an 
Administrative Law Judge to conduct such hearings as may be necessary to 
determine the matters in dispute. In considering debarment under any of 
the statutes listed in Sec.  5.1 other than the Davis-Bacon Act, the 
Administrative Law Judge shall issue an order concerning whether the 
contractor or subcontractor is to be debarred in accordance with 
paragraph (a)(1) of this section. In considering debarment under the 
Davis-Bacon Act, the Administrative

[[Page 130]]

Law Judge shall issue a recommendation as to whether the contractor or 
subcontractor should be debarred under section 3(a) of the Act.
    (2) Hearings under this section shall be conducted in accordance 
with 29 CFR part 6. If no hearing is requested within 30 days of receipt 
of the letter from the Administrator, the Administrator's findings shall 
be final, except with respect to recommendations regarding debarment 
under the Davis-Bacon Act, as set forth in paragraph (a)(2) of this 
section.
    (c) Any person or firm debarred under paragraph (a)(1) of this 
section may in writing request removal from the debarment list after six 
months from the date of publication by the Comptroller General of such 
person or firm's name on the ineligible list. Such a request should be 
directed to the Administrator of the Wage and Hour Division, U.S. 
Department of Labor, Washington, DC 20210, and shall contain a full 
explanation of the reasons why such person or firm should be removed 
from the ineligible list. In cases where the contractor or subcontractor 
failed to make full restitution to all underpaid employees, a request 
for removal will not be considered until such underpayments are made. In 
all other cases, the Administrator will examine the facts and 
circumstances surrounding the violative practices which caused the 
debarment, and issue a decision as to whether or not such person or firm 
has demonstrated a current responsibility to comply with the labor 
standards provisions of the statutes listed in Sec.  5.1, and therefore 
should be removed from the ineligible list. Among the factors to be 
considered in reaching such a decision are the severity of the 
violations, the contractor or subcontractor's attitude towards 
compliance, and the past compliance history of the firm. In no case will 
such removal be effected unless the Administrator determines after an 
investigation that such person or firm is in compliance with the labor 
standards provisions applicable to Federal contracts and Federally 
assisted construction work subject to any of the applicable statutes 
listed in Sec.  5.1 and other labor statutes providing wage protection, 
such as the Service Contract Act, the Walsh-Healey Public Contracts Act, 
and the Fair Labor Standards Act. If the request for removal is denied, 
the person or firm may petition for review by the Administrative Review 
Board pursuant to 29 CFR part 7.
    (d)(1) Section 3(a) of the Davis-Bacon Act provides that for a 
period of three years from date of publication on the ineligible list, 
no contract shall be awarded to any persons or firms placed on the list 
as a result of a finding by the Comptroller General that such persons or 
firms have disregarded obligations to employees and subcontractors under 
that Act, and further, that no contract shall be awarded to ``any firm, 
corporation, partnership, or association in which such persons or firms 
have an interest.'' Paragraph (a)(1) of this section similarly provides 
that for a period not to exceed three years from date of publication on 
the ineligible list, no contract subject to any of the statutes listed 
in Sec.  5.1 shall be awarded to any contractor or subcontractor on the 
ineligible list pursuant to that paragraph, or to ``any firm, 
corporation, partnership, or association'' in which such contractor or 
subcontractor has a ``substantial interest.'' A finding as to whether 
persons or firms whose names appear on the ineligible list have an 
interest (or a substantial interest, as appropriate) in any other firm, 
corporation, partnership, or association, may be made through 
investigation, hearing, or otherwise.
    (2)(i) The Administrator, on his/her own motion or after receipt of 
a request for a determination pursuant to paragraph (d)(3) of this 
section may make a finding on the issue of interest (or substantial 
interest, as appropriate).
    (ii) If the Administrator determines that there may be an interest 
(or substantial interest, as appropriate), but finds that there is 
insufficient evidence to render a final ruling thereon, the 
Administrator may refer the issue to the Chief Administrative Law Judge 
in accordance with paragraph (d)(4) of this section.
    (iii) If the Administrator finds that no interest (or substantial 
interest, as appropriate) exists, or that there is not sufficient 
information to warrant the

[[Page 131]]

initiation of an investigation, the requesting party, if any, will be so 
notified and no further action taken.
    (iv)(A) If the Administrator finds that an interest (or substantial 
interest, as appropriate) exists, the person or firm affected will be 
notified of the Administrator's finding (by certified mail to the last 
known address), which shall include the reasons therefor, and such 
person or firm shall be afforded an opportunity to request that a 
hearing be held to render a decision on the issue.
    (B) Such person or firm shall have 20 days from the date of the 
Administrator's ruling to request a hearing. A detailed statement of the 
reasons why the Administrator's ruling is in error, including facts 
alleged to be in dispute, if any, shall be submitted with the request 
for a hearing.
    (C) If no hearing is requested within the time mentioned in 
paragraph (d)(2)(iv)(B) of this section, the Administrator's finding 
shall be final and the Administrator shall so notify the Comptroller 
General. If a hearing is requested, the ruling of the Administrator 
shall be inoperative unless and until the administrative law judge or 
the Administrative Review Board issues an order that there is an 
interest (or substantial interest, as appropriate).
    (3)(i) A request for a determination of interest (or substantial 
interest, as appropriate), may be made by any interested party, 
including contractors or prospective contractors and associations of 
contractor's representatives of employees, and interested Government 
agencies. Such a request shall be submitted in writing to the 
Administrator, Wage and Hour Division, U.S. Department of Labor, 
Washington, DC 20210.
    (ii) The request shall include a statement setting forth in detail 
why the petitioner believes that a person or firm whose name appears on 
the debarred bidders list has an interest (or a substantial interest, as 
appropriate) in any firm, corporation, partnership, or association which 
is seeking or has been awarded a contract of the United States or the 
District of Columbia, or which is subject to any of the statutes listed 
in Sec.  5.1. No particular form is prescribed for the submission of a 
request under this section.
    (4) Referral to the Chief Administrative Law Judge. The 
Administrator, on his/her own motion under paragraph (d)(2)(ii) of this 
section or upon a request for hearing where the Administrator determines 
that relevant facts are in dispute, will by order refer the issue to the 
Chief Administrative Law Judge, for designation of an Administrative Law 
Judge who shall conduct such hearings as may be necessary to render a 
decision solely on the issue of interest (or substantial interest, as 
appropriate). Such proceedings shall be conducted in accordance with the 
procedures set forth at 29 CFR part 6.
    (5) Referral to the Administrative Review Board. If the person or 
firm affected requests a hearing and the Administrator determines that 
relevant facts are not in dispute, the Administrator will refer the 
issue and the record compiled thereon to the Administrative Review Board 
to render a decision solely on the issue of interest (or substantial 
interest, as appropriate). Such proceeding shall be conducted in 
accordance with the procedures set forth at 29 CFR part 7.

[48 FR 19541, Apr. 29, 1983, as amended at 48 FR 50313, Nov. 1, 1983; 82 
FR 2226, Jan. 9, 2017]



Sec.  5.13  Rulings and interpretations.

    All questions relating to the application and interpretation of wage 
determinations (including the classifications therein) issued pursuant 
to part 1 of this subtitle, of the rules contained in this part and in 
parts 1 and 3, and of the labor standards provisions of any of the 
statutes listed in Sec.  5.1 shall be referred to the Administrator for 
appropriate ruling or interpretation. The rulings and interpretations 
shall be authoritative and those under the Davis-Bacon Act may be relied 
upon as provided for in section 10 of the Portal-to-Portal Act of 1947 
(29 U.S.C. 259). Requests for such rulings and interpretations should be 
addressed to the Administrator, Wage and Hour Division, U.S. Department 
of Labor, Washington, DC 20210.

[82 FR 2226, Jan. 9, 2017]

[[Page 132]]



Sec.  5.14  Variations, tolerances, and exemptions from parts 1 and 3 
of this subtitle and this part.

    The Secretary of Labor may make variations, tolerances, and 
exemptions from the regulatory requirements of this part and those of 
parts 1 and 3 of this subtitle whenever the Secretary finds that such 
action is necessary and proper in the public interest or to prevent 
injustice and undue hardship. Variations, tolerances, and exemptions may 
not be made from the statutory requirements of any of the statutes 
listed in Sec.  5.1 unless the statute specifically provides such 
authority.



Sec.  5.15  Limitations, variations, tolerances, and exemptions under 
the Contract Work Hours and Safety Standards Act.

    (a) General. Upon his or her own initiative or upon the request of 
any Federal agency, the Secretary of Labor may provide under section 105 
of the Contract Work Hours and Safety Standards Act reasonable 
limitations and allow variations, tolerances, and exemptions to and from 
any or all provisions of that Act whenever the Secretary finds such 
action to be necessary and proper in the public interest to prevent 
injustice, or undue hardship, or to avoid serious impairment of the 
conduct of Government business. Any request for such action by the 
Secretary shall be submitted in writing, and shall set forth the reasons 
for which the request is made.
    (b) Exemptions. Pursuant to section 105 of the Contract Work Hours 
and Safety Standards Act, the following classes of contracts are found 
exempt from all provisions of that Act in order to prevent injustice, 
undue hardship, or serious impairment of Government business:
    (1) Contract work performed in a workplace within a foreign country 
or within territory under the jurisdiction of the United States other 
than the following: A State of the United States; the District of 
Columbia; Puerto Rico; the Virgin Islands; Outer Continental Shelf lands 
defined in the Outer Continental Shelf Lands Act (ch. 345, 67 Stat. 
462); American Samoa; Guam; Wake Island; Eniwetok Atoll; Kwajalein 
Atoll; and Johnston Island.
    (2) Agreements entered into by or on behalf of the Commodity Credit 
Corporation providing for the storing in or handling by commercial 
warehouses of wheat, corn, oats, barley, rye, grain sorghums, soybeans, 
flaxseed, rice, naval stores, tobacco, peanuts, dry beans, seeds, 
cotton, and wool.
    (3) Sales of surplus power by the Tennessee Valley Authority to 
States, counties, municipalities, cooperative organization of citizens 
or farmers, corporations and other individuals pursuant to section 10 of 
the Tennessee Valley Authority Act of 1933 (16 U.S.C. 8311).
    (c) Tolerances. (1) The ``basic rate of pay'' under section 102 of 
the Contract Work Hours and Safety Standards Act may be computed as an 
hourly equivalent to the rate on which time-and-one-half overtime 
compensation may be computed and paid under section 7 of the Fair Labor 
Standards Act of 1938, as amended (29 U.S.C. 207), as interpreted in 
part 778 of this title. This tolerance is found to be necessary and 
proper in the public interest in order to prevent undue hardship.
    (2) Concerning the tolerance provided in paragraph (c)(1) of this 
section, the provisions of section 7(d)(2) of the Fair Labor Standards 
Act and Sec.  778.7 of this title should be noted. Under these 
provisions, payments for occasional periods when no work is performed, 
due to vacations, and similar causes are excludable from the ``regular 
rate'' under the Fair Labor Standards Act. Such payments, therefore, are 
also excludable from the ``basic rate'' under the Contract Work Hours 
and Safety Standards Act.
    (3) See Sec.  5.8(c) providing a tolerance subdelegating authority 
to the heads of agencies to make appropriate adjustments in the 
assessment of liquidated damages totaling $500 or less under specified 
circumstances.
    (4)(i) Time spent in an organized program of related, supplemental 
instruction by laborers or mechanics employed under bona fide 
apprenticeship or training programs may be excluded from working time if 
the criteria prescribed in paragraphs (c)(4)(ii) and (iii) of this 
section are met.

[[Page 133]]

    (ii) The apprentice or trainee comes within the definition contained 
in Sec.  5.2(n).
    (iii) The time in question does not involve productive work or 
performance of the apprentice's or trainee's regular duties.
    (d) Variations. (1) In the event of failure or refusal of the 
contractor or any subcontractor to comply with overtime pay requirements 
of the Contract Work Hours and Safety Standards Act, if the funds 
withheld by Federal agencies for the violations are not sufficient to 
pay fully both the unpaid wages due laborers and mechanics and the 
liquidated damages due the United States, the available funds shall be 
used first to compensate the laborers and mechanics for the wages to 
which they are entitled (or an equitable portion thereof when the funds 
are not adequate for this purpose); and the balance, if any, shall be 
used for the payment of liquidated damages.
    (2) In the performance of any contract entered into pursuant to the 
provisions of 38 U.S.C. 620 to provide nursing home care of veterans, no 
contractor or subcontractor under such contract shall be deemed in 
violation of section 102 of the Contract Work Hours and Safety Standards 
Act by virtue of failure to pay the overtime wages required by such 
section for work in excess of 40 hours in the workweek to any individual 
employed by an establishment which is an institution primarily engaged 
in the care of the sick, the aged, or the mentally ill or defective who 
reside on the premises if, pursuant to an agreement or understanding 
arrived at between the employer and the employee before performance of 
the work, a work period of 14 consecutive days is accepted in lieu of 
the workweek of 7 consecutive days for the purpose of overtime 
compensation and if such individual receives compensation for employment 
in excess of 8 hours in any workday and in excess of 80 hours in such 
14-day period at a rate not less than 1\1/2\ times the regular rate at 
which the individual is employed, computed in accordance with the 
requirements of the Fair Labor Standards Act of 1938, as amended.
    (3) Any contractor or subcontractor performing on a government 
contract the principal purpose of which is the furnishing of fire 
fighting or suppression and related services, shall not be deemed to be 
in violation of section 102 of the Contract Work Hour and Safety 
Standards Act for failing to pay the overtime compensation required by 
section 102 of the Act in accordance with the basic rate of pay as 
defined in paragraph (c)(1) of this section, to any pilot or copilot of 
a fixed-wing or rotary-wing aircraft employed on such contract if:
    (i) Pursuant to a written employment agreement between the 
contractor and the employee which is arrived at before performance of 
the work.
    (A) The employee receives gross wages of not less than $300 per week 
regardless of the total number of hours worked in any workweek, and
    (B) Within any workweek the total wages which an employee receives 
are not less than the wages to which the employee would have been 
entitled in that workweek if the employee were paid the minimum hourly 
wage required under the contract pursuant to the provisions of the 
Service Contract Act of 1965 and any applicable wage determination 
issued thereunder for all hours worked, plus an additional premium 
payment of one-half times such minimum hourly wage for all hours worked 
in excess of 40 hours in the workweek;
    (ii) The contractor maintains accurate records of the total daily 
and weekly hours of work performed by such employee on the government 
contract. In the event these conditions for the exemption are not met, 
the requirements of section 102 of the Contract Work Hours and Safety 
Standards Act shall be applicable to the contract from the date the 
contractor or

[[Page 134]]

subcontractor fails to satisfy the conditions until completion of the 
contract.

(Reporting and recordkeeping requirements in paragraph (d)(2) have been 
approved by the Office of Management and Budget under control numbers 
1235-0023 and 1235-0018. Reporting and recordkeeping requirements in 
paragraph (d)(3)(ii) have been approved by the Office of Management and 
Budget under control number 1235-0018)

[48 FR 19541, Apr. 29, 1983, as amended at 51 FR 12265, Apr. 9, 1986; 61 
FR 40716, Aug. 5, 1996; 82 FR 2226, Jan. 9, 2017]



Sec.  5.16  Training plans approved or recognized by the Department of Labor 
prior to August 20, 1975.

    (a) Notwithstanding the provisions of Sec.  5.5(a)(4)(ii) relating 
to the utilization of trainees on Federal and federally assisted 
construction, no contractor shall be required to obtain approval of a 
training program which, prior to August 20, 1975, was approved by the 
Department of Labor for purposes of the Davis-Bacon and Related Acts, 
was established by agreement of organized labor and management and 
therefore recognized by the Department, and/or was recognized by the 
Department under Executive Order 11246, as amended. A copy of the 
program and evidence of its prior approval, if applicable shall be 
submitted to the Employment and Training Administration, which shall 
certify such prior approval or recognition of the program. In every 
other respect, the provisions of Sec.  5.5(a)(4)(ii)--including those 
relating to registration of trainees, permissible ratios, and wage rates 
to be paid--shall apply to these programs.
    (b) Every trainee employed on a contract executed on and after 
August 20, 1975, in one of the above training programs must be 
individually registered in the program in accordance with Employment and 
Training Administration procedures, and must be paid at the rate 
specified in the program for the level of progress. Any such employee 
listed on the payroll at a trainee rate who is not registered and 
participating in a program certified by ETA pursuant to this section, or 
approved and certified by ETA pursuant to Sec.  5.5(a)(4)(ii), must be 
paid the wage rate determined by the Secretary of Labor for the 
classification of work actually performed. The ratio of trainees to 
journeymen shall not be greater than permitted by the terms of the 
program.
    (c) In the event a program which was recognized or approved prior to 
August 20, 1975, is modified, revised, extended, or renewed, the changes 
in the program or its renewal must be approved by the Employment and 
Training Administration before they may be placed into effect.



Sec.  5.17  Withdrawal of approval of a training program.

    If at any time the Employment and Training Administration 
determines, after opportunity for a hearing, that the standards of any 
program, whether it is one recognized or approved prior to August 20, 
1975, or a program subsequently approved, have not been complied with, 
or that such a program fails to provide adequate training for 
participants, a contractor will no longer be permitted to utilize 
trainees at less than the predetermined rate for the classification of 
work actually performed until an acceptable program is approved.



Subpart B_Interpretation of the Fringe Benefits Provisions of the Davis-
                                Bacon Act

    Source: 29 FR 13465, Sept. 30, 1964, unless otherwise noted.



Sec.  5.20  Scope and significance of this subpart.

    The 1964 amendments (Pub. L. 88-349) to the Davis-Bacon Act require, 
among other things, that the prevailing wage determined for Federal and 
federally-assisted construction include: (a) The basic hourly rate of 
pay; and (b) the amount contributed by the contractor or subcontractor 
for certain fringe benefits (or the cost to them of such benefits). The 
purpose of this subpart is to explain the provisions of these 
amendments. This subpart makes available in one place official 
interpretations of the fringe benefits provisions of the Davis-Bacon 
Act. These interpretations will guide the Department of Labor in 
carrying out its responsibilities under these provisions. These 
interpretations are intended also for the guidance of

[[Page 135]]

contractors, their associations, laborers and mechanics and their 
organizations, and local, State and Federal agencies, who may be 
concerned with these provisions of the law. The interpretations 
contained in this subpart are authoritative and may be relied upon as 
provided for in section 10 of the Portal-to-Portal Act of 1947 (29 
U.S.C. 359). The omission to discuss a particular problem in this 
subpart or in interpretations supplementing it should not be taken to 
indicate the adoption of any position by the Secretary of Labor with 
respect to such problem or to constitute an administrative 
interpretation, practice, or enforcement policy. Questions on matters 
not fully covered by this subpart may be referred to the Secretary for 
interpretation as provided in Sec.  5.12.



Sec.  5.21  [Reserved]



Sec.  5.22  Effect of the Davis-Bacon fringe benefits provisions.

    The Davis-Bacon Act and the prevailing wage provisions of the 
related statutes listed in Sec.  1.1 of this subtitle confer upon the 
Secretary of Labor the authority to predetermine, as minimum wages, 
those wage rates found to be prevailing for corresponding classes of 
laborers and mechanics employed on projects of a character similar to 
the contract work in the area in which the work is to be performed. See 
paragraphs (a) and (b) of Sec.  1.2 of this subtitle. The fringe 
benefits amendments enlarge the scope of this authority by including 
certain bona fide fringe benefits within the meaning of the terms 
``wages'', ``scale of wages'', ``wage rates'', ``minimum wages'' and 
``prevailing wages'', as used in the Davis-Bacon Act.



Sec.  5.23  The statutory provisions.

    The fringe benefits provisions of the 1964 amendments to the Davis-
Bacon Act are, in part, as follows:

    (b) As used in this Act the term ``wages'', ``scale of wages'', 
``wage rates'', ``minimum wages'', and ``prevailing wages'' shall 
include--
    (1) The basic hourly rate of pay; and
    (2) The amount of--
    (A) The rate of contribution irrevocably made by a contractor or 
subcontractor to a trustee or to a third person pursuant to a fund, 
plan, or program; and
    (B) The rate of costs to the contractor or subcontractor which may 
be reasonably anticipated in providing benefits to laborers and 
mechanics pursuant to an enforceable commitment to carry out a 
financially responsible plan or program which was communicated in 
writing to the laborers and mechanics affected,

for medical or hospital care, pensions on retirement or death, 
compensation for injuries or illness resulting from occupational 
activity, or insurance to provide any of the foregoing, for unemployment 
benefits, life insurance, disability and sickness insurance, or accident 
insurance, for vacation and holiday pay, for defraying costs of 
apprenticeship or other similar programs, or for other bona fide fringe 
benefits, but only where the contractor or subcontractor is not required 
by other Federal, State, or local law to provide any of such benefits * 
* *.



Sec.  5.24  The basic hourly rate of pay.

    ``The basic hourly rate of pay'' is that part of a laborer's or 
mechanic's wages which the Secretary of Labor would have found and 
included in wage determinations prior to the 1964 amendments. The 
Secretary of Labor is required to continue to make a separate finding of 
this portion of the wage. In general, this portion of the wage is the 
cash payment made directly to the laborer or mechanic. It does not 
include fringe benefits.



Sec.  5.25  Rate of contribution or cost for fringe benefits.

    (a) Under the amendments, the Secretary is obligated to make a 
separate finding of the rate of contribution or cost of fringe benefits. 
Only the amount of contributions or costs for fringe benefits which meet 
the requirements of the act will be considered by the Secretary. These 
requirements are discussed in this subpart.
    (b) The rate of contribution or cost is ordinarily an hourly rate, 
and will be reflected in the wage determination as such. In some cases, 
however, the contribution or cost for certain fringe benefits may be 
expressed in a formula or method of payment other than an hourly rate. 
In such cases, the Secretary may in his discretion express in the wage 
determination the rate of contribution or cost used in the formula or 
method or may convert it to

[[Page 136]]

an hourly rate of pay whenever he finds that such action would 
facilitate the administration of the Act. See Sec.  5.5(a)(1)(i) and 
(iii).



Sec.  5.26  ``* * * contribution irrevocably made * * * to a trustee 
or to a third person''.

    Under the fringe benefits provisions (section 1(b)(2) of the Act) 
the amount of contributions for fringe benefits must be made to a 
trustee or to a third person irrevocably. The ``third person'' must be 
one who is not affiliated with the contractor or subcontractor. The 
trustee must assume the usual fiduciary responsibilities imposed upon 
trustees by applicable law. The trust or fund must be set up in such a 
way that in no event will the contractor or subcontractor be able to 
recapture any of the contributions paid in or any way divert the funds 
to his own use or benefit. Although contributions made to a trustee or 
third person pursuant to a benefit plan must be irrevocably made, this 
does not prevent return to the contractor or subcontractor of sums which 
he had paid in excess of the contributions actually called for by the 
plan, as where such excess payments result from error or from the 
necessity of making payments to cover the estimated cost of 
contributions at a time when the exact amount of the necessary 
contributions under the plan is not yet ascertained. For example, a 
benefit plan may provide for definite insurance benefits for employees 
in the event of the happening of a specified contingency such as death, 
sickness, accident, etc., and may provide that the cost of such definite 
benefits, either in full or any balance in excess of specified employee 
contributions, will be borne by the contractor or subcontractor. In such 
a case the return by the insurance company to the contractor or 
subcontractor of sums paid by him in excess of the amount required to 
provide the benefits which, under the plan, are to be provided through 
contributions by the contractor or subcontractor, will not be deemed a 
recapture or diversion by the employer of contributions made pursuant to 
the plan. (See Report of the Senate Committee on Labor and Public 
Welfare, S. Rep. No. 963, 88th Cong., 2d Sess., p. 5.)



Sec.  5.27  ``* * * fund, plan, or program''.

    The contributions for fringe benefits must be made pursuant to a 
fund, plan or program (sec. 1(b)(2)(A) of the act). The phrase ``fund, 
plan, or program'' is merely intended to recognize the various types of 
arrangements commonly used to provide fringe benefits through employer 
contributions. The phrase is identical with language contained in 
section 3(1) of the Welfare and Pension Plans Disclosure Act. In 
interpreting this phrase, the Secretary will be guided by the experience 
of the Department in administering the latter statute. (See Report of 
Senate Committee on Labor and Public Welfare, S. Rep. No. 963, 88th 
Cong., 2d Sess., p. 5.)



Sec.  5.28  Unfunded plans.

    (a) The costs to a contractor or subcontractor which may be 
reasonably anticipated in providing benefits of the types described in 
the act pursuant to an enforceable commitment to carry out a financially 
responsible plan or program, are considered fringe benefits within the 
meaning of the act (see 1(b)(2)(B) of the act). The legislative history 
suggests that these provisions were intended to permit the consideration 
of fringe benefits meeting, among others, these requirements and which 
are provided from the general assets of a contractor or subcontractor. 
(Report of the House Committee on Education and Labor, H. Rep. No. 308, 
88th Cong., 1st Sess., p. 4.)
    (b) No type of fringe benefit is eligible for consideration as a so-
called unfunded plan unless:
    (1) It could be reasonably anticipated to provide benefits described 
in the act;
    (2) It represents a commitment that can be legally enforced;
    (3) It is carried out under a financially responsible plan or 
program; and
    (4) The plan or program providing the benefits has been communicated 
in writing to the laborers and mechanics affected. (See S. Rep. No. 963, 
p. 6.)
    (c) It is in this manner that the act provides for the consideration 
of unfunded plans or programs in finding prevailing wages and in 
ascertaining compliance with the Act. At the same

[[Page 137]]

time, however, there is protection against the use of this provision as 
a means of avoiding the act's requirements. The words ``reasonably 
anticipated'' are intended to require that any unfunded plan or program 
be able to withstand a test which can perhaps be best described as one 
of actuarial soundness. Moreover, as in the case of other fringe 
benefits payable under the act, an unfunded plan or program must be 
``bona fide'' and not a mere simulation or sham for avoiding compliance 
with the act. (See S. Rep. No. 963, p. 6.) The legislative history 
suggests that in order to insure against the possibility that these 
provisions might be used to avoid compliance with the act, the committee 
contemplates that the Secretary of Labor in carrying out his 
responsibilities under Reorganization Plan No. 14 of 1950, may direct a 
contractor or subcontractor to set aside in an account assets which, 
under sound actuarial principles, will be sufficient to meet the future 
obligation under the plan. The preservation of this account for the 
purpose intended would, of course, also be essential. (S. Rep. No. 963, 
p. 6.) This is implemented by the contractual provisions required by 
Sec.  5.5(a)(1)(iv).



Sec.  5.29  Specific fringe benefits.

    (a) The act lists all types of fringe benefits which the Congress 
considered to be common in the construction industry as a whole. These 
include the following: Medical or hospital care, pensions on retirement 
or death, compensation for injuries or illness resulting from 
occupational activity, or insurance to provide any of the foregoing, 
unemployment benefits, life insurance, disability and sickness 
insurance, or accident insurance, vacation and holiday pay, defrayment 
of costs of apprenticeship or other similar programs, or other bona fide 
fringe benefits, but only where the contractor or subcontractor is not 
required by other Federal, State, or local law to provide any of such 
benefits.
    (b) The legislative history indicates that it was not the intent of 
the Congress to impose specific standards relating to administration of 
fringe benefits. It was assumed that the majority of fringe benefits 
arrangements of this nature will be those which are administered in 
accordance with requirements of section 302(c)(5) of the National Labor 
Relations Act, as amended (S. Rep. No. 963, p. 5).
    (c) The term ``other bona fide fringe benefits'' is the so-called 
``open end'' provision. This was included so that new fringe benefits 
may be recognized by the Secretary as they become prevailing. It was 
pointed out that a particular fringe benefit need not be recognized 
beyond a particular area in order for the Secretary to find that it is 
prevailing in that area. (S. Rep. No. 963, p. 6).
    (d) The legislative reports indicate that, to insure against 
considering and giving credit to any and all fringe benefits, some of 
which might be illusory or not genuine, the qualification was included 
that such fringe benefits must be ``bona fide'' (H. Rep. No. 308, p. 4; 
S. Rep. No. 963, p. 6). No difficulty is anticipated in determining 
whether a particular fringe benefit is ``bona fide'' in the ordinary 
case where the benefits are those common in the construction industry 
and which are established under a usual fund, plan, or program. This 
would be typically the case of those fringe benefits listed in paragraph 
(a) of this section which are funded under a trust or insurance program. 
Contractors may take credit for contributions made under such 
conventional plans without requesting the approval of the Secretary of 
Labor under Sec.  5.5(a)(1)(iv).
    (e) Where the plan is not of the conventional type described in the 
preceding paragraph, it will be necessary for the Secretary to examine 
the facts and circumstances to determine whether they are ``bona fide'' 
in accordance with requirements of the act. This is particularly true 
with respect to unfunded plans. Contractors or subcontractors seeking 
credit under the act for costs incurred for such plans must request 
specific permission from the Secretary under Sec.  5.5(a)(1)(iv).
    (f) The act excludes fringe benefits which a contractor or 
subcontractor is obligated to provide under other Federal, State, or 
local law. No credit may

[[Page 138]]

be taken under the act for the payments made for such benefits. For 
example, payment for workmen's compensation insurance under either a 
compulsory or elective State statute are not considered payments for 
fringe benefits under the Act. While each situation must be separately 
considered on its own merits, payments made for travel, subsistence or 
to industry promotion funds are not normally payments for fringe 
benefits under the Act. The omission in the Act of any express reference 
to these payments, which are common in the construction industry, 
suggests that these payments should not normally be regarded as bona 
fide fringe benefits under the Act.



Sec.  5.30  Types of wage determinations.

    (a) When fringe benefits are prevailing for various classes of 
laborers and mechanics in the area of proposed construction, such 
benefits are includable in any Davis-Bacon wage determination. 
Illustrations, contained in paragraph (c) of this section, demonstrate 
some of the different types of wage determinations which may be made in 
such cases.
    (b) Wage determinations of the Secretary of Labor under the act do 
not include fringe benefits for various classes of laborers and 
mechanics whenever such benefits do not prevail in the area of proposed 
construction. When this occurs the wage determination will contain only 
the basic hourly rates of pay, that is only the cash wages which are 
prevailing for the various classes of laborers and mechanics. An 
illustration of this situation is contained in paragraph (c) of this 
section.
    (c) Illustrations:

----------------------------------------------------------------------------------------------------------------
                                                                     Fringe benefits payments
                                         Basic   ---------------------------------------------------------------
               Classes                  hourly    Health and                          Apprenticeship
                                         rates      welfare    Pensions    Vacations      program       Others
----------------------------------------------------------------------------------------------------------------
Laborers............................       $3.25  ..........  ..........  ..........  ..............  ..........
Carpenters..........................        4.00       $0.15  ..........  ..........  ..............  ..........
Painters............................        3.90         .15       $0.10       $0.20  ..............  ..........
Electricians........................        4.85         .10         .15  ..........  ..............  ..........
Plumbers............................        4.95         .15         .20  ..........         $0.05    ..........
Ironworkers.........................        4.60  ..........  ..........         .10  ..............  ..........
----------------------------------------------------------------------------------------------------------------
(It should be noted this format is not necessarily in the exact form in which determinations will issue; it is
  for illustration only.)



Sec.  5.31  Meeting wage determination obligations.

    (a) A contractor or subcontractor performing work subject to a 
Davis-Bacon wage determination may discharge his minimum wage 
obligations for the payment of both straight time wages and fringe 
benefits by paying in cash, making payments or incurring costs for 
``bona fide'' fringe benefits of the types listed in the applicable wage 
determination or otherwise found prevailing by the Secretary of Labor, 
or by a combination thereof.
    (b) A contractor or subcontractor may discharge his obligations for 
the payment of the basic hourly rates and the fringe benefits where both 
are contained in a wage determination applicable to his laborers or 
mechanics in the following ways:
    (1) By paying not less than the basic hourly rate to the laborers or 
mechanics and by making the contributions for the fringe benefits in the 
wage determinations, as specified therein. For example, in the 
illustration contained in paragraph (c) of Sec.  5.30, the obligations 
for ``painters'' will be met by the payment of a straight time hourly 
rate of not less than $3.90 and by contributing not less than at the 
rate of 15 cents an hour for health and welfare benefits, 10 cents an 
hour for pensions, and 20 cents an hour for vacations; or
    (2) By paying not less than the basic hourly rate to the laborers or 
mechanics and by making contributions for ``bona fide'' fringe benefits 
in a total amount not less than the total of the fringe benefits 
required by the wage determination. For example, the obligations for 
``painters'' in the illustration in paragraph (c) of Sec.  5.30 will be 
met by the payment of a straight time hourly rate of not less than $3.90 
and by contributions of not less than a total of 45

[[Page 139]]

cents an hour for ``bona fide'' fringe benefits; or
    (3) By paying in cash directly to laborers or mechanics for the 
basic hourly rate and by making an additional cash payment in lieu of 
the required benefits. For example, where an employer does not make 
payments or incur costs for fringe benefits, he would meet his 
obligations for ``painters'' in the illustration in paragraph (c) of 
Sec.  5.30, by paying directly to the painters a straight time hourly 
rate of not less than $4.35 ($3.90 basic hourly rate plus 45 cents for 
fringe benefits); or
    (4) As stated in paragraph (a) of this section, the contractor or 
subcontractor may discharge his minimum wage obligations for the payment 
of straight time wages and fringe benefits by a combination of the 
methods illustrated in paragraphs (b)(1) thru (3) of this section. Thus, 
for example, his obligations for ``painters'' may be met by an hourly 
rate, partly in cash and partly in payments or costs for fringe benefits 
which total not less than $4.35 ($3.90 basic hourly rate plus 45 cents 
for fringe benefits). The payments in such case may be $4.10 in cash and 
25 cents in payments or costs in fringe benefits. Or, they may be $3.75 
in cash and 60 cents in payments or costs for fringe benefits.

[30 FR 13136, Oct. 15, 1965]



Sec.  5.32  Overtime payments.

    (a) The act excludes amounts paid by a contractor or subcontractor 
for fringe benefits in the computation of overtime under the Fair Labor 
Standards Act, the Contract Work Hours and Safety Standards Act, and the 
Walsh-Healey Public Contracts Act whenever the overtime provisions of 
any of these statutes apply concurrently with the Davis-Bacon Act or its 
related prevailing wage statutes. It is clear from the legislative 
history that in no event can the regular or basic rate upon which 
premium pay for overtime is calculated under the aforementioned Federal 
statutes be less than the amount determined by the Secretary of Labor as 
the basic hourly rate (i.e. cash rate) under section 1(b)(1) of the 
Davis-Bacon Act. (See S. Rep. No. 963, p. 7.) Contributions by employees 
are not excluded from the regular or basic rate upon which overtime is 
computed under these statutes; that is, an employee's regular or basic 
straight-time rate is computed on his earnings before any deductions are 
made for the employee's contributions to fringe benefits. The 
contractor's contributions or costs for fringe benefits may be excluded 
in computing such rate so long as the exclusions do not reduce the 
regular or basic rate below the basic hourly rate contained in the wage 
determination.
    (b) The legislative report notes that the phrase ``contributions 
irrevocably made by a contractor or subcontractor to a trustee or to a 
third person pursuant to a fund, plan, or program'' was added to the 
bill in Committee. This language in essence conforms to the overtime 
provisions of section 7(d)(4) of the Fair Labor Standards Act, as 
amended. The intent of the committee was to prevent any avoidance of 
overtime requirements under existing law. See H. Rep. No. 308, p. 5.
    (c)(1) The act permits a contractor or subcontractor to pay a cash 
equivalent of any fringe benefits found prevailing by the Secretary of 
Labor. Such a cash equivalent would also be excludable in computing the 
regular or basic rate under the Federal overtime laws mentioned in 
paragraph (a). For example, the W construction contractor pays his 
laborers or mechanics $3.50 in cash under a wage determination of the 
Secretary of Labor which requires a basic hourly rate of $3 and a fringe 
benefit contribution of 50 cents. The contractor pays the 50 cents in 
cash because he made no payments and incurred no costs for fringe 
benefits. Overtime compensation in this case would be computed on a 
regular or basic rate of $3.00 an hour. However, in some cases a 
question of fact may be presented in ascertaining whether or not a cash 
payment made to laborers or mechanics is actually in lieu of a fringe 
benefit or is simply part of their straight time cash wage. In the 
latter situation, the cash payment is not excludable in computing 
overtime compensation. Consider the examples set forth in paragraphs 
(c)(2) and (3) of this section.
    (2) The X construction contractor has for some time been paying 
$3.25 an

[[Page 140]]

hour to a mechanic as his basic cash wage plus 50 cents an hour as a 
contribution to a welfare and pension plan. The Secretary of Labor 
determines that a basic hourly rate of $3 an hour and a fringe benefit 
contribution of 50 cents are prevailing. The basic hourly rate or 
regular rate for overtime purposes would be $3.25, the rate actually 
paid as a basic cash wage for the employee of X, rather than the $3 rate 
determined as prevailing by the Secretary of Labor.
    (3) Under the same prevailing wage determination, discussed in 
paragraph (c)(2) of this section, the Y construction contractor who has 
been paying $3 an hour as his basic cash wage on which he has been 
computing overtime compensation reduces the cash wage to $2.75 an hour 
but computes his costs of benefits under section 1(b)(2)(B) as $1 an 
hour. In this example the regular or basic hourly rate would continue to 
be $3 an hour. See S. Rep. No. 963, p. 7.



 PART 6_RULES OF PRACTICE FOR ADMINISTRATIVE PROCEEDINGS ENFORCING 
 LABOR STANDARDS IN FEDERAL AND FEDERALLY ASSISTED CONSTRUCTION CONTRACTS 
 AND FEDERAL SERVICE CONTRACTS--Table of Contents



                            Subpart A_General

Sec.
6.1 Applicability of rules.
6.2 Definitions.
6.3 Service; copies of documents and pleadings.
6.4 Subpoenas (Service Contract Act).
6.5 Production of documents and witnesses.
6.6 Administrative Law Judge.
6.7 Appearances.
6.8 Transmission of record.

 Subpart B_Enforcement Proceedings Under the Service Contract Act (and 
  Under the Contract Work Hours and Safety Standards Act for Contracts 
                  Subject to the Service Contract Act)

6.15 Complaints.
6.16 Answers.
6.17 Amendments to pleadings.
6.18 Consent findings and order.
6.19 Decision of the Administrative Law Judge.
6.20 Petition for review.
6.21 Ineligible list.

Subpart C_Enforcement Proceedings Under the Davis-Bacon Act and Related 
Prevailing Wage Statutes, the Copeland Act, and the Contract Work Hours 
and Safety Standards Act (Except Under Contracts Subject to the Service 
                              Contract Act)

6.30 Referral to Chief Administrative Law Judge.
6.31 Amendments to pleadings.
6.32 Consent findings and order.
6.33 Decision of the Administrative Law Judge.
6.34 Petition for review.
6.35 Ineligible lists.

               Subpart D_Substantial Interest Proceedings

6.40 Scope.
6.41 Referral to Chief Administrative Law Judge.
6.42 Amendments to pleadings.
6.43 Consent findings and order.
6.44 Decision of the Administrative Law Judge.
6.45 Petition for review.
6.46 Ineligible list.

       Subpart E_Substantial Variance and Arm's-Length Proceedings

6.50 Scope.
6.51 Referral to Chief Administrative Law Judge.
6.52 Appointment of Administrative Law Judge and notification of 
          prehearing conference and hearing date.
6.53 Prehearing conference.
6.54 Hearing.
6.55 Closing of record.
6.56 Decision of the Administrative Law Judge.
6.57 Petition for review.

    Authority: Secs. 4 and 5, 79 Stat. 1034, 1035 as amended by 86 Stat. 
789, 790, 41 U.S.C. 353 and 354; 5 U.S.C. 301; Reorg. Plan No. 14 of 
1950, 64 Stat. 1267, 5 U.S.C. Appendix; 46 Stat. 1494, as amended by 49 
Stat. 1011, 78 Stat. 238, 40 U.S.C. 276a-276a-7; 76 Stat. 357-359, 40 
U.S.C. 327-332; 48 Stat. 948, as amended by 63 Stat. 108, 72 Stat. 967, 
40 U.S.C. 276c.

    Source: 49 FR 10627, Mar. 21, 1984, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 6 appear at 61 FR 
19984, May 3, 1996.

[[Page 141]]



                            Subpart A_General



Sec.  6.1  Applicability of rules.

    This part provides the rules of practice for administrative 
proceedings under the Service Contract Act, the Davis-Bacon Act and 
related statutes listed in Sec.  5.1 of part 5 of this title which 
require payment of wages determined in accordance with the Davis-Bacon 
Act, the Contract Work Hours and Safety Standards Act, and the Copeland 
Act. See parts 4 and 5 of this title.



Sec.  6.2  Definitions.

    (a) Administrator means the Administrator of the Wage and Hour 
Division, U.S. Department of Labor, or authorized representative.
    (b) Associate Solicitor means the Associate Solicitor for Fair Labor 
Standards, Office of the Solicitor, U.S. Department of Labor, 
Washington, DC 20210.
    (c) Chief Administrative Law Judge means the Chief Administrative 
Law Judge, U.S. Department of Labor, 800 K Street, NW., Suite 400, 
Washington DC 20001-8002.
    (d) Respondent means the contractor, subcontractor, person alleged 
to be responsible under the contract or subcontract, and/or any firm, 
corporation, partnership, or association in which such person or firm is 
alleged to have a substantial interest (or interest, if the proceeding 
is under the Davis-Bacon Act) against whom the proceedings are brought.

[49 FR 10627, Mar. 21, 1984, as amended at 56 FR 54708, Oct. 22, 1991; 
82 FR 2226, Jan. 9, 2017]



Sec.  6.3  Service; copies of documents and pleadings.

    (a) Manner of service. Service upon any party shall be made by the 
party filing the pleading or document by delivering a copy or mailing a 
copy to the last known address. When a party is represented by an 
attorney, the service should be upon the attorney.
    (b) Proof of service. A certificate of the person serving the 
pleading or other document by personal delivery or by mailing, setting 
forth the manner of said service shall be proof of the service. Where 
service is made by mail, service shall be complete upon mailing. 
However, documents are not deemed filed until received by the Chief 
Clerk at the Office of Administrative Law Judges and where documents are 
filed by mail 5 days shall be added to the prescribed period.
    (c) Service upon Department, number of copies of pleading or other 
documents. An original and three copies of all pleadings and other 
documents shall be filed with the Department of Labor: The original and 
one copy with the Administrative Law Judge before whom the case is 
pending, one copy with the attorney representing the Department during 
the hearing, and one copy with the Associate Solicitor.



Sec.  6.4  Subpoenas (Service Contract Act).

    All applications under the Service Contract Act for subpoenas ad 
testificandum and subpoenas duces tecum shall be made in writing to the 
Administrative Law Judge. Application for subpoenas duces tecum shall 
specify as exactly as possible the documents to be produced.



Sec.  6.5  Production of documents and witnesses.

    The parties, who shall be deemed to be the Department of Labor and 
the respondent(s), may serve on any other party a request to produce 
documents or witnesses in the control of the party served, setting forth 
with particularity the documents or witnesses requested. The party 
served shall have 15 days to respond or object thereto unless a shorter 
or longer time is ordered by the Administrative Law Judge. The parties 
shall produce documents and witnesses to which no privilege attaches 
which are in the control of the party, if so ordered by the 
Administrative Law Judge upon motion therefor by a party. If a privilege 
is claimed, it must be specifically claimed in writing prior to the 
hearing or orally at the hearing or deposition, including the reasons 
therefor. In no event shall a statement taken in confidence by the 
Department of Labor or other Federal agency be ordered to be produced 
prior to the date of testimony at trial of the person whose statement is 
at issue unless the consent of such person has been obtained.

[[Page 142]]



Sec.  6.6  Administrative Law Judge.

    (a) Equal Access to Justice Act. Proceedings under this part are not 
subject to the provisions of the Equal Access to Justice Act (Pub. L. 
96-481). In any hearing conducted pursuant to the provisions of this 
part 6, Administrative Law Judges shall have no power or authority to 
award attorney fees and/or other litigation expenses pursuant to the 
provisions of the Equal Access to Justice Act.
    (b) Contumacious conduct: failure or refusal of a witness to appear 
or answer. Contumacious conduct at any hearing before an Administrative 
Law Judge shall be ground for exclusion from the hearing., In cases 
arising under the Service Contract Act, the failure or refusal of a 
witness to appear at any hearing or at a deposition when so ordered by 
the Administrative Law Judge, or to answer any question which has been 
ruled to be proper, shall be ground for the action provided in section 5 
of the Act of June 30, 1936 (41 U.S.C. 39) and, in the discretion of the 
Administrative Law Judge, for striking out all or part of the testimony 
which may have been given by such witness.



Sec.  6.7  Appearances.

    (a) Representation. The parties may appear in person, by counsel, or 
otherwise.
    (b) Failure to appear. In the event that a party appears at the 
hearing and no party appears for the opposing side, the presiding 
Administrative Law Judge is authorized, if such party fails to show good 
cause for such failure to appear, to dismiss the case or to find the 
facts as alleged in the complaint and to enter a default judgment 
containing such findings, conclusions and order as are appropriate. Only 
where a petition for review of such default judgment cites alleged 
procedural irregularities in the proceeding below and not the merits of 
the case shall a non-appearing party be permitted to file such a 
petition for review. Failure to appear at a hearing shall not be deemed 
to be a waiver of the right to be served with a copy of the 
Administrative Law Judge's decision.



Sec.  6.8  Transmission of record.

    If a petition for review of the Administrative Law Judge's decision 
is filed with the Administrative Review Board, the Chief Administrative 
Law Judge shall promptly transmit the record of the proceeding.
    If a petition for review is not filed within the time prescribed in 
this part, the Chief Administrative Law Judge shall so advise the 
Administrator.



 Subpart B_Enforcement Proceedings Under the Service Contract Act (and 
  Under the Contract Work Hours and Safety Standards Act for Contracts 
                  Subject to the Service Contract Act)



Sec.  6.15  Complaints.

    (a) Enforcement proceedings under the Service Contract Act and under 
the Contract Work Hours and Safety Standards Act for contracts subject 
to the Service Contract Act, may be instituted by the Associate 
Solicitor for Fair Labor Standards or a Regional Solicitor by issuing a 
complaint and causing the complaint to be served upon the respondent.
    (b) The complaint shall contain a clear and concise factual 
statement of the grounds for relief and the relief requested.
    (c) The Administrative Law Judge shall notify the parties of the 
time and place for a hearing.



Sec.  6.16  Answers.

    (a) Within 30 days after the service of the complaint the respondent 
shall file an answer with the Chief Administrative Law Judge. The answer 
shall be signed by the respondent or his/her attorney.
    (b) The answer shall (1) contain a statement of the facts which 
constitute the grounds of defense, and shall specifically admit, 
explain, or deny each of the allegations of the complaint unless the 
respondent is without knowledge, in which case the answer shall so 
state; or (2) state that the respondent admits all of the allegations of 
the complaint. The answer may contain a

[[Page 143]]

waiver of hearing. Failure to file an answer to or plead specifically to 
any allegation of the complaint shall constitute an admission of such 
allegation.
    (c) Failure to file an answer shall constitute grounds for waiver of 
hearing and entry of a default judgment unless respondent shows good 
cause for such failure to file. In preparing the decision of default 
judgment the Administrative Law Judge shall adopt as findings of fact 
the material facts alleged in the complaint and shall order the 
appropriate relief and/or sanctions.



Sec.  6.17  Amendments to pleadings.

    At any time prior to the close of the hearing record, the complaint 
or answer may be amended with the permission of the Administrative Law 
Judge and on such terms as he/she may approve. When issues not raised by 
the pleadings are reasonably within the scope of the original complaint 
and are tried by express or implied consent of the parties, they shall 
be treated in all respects as if they had been raised in the pleadings, 
and such amendments may be made as necessary to make them conform to the 
evidence. Such amendments shall be allowed when justice and the 
presentation of the merits are served thereby, provided there is no 
prejudice to the objecting party's presentation on the merits. A 
continuance in the hearing may be granted or the record left open to 
enable the new allegations to be addressed. The presiding Administrative 
Law Judge may, upon reasonable notice and upon such terms as are just, 
permit supplemental pleadings setting forth transactions, occurrences or 
events which have happened since the data of the pleadings and which are 
relevant to any of the issues involved.



Sec.  6.18  Consent findings and order.

    (a) At any time prior to the receipt of evidence or, at the 
discretion of the Administrative Law Judge, prior to the issuance of the 
decision of the Administrative Law Judge, the parties may enter into 
consent findings and an order disposing of the processings in whole or 
in part.
    (b) Any agreement containing consent findings and an order disposing 
of a proceeding in whole or in part shall also provide:
    (1) That the order shall have the same force and effect as an order 
made after full hearing;
    (2) That the entire record on which any order may be based shall 
consist solely of the complaint and the agreement;
    (3) A waiver of any further procedural steps before the 
Administrative Law Judge and Administrative Review Board regarding those 
matters which are the subject of the agreement; and
    (4) A waiver of any right to challenge or contest the validity of 
the findings and order entered into in accordance with the agreement.
    (c) Within 30 days after receipt of an agreement containing consent 
findings and an order disposing of the disputed matter in whole, the 
Administrative Law Judge shall, if satisfied with its form and 
substance, accept such agreement by issuing a decision based upon the 
agreed findings and order. If such agreement disposes of only a part of 
the disputed matter, a hearing shall be conducted on the matters 
remaining in dispute.



Sec.  6.19  Decision of the Administrative Law Judge.

    (a) Proposed findings of fact, conclusions, and order. Within 20 
days of filing of the transcript of the testimony or such additional 
time as the Administrative Law Judge may allow each party may file with 
the Administrative Law Judge proposed findings of fact, conclusion of 
law, and order, together with a supporting brief expressing the reasons 
for such proposals. Such proposals and brief shall be served on all 
parties, and shall refer to all portions of the record and to all 
authorities relied upon in support of each proposal.
    (b) Decision of the Administrative Law Judge. (1) Within a 
reasonable time after the time allowed for the filing of proposed 
findings of fact, conclusions of law, and order, or within 30 days after 
receipt of an agreement containing consent findings and order disposing 
of the disputed matter in whole, the Administrative Law Judge shall make 
his/her decision. If any aggrieved party desires review of the decision, 
a petition for review thereof shall be

[[Page 144]]

filed as provided in Sec.  6.20 of this title, and such decision and 
order shall be inoperative unless and until the Administrative Review 
Board issues an order affirming the decision. The decision of the 
Administrative Law Judge shall include findings of fact and conclusions 
of law, with reasons and bases therefor, upon each material issue of 
fact, law, or discretion presented on the record. The decision of the 
Administrative Law Judge shall be based upon a consideration of the 
whole record, including any admissions made under Sec. Sec.  6.16, 6.17 
and 6.18 of this title. It shall be supported by reliable and probative 
evidence. Such decision shall be in accordance with the regulations and 
rulings contained in parts 4 and 5 and other pertinent parts of this 
title.
    (2) If the respondent is found to have violated the Service Contract 
Act, the Administrative Law Judge shall include in his/her decision an 
order as to whether the respondent is to be relieved from the ineligible 
list as provided in section 5(a) of the Act, and, if relief is ordered, 
findings of the unusual circumstance, within the meaning of section 5(a) 
of the Act, which are the basis therefor. If respondent is found to have 
violated the provisions of the Contract Work Hours and Safety Standards 
Act, the Administrative Law Judge shall issue an order as to whether the 
respondent is to be subject to the ineligible list as provided in Sec.  
5.12(a)(1) of part 4 of this title, including findings regarding the 
existence of aggravated or willful violations. If wages and/or fringe 
benefits are found due under the Service Contract Act and/or the 
Contract Work Safety Standards Act and are unpaid, no relief from the 
ineligible list shall be ordered except on condition that such wages 
and/or fringe benefits are paid.
    (3) The Administrative Law Judge shall make no findings regarding 
liquidated damages under the Contract Work Hours and Safety Standards 
Act.



Sec.  6.20  Petition for review.

    Within 40 days after the date of the decision of the Administrative 
Law Judge (or such additional time as is granted by the Administrative 
Review Board), any party aggrieved thereby who desires review thereof 
shall file a petition for review of the decision with supporting 
reasons. Such party shall transmit the petition in writing to the 
Administrative Review Board pursuant to 29 CFR part 8, with a copy 
thereof to the Chief Administrative Law Judge. The petition shall refer 
to the specific findings of fact, conclusions of law, or order at issue. 
A petition concerning the decision on the ineligibility list shall also 
state the unusual circumstances or lack thereof under the Service 
Contract Act, and/or the aggravated or willful violations of the 
Contract Work Hours and Safety Standards Act or lack thereof, as 
appropriate.



Sec.  6.21  Ineligible list.

    (a) Upon the final decision of the Administrative Law Judge or 
Administrative Review Board, as appropriate, the Administrator shall 
within 90 days forward to the Comptroller General the name of any 
respondent found in violation of the Service Contract Act, including the 
name of any firm, corporation, partnership, or association in which the 
respondent has a substantial interest, unless such decision orders 
relief from the ineligible list because of unusual circumstances.
    (b) Upon the final decision of the Administrative Law Judge or the 
Administrative Review Board, as appropriate, the Administrator promptly 
shall forward to the Comptroller General the name of any respondent 
found to be in aggravated or willful violation of the Contract Work 
Hours and Safety Standards Act, and the name of any firm, corporation, 
partnership, or association in which the respondent has a substantial 
interest.

[[Page 145]]



Subpart C_Enforcement Proceedings Under the Davis-Bacon Act and Related 
Prevailing Wage Statutes, the Copeland Act, and the Contract Work Hours 
and Safety Standards Act (Except Under Contracts Subject to the Service 
                              Contract Act)



Sec.  6.30  Referral to Chief Administrative Law Judge.

    (a) Upon timely receipt of a request for a hearing under Sec.  5.11 
(where the Administrator has determined that relevant facts are in 
dispute) or Sec.  5.12 of part 5 of this title, the Administrator shall 
refer the case to the Chief Administrative Law Judge by Order of 
Reference, to which shall be attached a copy of the notification letter 
to the respondent from the Administrator and response thereto, for 
designation of an Administrative Law Judge to conduct such hearings as 
may be necessary to decide the disputed matters. A copy of the Order of 
Reference and attachments thereto shall be served upon the respondent.
    (b) The notification letter from the Administrator and response 
thereto shall be given the effect of a complaint and answer, 
respectively, for purposes of the administrative proceedings. The 
notification letter and response shall be in accordance with the 
provisions of Sec.  5.11 or Sec.  5.12(b)(1) of part 5 of this title, as 
appropriate.



Sec.  6.31  Amendments to pleadings.

    At any time prior to the closing of the hearing record, the 
complaint (notification letter) or answer (response) may be amended with 
the permission of the Administrative Law Judge and upon such terms as 
he/she may approve. For proceedings pursuant to Sec.  5.11 of part 5 of 
this title, such an amendment may include a statement that debarment 
action is warranted under Sec.  5.12(a)(1) of part 5 of this title or 
under section 3(a) of the Davis-Bacon Act. Such amendments shall be 
allowed when justice and the presentation of the merits are served 
thereby, provided there is no prejudice to the objecting party's 
presentation on the merits. When issues not raised by the pleadings are 
reasonably within the scope of the original complaint and are tried by 
express or implied consent of the parties, they shall be treated in all 
respects as if they had been raised in the pleadings, and such 
amendments may be made as necessary to make them conform to the 
evidence. The presiding Administrative Law Judge may, upon reasonable 
notice and upon such terms as are just, permit supplemental pleadings 
setting forth transactions, occurrences or events which have happened 
since the date of the pleadings and which are relevant to any of the 
issues involved. A continuance in the hearing may be granted or the 
record left open to enable the new allegations to be addressed.



Sec.  6.32  Consent findings and order.

    (a) At any time prior to the receipt of evidence or, at the 
discretion of the Administrative Law Judge, prior to the issuance of the 
decision of the Administrative Law Judge, the parties may enter into 
consent findings and an order disposing of the proceeding in whole or in 
part.
    (b) Any agreement containing consent findings and an order disposing 
of a proceeding in whole or in part shall also provide:
    (1) That the order shall have the same force and effect as an order 
made after full hearing;
    (2) That the entire record on which any order may be based shall 
consist solely of the complaint and the agreement;
    (3) That any order concerning debarment under the Davis-Bacon Act 
(but not under any of the other statutes listed in Sec.  5.1 of part 5 
of this title) shall constitute a recommendation to the Comptroller 
General;
    (4) A waiver of any further procedural steps before the 
Administrative Law Judge and the Administrative Review Board regarding 
those matters which are the subject of the agreement; and
    (5) A waiver of any right to challenge or contest the validity of 
the findings and order entered into in accordance with the agreement.
    (c) Within 30 days after receipt of an agreement containing consent 
findings and an order disposing of the disputed

[[Page 146]]

matter in whole, the Administrative Law Judge shall, if satisfied with 
its form and substance, accept such agreement by issuing a decision 
based upon the agreed findings and order. If such agreement disposes of 
only a part of the disputed matter, a hearing shall be conducted on the 
matters remaining in dispute.



Sec.  6.33  Decision of the Administrative Law Judge.

    (a) Proposed findings of fact, conclusions, and order. Within 20 
days of filing of the transcript of the testimony or such additional 
time as the Administrative Law Judge may allow, each party may file with 
the Administrative Law Judge proposed findings of fact, conclusions of 
law, and order, together with a supporting brief expressing the reasons 
for such proposals. Such proposals and brief shall be served on all 
parties, and shall refer to all portions of the record and to all 
authorities relied upon in support of each proposal.
    (b) Decision of the Administrative Law Judge. (1) Within a 
reasonable time after the time allowed for filing of proposed findings 
of fact, conclusions of law, and order, or within 30 days of receipt of 
an agreement containing consent findings and order disposing of the 
disputed matter in whole, the Administrative Law Judge shall make his/
her decision. If any aggrieved party desires review of the decision, a 
petition for review thereof shall be filed as provided in Sec.  6.34 of 
this title, and such decision and order shall be inoperative unless and 
until the Administrative Review Board either declines to review the 
decision or issues an order affirming the decision. The decision of the 
Administrative Law Judge shall include findings of fact and conclusions 
of law, with reasons and bases therefor, upon each material issue of 
fact, law, or discretion presented on the record. Such decision shall be 
in accordance with the regulations and rulings contained in part 5 and 
other pertinent parts of this title. The decision of the Administrative 
Law Judge shall be based upon a consideration of the whole record, 
including any admissions made in the respondent's answer (response) and 
Sec.  6.32 of this title. It shall be supported by reliable and 
probative evidence.
    (2) If the respondent is found to have violated the labor standards 
provisions of any of the statutes listed in Sec.  5.1 of part 5 of this 
title other than the Davis-Bacon Act, and if debarment action was 
requested pursuant to the complaint (notification letter) or any 
amendment thereto, the Administrative Law Judge shall issue an order as 
to whether the respondent is to be subject to the ineligible list as 
provided in Sec.  5.12(a)(1) of this title, including any findings of 
aggravated or willful violations. If the respondent is found to have 
violated the Davis-Bacon Act, and if debarment action was requested, the 
Administrative Law Judge shall issue as a part of the order a 
recommendation as to whether respondent should be subject to the 
ineligible list pursuant to section 3(a) of the Act, including any 
findings regarding respondent's disregard of obligations to employees 
and subcontractors. If wages are found due and are unpaid, no relief 
from the ineligible list shall be ordered or recommended except on 
condition that such wages are paid.
    (3) The Administrative Law Judge shall make no findings regarding 
liquidated damages under the Contract Work Hours and Safety Standards 
Act.



Sec.  6.34  Petition for review.

    Within 40 days after the date of the decision of the Administrative 
Law judge (or such additional time as is granted by the Administrative 
Review Board). any party aggrieved thereby who desires review thereof 
shall file a petition for review of the decision with supporting 
reasons. Such party shall transmit the petition in writing to the 
Administrative Review Board, pursuant to part 7 of this title, with a 
copy thereof to the Chief Administrative Law judge. The petition shall 
refer to the specific findings of fact, conclusions of law, or order at 
issue. A petition concerning the decision on debarment shall also state 
the aggravated or willful violations and/or disregard of obligations to 
employees and subcontractors, or lack thereof, as appropriate.

[[Page 147]]



Sec.  6.35  Ineligible lists.

    Upon the final decision of the Administrative Law Judge or 
Administrative Review Board, as appropriate, regarding violations of any 
statute listed in Sec.  5.1 of part 5 of this title other than the 
Davis-Bacon Act, the Administrator promptly shall foward to the 
Comptroller General the name of any respondent found to have committed 
aggravated or willful violations of the labor standards provisions of 
such statute, and the name of any firm, corporation, partnership, or 
association in which such respondent has a substantial interest. Upon 
the final decision of the Administrative Law Judge or Administrative 
Review Board, as appropriate, regarding violations of the Davis-Bacon 
Act, the Administrator promptly shall forward to the Comptroller General 
any recommendation regarding debarment action against a respondent, and 
the name of any firm, corporation, partnership, or association in which 
such respondent has an interest.



               Subpart D_Substantial Interest Proceedings



Sec.  6.40  Scope.

    This subpart supplements the procedures contained in Sec.  4.12 of 
part 4 and Sec.  5.12(d) of part 5 of this title, and states the rules 
of practice applicable to hearings to determine whether persons of firms 
whose names appear on the ineligible list pursuant to section 5(a) of 
the Service Contract Act or Sec.  5.12(a)(1) of part 5 of this title 
have a substantial interest in any firm, corporation, partnership, or 
association other than those listed on the ineligible list; and/or to 
determine whether persons or firms whose names appear on the ineligible 
list pursuant to section 3(a) of the Davis-Bacon Act have an interest in 
any firm, corporation, partnership, or association other than those 
listed on the ineligible list.



Sec.  6.41  Referral to Chief Administrative Law Judge.

    (a) Upon timely receipt of a request for a hearing under Sec.  4.12 
of part 4 or Sec.  5.12 of part 5 of this title, where the Administrator 
has determined that relevant facts are in dispute, or on his/her own 
motion, the Administrator shall refer the case to the Chief 
Administrative Law Judge by Order of Reference, to which shall be 
attached a copy of any findings of the Administrator and response 
thereto, for designation of an Administrative Law Judge to conduct such 
hearings as may be necessary to decide the disputed matters. A copy of 
the Order of Reference and attachments thereto shall be served upon the 
person or firm requesting the hearing, if any and upon the respondents.
    (b) The findings of the Administrator and response thereto shall be 
given the effect of a complaint and answer, respectively, for purposes 
of the administrative proceedings.



Sec.  6.42  Amendments to pleadings.

    At any time prior to the closing of the hearing record, the 
complaint (Administrator's findings) or answer (response) may be amended 
with the permission of the Administrative Law Judge and upon such terms 
as he/she may approve. Such amendments shall be allowed when justice and 
the presentation of the merits are served thereby, provided there is no 
prejudice to the objecting party's presentation on the merits. When 
issues not raised by the pleadings are reasonably within the scope of 
the original complaint and are tried by express or implied consent of 
the parties, they shall be treated in all respects as if they had been 
raised in the pleadings, and such amendments may be made as necessary to 
make them conform to the evidence. The presiding Administative Law Judge 
may, upon such terms as are just, permit supplemental pleadings setting 
forth transactions, occurrences or events which have happened a since 
the data of the pleadings and which are relevant to any of the issues 
involved. A continuance in the hearing may be granted or the record left 
open to enable the new allegations to be addressed.



Sec.  6.43  Consent findings and order.

    (a) At any time prior to the receipt of evidence or, at the 
discretion of the Administrative Law Judge, prior to the issuance of the 
decision of the Administrative Law Judge, the parties may enter into 
consent findings and an

[[Page 148]]

order disposing of the proceeding in whole or in part.
    (b) Any agreement containing consent findings and an order disposing 
of a proceeding in whole or in part shall provide:
    (1) That the order shall have the same force and effect as an order 
made after full hearing:
    (2) That the entire record on which any order may be based shall 
consist solely of the complaint and the agreement;
    (3) A waiver of any further procedural steps before the 
Administrative Law Judge and the Administrative Review Board, as 
appropriate, regarding those matters which are the subject of the 
agreement; and
    (4) A waiver of any right to challenge or contest the validity of 
the findings and order entered into in accordance with the agreement.
    (c) Within 30 days after receipt of an agreement containing consent 
findings and an order disposing of the disputed matter in whole, the 
Administrative Law Judge shall accept such agreement by issuing a 
decision based upon the agreed findings and order. If a such agreement 
disposes of only a part of the disputed matter, a hearing shall be 
conducted on the matters remaining in dispute.



Sec.  6.44  Decision of the Administrative Law Judge.

    (a) Proposed findings of fact, conclusions, and order. Within 30 
days of filing of the transcript of the testimony, each party may file 
with the Administrative Law Judge proposed findings of fact, conclusions 
of law, and order, together with a supporting brief expressing the 
reasons for such proposals. Such proposals and brief shall be served on 
all parties, and shall refer to all portions of the record and to all 
authorities relied upon in support of each proposal.
    (b) Decision of the Administrative Law Judge. Within 60 days after 
the time allowed for filing of proposed findings of fact, conclusions of 
law, and order, or within 30 days after receipt of an agreement 
containing consent findings and order disposing of the disputed matter 
in whole, the Administrative Law Judge shall make his/her decision. If 
any aggrieved party desires review of the decision a petition for review 
thereof shall be filed as provided in Sec.  6.45 of this title, and such 
decision and order shall be inoperative unless and until the 
Administrative Review Board issues an order affirming the decision. The 
decision of the Administrative Law Judge shall include findings of fact 
and conclusions of law, with reasons and bases therefor, upon each 
material issue of fact, law, or discretion presented on the record. Such 
decision shall be in accordance with the regulations and rulings 
contained in parts 4 and 5 and other pertinent parts of this title. The 
decision of the Administrative Law Judge shall be based upon a 
consideration of the whole record, including any admissions made in the 
respondents' answer (response) and Sec.  6.43 of this title.



Sec.  6.45  Petition for review.

    Within 30 days after the date of the decision of the Administrative 
Law Judge, any party aggrieved thereby who desires review thereof shall 
file a petition for review of the decision with supporting reasons. Such 
party shall transmit the petition in writing to the Administrative 
Review Board pursuant to 29 CFR part 8 if the proceeding was under the 
Service Contract Act, or to the Administrative Review Board pursuant to 
29 CFR part 7 if the proceeding was under Sec.  5.12(a)(1) of part 5 of 
this title or under section 3(a) of the Davis-Bacon Act, with a copy 
thereof to the Chief Administrative Law Judge. The petition for review 
shall refer to the specific findings of fact, conclusions of law, or 
order at issue.



Sec.  6.46  Ineligible list.

    Upon the final decision of the Administrative Law Judge, 
Administrative Review Board, as appropriate, the Administrator promptly 
shall forward to the Comptroller General the names of any firm, 
corporation, partnership, or association in which a person or firm 
debarred pursuant to section 5(a) of the Service Contract Act or Sec.  
5.12(a) of part 5 of this title has a substantial interest; and/or the 
name of any firm, corporation, partnership, or association in which a 
person or firm debarred pursuant to section 3(a) of the Davis-Bacon Act 
has an interest.

[[Page 149]]



       Subpart E_Substantial Variance and Arm's Length Proceedings



Sec.  6.50  Scope.

    This subpart supplements the procedures contained in Sec. Sec.  4.10 
and 4.11 of part 4 of this title and states the rules of practice 
applicable to hearings under section 4(c) of the Act to determine 
whether the collectively bargained wages and/or fringe benefits 
otherwise required to be paid under that section and sections 2(a)(1) 
and (2) of the Act are substantially at variance with those which 
prevail for services of a character similar in the locality, and/or to 
determine whether the wages and/or fringe benefits provided in the 
collective bargaining agreement were reached as a result of arm's-length 
negotiations.



Sec.  6.51  Referral to Chief Administrative Law Judge.

    (a) Referral pursuant to Sec.  4.10 or Sec.  4.11 of part 4 of this 
title will be by an Order of Reference from the Administrator to the 
Chief Administrative Law Judge, to which will be attached the material 
submitted by the applicant or any other material the Administrator 
considers relevant and, for proceedings pursuant to Sec.  4.11 of this 
title, a copy of any findings of the Administrator. A copy of the Order 
of Reference and all attachments will be sent by mail to the following 
parties: The agency whose contract is involved, the parties to the 
collective bargaining agreement, any contractor or subcontractor 
performing on the contract, any contractor or subcontractor known to be 
desirous of bidding thereon or performing services thereunder who is 
known or believed to be interested in the determination of the issue, 
any unions or other authorized representatives of service employees 
employed or who may be expected to be employed by such contractor or 
subcontractor on the contract work, and any other affected parties known 
to be interested in the determination of the issue. The Order of 
Reference will have attached a certificate of service naming all 
interested parties who have been served.
    (b) Accompanying the Order of Reference and attachments will be a 
notice advising that any interested party, including the applicant, who 
intends to participate in the proceeding shall submit a written response 
to the Chief Administrative Law Judge within 20 days of the date on 
which the certificate of service indicates the Order of Reference was 
mailed. The notice will state that such a response shall include:
    (1) A statement of the interested party's case;
    (2) A list of witnesses the interested party will present, a summary 
of the testimony each is expected to give, and copies of all exhibits 
proposed to be proffered;
    (3) A list of persons who have knowledge of the facts for whom the 
interested party requests that subpoenas be issued and a brief statement 
of the purpose of their testimony; and
    (4) A certificate of service in accordance with Sec.  6.3 of this 
title on all interested parties, including the Administrator.



Sec.  6.52  Appointment of Administrative Law Judge and notification 
of prehearing conference and hearing date.

    Upon receipt from the Administrator of an Order of Reference, notice 
to the parties, attachments and certificate of service, the Chief 
Administrative Law Judge shall appoint an Administrative Law Judge to 
hear the case. The Administrative Law Judge shall promptly notify all 
interested parties of the time and place of a prehearing conference and 
of the hearing which shall be held immediately upon the completion of 
prehearing conference. The date of the prehearing conference and hearing 
shall be not more than 60 days from the date on which the certificate of 
service indicates the Order of Reference was mailed.



Sec.  6.53  Prehearing conference.

    (a) At the prehearing conference the Administrative Law Judge shall 
attempt to determine the exact areas of agreement and disagreement 
raised by the Administrator's Order of Reference and replies thereto, so 
that the evidence and arguments presented at the hearing will be 
relevant, complete, and as brief and concise as possible.

[[Page 150]]

    (b) Any interested party desiring to file proposed findings of fact 
and conclusions of law shall submit them to the Administrative Law Judge 
at the prehearing conference.
    (c) If the parties agree that no hearing is necessary to supplement 
the written evidence and the views and arguments that have been 
presented, the Administrative Law Judge shall forthwith render his/her 
final decision. The Administrative Law Judge with the agreement of the 
parties may permit submission of additional written evidence or 
argument, such as data accompanied by affidavits attesting to its 
validity or depositions, within ten days of commencement of the 
prehearing conference.



Sec.  6.54  Hearing.

    (a) Except as provided in Sec.  6.53(c) of this title, the hearing 
shall commence immediately upon the close of the prehearing conference. 
All matters remaining in controversy, including the presentation of 
additional evidence, shall be considered at the hearing. There shall be 
a minimum of formality in the proceeding consistent with orderly 
procedure.
    (b) To expedite the proceeding the Administrative Law Judge shall, 
after consultation with the parties, set reasonable guidelines and 
limitations for the presentations to be made at the hearing. The 
Administrative Law Judge may limit cross-examination and may question 
witnesses.
    (c) Under no circumstances shall source data obtained by the Bureau 
of Labor Statistics, U.S. Department of Labor, or the names of 
establishments contacted by the Bureau be submitted into evidence or 
otherwise disclosed. Where the Bureau has conducted a survey, the 
published summary of the data may be submitted into evidence.
    (d) Affidavits or depositions may be admitted at the discretion of 
the Administrative Law Judge. The Administrative Law Judge may also 
require that unduly repetitious testimony be submitted as affidavits. 
Such affidavits shall be submitted within three days of the conclusions 
of the hearing.
    (e) Counsel for the Administrator shall participate in the 
proceeding to the degree he/she deems appropriate.
    (f) An expedited transcript shall be made of the hearing and of the 
prehearing conference.



Sec.  6.55  Closing of record.

    The Administrative Law Judge shall close the record promptly and not 
later than 10 days after the date of commencement of the prehearing 
conference. Post-hearing briefs may be permitted, but the filing of 
briefs shall not delay issuance of the decision of the Administrative 
Law Judge pursuant to Sec.  6.56 of this title.



Sec.  6.56  Decision of the Administrative Law Judge.

    Within 15 days of receipt of the transcript, the Administrative Law 
Judge shall render his/her decision containing findings of fact and 
conclusions of law. The decision of the Administrative Law Judge shall 
be based upon consideration of the whole record, and shall be in 
accordance with the regulations and rulings contained in part 4 and 
other pertinent parts of this title. If any party desires review of the 
decision, a petition for review thereof shall be filed as provided in 
Sec.  6.57 of this title, and such decision and order shall be 
inoperative unless and until the Administrative Review Board issues an 
order affirming the decision. If a petition has not been filed within 10 
days of issuance of the Administrative Law Judge's decision, the 
Administrator shall promptly issue any wage determination which may be 
required as a result of the decision.



Sec.  6.57  Petition for review.

    Within 10 days after the date of the decision of the Administrative 
Law Judge, any interested party who participated in the proceedings 
before the Administrative Law Judge and desires review of the decision 
shall file a petition for review by the Administrative Review Board 
pursuant to 29 CFR part 8. The petition shall refer to the specific 
findings of fact, conclusions of law, or order excepted to and the 
specific pages of transcript relevant to the petition for review.

[[Page 151]]



PART 7_PRACTICE BEFORE THE ADMINISTRATIVE REVIEW BOARD WITH REGARD TO FEDERAL 
AND FEDERALLY ASSISTED CONSTRUCTION CONTRACTS--Table of Contents



                       Subpart A_Purpose and Scope

Sec.
7.1 Purpose and scope.

                 Subpart B_Review of Wage Determinations

7.2 Who may file petitions for review.
7.3 Where to file.
7.4 When to file.
7.5 Contents of petitions.
7.6 Filing of wage determination record.
7.7 Presentations of other interested persons.
7.8 Disposition by the Administrative Review Board.

        Subpart C_Review of Other Proceedings and Related Matters

7.9 Review of decisions in other proceedings.

                Subpart D_Some General Procedural Matters

7.11 Right to counsel.
7.12 Intervention; other participation.
7.13 Consolidations.
7.14 Oral proceedings.
7.15 Public information.
7.16 Filing and service.
7.17 Variations in procedures.
7.18 Motions; extensions of time.

    Authority: Reorg. Plan No. 14 of 1950, 64 Stat. 1267; 5 U.S.C. 301, 
3 CFR, 1949-1953 Comp., p. 1007; sec. 2, 48 Stat. 948 as amended; 40 
U.S.C. 276c; secs. 104, 105, 76 Stat. 358, 359; 40 U.S.C. 330, 331; 65 
Stat. 290; 36 FR 306, 8755.

    Source: 36 FR 10863, June 4, 1971, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 7 appear at 61 FR 
19985, May 3, 1996.



                       Subpart A_Purpose and Scope



Sec.  7.1  Purpose and scope.

    (a) This part contains the rules of practice of the Administrative 
Review Board when it is exercising its jurisdiction described in 
paragraph (b) of this section.
    (b) The Board has jurisdiction to hear and decide in its discretion 
appeals concerning questions of law and fact from final decisions under 
parts 1, 3, and 5 of this subtitle including decisions as to the 
following: (1) Wage determinations issued under the Davis-Bacon Act and 
its related minimum wage statutes; (2) debarment cases arising under 
part 5 of this subtitle; (3) controversies concerning the payment of 
prevailing wage rates or proper classifications which involve 
significant sums of money, large groups of employees, or novel or 
unusual situations; and (4) recommendations of a Federal agency for 
appropriate adjustment of liquidated damages which are assessed under 
the Contract Work Hours and Safety Standards Act.
    (c) In exercising its discretion to hear and decide appeals, the 
Board shall consider, among other things, timeliness, the nature of the 
relief sought, matters of undue hardship or injustice, or the public 
interest.
    (d) In considering the matters within the scope of its jurisdiction 
the Board shall act as the authorized representative of the Secretary of 
Labor. The Board shall act as fully and finally as might the Secretary 
of Labor concerning such matters.
    (e) The Board is an essentially appellate agency. It will not hear 
matters de novo except upon a showing of extraordinary circumstances. It 
may remand under appropriate instructions any case for the taking of 
additional evidence and the making of new or modified findings by reason 
of the additional evidence.

[36 FR 10863, June 4, 1971, as amended at 61 FR 19985, May 3, 1996]



                Subpart B_Review of Wage Determinations.



Sec.  7.2  Who may file petitions for review.

    (a) Any interested person who is seeking a modification or other 
change in a wage determination under part 1 of this subtitle and who has 
requested the administrative officer authorized to make such 
modification or other change under part 1 and the request has been 
denied, after appropriate reconsideration shall have a right to petition 
for review of the action taken by that officer.

[[Page 152]]

    (b) For purpose of this section, the term interested person is 
considered to include, without limitation:
    (1) Any contractor, or an association representing a contractor, who 
is likely to seek or to work under a contract containing a particular 
wage determination, or any laborer or mechanic, or any labor 
organization which represents a laborer or mechanic, who is likely to be 
employed or to seek employment under a contract containing a particular 
wage determination, and
    (2) any Federal, State, or local agency concerned with the 
administration of a proposed contract or a contract containing a 
particular wage determination issued pursuant to the Davis-Bacon Act or 
any of its related statutes.



Sec.  7.3  Where to file.

    The petition (original and four copies) accompanied by a statement 
of service shall be filed with the Administrative Review Board, U.S. 
Department of Labor, Washington, DC 20210. In addition, copies of the 
petition shall be served upon each of the following: (a) The Federal, 
State, or local agency, or agencies involved; (b) the officer issuing 
the wage determination; and (c) any other person (or the authorized 
representatives of such persons) known, or reasonably expected, to be 
interested in the subject matter of the petition.



Sec.  7.4  When to file.

    (a) Requests for review of wage determinations must be timely made. 
Timeliness is dependent upon the pertinent facts and circumstances 
involved, including without limitation the contract schedule of the 
administering agency, the nature of the work involved, and its location.
    (b) The Board shall under no circumstances request any administering 
agency to postpone any contract action because of the filing of a 
petition. This is a matter which must be resolved directly with the 
administering agency by the petitioner or other interested person.



Sec.  7.5  Contents of petitions.

    (a) A petition for the review of a wage determination shall: (1) Be 
in writing and signed by the petitioner or his counsel (or other 
authorized representative); (2) be described as a petition for review by 
the Administrative Review Board; (3) identify clearly the wage 
determination, location of the project or projects in question, and the 
agency concerned; (4) state that the petitioner has requested 
reconsideration of the wage determination in question and describe 
briefly the action taken in response to the request; (5) contain a short 
and plain statement of the grounds for review; and (6) be accompanied by 
supporting data, views, or arguments.
    (b) A petition shall indicate whether or not the petitioner consents 
to the disposition of the questions involved by a single member of the 
Board.



Sec.  7.6  Filing of wage determination record.

    (a) In representing the officer issuing the wage determination the 
Solicitor shall, among other things, file promptly with the Board a 
record supporting his findings and conclusions, after receipt of service 
of the petition.
    (b) In representing the officer issuing the wage determination the 
Solicitor shall file with the Board a statement of the position of the 
officer issuing the wage determination concerning any findings 
challenged in the petition; and shall make service on the petitioner and 
any other interested persons.



Sec.  7.7  Presentations of other interested persons.

    Interested persons other than the petitioner shall have a reasonable 
opportunity as specified by the Board in particular cases to submit to 
the Board written data, views, or arguments relating to the petition. 
Such matter (original and four copies) should be filed with the 
Administrative Review Board, U.S. Department of Labor, Washington, DC 
20210. Copies of any such matter shall be served on the petitioner and 
other interested persons.



Sec.  7.8  Disposition by the Administrative Review Board.

    (a) The Board may decline review of any case whenever in its 
judgement a

[[Page 153]]

review would be inappropriate or because of lack of timeliness, the 
nature of the relief sought, or other reasons.
    (b) The Board shall decide the case upon the basis of all relevant 
matter contained in the entire record before it. The Board shall notify 
interested persons participating in the proceeding of its decision.
    (c) Decisions of the Board shall be by majority vote. A case will be 
reviewed upon the affirmative vote of one member.



        Subpart C_Review of Other Proceedings and Related Matters



Sec.  7.9  Review of decisions in other proceedings.

    (a) Any party or aggrieved person shall have a right to file a 
petition for review with the Board (original and four copies), within a 
reasonable time from any final decision in any agency action under part 
1, 3, or 5 of this subtitle.
    (b) The petition shall state concisely the points relied upon, and 
shall be accompanied by a statement setting forth supporting reasons. 
Further, the petition shall indicate whether or not the petitioner 
consents to the disposition of the questions involved by a single 
member.
    (c) A copy of the presentation shall be served upon the officer who 
issued the decision, and upon any other party or known interested 
person, as the case may be. In representing the officer who issued the 
final decision in any agency action under parts 1, 3, or 5 of the 
subtitle, the Solicitor shall, among other things, file promptly with 
the Board a record supporting the officer's decision, including any 
findings upon which the decision is based, after receipt of service of 
the petition.
    (d) In representing the officer issuing a final decision in any 
agency action under parts 1, 3, and 5 of this subtitle, the Solicitor 
shall file with the Board a statement of the position of the officer who 
issued the final decision at issue, concerning the decision challenged; 
and shall make service on the petitioner and any other interested 
persons.
    (e) The Board shall afford any other parties or known interested 
persons a reasonable opportunity to respond to the petition. Copies of 
any such response shall be served upon the officer issuing the decision 
below and upon the petitioner.
    (f) The Board shall pass upon the points raised in the petition upon 
the basis of the entire record before it, and shall notify the parties 
to the proceeding of its decision. In any remand of a case as provided 
in Sec.  7.1(e), the Board shall include any appropriate instructions.



                Subpart D_Some General Procedural Matters



Sec.  7.11  Right to counsel.

    Each interested person or party shall have the right to appear in 
person or by or with counsel or other qualified representative in any 
proceeding before the Board.



Sec.  7.12  Intervention; other participation.

    For good cause shown, the Board may permit any interested person or 
party to intervene or otherwise participate in any proceeding held by 
the Board. Except when requested orally before the Board, a petition to 
intervene or otherwise participate shall be in writing (original and 
four copies) and shall state with precision and particularity: (a) The 
petitioner's relationship to the matters involved in the proceedings, 
and (b) the nature of the presentation which he would make. Copies of 
the petition shall be served to all parties or interested persons known 
to participate in the proceeding, who may respond to the petition. 
Appropriate service shall be made of any response.



Sec.  7.13  Consolidations.

    Upon its own initiative or upon motion of any interested person or 
party, the Board may consolidate in any proceeding or concurrently 
consider two or more appeals which involve substantially the same 
persons or parties, or issues which are the same or closely related, if 
it finds that such consolidation or concurrent review will contribute to 
a proper dispatch of its business and to the ends of justice, and it

[[Page 154]]

will not unduly delay consideration of any such appeals.



Sec.  7.14  Oral proceedings.

    (a) With respect to any proceeding before it, the Board may upon its 
own initiative or upon request of any interested person or party direct 
the interested persons or parties to appear before the Board or its 
designee at a specified time and place in order to simplify the issues 
presented or to take up any other matters which may tend to expedite or 
facilitate the disposition of the proceeding.
    (b) In its discretion, the Board, or a single presiding member, may 
permit oral argument in any proceeding. The Board or the presiding 
member, shall prescribe the time and place for argument and the time 
allotted for argument. A petitioner wishing to make oral argument should 
make the request therefor in his petition.



Sec.  7.15  Public information.

    (a) Subject to the provisions of Sec. Sec.  1.15, 5.6, and part 70 
of this subtitle, all papers and documents made a part of the official 
record in the proceedings of the Board and decisions of the Board shall 
be made available for public inspection during usual business hours at 
the office of the Administrative Review Board, U.S. Department of Labor, 
Washington, DC 20210.
    (b) Facsimile copies of such papers, documents and decisions shall 
be furnished upon request. There shall be a charge of 25 cents for each 
facsimile page reproduction except for copies of materials duplicated 
for distribution for no charge as provided in paragraph (c) of this 
section. Postal fees in excess of domestic first class postal rates as 
are necessary for transmittal of copies will be added to the per-page 
fee specified unless stamps or stamped envelopes are furnished with the 
request.
    (c) No charge need to be made for furnishing:
    (1) Unauthenticated copies of any rules, regulations, or decisions 
of general import,
    (2) Copies to agencies which will aid in the administration of the 
Davis-Bacon and related acts,
    (3) Copies to contractor associations and labor organizations for 
general dissemination of the information contained therein, and
    (4) Only occasionally unauthenticated copies of papers and 
documents.



Sec.  7.16  Filing and service.

    (a) Filing. All papers submitted to the Board under this part shall 
be filed with the Executive Director of the Administrative Review Board, 
U.S. Department of Labor, Washington, DC 20210.
    (b) Number of copies. An original and four copies of all papers 
shall be submitted.
    (c) Manner of service. Service under this part shall be by the 
filing party or interested person, service may be personal or may be by 
mail. Service by mail is complete on mailing.
    (d) Proof of service. Papers filed with the Board shall contain an 
acknowledgement of service by the person served or proof of service in 
the form of a statement of the date and the manner of service and the 
names of the person or persons served, certified by the person who made 
service.



Sec.  7.17  Variations in procedures.

    Upon reasonable notice to the parties or interested persons, the 
Board may vary the procedures specified in this part in particular 
cases.



Sec.  7.18  Motions; extensions of time.

    (a) Except as otherwise provided in this part, any application for 
an order or other relief shall be made by motion for such order or 
relief. Except when made orally before the Board, motions shall be in 
writing and shall be accompanied by proof of service on all other 
parties or interested persons. If a motion is supported by briefs, 
affidavits, or other papers, they shall be served and filed with the 
motion. Any party or interested person, as the case may be, may respond 
to the motion within such time as may be provided by the Board.
    (b) Requests for extensions of time in any proceeding as to the 
filing of papers or oral presentations shall be in the form of a motion 
under paragraph (a) of this section.

[[Page 155]]



PART 8_PRACTICE BEFORE THE ADMINISTRATIVE REVIEW BOARD WITH REGARD 
TO FEDERAL SERVICE CONTRACTS--Table of Contents



                       Subpart A_Purpose and Scope

Sec.
8.1 Purpose and scope.

                 Subpart B_Review of Wage Determinations

8.2 Who may file petitions of review.
8.3 When to file.
8.4 Contents of petition.
8.5 Filing of wage determination record.
8.6 Disposition by the Administrative Review Board.

        Subpart C_Review of Other Proceedings and Related Matters

8.7 Review of decisions in other proceedings.
8.8 Filing of administrative record.
8.9 Disposition by the Administrative Review Board.

                  Subpart D_General Procedural Matters

8.10 Filing and service.
8.11 Presentations of other interested persons.
8.12 Intervention; other participation.
8.13 Right to counsel.
8.14 Consolidations.
8.15 Motions; extensions of time.
8.16 Oral proceedings.
8.17 Decision of the Board.
8.18 Public information.
8.19 Equal Access to Justice Act.

    Authority: Secs. 4 and 5, 79 Stat. 1034, 1035, as amended by 86 
Stat. 789, 790, 41 U.S.C. 353, 354; 5 U.S.C. 301; Reorg. Plan No. 14 of 
1950, 64 Stat. 1267, 5 U.S.C. Appendix; 76 Stat. 357-359, 40 U.S.C. 327-
332.

    Source: 49 FR 10637, Mar. 21, 1984, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 8 appear at 61 FR 
19985, May 3, 1996.



                       Subpart A_Purpose and Scope



Sec.  8.1  Purpose and scope.

    (a) This part contains the rules of practice of the Administrative 
Review Board when it is exercising its jurisdiction described in 
paragraph (b) of this section.
    (b) The Board has jurisdiction to hear and decide in its discretion 
appeals concerning questions of law and fact from final decisions of the 
Administrator of the Wage and Hour Division or authorized 
representative, and from decisions of Administrative Law Judges under 
subparts B, D, and E of part 6 of this title, arising under the Service 
Contract Act and the Contract Work Hours and Safety Standards Act where 
the contract is also subject to the Service Contract Act. The Board 
shall not have jurisdiction to pass on the validity of any portion of 
the Code of Federal Regulations which has been duly promulgated through 
notice and comment by the Department of Labor and shall observe the 
provisions thereof, where pertinent, in its decisions. The jurisdiction 
of the Board includes:
    (1) Wage determinations issued under the Service Contract Act;
    (2) Substantial variance proceedings or arm's-length negotiations 
proceedings pursuant to section 4(c) of the Service Contract Act;
    (3) Debarment or other enforcement proceedings;
    (4) Proceedings to determine substantial interest of debarred 
persons or firms;
    (5) Decisions of the Wage-Hour Administrator or authorized 
representative regarding recommendations of a Federal agency for 
adjustment or waiver of liquidated damages assessed under the Contract 
Work Hours and Safety Standards Act;
    (6) Other final actions of the Wage-Hour Administrator or authorized 
representative (e.g., additional classification actions and rulings with 
respect to application of the Act(s), or the regulations, or of wage 
determinations issued thereunder).
    (7) Other matters specifically referred to the Board by the 
Secretary of Labor.
    (c) In considering the matters within the scope of its jurisdiction 
the Board shall act as the authorized representative of the Secretary of 
Labor and shall act as fully and finally as might the Secretary of Labor 
concerning such matters.
    (d) The Board is an appellate body and shall decide cases properly 
brought before it on the basis of all relevant matter contained in the 
entire record before it. Decisions by the Board shall be based upon the 
preponderance of the

[[Page 156]]

evidence before it. It may remand with appropriate instructions any case 
for the taking of additional evidence and the making of new or modified 
findings by reason of the additional evidence. However, unless the 
petition for review cities alleged procedural irregularities in the 
proceeding below and not the merits of a case, the Board shall not 
consider a petition for review filed by any party against whom default 
judgment has been entered pursuant to the provisions of part 6 of this 
title.

[49 FR 10637, Mar. 21, 1984, as amended at 61 FR 19985, May 3, 1996]



                 Subpart B_Review of Wage Determinations



Sec.  8.2  Who may file petitions of review.

    (a) Any interested party who is seeking a modification of other 
change in a wage determination under the Service Contract Act and who 
has requested the Wage-Hour Administrator or authorized representative 
to make such modification or other change under Sec.  4.55 of part 4 of 
this title, and the request has been denied, shall have a right to 
petition of review of the action taken by that officer.
    (b) For purposes of this subpart, the term interested party shall 
mean:
    (1) Any employee or any labor organization which represents an 
employee who is likely to be employed or to seek employment under a 
contract containing a particular wage determination, or any contractor 
or an association representing a contractor who is likely to seek a 
contract or to work under a contract containing a particular wage 
determination;
    (2) The Federal agency(s) which will administer a proposed contract 
containing a particular wage determination issued pursuant to the 
Service Contract Act; and
    (3) Any other party whom the Board finds to have a sufficient 
interest in the wage determination.



Sec.  8.3  When to file.

    (a) Requests for review of wage determinations must be filed within 
20 days of issuance of the Wage-Hour Administrator's decision denying a 
request to make a change in the wage determination.
    (b) The Board shall under no circumstances request any administering 
agency to postpone any contract action because of the filing of a 
petition.



Sec.  8.4  Contents of petition.

    (a) A petition for review of a wage determination shall:
    (1) Be in writing and signed by the petitioner or his/her counsel 
(or other authorized representative);
    (2) Be addressed to the Administrative Review Board;
    (3) Identify clearly the wage determination, location where the 
contract will be performed, if known, and the agency concerned;
    (4) State that the petitioner has requested reconsideration of the 
wage determination in question pursuant to 29 CFR 4.55 and describe 
briefly the action taken in response to the request;
    (5) Contain a short and plain statement of the grounds for review;
    (6) Be accompanied by supporting data, views, or arguments; and
    (7) Contain a statement that all data or other evidence submitted 
have previously been submitted to the Administrator.
    (b) A petition shall indicate whether or not the petitioner consents 
to the disposition of the questions involved by a single member of the 
Board.



Sec.  8.5  Filing of wage determination record.

    The Associate Solicitor for Fair Labor Standards shall, promptly 
after service of the petition, file with the Board the record upon which 
the wage determination was based. Under no circumstances shall source 
data obtained by the Bureau of Labor Statistics, U.S. Department of 
Labor, or the names of establishments contacted by the Bureau be filed 
with the Board or otherwise disclosed. Where the Bureau has conducted a 
survey, the published summary of the data may be filed.



Sec.  8.6  Disposition by the Administrative Review Board.

    (a) The Board may decline review of any case whenever in its 
judgment review would be inappropriate because of

[[Page 157]]

lack of timeliness, the nature of the relief sought, the case involves 
only settled issues of law, the appeal is frivolous on its face, or 
other reasons. A case will be reviewed upon the affirmative vote of one 
member.
    (b) Except as provided in paragraphs (c) and (d) of this section, 
the Board will not review a wage determination after award, exercise of 
option, or extension of a contract, unless such procurement action was 
taken without the wage determination required pursuant to Sec. Sec.  4.4 
and 4.5 of part 4 of this title.
    (c) A wage determination may be reviewed after award, exercise of 
option, or extension of a contract if it is issued after a finding by an 
Administrative Law Judge or the Board that a substantial variance exists 
between collectively bargained wage rates and/or fringe benefits 
otherwise required to be paid pursuant to section 4(c) of the Act and 
those prevailing for services of a character similar in the locality, or 
after a finding that such collective bargaining agreement was not 
reached as a result of arm's length negotiations.
    (d) Where a petition for review of a wage determination is filed 
prior to award, exercise of option, or extension of a contract, the 
Board may review the wage determination after such award, exercise of 
option, or extension of a contract if the issue is a significant issue 
of general applicability. The Board's decision shall not affect the 
contract after such award, exercise of option, or extension.
    (e) In issuing its decision the Board will act expeditiously, taking 
into consideration procurement deadlines. The Board shall decide the 
case upon the basis of all relevant matters contained in the entire 
record before it and shall not consider any data not submitted to the 
Wage-Hour Administrator with the request for reconsideration. The Board 
in its decision affirming, modifying, or setting aside the wage 
determination, shall include a statement of reasons or bases for the 
actions taken. In any remand of a case as provided in Sec.  8.1(d) of 
this title, the Board shall include appropriate instructions.



        Subpart C_Review of Other Proceedings and Related Matters



Sec.  8.7  Review of decisions in other proceedings.

    (a) A petition for review of a decision of an Administrative Law 
Judge pursuant to subparts B, D or E of part 6 of this title may be 
filed by any aggrieved party in accordance with the provisions therein.
    (b) A petition for review of a final written decision (other than a 
wage determination) of the Administrator or authorized representative 
may be filed by any aggrieved party within 60 days of the date of the 
decision of which review is sought. Where a case has been referred 
directly to the Board pursuant to Sec.  4.11 or Sec.  4.12 of this 
title, no petition for review shall be necessary; a brief in support of 
the aggrieved party's position shall be filed within 30 days of filing 
of the administrative record by the Administrator.
    (c) A petition shall state concisely the points relied upon, and 
shall be accompanied by a statement setting forth supporting reasons. 
The petition shall also indicate whether or not the petitioner consents 
to the disposition of the questions involved by a single member.



Sec.  8.8  Filing of administrative record.

    (a) If a petition for review has been filed concerning a decision 
pursuant to part 6 of this title, the Chief Administrative Law Judge 
shall promptly forward the record of the proceeding before the 
Administrative Law Judge to the Board.
    (b) If a petition for review has been filed concerning a final 
decision of the Wage-Hour Administrator or authorized representative, 
the Associate Solicitor for Fair Labor Standards shall promptly file 
with the Board a record upon which the decision was based.



Sec.  8.9  Disposition by the Administrative Review Board.

    (a) The Board may decline review of any case whenever in its 
judgment review would be inappropriate because of lack of timeliness, 
the nature of the relief sought, the case involves only settled issues 
of law, the appeal is frivolous on its face, or other reasons. A

[[Page 158]]

case will be reviewed upon the affirmative vote of one member.
    (b) In issuing its decision the Board will take into consideration 
procurement deadlines where appropriate. The Board shall pass upon the 
points raised in the petition upon the basis of the entire record before 
it. The Board may affirm, modify or set aside, in whole or in part, the 
decision under review and shall issue a decision including a statement 
of reasons or bases for the actions taken. The Board shall modify or set 
aside findings of fact only when it determines that those findings are 
not supported by a preponderance of the evidence. In any remand of a 
case as provided in Sec.  8.1(e) of this title, the Board shall include 
any appropriate instructions.



                  Subpart D_General Procedural Matters



Sec.  8.10  Filing and service.

    (a) Filing. All papers submitted to the Board under this part shall 
be filed with the Executive Director of the Administrative Review Board, 
U.S. Department of Labor, Washington, DC 20210.
    (b) Number of copies. An original and four copies of all papers 
shall be submitted.
    (c) Manner of service. Service under this part shall be personal or 
by mail. Service by mail is complete on mailing. For purposes of this 
part, filing is accomplished upon the day of service, by mail or 
otherwise.
    (d) Proof of service. Papers filed with the Board shall contain an 
acknowledgement of service by the person served or proof of service in 
the form of a statement of the date and the manner of service and the 
names of the person or persons served, certified by the person who made 
service.
    (e) Service upon the Department of Labor and other interested 
parties. A copy of all documents filed with the Board shall be served 
upon the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, Washington, DC 20210; the Administrator, Wage and 
Hour Division, U.S. Department of Labor, Washington, DC 20210; the 
Federal contracting agency involved; and all other interested parties.



Sec.  8.11  Presentations of other interested persons.

    (a) Where a petition has been filed for review of a wage 
determination or other final decision of the Administrator or authorized 
representative, the Board shall notify the parties known or believed to 
be interested in the case. The Associate Solicitor and any other parties 
interested in presenting their views shall file a statement within 30 
days of the filing of the petition (or such other time as is specified 
by the Board, with consideration of procurement deadlines, as 
appropriate).
    (b) Where a petition has been filed for review of a decision issued 
pursuant to subparts B, D or E of part 6 of this title, any other 
parties to the proceeding interested in presenting their views shall 
file a statement within 30 days of the filing of the petition (or such 
other time as is specified by the Board, with consideration of 
procurement deadlines, as appropriate).



Sec.  8.12  Intervention; other participation.

    For good cause shown, the Board may permit any interested party to 
intervene or otherwise participate in any proceeding held by the Board. 
Except when requested orally before the Board, a petition to intervene 
or otherwise participate shall be in writing (original and four copies) 
and shall state with precision and particularity:
    (a) The petitioner's relationship to the matters involved in the 
proceedings, and
    (b) The nature of the presentation which the peititioner would make.



Sec.  8.13  Right to counsel.

    Each interested party shall have the right to appear in person or by 
counsel or other representative in any proceeding before the Board.



Sec.  8.14  Consolidations.

    Upon its own initative or upon motion of any interested party, the 
Board may consolidate any proceeding or concurrently consider two or 
more appeals which involve substantially the same

[[Page 159]]

parties, or issues which are the same or closely related, if it finds 
that such consolidation or concurrent review will contribute to a proper 
dispatch of its business and to the ends of justice, and it will not 
unduly delay consideration of any such appeals.



Sec.  8.15  Motions; extensions of time.

    (a) Except as otherwise provided in this part, any application for 
an order or other relief shall be made by motion. Except when made 
orally before the Board, motions shall be in writing and shall be 
accompanied by proof of service on all other parties. If a motion is 
supported by briefs, affidavits, or other papers, they shall be served 
and filed with the motion. Any party may respond to the motion within 
such time as may be provided by the Board.
    (b) Requests for extension of time as to the filing of papers or 
oral presentation shall be in the form of a motion under paragraph (a) 
of this section.



Sec.  8.16  Oral proceedings.

    (a) With respect to any proceedings before it, the Board may upon 
its own initative or upon request of any interested party direct the 
interested parties to appear before the Board or its designee at a 
specified time and place in order to simplify the issues persented or to 
take up any other matters which may tend to expedite or facilitate the 
disposition of the proceeding.
    (b) In its discretion, the Board or a single presiding member may 
permit oral argument in any proceeding. The Board or the presiding 
member shall prescribe the time and place for argument and the time 
allocated for argument. A petitioner wishing to make oral argument 
should make the request therefore in the petition.



Sec.  8.17  Decision of the Board.

    (a) Unless the petitioner consents to disposition by a single 
member, decisions of the Board shall be by majority vote.
    (b) Where petitioner consents to disposition by a single member, 
other interested parties shall have an opportunity to oppose such 
disposition, and such opposition shall be taken into consideration by 
the Board in determining whether the decision shall be by a single 
member or majority vote.



Sec.  8.18  Public information.

    Subject to the provisions of part 70 of this title, all papers and 
documents made a part of the official record in the proceedings of the 
Board and decisions of the Board shall be made available for public 
inspection during usual business hours at the Office of the 
Administrative Review Board, U.S. Department of Labor, Washington, DC 
20210.



Sec.  8.19  Equal Access to Justice Act.

    Proceedings under the Service Contract Act and the Contract Work 
Hours and Safety Standards Act are not subject to the Equal Access to 
Justice Act (Pub. L. 96-481). Accordingly, in any proceeding conducted 
pursuant to the provisions of this part 8, the Board shall have no power 
or authority to award attorney fees and/or other litigation expenses 
pursuant to the Equal Access to Justice Act.



PART 9_NONDISPLACEMENT OF QUALIFIED WORKERS UNDER SERVICE CONTRACTS--
Table of Contents



                            Subpart A_General

Sec.
9.1 Purpose and scope.
9.2 Definitions.
9.3 Coverage.
9.4 Exclusions.

                         Subpart B_Requirements

9.11 Contracting agency requirements.
9.12 Contractor requirements and prerogatives.

                          Subpart C_Enforcement

9.21 Complaints.
9.22 Wage and Hour Division conciliation.
9.23 Wage and Hour Division investigation.
9.24 Remedies and sanctions for violations of this part.

 Subpart D_Administrator's Determination, Mediation, and Administrative 
                               Proceedings

9.31 Administrator's determination.
9.32 Requesting appeals.
9.33 Mediation.
9.34 Administrative Law Judge hearings.
9.35 Administrative Review Board proceedings.

Appendix A to Part 9--Contract Clause

[[Page 160]]

Appendix B to Part 9--Notice to Service Contract Employees.

    Authority: 5 U.S.C. 301; section 6, E.O. 13495, 74 FR 6103; 
Secretary's Order 9-2009, 74 FR 58836.

    Source: 76 FR 53752, Aug. 29, 2011, unless otherwise noted.



                            Subpart A_General



Sec.  9.1  Purpose and scope.

    (a) Purpose. This part contains the Department of Labor's rules 
relating to the administration of Executive Order 13495, 
``Nondisplacement of Qualified Workers Under Service Contracts,'' and 
implements the enforcement provisions of the Executive Order. The 
Executive Order assigns enforcement responsibility for the 
nondisplacement requirements to the Department. The Executive Order 
states that the Federal Government's procurement interests in economy 
and efficiency are served when the successor contractor hires the 
predecessor's employees. A carryover workforce minimizes disruption in 
the delivery of services during a period of transition between 
contractors and provides the Federal Government the benefit of an 
experienced and trained workforce that is familiar with the Federal 
Government's personnel, facilities, and requirements. Executive Order 
13495, therefore, generally requires that successor service contractors 
performing on Federal contracts offer a right of first refusal to 
suitable employment (i.e., a job for which the employee is qualified) 
under the contract to those employees under the predecessor contract 
whose employment will be terminated as a result of the award of the 
successor contract.
    (b) Policy. Executive Order 13495 establishes a Federal Government 
policy for service contracts and their solicitations to include a clause 
that requires the contractor and its subcontractors under a contract 
that succeeds a contract for performance of the same or similar services 
at the same location to offer a right of first refusal of employment to 
those employees (other than managerial and supervisory employees) 
employed under the predecessor contract whose employment will be 
terminated as a result of the award of the successor contract in 
positions for which the employees are qualified. Nothing in Executive 
Order 13495 or this part shall be construed to permit a contractor or 
subcontractor to fail to comply with any provision of any other 
Executive Order, regulation, or law of the United States.
    (c) Scope. Neither Executive Order 13495 nor this part creates any 
rights under the Contract Disputes Act or any private right of action. 
The Executive Order provides that disputes regarding the requirement of 
the contract clause prescribed by section 5 of the Order, to the extent 
permitted by law, shall be disposed of only as provided by the Secretary 
of Labor in regulations issued under the Order. It also provides for 
this part to favor the resolution of disputes by efficient and informal 
alternative dispute resolution methods to the extent practicable. The 
Order does not preclude judicial review of final decisions by the 
Secretary in accordance with the Administrative Procedure Act. 
Additionally, the Order also provides that it is to be implemented 
consistent with applicable law and subject to the availability of 
appropriations.



Sec.  9.2  Definitions.

    For purposes of this part:
    Administrator means the Administrator of the Wage and Hour Division 
and includes any official of the Wage and Hour Division authorized to 
perform any of the functions of the Administrator under this part.
    Administrative Review Board means the Administrative Review Board, 
U.S. Department of Labor.
    Contractor means a prime contractor and all of its first or lower 
tier subcontractors on a Federal service contract.
    Contracting Officer means the individual, a duly appointed 
successor, or authorized representative who is designated and authorized 
to enter into procurement contracts on behalf of the Federal contracting 
agency.
    Day means, unless otherwise specified, a calendar day.
    Employee or service employee means any person engaged in the 
performance of a service contract other than any person employed in a 
bona fide executive, administrative, or professional capacity, as those 
terms are defined in

[[Page 161]]

29 CFR part 541. The term employee or service employee includes all such 
persons, as defined in the McNamara-O'Hara Service Contract Act of 1965, 
as amended, regardless of any contractual relationship that may be 
alleged to exist between a contractor or subcontractor and such persons.
    Employment opening means any vacancy in a position on the contract, 
including any vacancy caused by replacing an employee from the 
predecessor contract with a different employee.
    Federal Government means an agency or instrumentality of the United 
States that enters into a procurement contract pursuant to authority 
derived from the Constitution and the laws of the United States.
    Managerial employee and supervisory employee mean a person engaged 
in the performance of services under the contract who is employed in a 
bona fide executive, administrative, or professional capacity, as those 
terms are defined and delimited in 29 CFR part 541.
    Month means a period of 30 consecutive days, regardless of the day 
of the calendar month on which it begins.
    Office of Administrative Law Judges means the Office of 
Administrative Law Judges, U.S. Department of Labor.
    Secretary means the U.S. Secretary of Labor or an authorized 
representative of the Secretary.
    Same or similar service means a service that is either identical to 
or has one or more characteristics that are alike in substance to a 
service performed at the same location on a contract that is being 
replaced by the Federal Government or a contractor on a Federal service 
contract.
    Service contract or contract means any contract or subcontract for 
services entered into by the Federal Government or its contractors that 
is covered by the McNamara-O'Hara Service Contract Act of 1965, as 
amended, and its implementing regulations.
    Solicitation means any request to submit offers or quotations to the 
Government.
    United States means the United States and all executive departments, 
independent establishments, administrative agencies, and 
instrumentalities of the United States, including corporations of which 
all or substantially all of the stock is owned by the United States, by 
the foregoing departments, establishments, agencies, instrumentalities, 
and including non-appropriated fund instrumentalities.
    Wage and Hour Division means the Wage and Hour Division, U.S. 
Department of Labor.



Sec.  9.3  Coverage.

    This part applies to all service contracts and their solicitations, 
except those excluded by Sec.  9.4 of this part, that succeed contracts 
for the same or similar service at the same location.



Sec.  9.4  Exclusions.

    (a) Small contracts. (1) General. The requirements of this part do 
not apply to contracts or subcontracts under the simplified acquisition 
threshold set by the Office of Federal Procurement Policy Act, as 
amended.
    (2) Application to subcontracts. While the Sec.  9.4(a)(1) exclusion 
applies to subcontracts that are less than the simplified acquisition 
threshold, the prime contractor must comply with the requirements of 
this part, if the prime contract is at least the threshold amount. When 
a contractor that is subject to the nondisplacement requirements of this 
part discontinues the services of a subcontractor at any time during the 
contract and performs those services itself at the same location, the 
contractor shall offer employment on the contract to the subcontractor's 
employees who would otherwise be displaced and would otherwise be 
qualified in accordance with this part but for the size of the 
subcontract.
    (b) Certain contracts or subcontracts awarded for services produced 
or provided by persons who are blind or have severe disabilities. (1) 
The requirements of this part do not apply to contracts or subcontracts 
pursuant to the Javits-Wagner-O'Day Act.
    (2) The requirements of this part do not apply to contracts or 
subcontracts for guard, elevator operator, messenger, or custodial 
services provided to the Federal Government under contracts or 
subcontracts with sheltered workshops employing the severely handicapped 
as described in sec. 505 of

[[Page 162]]

the Treasury, Postal Services and General Government Appropriations Act, 
1995.
    (3) The requirements of this part do not apply to agreements for 
vending facilities entered into pursuant to the preference regulations 
issued under the Randolph-Sheppard Act.
    (4) The exclusions provided by paragraphs (b)(1) through (3) of this 
section apply when either the predecessor or successor contract has been 
awarded for services produced or provided by the severely disabled, as 
described in paragraphs (b)(1)-(3) of this section.
    (c) Federal service work constituting only part of employee's job. 
This part does not apply to employees who were hired to work under a 
Federal service contract and one or more nonfederal service contracts as 
part of a single job, provided that the employees were not deployed in a 
manner that was designed to avoid the purposes of Executive Order 13495.
    (d) Contracts exempted by Federal agency. This part does not apply 
to any contract, subcontract, or purchase order or any class of 
contracts, subcontracts, or purchase orders as to which the head of a 
contracting department or agency finds that the application of any of 
the requirements of this part would not serve the purposes of Executive 
Order 13495 or would impair the ability of the Federal Government to 
procure services on an economical and efficient basis.
    (1) Any agency determination to exercise its exemption authority 
under Section 4 of the Executive Order shall be made no later than the 
solicitation date. As an alternative to exempting the agency from all 
provisions of this part, the head of a contracting department or agency 
may exempt the agency from one or more individual provisions no later 
than the contract solicitation date. Any agency determination to 
exercise its exemption authority under Section 4 of the Executive Order 
made after the solicitation date shall be inoperative and in such a 
circumstance the contract clause set forth in Appendix A of this part 
shall be included in, or added to, the covered service contracts and 
their solicitations.
    (2) When an agency exercises its exemption authority with respect to 
any contract, subcontract, or purchase order, the contracting agency 
shall ensure that the contractor notifies affected workers and their 
collective bargaining representatives in writing of the agency's 
determination no later than five business days after the solicitation 
date. The notification shall include facts supporting the determination 
that the application of one or more requirements of this part would not 
serve the purposes of Executive Order 13495 or would impair the ability 
of the Federal Government to procure services on an economical and 
efficient basis. Where a contracting agency exempts a class of 
contracts, subcontracts, or purchase orders, the contractor shall 
provide the notice to incumbent workers and their collective bargaining 
representatives for each individual solicitation. A contracting agency's 
failure to ensure that the contractor notifies incumbent workers and 
their collective bargaining representatives in writing of the agency's 
determination to exercise its exemption authority under Section 4 of the 
Executive Order no later than five business days after the solicitation 
date shall render the exemption decision inoperative and in such a 
circumstance the contract clause set forth in Appendix A of this part 
shall be included in, or added to, the covered service contracts and 
their solicitations. The contracting agency also shall notify the 
Department of its exemption decision and provide the Department with a 
copy of its written analysis no later than five business days after the 
solicitation date, which the Department will post on its Web site at 
http://www.dol.gov. The contracting agency's failure to follow this 
requirement shall render any agency exemption decision inoperative and 
in such a circumstance the clause in Appendix A of this part shall be 
included in, or added to, the covered service contracts and their 
solicitations.
    (3) The agency shall ensure that the predecessor contractor uses the 
notification method specified in Sec.  9.11(b) of this part to inform 
workers and their collective bargaining representatives of the exemption 
determination. The

[[Page 163]]

failure by a contracting agency to ensure that the contractor uses the 
notification method specified in Sec.  9.11(b) of this part shall render 
the exemption decision inoperative and in such a circumstance the 
contract clause set forth in Appendix A of this part shall be included 
in, or added to, the covered service contracts and their solicitations.
    (4)(i) In exercising the authority to exempt contracts under this 
section based on a finding that any of the requirements of Executive 
Order 13495 would not serve the purposes of the Order, or would impair 
the ability of the Federal Government to procure services on an 
economical and efficient basis, the agency shall prepare a written 
analysis by the solicitation date supporting such determination. The 
written analysis shall be retained in accordance with FAR 4.805. 48 CFR 
4.805. Such a written analysis shall, among other things, compare the 
anticipated outcomes of hiring predecessor contract employees with those 
of hiring a new workforce. The consideration of cost and other factors 
in exercising the agency's exemption authority shall reflect the general 
finding made by the Executive Order that the government's procurement 
interests in economy and efficiency are normally served when the 
successor contractor hires the predecessor's employees, and shall 
specify how the particular circumstances support a contrary conclusion. 
Any agency determination to exercise its exemption authority under 
Section 4 of the Executive Order without a written analysis as required 
by this part shall be inoperative and in such a circumstance the 
contract clause set forth in Appendix A of this part shall be included 
in, or added to, the covered service contracts and their solicitations.
    (ii) When analyzing whether the application of the Executive Order's 
requirements would not serve the purposes of the Order and impair the 
ability of the Federal Government to procure services on an economical 
and efficient basis, the head of a contracting department or agency 
shall consider the specific circumstances associated with the services 
to be acquired. General assertions or presumptions of an inability to 
procure services on an economical and efficient basis using a carryover 
workforce shall be deemed insufficient. Factors that may be considered 
include, but are not limited to the following:
    (A) Whether the use of a carryover workforce would greatly increase 
disruption to the delivery of services during the period of transition 
between contracts (e.g., the carryover workforce in its entirety would 
not be an experienced and trained workforce that is familiar with the 
Federal Government's personnel, facilities, and requirements as 
pertinent to the contract, subcontract, purchase order, class of 
contracts, subcontracts, or purchase orders at issue and would require 
extensive training to learn new technology or processes that would not 
be required of a new workforce).
    (B) Emergency situations, such as a natural disaster or an act of 
war, that physically displace incumbent employees from the location of 
the service contract work and make it impossible or impracticable to 
extend offers to hire as required by the Order.
    (C) Situations where the head of the contracting department or 
agency reasonably believes, based on the predecessor employees' past 
performance, that the entire predecessor workforce failed, individually 
as well as collectively, to perform suitably on the job and that it is 
not in the interest of economy and efficiency to provide supplemental 
training to the predecessor's workers.
    (iii) Factors the head of a contracting department or agency shall 
not consider in making an exemption determination (because consideration 
of such factors would contravene the Executive Order's purposes and 
findings) include whether the use of a carryover workforce, in general, 
would greatly increase disruption to the delivery of services during the 
period of transition between contracts; whether, in general, a carryover 
workforce would not be an experienced and trained workforce that is 
familiar with the Federal Government's personnel, facilities, and 
requirements; the job performance of the predecessor contractor; the 
seniority of the workforce; and the reconfiguration of the contract

[[Page 164]]

work by a successor contractor. The head of a contracting department or 
agency also shall not consider wage rates and fringe benefits of service 
employees in making an exemption determination except in the following 
exceptional circumstances:
    (A) In emergency situations, such as a natural disaster or an act of 
war, that physically displace incumbent employees from the locations of 
the service contract work and make it impossible or impracticable to 
extend offers to hire as required by the Order;
    (B) When a carryover workforce in its entirety would not constitute 
an experienced and trained workforce that is familiar with the Federal 
Government's personnel, facilities, and requirements but rather would 
require extensive training to learn new technology or processes that 
would not be required of a new workforce; or
    (C) Other, similar circumstances in which the cost of employing a 
carryover workforce on the successor contract would be prohibitive.
    (5) Any request by interested parties for reconsideration of a 
contracting department or agency head's determination to exercise its 
exemption authority under Section 4 of the Executive Order shall be 
directed to the head of the contracting department or agency.
    (e) Managerial and supervisory employees. This part does not apply 
to employees who are managerial or supervisory employees of Federal 
service contractors or subcontractors. See Sec.  9.2(9) of this part, 
definition of managerial employee and supervisory employee.



                         Subpart B_Requirements



Sec.  9.11  Contracting agency requirements.

    (a) Contract Clause. The contract clause set forth in Appendix A of 
this part shall be included in covered service contracts, and 
solicitations for such contracts, that succeed contracts for performance 
of the same or similar services at the same location.
    (b) Notice. Where a contract will be awarded to a successor for the 
same or similar services to be performed at the same location, the 
Contracting Officer will ensure that the predecessor contractor provide 
written notice to service employees of the predecessor contractor of 
their possible right to an offer of employment. Such notice shall be 
either posted in a conspicuous place at the worksite or delivered to the 
employees individually. Where the predecessor contractor's workforce is 
comprised of a significant portion of workers who are not fluent in 
English, the notice shall be provided in both English and a language 
with which the employees are more familiar. Multiple foreign language 
notices are required where significant portions of the workforce speak 
different foreign languages and there is no common language. Contracting 
Officers may advise contractors to provide the notice set forth in 
Appendix B to this part in either a physical posting at the job site, or 
another format that effectively provides individual notice such as 
individual paper notices or effective email notification to the affected 
employees. To be effective, email notification must result in an 
electronic delivery receipt or some other reliable confirmation that the 
intended recipient received the notice. Any particular determination of 
the adequacy of a notification, regardless of the method used, must be 
fact-dependent and made on a case-by-case basis.
    (c) Disclosures. The Contracting Officer shall provide the incumbent 
contractor's list of employees referenced in Sec.  9.12(e) of this part 
to the successor contractor and, on request, to employees or their 
representatives.
    (d) Actions on complaints. (1) Reporting. (i) Reporting time frame. 
Within 14 days of being contacted by the Wage and Hour Division, the 
Contracting Officer shall forward all information listed in paragraph 
(d)(1)(ii) of this section to the Branch of Government Contracts 
Enforcement, Wage and Hour Division, U.S. Department of Labor, 
Washington, DC 20210.
    (ii) Report contents: Except as provided by paragraph (d)(3) of this 
section, the Contracting Officer shall forward to the Branch of 
Government Contracts Enforcement, Wage and Hour Division, U.S. 
Department of Labor, Washington, DC 20210 any:
    (A) Complaint of contractor noncompliance with this part;

[[Page 165]]

    (B) Available statements by the employee or the contractor regarding 
the alleged violation;
    (C) Evidence that a seniority list was issued by the predecessor and 
provided to the successor;
    (D) A copy of the seniority list;
    (E) Evidence that the nondisplacement contract clause was included 
in the contract or that the contract was exempted by the contracting 
agency;
    (F) Information concerning known settlement negotiations between the 
parties, if applicable;
    (G) Any other relevant facts known to the Contracting Officer or 
other information requested by the Wage and Hour Division.
    (2) [Reserved]



Sec.  9.12  Contractor requirements and prerogatives.

    (a) General. (1) No employment openings prior to right of first 
refusal. Except as provided under the exclusions listed in Sec.  9.4 of 
this part or paragraphs (c) and (d) of this section, a successor 
contractor or subcontractor shall fill no employment openings under the 
contract prior to making good faith offers of employment (i.e., a right 
of first refusal to employment on the contract), in positions for which 
the employees are qualified, to those employees employed under the 
predecessor contract whose employment will be terminated as a result of 
award of the contract or the expiration of the contract under which the 
employees were hired. The contractor and its subcontractors shall make a 
bona fide, express offer of employment to a position for which the 
employee is qualified to each employee and shall state the time within 
which the employee must accept such offer, but in no case shall the 
period within which the employee must accept the offer of employment be 
less than 10 days.
    (2) No seniority list available. The successor contractor's 
obligation to offer a right of first refusal exists even if the 
successor contractor has not been provided a list of the predecessor 
contractor's employees or the list does not contain the names of all 
persons employed during the final month of contract performance.
    (3) Determining eligibility. While a person's entitlement to a job 
offer under this part usually will be based on whether he or she is 
named on the certified list of all service employees working under the 
predecessor's contract or subcontracts during the last month of contract 
performance, a contractor must also accept other credible evidence of an 
employee's entitlement to a job offer under this part. For example, even 
if a person's name does not appear on the list of employees on the 
predecessor contract, an employee's assertion of an assignment to work 
on a contract during the predecessor's last month of performance coupled 
with contracting agency staff verification could constitute credible 
evidence of an employee's entitlement to a job offer, as otherwise 
provided for in this part. Similarly, an employee could demonstrate 
eligibility by producing a paycheck stub identifying the work location 
and dates worked.
    (b) Method of job offer. (1) Bona-fide offer. Except as otherwise 
provided in this part, a contractor must make a bona fide express offer 
of employment to each qualified employee on the predecessor contract 
before offering employment on the contract to any other person. In 
determining whether an employee is entitled to a bona fide, express 
offer of employment, a contractor may consider the exceptions set forth 
in paragraph (c) of this section and may utilize employment screening 
processes (i.e., drug tests, background checks, security clearance 
checks, and similar pre-employment screening mechanisms) only when such 
processes are provided for by the contracting agency, are conditions of 
the service contract, and are consistent with the Executive Order. The 
obligation to offer employment under this part shall cease upon the 
employee's first refusal of a bona fide offer to employment on the 
contract.
    (2) Establishing time limit for employee response. The contractor 
shall state the time within which an employee must accept an employment 
offer, but in no case may the period in which the employee has to accept 
the offer be less than 10 days.

[[Page 166]]

    (3) Process. The successor contractor must, in writing or orally, 
offer employment to each employee. See also paragraph (f) of this 
section, Recordkeeping. In order to ensure that the offer is effectively 
communicated, the successor contractor should take reasonable efforts to 
make the offer in a language that each worker understands. For example, 
if the contractor holds a meeting for a group of employees on the 
predecessor contract in order to extend the employment offers, having a 
co-worker or other person who fluently translates for employees who are 
not fluent in English would satisfy this provision.
    (4) Different job position. As a general matter, an offer of 
employment on the successor's contract will be presumed to be a bona 
fide offer of employment, even if it is not for a position similar to 
the one the employee previously held but one for which the employee is 
qualified. If a question arises concerning an employee's qualifications, 
that question shall be decided based upon the employee's education and 
employment history, with particular emphasis on the employee's 
experience on the predecessor contract. A contractor must base its 
decision regarding an employee's qualifications on credible information 
provided by a knowledgeable source such as the predecessor contractor, 
the local supervisor, the employee, or the contracting agency.
    (5) Different employment terms and conditions. An offer of 
employment to a position on the contract under different employment 
terms and conditions, including changes to pay or benefits, than the 
employee held with the predecessor contractor will be considered bona 
fide, if the reasons are not related to a desire that the employee 
refuse the offer or that other employees be hired for the offer.
    (6) Termination after contract commencement. Where an employee is 
terminated under circumstances suggesting the offer of employment may 
not have been bona fide, the facts and circumstances of the offer and 
the termination will be closely examined during any compliance action to 
ensure the offer was bona fide.
    (c) Exceptions. The successor contractor will bear the 
responsibility of demonstrating the appropriateness of claiming any of 
the following exceptions to the nondisplacement provisions subject to 
this part.
    (1) Nondisplaced employees. (i) A contractor or subcontractor is not 
required to offer employment to any employee of the predecessor 
contractor who will be retained by the predecessor contractor.
    (ii) The contractor must presume that all employees hired to work 
under a predecessor's Federal service contract will be terminated as a 
result of the award of the successor contract, absent an ability to 
demonstrate a reasonable belief to the contrary that is based upon 
credible information provided by a knowledgeable source such as the 
predecessor contractor or the employee.
    (2) Successor's current employees. A contractor or subcontractor may 
employ under the contract any employee who has worked for the contractor 
or subcontractor for at least 3 months immediately preceding the 
commencement of the contract and who would otherwise face lay-off or 
discharge.
    (3) Predecessor contractor's non-service employees. (i) A contractor 
or subcontractor is not required to offer employment to any employee of 
the predecessor who is not a service employee. See Sec.  9.2 of this 
part for definitions of employee, managerial employee and supervisory 
employee.
    (ii) The contractor must presume that all employees hired to work 
under a predecessor's Federal service contract are service employees, 
absent an ability to demonstrate a reasonable belief to the contrary 
that is based upon credible information provided by a knowledgeable 
source such as the predecessor contractor, the employee, or the 
contracting agency. Information regarding the general business practices 
of the predecessor contractor or the industry is not sufficient to claim 
this exemption.
    (4) Employee's past unsuitable performance. (i) A contractor or 
subcontractor is not required to offer employment to any employee of the 
predecessor contractor for whom the contractor or any

[[Page 167]]

of its subcontractors reasonably believes, based on the particular 
employee's past performance, has failed to perform suitably on the job.
    (ii)(A) The contractor must presume that all employees working under 
the predecessor contract in the last month of performance performed 
suitable work on the contract, absent an ability to demonstrate a 
reasonable belief to the contrary that is based upon written credible 
information provided by a knowledgeable source such as the predecessor 
contractor and its subcontractors, the local supervisor, the employee, 
or the contracting agency.
    (B) For example, a contractor may demonstrate its reasonable belief 
that the employee, in fact, failed to perform suitably on the 
predecessor contract through written evidence of disciplinary action 
taken for poor performance or evidence directly from the contracting 
agency that the particular employee did not perform suitably. The 
performance determination must be made on an individual basis for each 
employee. Information regarding the general performance of the 
predecessor contractor is not sufficient to claim this exception.
    (5) Non-Federal work. (i) A contractor or subcontractor is not 
required to offer employment to any employee hired to work under a 
predecessor's Federal service contract and one or more nonfederal 
service contracts as part of a single job, provided that the employee 
was not deployed in a manner that was designed to avoid the purposes of 
this part.
    (ii) The successor contractor must presume that no employees hired 
to work under a predecessor's Federal service contract worked on one or 
more nonfederal service contracts as part of a single job, unless the 
successor can demonstrate a reasonable belief to the contrary. The 
successor contractor must demonstrate that its belief is reasonable and 
is based upon credible information provided by a knowledgeable source 
such as the predecessor contractor, the local supervisor, the employee, 
or the contracting agency. Information regarding the general business 
practices of the predecessor contractor or the industry is not 
sufficient.
    (iii) A contractor that makes a reasonable determination that a 
predecessor contractor's employee also performed work on one or more 
nonfederal service contracts as part of a single job must also make a 
reasonable determination that the employee was not deployed in such a 
way that was designed to avoid the purposes of this part. The successor 
contractor must demonstrate that its belief is reasonable and is based 
upon credible information that has been provided by a knowledgeable 
source such as the employee or the contracting agency. For example, 
evidence from a contracting agency that an employee worked only 
occasionally on a Federal service contract combined with a statement 
from the employee indicating fulltime employment with the predecessor 
would, absent other facts, constitute the basis for a reasonable belief 
that there is no obligation to offer employment to the employee. On the 
other hand, information suggesting a change in how a predecessor 
contractor deployed employees near the end of the contract period could 
suggest an effort to evade the purposes of this part.
    (d) Reduced staffing. (1) Contractor determines how many employees. 
(i) A contractor or subcontractor shall determine the number of 
employees necessary for efficient performance of the contract or 
subcontract and, for bona fide staffing or work assignment reasons, may 
elect to employ fewer employees than the predecessor contractor employed 
in connection with performance of the work. Thus, the successor 
contractor need not offer employment on the contract to all employees on 
the predecessor contract, but must offer employment only to the number 
of eligible employees the successor contractor believes necessary to 
meet its anticipated staffing pattern, except that:
    (ii) Where, in accordance with this authority to employ fewer 
employees, a successor contractor does not offer employment to all the 
predecessor contract employees, the obligation to offer employment shall 
continue for 90 days after the successor contractor's first date of 
performance on the contract. The contractor's obligation under this

[[Page 168]]

part will end when all of the predecessor contract employees have 
received a bona fide job offer, including stating the time within which 
the employee must accept such offer, which must be no less than 10 days, 
or the 90-day window of obligation has expired. The following three 
examples demonstrate the principle.
    (A) A contractor with 18 employment openings and a list of 20 
employees from the predecessor contract must continue to offer 
employment to individuals on the list until 18 of the employees accept 
the contractor's employment offer or until the remaining employees have 
rejected the offer. If an employee quits or is terminated from the 
successor contract within 90 days of the first date of contract 
performance, the contractor must first offer employment to any remaining 
eligible employees of the predecessor contract.
    (B) A successor contractor originally offers 20 jobs to predecessor 
contract employees on a contract that had 30 positions under the 
predecessor contractor. The first 20 predecessor contract employees the 
successor contractor approaches accept the employment offer. Within a 
month of commencing work on the contract, the successor determines that 
it must hire seven additional employees to perform the contract 
requirements. The first three predecessor contract employees to whom the 
successor offers employment decline the offer; however, the next four 
predecessor contract employees accept the offers. In accordance with the 
provisions of this section, the successor contractor offers employment 
on the contract to the three remaining predecessor contract employees 
who all accept; however, two employees on the contract quit five weeks 
later. The successor contractor has no further obligation under this 
part to make a second employment offer to the persons who previously 
declined an offer of employment on the contract.
    (C) A successor contractor reduces staff on a successor contract by 
two positions from the predecessor contract's staffing pattern. Each 
predecessor contract employee the successor approaches accepts the 
employment offer; therefore, employment offers are not made to two 
predecessor contract employees. The successor contractor terminates an 
employee five months later. The successor contractor has no obligation 
to offer employment to the two remaining employees from the predecessor 
contract, because more than 90 days have passed since the successor 
contractor's first date of performance on the contract.
    (2) Contractor determines which employees. The contractor, subject 
to provisions of this part and other applicable restrictions (including 
non-discrimination laws and regulations), will determine to which 
employees it will offer employment. See Sec.  9.1(b) regarding 
compliance with other requirements.
    (3) Changes to staffing pattern. Where a contractor reduces the 
number of employees in any occupation on a contract with multiple 
occupations, resulting in some displacement, the contractor shall 
scrutinize each employee's qualifications in order to offer positions to 
the greatest number of predecessor contract employees possible. Example: 
A successor contract is awarded for a food preparation and services 
contract with Cook II, Cook I and dishwasher positions. The Cook II 
position requires a higher level of skill than the Cook I position. The 
successor contractor reconfigures the staffing pattern on the contract 
by increasing the number persons employed as a Cook II and Dishwashers 
but reducing the number of Cook I employees. The successor contractor 
must examine the qualifications of each Cook I to see if a position as 
either a Cook II or Dishwasher is possible. Conversely, were the 
contractor to increase the number of Cook I employees, decrease the 
number of Cook II employees, and keep the same number of Dishwashers the 
contractor would generally be able offer Cook I positions to some Cook 
II employees, because the Cook II performs a higher level occupation. 
The contractor would also need to consider whether offering Dishwasher 
positions to Cook I employees would result in less overall displacement. 
Finally, should some Dishwashers decline the employment offer, the 
Contractor would need to consider the qualifications of the Cooks at 
both levels and offer positions on the contract in a way that results in 
the least displacement.

[[Page 169]]

    (e) Contractor obligations near end of contract performance. (1) 
Certified list of employees provided 30 days before contract completion. 
The contractor shall, not less than 30 days before completion of the 
contractor's performance of services on a contract, furnish the 
Contracting Officer with a list of the names of all service employees 
working under the contract and its subcontracts at the time the list is 
submitted. The list shall also contain anniversary dates of employment 
of each service employee under the contract and its predecessor 
contracts with either the current or predecessor contractors or their 
subcontractors. Assuming there are no changes to the workforce before 
the contract is completed, the contractor may use the list submitted, or 
to be submitted, to satisfy the requirements of the contract clause 
specified at 29 CFR 4.6(l)(2) to meet this provision.
    (2) Certified list of employees provided 10 days before contract 
completion. Where changes to the workforce are made after the submission 
of the certified list described in paragraph (e)(1) of this section, the 
contractor shall, not less than 10 days before completion of the 
contractor's performance of services on a contract, furnish the 
Contracting Officer with a certified list of the names of all service 
employees employed within the last month of contract performance. The 
list shall also contain anniversary dates of employment and, where 
applicable, dates of separation of each service employee under the 
contract and its predecessor contracts with either the current or 
predecessor contractors or their subcontractors. The contractor may use 
the list submitted to satisfy the requirements of the contract clause 
specified at 29 CFR 4.6(l)(2) to meet this provision.
    (f) Recordkeeping. (1) Form of records. This part prescribes no 
particular order or form of records for contractors. A contractor may 
use records developed for any purpose to satisfy the requirements of 
this part, provided the records otherwise meet the requirements and 
purposes of this part and are fully accessible. The requirements of this 
part shall apply to all records regardless of their format (e.g., paper 
or electronic).
    (2) Records to be retained. (i) The contractor shall maintain copies 
of any written offers of employment or a contemporaneous written record 
of any oral offers of employment, including the date, location, and 
attendance roster of any employee meeting(s) at which the offers were 
extended, a summary of each meeting, a copy of any written notice that 
may have been distributed, and the names of the employees from the 
predecessor contract to whom an offer was made.
    (ii) The contractor shall maintain a copy of any record that forms 
the basis for any exclusion or exemption claimed under this part.
    (iii) The contractor shall maintain a copy of the employee list 
received from the contracting agency. See paragraph (e) of this section, 
contractor obligations near end of contract.
    (iv) Every contractor who makes retroactive payment of wages or 
compensation under the supervision of the Administrator of the Wage and 
Hour Division pursuant to Sec.  9.24(b) of this part, shall:
    (A) Record and preserve, as an entry on the pay records, the amount 
of such payment to each employee, the period covered by such payment, 
and the date of payment.
    (B) Prepare a report of each such payment on a receipt form provided 
by or authorized by the Wage and Hour Division, and
    (1) Preserve a copy as part of the records,
    (2) Deliver a copy to the employee, and
    (3) File the original, as evidence of payment by the contractor and 
receipt by the employee, with the Administrator or an authorized 
representative within 10 days after payment is made.
    (3) Records retention period. The contractor shall retain records 
prescribed by section Sec.  9.12(f)(2) of this part for not less than a 
period of three years from the date the records were created.
    (4) Disclosure. The contractor must provide copies of such 
documentation upon request of any authorized representative of the 
contracting agency or Department of Labor.
    (g) Investigations. The contractor shall cooperate in any review or 
investigation conducted pursuant to this

[[Page 170]]

part and shall not interfere with the investigation or intimidate, 
blacklist, discharge, or in any other manner discriminate against any 
person because such person has cooperated in an investigation or 
proceeding under this part or has attempted to exercise any rights 
afforded under this part. This obligation to cooperate with 
investigations is not limited to investigations of the contractor's own 
actions, but also includes investigations related to other contractors 
(e.g., predecessor and subsequent contractors) and subcontractors.



                          Subpart C_Enforcement



Sec.  9.21  Complaints.

    With Wage and Hour Division. Any employee(s) or authorized employee 
representative(s) of the predecessor contractor who believes the 
successor contractor has violated this part may file a complaint with 
the Wage and Hour Division within 120 days from the first date of 
contract performance. The employee may file a complaint directly with 
the Branch of Government Contracts Enforcement, Wage and Hour Division, 
U.S. Department of Labor, Washington, DC 20210.



Sec.  9.22  Wage and Hour Division conciliation.

    After obtaining information regarding alleged violations, the Wage 
and Hour Division may contact the successor contractor about the 
complaint and attempt to conciliate and reach a resolution that is 
consistent with the requirements of this part and is acceptable to both 
the complainant(s) and the successor contractor.



Sec.  9.23  Wage and Hour Division investigation.

    (a) Initial investigation. The Administrator may initiate an 
investigation under this part either as the result of the unsuccessful 
conciliation of a complaint or at any time on his or her own initiative. 
As part of the investigation, the Administrator may inspect the records 
of the predecessor and successor contractors (and make copies or 
transcriptions thereof), question the predecessor and successor 
contractors and any employees of these contractors, and require the 
production of any documentary or other evidence deemed necessary to 
determine whether a violation of this part (including conduct warranting 
imposition of ineligibility sanctions pursuant to Sec.  9.24(d) of this 
part) has occurred.
    (b) Subsequent investigations. The Administrator may conduct a new 
investigation or issue a new determination if the Administrator 
concludes circumstances warrant, such as where the proceedings before an 
Administrative Law Judge reveal that there may have been violations with 
respect to other employees of the contractor, where imposition of 
ineligibility sanctions is appropriate, or where the contractor has 
failed to comply with an order of the Secretary.



Sec.  9.24  Remedies and sanctions for violations of this part.

    (a) Authority. Executive Order 13495 provides that the Secretary 
shall have the authority to issue orders prescribing appropriate 
remedies, including, but not limited to, requiring the contractor to 
offer employment, in positions for which the employees are qualified, to 
employees from the predecessor contract and the payment of wages lost.
    (b) Unpaid wages or other relief due. In addition to satisfying any 
costs imposed under Sec. Sec.  9.34(j) or 9.35(d) of this part, a 
contractor who violates any provision of this part shall take 
appropriate action to abate the violation, which may include hiring each 
affected employee in a position on the contract for which the employee 
is qualified, together with compensation (including lost wages), terms, 
conditions, and privileges of that employment.
    (c) Withholding of funds. (1) Unpaid wages or other relief. After an 
investigation and a determination by the Administrator that lost wages 
or other monetary relief is due, the Administrator may direct that so 
much of the accrued payments due on either the contract or any other 
contract between the contractor and the Government shall be withheld as 
are necessary to pay the moneys due. Upon the final

[[Page 171]]

order of the Secretary that such moneys are due, the Administrator may 
direct that such withheld funds be transferred to the Department of 
Labor for disbursement.
    (2) List of employees. If the Contracting Officer or the 
Administrator, upon final order of the Secretary, finds that the 
predecessor contractor has failed to provide a list of the names of 
employees working under the contract in accordance with Sec.  9.12(e) of 
this part, the Contracting Officer may in his or her discretion, or upon 
request by the Administrator, take such action as may be necessary to 
cause the suspension of the payment of contract funds until such time as 
the list is provided to the Contracting Officer.
    (d) Ineligibility listing. Where the Secretary finds that a 
contractor has failed to comply with any order of the Secretary, or has 
committed willful or aggravated violations of this part, the Secretary 
may order that the contractor and its responsible officers, and any firm 
in which the contractor has a substantial interest, shall be ineligible 
to be awarded any contract or subcontract of the United States for a 
period of up to three years. Neither an order for debarment of any 
contractor or subcontractor from further Government contracts under this 
section nor the inclusion of a contractor or subcontractor on a 
published list of noncomplying contractors shall be carried out without 
affording the contractor or subcontractor an opportunity for a hearing.



 Subpart D_Administrator's Determination, Mediation, and Administrative 
                               Proceedings



Sec.  9.31  Determination of the Administrator.

    (a) Written determination. Upon completion of an investigation under 
Sec.  9.23 of this part, and provided that a resolution is not reached 
that is consistent with the requirements of this part and acceptable to 
both the complainant(s) and the successor contractor, the Administrator 
will issue a written determination of whether a violation has occurred. 
The determination shall contain a statement of the investigation 
findings and conclusions. A determination that a violation occurred 
shall address appropriate relief and the issue of ineligibility 
sanctions where appropriate. The Administrator will notify any 
complainant(s); employee representative(s); contractor, including the 
prime contractor if a subcontractor is implicated; and contractor 
representative(s) by personal service or by registered or certified mail 
to the last known address, of the investigation findings. Where service 
by certified mail is not accepted by the party, the Administrator may 
exercise discretion to serve the determination by regular mail.
    (b) Notice to parties and effect. (1) Relevant facts in dispute. 
Except as provided in paragraph (b)(2) of this section, the 
determination of the Administrator shall advise the parties (ordinarily 
any complainant, the successor contractor, and any of their 
representatives) that the notice of determination shall become the final 
order of the Secretary and shall not be appealable in any administrative 
or judicial proceeding unless, postmarked within 20 days of the date of 
the determination of the Administrator, the Chief Administrative Law 
Judge receives a request for a hearing pursuant to Sec.  9.32(b)(1) of 
this part. A detailed statement of the reasons why the Administrator's 
ruling is in error, including facts alleged to be in dispute, if any, 
shall be submitted with the request for a hearing. The Administrator's 
determination not to seek ineligibility sanctions shall not be 
appealable.
    (2) Relevant facts not in dispute. If the Administrator concludes 
that no relevant facts are in dispute, the parties and their 
representatives, if any, will be so advised and will be further advised 
that the determination shall become the final order of the Secretary and 
shall not be appealable in any administrative or judicial proceeding 
unless, postmarked within 20 days of the date of the determination of 
the Administrator, a petition for review is filed with the 
Administrative Review Board pursuant to Sec.  9.32(b)(2) of this part. 
The determination will further advise that if an aggrieved party 
disagrees with the factual findings or believes there are relevant facts 
in dispute, the aggrieved party may advise

[[Page 172]]

the Administrator of the disputed facts and request a hearing by letter, 
which must be received within 20 days of the date of the determination. 
The Administrator will either refer the request for a hearing to the 
Chief Administrative Law Judge, or notify the parties and their 
representatives, if any, of the determination of the Administrator that 
there is no relevant issue of fact and that a petition for review may be 
filed with the Administrative Review Board within 20 days of the date of 
the notice, in accordance with the procedures at Sec.  9.32(b)(2) of 
this part.



Sec.  9.32  Requesting appeals.

    (a) General. If any party desires review of the determination of the 
Administrator, including judicial review, a request for an 
Administrative Law Judge hearing or petition for review by the 
Administrative Review Board must first be filed in accordance with Sec.  
9.31(b) of this part.
    (b) Process. (1) For Administrative Law Judge hearing. (i) General. 
Any aggrieved party may file a request for a hearing by an 
Administrative Law Judge within 20 days of the determination of the 
Administrator. The request for a hearing shall be accompanied by a copy 
of the determination of the Administrator and may be filed by U.S. mail, 
facsimile (FAX), telegram, hand delivery, next-day delivery, or a 
similar service. At the same time, a copy of any request for a hearing 
shall be sent to the complainant(s) or successor contractor, and their 
representatives, if any, as appropriate; the Administrator of the Wage 
and Hour Division; and the Associate Solicitor, Division of Fair Labor 
Standards, U.S. Department of Labor, Washington, DC 20210.
    (ii) By the complainant. The complainant or any other interested 
party may request a hearing where the Administrator determines, after 
investigation, that there is no basis for a finding that a contractor 
has committed violation(s), or where the complainant or other interested 
party believes that the Administrator has ordered inadequate monetary 
relief. In such a proceeding, the party requesting the hearing shall be 
the prosecuting party and the contractor shall be the respondent; the 
Administrator may intervene as a party or appear as amicus curiae at any 
time in the proceeding, at the Administrator's discretion.
    (iii) By the contractor. The contractor or any other interested 
party may request a hearing where the Administrator determines, after 
investigation, that the contractor has committed violation(s). In such a 
proceeding, the Administrator shall be the prosecuting party and the 
contractor shall be the respondent.
    (2) For Administrative Review Board review. (i) General. Any 
aggrieved party desiring review of a determination of the Administrator 
in which there were no relevant facts in dispute, or an Administrative 
Law Judge's decision, shall file a written petition for review with the 
Administrative Review Board that must be postmarked within 20 days of 
the date of the determination or decision and shall be served on all 
parties and, where the case involves an appeal from an Administrative 
Law Judge's decision, the Chief Administrative Law Judge. See also Sec.  
9.32(b)(1) of this part.
    (ii) Contents and service. (A) A petition for review shall refer to 
the specific findings of fact, conclusions of law, or order at issue.
    (B) Copies of the petition and all briefs shall be served on the 
Administrator, Wage and Hour Division, and on the Associate Solicitor, 
Division of Fair Labor Standards, U.S. Department of Labor, Washington, 
DC 20210.
    (c) Effect of filing. If a timely request for hearing or petition 
for review is filed, the determination of the Administrator or the 
decision of the Administrative Law Judge shall be inoperative unless and 
until the Administrative Review Board issues an order affirming the 
determination or decision, or the determination or decision otherwise 
becomes a final order of the Secretary. If a petition for review 
concerns only the imposition of ineligibility sanctions, however, the 
remainder of the decision shall be effective immediately. No judicial 
review shall be available unless a timely petition for review to the 
Administrative Review Board is first filed.

[[Page 173]]



Sec.  9.33  Mediation.

    (a) General. The parties are encouraged to resolve disputes in 
accordance with the conciliation procedures set forth at Sec.  9.22 of 
this part, or, where such efforts have failed, to utilize settlement 
judges to mediate settlement negotiations pursuant to 29 CFR 18.9 when 
those provisions apply. At any time after commencement of a proceeding, 
the parties jointly may move to defer the hearing for a reasonable time 
to permit negotiation of a settlement or an agreement containing 
findings and an order disposing of the whole or any part of the 
proceeding.
    (b) Appointing settlement judge for cases scheduled with the Office 
of Administrative Law Judges. Upon a request by a party or the presiding 
Administrative Law Judge, the Chief Administrative Law Judge may appoint 
a settlement judge. The Chief Administrative Law Judge has sole 
discretion to decide whether to appoint a settlement judge, except that 
a settlement judge shall not be appointed when a party objects to 
referral of the matter to a settlement judge.



Sec.  9.34  Administrative Law Judge hearings.

    (a) Authority. (1) General. The Office of Administrative Law Judges 
has jurisdiction to hear and decide appeals pursuant to Sec.  9.31(b)(1) 
of this part concerning questions of law and fact from determinations of 
the Administrator issued under Sec.  9.31 of this part. In considering 
the matters within the scope of its jurisdiction, the Administrative Law 
Judge shall act as the authorized representative of the Secretary and 
shall act fully and, subject to an appeal filed under Sec.  9.32(b)(2) 
of this part, finally on behalf of the Secretary concerning such 
matters.
    (2) Limit on scope of review. (i) The Administrative Law Judge shall 
not have jurisdiction to pass on the validity of any provision of this 
part.
    (ii) The Equal Access to Justice Act, as amended, does not apply to 
hearings under this part. Accordingly, an Administrative Law Judge shall 
have no authority to award attorney fees and/or other litigation 
expenses pursuant to the provisions of the Equal Access to Justice Act 
for any proceeding under this part.
    (b) Scheduling. If the case is not stayed to attempt settlement in 
accordance with Sec.  9.33(a) of this part, the Administrative Law Judge 
to whom the case is assigned shall, within 15 calendar days following 
receipt of the request for hearing, notify the parties and any 
representatives, of the day, time, and place for hearing. The date of 
the hearing shall not be more than 60 days from the date of receipt of 
the request for hearing.
    (c) Dismissing challenges for failure to participate. The 
Administrative Law Judge may, at the request of a party or on his/her 
own motion, dismiss a challenge to a determination of the Administrator 
upon the failure of the party requesting a hearing or his/her 
representative to attend a hearing without good cause; or upon the 
failure of said party to comply with a lawful order of the 
Administrative Law Judge.
    (d) Administrator's participation. At the Administrator's 
discretion, the Administrator has the right to participate as a party or 
as amicus curiae at any time in the proceedings, including the right to 
petition for review of a decision of an Administrative Law Judge in a 
case in which the Administrator has not previously participated. The 
Administrator shall participate as a party in any proceeding in which 
the Administrator has found any violation of this part, except where the 
complainant or other interested party challenges only the amount of 
monetary relief. See also Sec.  9.32(b)(2)(i)(C) of this part.
    (e) Agency participation. A Federal agency that is interested in a 
proceeding may participate, at the agency's discretion, as amicus curiae 
at any time in the proceedings. At the request of such Federal agency, 
copies of all pleadings in a case shall be served on the Federal agency, 
whether or not the agency is participating in the proceeding.
    (f) Requesting documents. Copies of the request for hearing and 
documents filed in all cases, whether or not the Administrator is 
participating in the proceeding, shall be sent to the Administrator, 
Wage and Hour Division, and to the Associate Solicitor, Division of

[[Page 174]]

Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210.
    (g) Rules of practice. (1) The rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges 
at 29 CFR part 18, subpart A, shall be applicable to the proceedings 
provided by this section. This part is controlling to the extent it 
provides any rules of special application that may be inconsistent with 
the rules in 29 CFR part 18, subpart A. The Rules of Evidence at 29 CFR 
18, subpart B, shall not apply. Rules or principles designed to assure 
production of the most probative evidence available shall be applied. 
The Administrative Law Judge may exclude evidence that is immaterial, 
irrelevant, or unduly repetitive.
    (h) Decisions. The Administrative Law Judge shall issue a decision 
within 60 days after completion of the proceeding at which evidence was 
submitted. The decision shall contain appropriate findings, conclusions, 
and an order and be served upon all parties to the proceeding.
    (i) Orders. Upon the conclusion of the hearing and the issuance of a 
decision that a violation has occurred, the Administrative Law Judge 
shall issue an order that the successor contractor take appropriate 
action to abate the violation, which may include hiring each affected 
employee in a position on the contract for which the employee is 
qualified, together with compensation (including lost wages), terms, 
conditions, and privileges of that employment. Where the Administrator 
has sought ineligibility sanctions, the order shall also address whether 
such sanctions are appropriate.
    (j) Costs. If an order finding the successor contractor violated 
this part is issued, the Administrative Law Judge may assess against the 
contractor a sum equal to the aggregate amount of all costs (not 
including attorney fees) and expenses reasonably incurred by the 
aggrieved employee(s) in the proceeding. This amount shall be awarded in 
addition to any unpaid wages or other relief due under Sec.  9.24(b) of 
this part.
    (k) Finality. The decision of the Administrative Law Judge shall 
become the final order of the Secretary, unless a petition for review is 
timely filed with the Administrative Review Board as set forth in Sec.  
9.32(b)(2) of this part.



Sec.  9.35  Administrative Review Board proceedings.

    (a) Authority. (1) General. The Administrative Review Board has 
jurisdiction to hear and decide in its discretion appeals pursuant to 
Sec.  9.31(b)(2) concerning questions of law and fact from 
determinations of the Administrator issued under Sec.  9.31 of this part 
and from decisions of Administrative Law Judges issued under Sec.  9.34 
of this part. In considering the matters within the scope of its 
jurisdiction, the Board shall act as the authorized representative of 
the Secretary and shall act fully and finally on behalf of the Secretary 
concerning such matters.
    (2) Limit on scope of review. (i) The Board shall not have 
jurisdiction to pass on the validity of any provision of this part. The 
Board is an appellate body and shall decide cases properly before it on 
the basis of substantial evidence contained in the entire record before 
it. The Board shall not receive new evidence into the record.
    (ii) The Equal Access to Justice Act, as amended, does not apply to 
proceedings under this part. Accordingly, for any proceeding under this 
part, the Administrative Review Board shall have no authority to award 
attorney fees and/or other litigation expenses pursuant to the 
provisions of the Equal Access to Justice Act for any proceeding under 
this part.
    (b) Decisions. The Board's final decision shall be issued within 90 
days of the receipt of the petition for review and shall be served upon 
all parties by mail to the last known address and on the Chief 
Administrative Law Judge (in cases involving an appeal from an 
Administrative Law Judge's decision).
    (c) Orders. If the Board concludes that the contractor has violated 
this part, the final order shall order action to abate the violation, 
which may include hiring each affected employee in a position on the 
contract for which the employee is qualified, together with compensation 
(including lost wages), terms, conditions, and privileges of that 
employment. Where the Administrator has sought imposition

[[Page 175]]

of ineligibility sanctions, the Board shall also determine whether an 
order imposing ineligibility sanctions is appropriate.
    (d) Costs. If a final order finding the successor contractor 
violated this part is issued, the Board may assess against the 
contractor a sum equal to the aggregate amount of all costs (not 
including attorney fees) and expenses reasonably incurred by the 
aggrieved employee(s) in the proceeding. This amount shall be awarded in 
addition to any unpaid wages or other relief due under Sec.  9.24(b) of 
this part.
    (e) Finality. The decision of the Administrative Review Board shall 
become the final order of the Secretary.



               Sec. Appendix A to Part 9--Contract Clause

                  Nondisplacement of Qualified Workers

    (a) Consistent with the efficient performance of this contract, the 
contractor and its subcontractors shall, except as otherwise provided 
herein, in good faith offer those employees (other than managerial and 
supervisory employees) employed under the predecessor contract whose 
employment will be terminated as a result of award of this contract or 
the expiration of the contract under which the employees were hired, a 
right of first refusal of employment under this contract in positions 
for which employees are qualified. The contractor and its subcontractors 
shall determine the number of employees necessary for efficient 
performance of this contract and may elect to employ fewer employees 
than the predecessor contractor employed in connection with performance 
of the work. Except as provided in paragraph (b) there shall be no 
employment opening under this contract, and the contractor and any 
subcontractors shall not offer employment under this contract, to any 
person prior to having complied fully with this obligation. The 
contractor and its subcontractors shall make a bona fide, express offer 
of employment to each employee as provided herein and shall state the 
time within which the employee must accept such offer, but in no case 
shall the period within which the employee must accept the offer of 
employment be less than 10 days.
    (b) Notwithstanding the obligation under paragraph (a) above, the 
contractor and any subcontractors (1) may employ under this contract any 
employee who has worked for the contractor or subcontractor for at least 
3 months immediately preceding the commencement of this contract and who 
would otherwise face lay-off or discharge, (2) are not required to offer 
a right of first refusal to any employee(s) of the predecessor 
contractor who are not service employees within the meaning of the 
Service Contract Act of 1965, as amended, 41 U.S.C. 6701(3), and (3) are 
not required to offer a right of first refusal to any employee(s) of the 
predecessor contractor whom the contractor or any of its subcontractors 
reasonably believes, based on the particular employee's past 
performance, has failed to perform suitably on the job.
    (c) In accordance with Federal Acquisition Regulation 52.222-41(n), 
the contractor shall, not less than 10 days before completion of this 
contract, furnish the Contracting Officer a certified list of the names 
of all service employees working under this contract and its 
subcontracts during the last month of contract performance. The list 
shall also contain anniversary dates of employment of each service 
employee under this contract and its predecessor contracts either with 
the current or predecessor contractors or their subcontractors. The 
Contracting Officer will provide the list to the successor contractor, 
and the list shall be provided on request, to employees or their 
representatives.
    (d) If it is determined, pursuant to regulations issued by the 
Secretary of Labor (Secretary), that the contractor or its 
subcontractors are not in compliance with the requirements of this 
clause or any regulation or order of the Secretary, appropriate 
sanctions may be imposed and remedies invoked against the contractor or 
its subcontractors, as provided in Executive Order 13495, the 
regulations, and relevant orders of the Secretary, or as otherwise 
provided by law.
    (e) In every subcontract entered into in order to perform services 
under this contract, the contractor will include provisions that ensure 
that each subcontractor will honor the requirements of paragraphs (a) 
through (b) with respect to the employees of a predecessor subcontractor 
or subcontractors working under this contract, as well as of a 
predecessor contractor and its subcontractors. The subcontract shall 
also include provisions to ensure that the subcontractor will provide 
the contractor with the information about the employees of the 
subcontractor needed by the contractor to comply with paragraph (c), 
above. The contractor will take such action with respect to any such 
subcontract as may be directed by the Secretary as a means of enforcing 
such provisions, including the imposition of sanctions for 
noncompliance: provided, however, that if the contractor, as a result of 
such direction, becomes involved in litigation with a subcontractor, or 
is threatened with such involvement, the contractor may request that the 
United States enter into such litigation to protect the interests of the 
United States.
    (f)(1) The contractor shall, not less than 30 days before completion 
of the contractor's

[[Page 176]]

performance of services on a contract, furnish the Contracting Officer 
with a list of the names of all service employees working under the 
contract and its subcontracts at the time the list is submitted. The 
list shall also contain anniversary dates of employment of each service 
employee under the contract and its predecessor contracts with either 
the current or predecessor contractors or their subcontractors. Where 
changes to the workforce are made after the submission of the certified 
list described in this paragraph (f) (1), the contractor shall, in 
accordance with paragraph (c), not less than 10 days before completion 
of the contractor's performance of services on a contract, furnish the 
Contracting Officer with an updated certified list of the names of all 
service employees employed within the last month of contract 
performance. The updated list shall also contain anniversary dates of 
employment and, where applicable, dates of separation of each service 
employee under the contract and its predecessor contracts with either 
the current or predecessor contractors or their subcontractors. Only 
contractors experiencing a change in their workforce between the 30- and 
10-day periods will have to submit a list in accordance with paragraph 
(c).
    (2) The Contracting Officer shall withhold or cause to be withheld 
from the prime contractor under this or any other Government contract 
with the same prime contractor such sums as an authorized official of 
the Department of Labor requests, upon a determination by the 
Administrator, the Administrative Law Judge, or the Administrative 
Review Board that there has been a failure to comply with the terms of 
this clause and that wages lost as a result of the violations are due to 
employees or that other monetary relief is appropriate. If the 
Contracting Officer or the Administrator, upon final order of the 
Secretary, finds that the contractor has failed to provide a list of the 
names of employees working under the contract, the Contracting Officer 
may in his or her discretion, or upon request by the Administrator, take 
such action as may be necessary to cause the suspension of the payment 
of contract funds until such time as the list is provided to the 
Contracting Officer.
    (g) The contractor and subcontractor shall maintain the following 
records (regardless of format, e.g., paper or electronic, provided the 
records meet the requirements and purposes of this subpart and are fully 
accessible) of its compliance with this clause for not less than a 
period of three years from the date the records were created:
    (1) Copies of any written offers of employment or a contemporaneous 
written record of any oral offers of employment, including the date, 
location, and attendance roster of any employee meeting(s) at which the 
offers were extended, a summary of each meeting, a copy of any written 
notice that may have been distributed, and the names of the employees 
from the predecessor contract to whom an offer was made.
    (2) A copy of any record that forms the basis for any exclusion or 
exemption claimed under this part.
    (3) A copy of the employee list provided to or received from the 
contracting agency.
    (4) An entry on the pay records of the amount of any retroactive 
payment of wages or compensation under the supervision of the 
Administrator of the Wage and Hour Division to each employee, the period 
covered by such payment, and the date of payment, and a copy of any 
receipt form provided by or authorized by the Wage and Hour Division. 
The contractor shall also deliver a copy of the receipt to the employee 
and file the original, as evidence of payment by the contractor and 
receipt by the employee, with the Administrator or an authorized 
representative within 10 days after payment is made.
    (h) The contractor shall cooperate in any review or investigation by 
the contracting agency or the Department of Labor into possible 
violations of the provisions of this clause and shall make records 
requested by such official(s) available for inspection, copying, or 
transcription upon request.
    (i) Disputes concerning the requirements of this clause shall not be 
subject to the general disputes clause of this contract. Such disputes 
shall be resolved in accordance with the procedures of the Department of 
Labor set forth in 29 CFR part 9. Disputes within the meaning of this 
clause include disputes between or among any of the following: the 
contractor, the contracting agency, the U.S. Department of Labor, and 
the employees under the contract or its predecessor contract.



     Sec. Appendix B to Part 9--Notice to Service Contract Employees

    The contract for (insert type of service) services currently 
performed by (insert name of predecessor contractor) has been awarded to 
a new (successor) contractor (insert name of successor contractor). The 
new contractor's first date of performance on the contract will be 
(insert first date of successor contractor's performance). If the work 
is to be performed at the same location, the new contractor is generally 
required to offer employment to the employees who worked on the contract 
during the last 30 days of the current contract, except as follows:
    Employees who will not be laid off or discharged as a result of the 
new contract award are not entitled to an offer of employment.
    Managerial, supervisory, or non-service employees on the current 
contract are not entitled to an offer of employment.

[[Page 177]]

    The new contractor may reduce the size of the current workforce; 
therefore, only a portion of the existing workforce may receive 
employment offers. However, the new contractor must offer employment to 
the displaced employees for which they are qualified if any openings 
occur during the first 90 days of performance on the new contract.
    The new contractor may employ its current employee on the new 
contract before offering employment to the existing contractor's 
employees only if the new contractor's current employee has worked for 
the new contractor for at least 3 months immediately preceding the first 
date of performance on the new contract and would otherwise face layoff 
or discharge if not employed under the new contract.
    Where the new contractor has reason to believe, based on written 
credible information from a knowledgeable source, that an employee's job 
performance while working on the current contract has been unsuitable, 
the employee is not entitled to an offer of employment on the new 
contract.
    An employee hired to work under the current Federal service contract 
and one or more nonfederal service contracts as part of a single job is 
not entitled to an offer of employment on the new contract, provided 
that the existing contractor did not deploy the employee in a manner 
that was designed to avoid the purposes of this part.
    Time limit to accept offer: If you are offered employment on the new 
contract, you will have at least 10 days to accept the offer.
    Complaints: Any employee(s) or authorized employee representative(s) 
of the predecessor contractor who believes that he or she is entitled to 
an offer of employment with the new contractor and who has not received 
an offer, may file a complaint, within 120 days from the first date of 
contract performance, with the Branch of Government Contracts 
Enforcement, Wage and Hour Division, U.S. Department of Labor, 
Washington, DC 20210.
    For additional information: 1-866-4US-WAGE (1-866-487-9243) TTY: 1-
877-889-5627, http://www.wagehour.dol.gov.



PART 10_ESTABLISHING A MINIMUM WAGE FOR CONTRACTORS--Table of Contents



                            Subpart A_General

Sec.
10.1 Purpose and scope.
10.2 Definitions.
10.3 Coverage.
10.4 Exclusions.
10.5 Minimum wage for Federal contractors and subcontractors.
10.6 Antiretaliation.
10.7 Waiver of rights.

                Subpart B_Federal Government Requirements

10.11 Contracting agency requirements.
10.12 Department of Labor requirements.

                    Subpart C_Contractor Requirements

10.21 Contract clause.
10.22 Rate of pay.
10.23 Deductions.
10.24 Overtime payments.
10.25 Frequency of pay.
10.26 Records to be kept by contractors.
10.27 Anti-kickback.
10.28 Tipped employees.
10.29 Notice.

                          Subpart D_Enforcement

10.41 Complaints.
10.42 Wage and Hour Division conciliation.
10.43 Wage and Hour Division investigation.
10.44 Remedies and sanctions.

                  Subpart E_Administrative Proceedings

10.51 Disputes concerning contractor compliance.
10.52 Debarment proceedings.
10.53 Referral to Chief Administrative Law Judge; amendment of 
          pleadings.
10.54 Consent findings and order.
10.55 Proceedings of the Administrative Law Judge.
10.56 Petition for review.
10.57 Administrative Review Board proceedings.
10.58 Administrator ruling.

Appendix A to Part 10--Contract Clause

    Authority: 4 U.S.C. 301; section 4, E.O. 13658, 79 FR 9851; 
Secretary's Order 5--2010, 75 FR 55352.

    Source: 79 FR 60721, Oct. 7, 2014, unless otherwise noted.



                            Subpart A_General



Sec.  10.1  Purpose and scope.

    (a) Purpose. This part contains the Department of Labor's rules 
relating to the administration of Executive Order 13658 (Executive Order 
or the Order), ``Establishing a Minimum Wage for Contractors,'' and 
implements the enforcement provisions of the Executive Order. The 
Executive Order assigns responsibility for investigating potential 
violations of and obtaining compliance with the Executive Order to the 
Department of Labor. The Executive Order states that the Federal 
Government's procurement interests in economy and efficiency are 
promoted when

[[Page 178]]

the Federal Government contracts with sources that adequately compensate 
their workers. There is evidence that raising the pay of low-wage 
workers can increase their morale and productivity and the quality of 
their work, lower turnover and its accompanying costs, and reduce 
supervisory costs. The Executive Order thus states that cost savings and 
quality improvements in the work performed by parties who contract with 
the Federal Government will lead to improved economy and efficiency in 
Government procurement. Executive Order 13658 therefore generally 
requires that the hourly minimum wage paid by contractors to workers 
performing on or in connection with covered contracts with the Federal 
Government shall be at least:
    (1) $10.10 per hour, beginning January 1, 2015; and
    (2) An amount determined by the Secretary of Labor, beginning 
January 1, 2016, and annually thereafter.
    (b) Policy. Executive Order 13658 sets forth a general position of 
the Federal Government that increasing the hourly minimum wage paid by 
Federal contractors to $10.10 will increase efficiency and cost savings 
for the Federal Government. The Executive Order therefore establishes a 
minimum wage requirement for Federal contractors and subcontractors. The 
Order provides that executive departments and agencies shall, to the 
extent permitted by law, ensure that new covered contracts, contract-
like instruments, and solicitations (collectively referred to as 
``contracts'') include a clause, which the contractor and any 
subcontractors shall incorporate into lower-tier subcontracts, 
specifying, as a condition of payment, that the minimum wage to be paid 
to workers, including workers whose wages are calculated pursuant to 
special certificates issued under 29 U.S.C. 214(c), in the performance 
of the contract or any subcontract thereunder, shall be at least:
    (1) $10.10 per hour beginning January 1, 2015; and
    (2) Beginning January 1, 2016, and annually thereafter, an amount 
determined by the Secretary pursuant to the Order. Nothing in Executive 
Order 13658 or this part shall excuse noncompliance with any applicable 
Federal or State prevailing wage law or any applicable law or municipal 
ordinance establishing a minimum wage higher than the minimum wage 
established under the Order.
    (c) Scope. Neither Executive Order 13658 nor this part creates or 
changes any rights under the Contract Disputes Act or any private right 
of action. The Executive Order provides that disputes regarding whether 
a contractor has paid the minimum wages prescribed by the Order, to the 
extent permitted by law, shall be disposed of only as provided by the 
Secretary in regulations issued under the Order. However, nothing in the 
Order or this part is intended to limit or preclude a civil action under 
the False Claims Act, 31 U.S.C. 3730, or criminal prosecution under 18 
U.S.C. 1001. The Order similarly does not preclude judicial review of 
final decisions by the Secretary in accordance with the Administrative 
Procedure Act, 5 U.S.C. 701 et seq.



Sec.  10.2  Definitions.

    For purposes of this part:
    Administrative Review Board (ARB or Board) means the Administrative 
Review Board, U.S. Department of Labor.
    Administrator means the Administrator of the Wage and Hour Division 
and includes any official of the Wage and Hour Division authorized to 
perform any of the functions of the Administrator under this part.
    Agency head means the Secretary, Attorney General, Administrator, 
Governor, Chairperson, or other chief official of an executive agency, 
unless otherwise indicated, including any deputy or assistant chief 
official of an executive agency or any persons authorized to act on 
behalf of the agency head.
    Concessions contract or contract for concessions means a contract 
under which the Federal Government grants a right to use Federal 
property, including land or facilities, for furnishing services. The 
term concessions contract includes but is not limited to a contract the 
principal purpose of which is to furnish food, lodging, automobile fuel, 
souvenirs, newspaper stands, and/or recreational equipment, regardless 
of whether the services are of direct

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benefit to the Government, its personnel, or the general public.
    Contract or contract-like instrument means an agreement between two 
or more parties creating obligations that are enforceable or otherwise 
recognizable at law. This definition includes, but is not limited to, a 
mutually binding legal relationship obligating one party to furnish 
services (including construction) and another party to pay for them. The 
term contract includes all contracts and any subcontracts of any tier 
thereunder, whether negotiated or advertised, including any procurement 
actions, lease agreements, cooperative agreements, provider agreements, 
intergovernmental service agreements, service agreements, licenses, 
permits, or any other type of agreement, regardless of nomenclature, 
type, or particular form, and whether entered into verbally or in 
writing. The term contract shall be interpreted broadly as to include, 
but not be limited to, any contract that may be consistent with the 
definition provided in the Federal Acquisition Regulation (FAR) or 
applicable Federal statutes. This definition includes, but is not 
limited to, any contract that may be covered under any Federal 
procurement statute. Contracts may be the result of competitive bidding 
or awarded to a single source under applicable authority to do so. In 
addition to bilateral instruments, contracts include, but are not 
limited to, awards and notices of awards; job orders or task letters 
issued under basic ordering agreements; letter contracts; orders, such 
as purchase orders, under which the contract becomes effective by 
written acceptance or performance; and bilateral contract modifications. 
The term contract includes contracts covered by the Service Contract 
Act, contracts covered by the Davis-Bacon Act, concessions contracts not 
otherwise subject to the Service Contract Act, and contracts in 
connection with Federal property or land and related to offering 
services for Federal employees, their dependents, or the general public.
    Contracting officer means a person with the authority to enter into, 
administer, and/or terminate contracts and make related determinations 
and findings. This term includes certain authorized representatives of 
the contracting officer acting within the limits of their authority as 
delegated by the contracting officer.
    Contractor means any individual or other legal entity that is 
awarded a Federal Government contract or subcontract under a Federal 
Government contract. The term contractor refers to both a prime 
contractor and all of its subcontractors of any tier on a contract with 
the Federal Government. The term contractor includes lessors and 
lessees, as well as employers of workers performing on covered Federal 
contracts whose wages are calculated pursuant to special certificates 
issued under 29 U.S.C. 214(c). The term employer is used interchangeably 
with the terms contractor and subcontractor in various sections of this 
part. The U.S. Government, its agencies, and instrumentalities are not 
contractors, subcontractors, employers, or joint employers for purposes 
of compliance with the provisions of the Executive Order.
    Davis-Bacon Act means the Davis-Bacon Act of 1931, as amended, 40 
U.S.C. 3141 et seq., and its implementing regulations.
    Executive departments and agencies means executive departments, 
military departments, or any independent establishments within the 
meaning of 5 U.S.C. 101, 102, and 104(1), respectively, and any wholly 
owned Government corporation within the meaning of 31 U.S.C. 9101.
    Executive Order minimum wage means, for purposes of Executive Order 
13658, a wage that is at least:
    (1) $10.10 per hour beginning January 1, 2015; and
    (2) Beginning January 1, 2016, and annually thereafter, an amount 
determined by the Secretary pursuant to section 2 of the Executive 
Order.
    Fair Labor Standards Act (FLSA) means the Fair Labor Standards Act 
of 1938, as amended, 29 U.S.C. 201 et seq., and its implementing 
regulations.
    Federal Government means an agency or instrumentality of the United 
States that enters into a contract pursuant to authority derived from 
the Constitution or the laws of the United States. For purposes of the 
Executive Order and this part, this definition

[[Page 180]]

does not include the District of Columbia, any Territory or possession 
of the United States, or any independent regulatory agency within the 
meaning of 44 U.S.C. 3502(5).
    Independent agencies means independent regulatory agencies within 
the meaning of 44 U.S.C. 3502(5).
    New contract means a contract that results from a solicitation 
issued on or after January 1, 2015, or a contract that is awarded 
outside the solicitation process on or after January 1, 2015. This term 
includes both new contracts and replacements for expiring contracts. It 
does not apply to the unilateral exercise of a pre-negotiated option to 
renew an existing contract by the Federal Government. For purposes of 
the Executive Order, a contract that is entered into prior to January 1, 
2015 will constitute a new contract if, through bilateral negotiation, 
on or after January 1, 2015:
    (1) The contract is renewed;
    (2) The contract is extended, unless the extension is made pursuant 
to a term in the contract as of December 31, 2014 providing for a short-
term limited extension; or
    (3) The contract is amended pursuant to a modification that is 
outside the scope of the contract.
    Office of Administrative Law Judges means the Office of 
Administrative Law Judges, U.S. Department of Labor.
    Option means a unilateral right in a contract by which, for a 
specified time, the Government may elect to purchase additional supplies 
or services called for by the contract, or may elect to extend the term 
of the contract.
    Procurement contract for construction means a procurement contract 
for the construction, alteration, or repair (including painting and 
decorating) of public buildings or public works and which requires or 
involves the employment of mechanics or laborers, and any subcontract of 
any tier thereunder. The term procurement contract for construction 
includes any contract subject to the provisions of the Davis-Bacon Act, 
as amended, and its implementing regulations.
    Procurement contract for services means a procurement contract the 
principal purpose of which is to furnish services in the United States 
through the use of service employees, and any subcontract of any tier 
thereunder. The term procurement contract for services includes any 
contract subject to the provisions of the Service Contract Act, as 
amended, and its implementing regulations.
    Service Contract Act means the McNamara-O'Hara Service Contract Act 
of 1965, as amended, 41 U.S.C. 6701 et seq., and its implementing 
regulations.
    Solicitation means any request to submit offers, bids, or quotations 
to the Federal Government.
    Tipped employee means any employee engaged in an occupation in which 
he or she customarily and regularly receives more than $30 a month in 
tips. For purposes of the Executive Order, a worker performing on or in 
connection with a contract covered by the Executive Order who meets this 
definition is a tipped employee.
    United States means the United States and all executive departments, 
independent establishments, administrative agencies, and 
instrumentalities of the United States, including corporations of which 
all or substantially all of the stock is owned by the United States, by 
the foregoing departments, establishments, agencies, instrumentalities, 
and including nonappropriated fund instrumentalities. When used in a 
geographic sense, the United States means the 50 States and the District 
of Columbia.
    Wage and Hour Division means the Wage and Hour Division, U.S. 
Department of Labor.
    Wage determination includes any determination of minimum hourly wage 
rates or fringe benefits made by the Secretary of Labor pursuant to the 
provisions of the Service Contract Act or the Davis-Bacon Act. This term 
includes the original determination and any subsequent determinations 
modifying, superseding, correcting, or otherwise changing the provisions 
of the original determination.
    Worker means any person engaged in performing work on or in 
connection with a contract covered by the Executive Order, and whose 
wages under such contract are governed by the Fair Labor Standards Act, 
the Service Contract Act, or the Davis-Bacon Act, other than individuals 
employed in a

[[Page 181]]

bona fide executive, administrative, or professional capacity, as those 
terms are defined in 29 CFR part 541, regardless of the contractual 
relationship alleged to exist between the individual and the employer. 
The term worker includes workers performing on or in connection with a 
covered contract whose wages are calculated pursuant to special 
certificates issued under 29 U.S.C. 214(c), as well as any person 
working on or in connection with a covered contract and individually 
registered in a bona fide apprenticeship or training program registered 
with the U.S. Department of Labor's Employment and Training 
Administration, Office of Apprenticeship, or with a State Apprenticeship 
Agency recognized by the Office of Apprenticeship.



Sec.  10.3  Coverage.

    (a) This part applies to any new contract with the Federal 
Government, unless excluded by Sec.  10.4, provided that:
    (1)(i) It is a procurement contract for construction covered by the 
Davis-Bacon Act;
    (ii) It is a contract for services covered by the Service Contract 
Act;
    (iii) It is a contract for concessions, including any concessions 
contract excluded from coverage under the Service Contract Act by 
Department of Labor regulations at 29 CFR 4.133(b); or
    (iv) It is a contract entered into with the Federal Government in 
connection with Federal property or lands and related to offering 
services for Federal employees, their dependents, or the general public; 
and
    (2) The wages of workers under such contract are governed by the 
Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon 
Act.
    (b) For contracts covered by the Service Contract Act or the Davis-
Bacon Act, this part applies to prime contracts only at the thresholds 
specified in those statutes. For procurement contracts where workers' 
wages are governed by the Fair Labor Standards Act, this part applies 
when the prime contract exceeds the micro-purchase threshold, as defined 
in 41 U.S.C. 1902(a).
    (c) This part only applies to contracts with the Federal Government 
requiring performance in whole or in part within the United States. If a 
contract with the Federal Government is to be performed in part within 
and in part outside the United States and is otherwise covered by the 
Executive Order and this part, the minimum wage requirements of the 
Order and this part would apply with respect to that part of the 
contract that is performed within the United States.
    (d) This part does not apply to contracts for the manufacturing or 
furnishing of materials, supplies, articles, or equipment to the Federal 
Government that are subject to the Walsh-Healey Public Contracts Act, 41 
U.S.C. 6501 et seq.



Sec.  10.4  Exclusions.

    (a) Grants. The requirements of this part do not apply to grants 
within the meaning of the Federal Grant and Cooperative Agreement Act, 
as amended, 31 U.S.C. 6301 et seq.
    (b) Contracts and agreements with and grants to Indian Tribes. This 
part does not apply to contracts and agreements with and grants to 
Indian Tribes under the Indian Self-Determination and Education 
Assistance Act, as amended, 25 U.S.C. 450 et seq.
    (c) Procurement contracts for construction that are excluded from 
coverage of the Davis-Bacon Act. Procurement contracts for construction 
that are not covered by the Davis-Bacon Act are not subject to this 
part.
    (d) Contracts for services that are exempted from coverage under the 
Service Contract Act. Service contracts, except for those expressly 
covered by Sec.  10.3(a)(1)(iii) or (iv), that are exempt from coverage 
of the Service Contract Act pursuant to its statutory language at 41 
U.S.C. 6702(b) or its implementing regulations, including those at 29 
CFR 4.115 through 4.122 and 29 CFR 4.123(d) and(e), are not subject to 
this part.
    (e) Employees who are exempt from the minimum wage requirements of 
the Fair Labor Standards Act under 29 U.S.C. 213(a) and 214(a)-(b). 
Except for workers who are otherwise covered by the Davis-Bacon Act or 
the Service Contract Act, this part does not apply to employees who are 
not entitled to the minimum wage set forth at 29 U.S.C. 206(a)(1) of the 
Fair Labor Standards Act pursuant to 29 U.S.C. 213(a) and

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214(a)-(b). Pursuant to this exclusion, individuals that are not subject 
to the requirements of this part include but are not limited to:
    (1) Learners, apprentices, or messengers. This part does not apply 
to learners, apprentices, or messengers whose wages are calculated 
pursuant to special certificates issued under 29 U.S.C. 214(a).
    (2) Students. This part does not apply to student workers whose 
wages are calculated pursuant to special certificates issued under 29 
U.S.C. 214(b).
    (3) Individuals employed in a bona fide executive, administrative, 
or professional capacity. This part does not apply to workers who are 
employed by Federal contractors in a bona fide executive, 
administrative, or professional capacity, as those terms are defined and 
delimited in 29 CFR part 541.
    (f) FLSA-covered workers performing in connection with covered 
contracts for less than 20 percent of their work hours in a given 
workweek. This part does not apply to FLSA-covered workers performing in 
connection with covered contracts, i.e., those workers who perform work 
duties necessary to the performance of the contract but who are not 
directly engaged in performing the specific work called for by the 
contract, that spend less than 20 percent of their hours worked in a 
particular workweek performing in connection with such contracts. This 
exclusion is inapplicable to covered workers performing on covered 
contracts, i.e., those workers directly engaged in performing the 
specific work called for by the contract.



Sec.  10.5  Minimum wage for Federal contractors and subcontractors.

    (a) General. Pursuant to Executive Order 13658, the minimum hourly 
wage rate required to be paid to workers performing on or in connection 
with covered contracts with the Federal Government is at least:
    (1) $10.10 per hour beginning January 1, 2015; and
    (2) Beginning January 1, 2016, and annually thereafter, an amount 
determined by the Secretary pursuant to section 2 of Executive Order 
13658. In accordance with section 2 of the Order, the Secretary will 
determine the applicable minimum wage rate to be paid to workers on 
covered contracts on an annual basis beginning at least 90 days before 
any new minimum wage is to take effect.
    (b) Method for determining the applicable Executive Order minimum 
wage for workers. The minimum wage to be paid to workers, including 
workers whose wages are calculated pursuant to special certificates 
issued under 29 U.S.C. 214(c), in the performance of a covered contract 
shall be at least:
    (1) $10.10 per hour beginning January 1, 2015; and
    (2) An amount determined by the Secretary, beginning January 1, 
2016, and annually thereafter. The applicable minimum wage determined 
for each calendar year by the Secretary shall be:
    (i) Not less than the amount in effect on the date of such 
determination;
    (ii) Increased from such amount by the annual percentage increase in 
the Consumer Price Index for Urban Wage Earners and Clerical Workers 
(United States city average, all items, not seasonally adjusted), or its 
successor publication, as determined by the Bureau of Labor Statistics; 
and
    (iii) Rounded to the nearest multiple of $0.05. In calculating the 
annual percentage increase in the Consumer Price Index for purposes of 
this section, the Secretary shall compare such Consumer Price Index for 
the most recent year available with the Consumer Price Index for the 
preceding year.
    (c) Relation to other laws. Nothing in the Executive Order or this 
part shall excuse noncompliance with any applicable Federal or State 
prevailing wage law or any applicable law or municipal ordinance 
establishing a minimum wage higher than the minimum wage established 
under the Executive Order and this part.



Sec.  10.6  Antiretaliation.

    It shall be unlawful for any person to discharge or in any other 
manner discriminate against any worker because such worker has filed any 
complaint or instituted or caused to be instituted any proceeding under 
or related to Executive Order 13658 or this part, or has testified or is 
about to testify in any such proceeding.

[[Page 183]]



Sec.  10.7  Waiver of rights.

    Workers cannot waive, nor may contractors induce workers to waive, 
their rights under Executive Order 13658 or this part.



                Subpart B_Federal Government Requirements



Sec.  10.11  Contracting agency requirements.

    (a) Contract clause. The contracting agency shall include the 
Executive Order minimum wage contract clause set forth in appendix A of 
this part in all covered contracts and solicitations for such contracts, 
as described in Sec.  10.3, except for procurement contracts subject to 
the FAR. The required contract clause directs, as a condition of 
payment, that all workers performing work on or in connection with 
covered contracts must be paid the applicable, currently effective 
minimum wage under Executive Order 13658 and Sec.  10.5. For procurement 
contracts subject to the FAR, contracting agencies must use the clause 
set forth in the FAR developed to implement this rule. Such clause will 
accomplish the same purposes as the clause set forth in Appendix A and 
be consistent with the requirements set forth in this rule.
    (b) Failure to include the contract clause. Where the Department or 
the contracting agency discovers or determines, whether before or 
subsequent to a contract award, that a contracting agency made an 
erroneous determination that Executive Order 13658 or this part did not 
apply to a particular contract and/or failed to include the applicable 
contract clause in a contract to which the Executive Order applies, the 
contracting agency, on its own initiative or within 15 calendar days of 
notification by an authorized representative of the Department of Labor, 
shall incorporate the contract clause in the contract retroactive to 
commencement of performance under the contract through the exercise of 
any and all authority that may be needed (including, where necessary, 
its authority to negotiate or amend, its authority to pay any necessary 
additional costs, and its authority under any contract provision 
authorizing changes, cancellation and termination).
    (c) Withholding. A contracting officer shall upon his or her own 
action or upon written request of an authorized representative of the 
Department of Labor withhold or cause to be withheld from the prime 
contractor under the covered contract or any other Federal contract with 
the same prime contractor, so much of the accrued payments or advances 
as may be considered necessary to pay workers the full amount of wages 
required by the Executive Order. In the event of failure to pay any 
covered workers all or part of the wages due under Executive Order 
13658, the agency may, after authorization or by direction of the 
Department of Labor and written notification to the contractor, take 
action to cause suspension of any further payment or advance of funds 
until such violations have ceased. Additionally, any failure to comply 
with the requirements of Executive Order 13658 may be grounds for 
termination of the right to proceed with the contract work. In such 
event, the contracting agency may enter into other contracts or 
arrangements for completion of the work, charging the contractor in 
default with any additional cost.
    (d) Actions on complaints--(1) Reporting--(i) Reporting time frame. 
The contracting agency shall forward all information listed in paragraph 
(d)(1)(ii) of this section to the Branch of Government Contracts 
Enforcement, Wage and Hour Division, U.S. Department of Labor, 
Washington, DC 20210 within 14 calendar days of receipt of a complaint 
alleging contractor noncompliance with the Executive Order or this part 
or within 14 calendar days of being contacted by the Wage and Hour 
Division regarding any such complaint.
    (ii) Report contents. The contracting agency shall forward to the 
Branch of Government Contracts Enforcement, Wage and Hour Division, U.S. 
Department of Labor, Washington, DC 20210 any:
    (A) Complaint of contractor noncompliance with Executive Order 13658 
or this part;
    (B) Available statements by the worker, contractor, or any other 
person regarding the alleged violation;

[[Page 184]]

    (C) Evidence that the Executive Order minimum wage contract clause 
was included in the contract;
    (D) Information concerning known settlement negotiations between the 
parties, if applicable; and
    (E) Any other relevant facts known to the contracting agency or 
other information requested by the Wage and Hour Division.
    (2) [Reserved]



Sec.  10.12  Department of Labor requirements.

    (a) In general. The Executive Order minimum wage applicable from 
January 1, 2015 through December 31, 2015 is $10.10 per hour. The 
Secretary will determine the applicable minimum wage rate to be paid to 
workers performing work on or in connection with covered contracts on an 
annual basis, beginning January 1, 2016.
    (b) Method for determining the applicable Executive Order minimum 
wage. The Secretary will determine the applicable minimum wage under the 
Executive Order, beginning January 1, 2016, by using the methodology set 
forth in Sec.  10.5(b).
    (c) Notice. (1) The Administrator will notify the public of the 
applicable minimum wage rate to be paid to workers performing work on or 
in connection with covered contracts on an annual basis at least 90 days 
before any new minimum wage is to take effect.
    (2) Method of notification--(i) Federal Register. The Administrator 
will publish a notice in the Federal Register stating the applicable 
minimum wage rate to be paid to workers performing work on or in 
connection with covered contracts on an annual basis at least 90 days 
before any new minimum wage is to take effect.
    (ii) Wage Determinations OnLine Web site. The Administrator will 
publish and maintain on Wage Determinations OnLine (WDOL), http://
www.wdol.gov, or any successor site, the applicable minimum wage rate to 
be paid to workers performing work on or in connection with covered 
contracts.
    (iii) Wage Determinations. The Administrator will publish a 
prominent general notice on all wage determinations issued under the 
Davis-Bacon Act and the Service Contract Act stating the Executive Order 
minimum wage and that the Executive Order minimum wage applies to all 
workers performing on or in connection with such contracts whose wages 
are governed by the Fair Labor Standards Act, the Davis-Bacon Act, and 
the Service Contract Act. The Administrator will update this general 
notice on all such wage determinations annually.
    (iv) Other means as appropriate. The Administrator may publish the 
applicable minimum wage rate to be paid to workers performing work on or 
in connection with covered contracts on an annual basis at least 90 days 
before any such new minimum wage is to take effect in any other media 
that the Administrator deems appropriate.
    (d) Notification to a contractor of the withholding of funds. If the 
Administrator requests that a contracting agency withhold funds from a 
contractor pursuant to Sec.  10.11(c), the Administrator and/or 
contracting agency shall notify the affected prime contractor of the 
Administrator's withholding request to the contracting agency.



                    Subpart C_Contractor Requirements



Sec.  10.21  Contract clause.

    (a) Contract clause. The contractor, as a condition of payment, 
shall abide by the terms of the applicable Executive Order minimum wage 
contract clause referred to in Sec.  10.11(a).
    (b) The contractor and any subcontractors shall include in any 
covered subcontracts the Executive Order minimum wage contract clause 
referred to in Sec.  10.11(a) and shall require, as a condition of 
payment, that the subcontractor include the minimum wage contract clause 
in any lower-tier subcontracts. The prime contractor and any upper-tier 
contractor shall be responsible for the compliance by any subcontractor 
or lower-tier subcontractor with the Executive Order minimum wage 
requirements, whether or not the contract clause was included in the 
subcontract.



Sec.  10.22  Rate of pay.

    (a) General. The contractor must pay each worker performing work on 
or in

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connection with a covered contract no less than the applicable Executive 
Order minimum wage for all hours worked on or in connection with the 
covered contract, unless such worker is exempt under Sec.  10.4 of this 
part. In determining whether a worker is performing within the scope of 
a covered contract, all workers who, on or after the date of award, are 
engaged in working on or in connection with the contract, either in 
performing the specific services called for by its terms or in 
performing other duties necessary to the performance of the contract, 
are thus subject to the Executive Order and this part unless a specific 
exemption is applicable. Nothing in the Executive Order or these 
regulations shall excuse noncompliance with any applicable Federal or 
State prevailing wage law or any applicable law or municipal ordinance 
establishing a minimum wage higher than the minimum wage established 
under Executive Order 13658.
    (b) Workers who receive fringe benefits. The contractor may not 
discharge any part of its minimum wage obligation under the Executive 
Order by furnishing fringe benefits or, with respect to workers whose 
wages are governed by the Service Contract Act, the cash equivalent 
thereof.
    (c) Tipped employees. The contractor may satisfy the wage payment 
obligation to a tipped employee under the Executive Order through a 
combination of an hourly cash wage and a credit based on tips received 
by such employee pursuant to the provisions in Sec.  10.28.



Sec.  10.23  Deductions.

    The contractor may make deductions that reduce a worker's wages 
below the Executive Order minimum wage rate only if such deduction 
qualifies as a:
    (a) Deduction required by Federal, State, or local law, such as 
Federal or State withholding of income taxes;
    (b) Deduction for payments made to third parties pursuant to court 
order;
    (c) Deduction directed by a voluntary assignment of the worker or 
his or her authorized representative; or
    (d) Deduction for the reasonable cost or fair value, as determined 
by the Administrator, of furnishing such worker with ``board, lodging, 
or other facilities,'' as defined in 29 U.S.C. 203(m) and part 531 of 
this title.



Sec.  10.24  Overtime payments.

    (a) General. The Fair Labor Standards Act and the Contract Work 
Hours and Safety Standards Act require overtime payment of not less than 
one and one-half times the regular rate of pay or basic rate of pay for 
all hours worked over 40 hours in a workweek to covered workers. The 
regular rate of pay under the Fair Labor Standards Act is generally 
determined by dividing the worker's total earnings in any workweek by 
the total number of hours actually worked by the worker in that workweek 
for which such compensation was paid.
    (b) Tipped employees. When overtime is worked by tipped employees 
who are entitled to overtime pay under the Fair Labor Standards Act and/
or the Contract Work Hours and Safety Standards Act, the employees' 
regular rate of pay includes both the cash wages paid by the employer 
(see Sec. Sec.  10.22(a) and 10.28(a)(1)) and the amount of any tip 
credit taken (see Sec.  10.28(a)(2)). (See part 778 of this title for a 
detailed discussion of overtime compensation under the Fair Labor 
Standards Act.) Any tips received by the employee in excess of the tip 
credit are not included in the regular rate.



Sec.  10.25  Frequency of pay.

    Wage payments to workers shall be made no later than one pay period 
following the end of the regular pay period in which such wages were 
earned or accrued. A pay period under Executive Order 13658 may not be 
of any duration longer than semi-monthly.



Sec.  10.26  Records to be kept by contractors.

    (a) The contractor and each subcontractor performing work subject to 
Executive Order 13658 shall make and maintain, for three years, records 
containing the information specified in paragraphs (a)(1) through (6) of 
this section for each worker and shall make them available for 
inspection and transcription by authorized representatives of the Wage 
and Hour Division of the U.S. Department of Labor:

[[Page 186]]

    (1) Name, address, and social security number of each worker;
    (2) The worker's occupation(s) or classification(s);
    (3) The rate or rates of wages paid;
    (4) The number of daily and weekly hours worked by each worker;
    (5) Any deductions made; and
    (6) The total wages paid.
    (b) The contractor shall permit authorized representatives of the 
Wage and Hour Division to conduct interviews with workers at the 
worksite during normal working hours.
    (c) Nothing in this part limits or otherwise modifies the 
contractor's recordkeeping obligations, if any, under the Davis-Bacon 
Act, the Service Contract Act, or the Fair Labor Standards Act, or their 
implementing regulations.



Sec.  10.27  Anti-kickback.

    All wages paid to workers performing on or in connection with 
covered contracts must be paid free and clear and without subsequent 
deduction (except as set forth in Sec.  10.23), rebate, or kickback on 
any account. Kickbacks directly or indirectly to the employer or to 
another person for the employer's benefit for the whole or part of the 
wage are prohibited.



Sec.  10.28  Tipped employees.

    (a) Payment of wages to tipped employees. With respect to workers 
who are tipped employees as defined in Sec.  10.2 and this section, the 
amount of wages paid to such employee by the employee's employer shall 
be equal to:
    (1) An hourly cash wage of at least:
    (i) $4.90 an hour beginning on January 1, 2015;
    (ii) For each succeeding 1-year period until the hourly cash wage 
equals 70 percent of the wage in effect under section 2 of the Executive 
Order, the hourly cash wage applicable in the prior year, increased by 
the lesser of $0.95 or the amount necessary for the hourly cash wage to 
equal 70 percent of the wage in effect under section 2 of the Executive 
Order;
    (iii) For each subsequent year, 70 percent of the wage in effect 
under section 2 of the Executive Order for such year rounded to the 
nearest multiple of $0.05; and
    (2) An additional amount on account of the tips received by such 
employee (tip credit) which amount is equal to the difference between 
the hourly cash wage in paragraph (a)(1) of this section and the wage in 
effect under section 2 of the Executive Order. Where tipped employees do 
not receive a sufficient amount of tips in the workweek to equal the 
amount of the tip credit, the employer must increase the cash wage paid 
for the workweek under paragraph (a)(1) of this section so that the 
amount of the cash wage paid and the tips received by the employee equal 
the minimum wage under section 2 of the Executive Order.
    (3) An employer may pay a higher cash wage than required by 
paragraph (a)(1) of this section and take a lower tip credit but may not 
pay a lower cash wage than required by paragraph (a)(1) of this section 
and take a greater tip credit. In order for the employer to claim a tip 
credit, the employer must demonstrate that the worker received at least 
the amount of the credit claimed in actual tips. If the worker received 
less than the claimed tip credit amount in tips during the workweek, the 
employer is required to pay the balance on the regular payday so that 
the worker receives the wage in effect under section 2 of the Executive 
Order with the defined combination of wages and tips.
    (4) If the wage required to be paid under the Service Contract Act, 
41 U.S.C. 6701 et seq., or any other applicable law or regulation is 
higher than the wage required by section 2 of the Executive Order, the 
employer shall pay additional cash wages equal to the difference between 
the wage in effect under section 2 of the Executive Order and the 
highest wage required to be paid.
    (b) Tipped employees. (1) As provided in Sec.  10.2, a covered 
worker employed in an occupation in which he or she receives tips is a 
``tipped employee'' when he or she customarily and regularly receives 
more than $30 a month in tips. Only tips actually retained by the 
employee after any tip pooling may be counted in determining whether the 
person is a ``tipped employee'' and in applying the provisions of 
section 3 of the Executive Order. An employee may

[[Page 187]]

be a ``tipped employee'' regardless of whether the employee is employed 
full time or part time so long as the employee customarily and regularly 
receives more than $30 a month in tips. An employee who does not receive 
more than $30 a month in tips customarily and regularly is not a tipped 
employee for purposes of the Executive Order and must receive the full 
minimum wage in section 2 of the Executive Order without any credit for 
tips received under the provisions of section 3.
    (2) Dual jobs. In some situations an employee is employed in a 
tipped occupation and a non-tipped occupation (dual jobs), as for 
example, where a maintenance person in a hotel also works as a server. 
In such a situation if the employee customarily and regularly receives 
at least $30 a month in tips for the work as a server, the employee is a 
tipped employee only when working as a server. The tip credit can only 
be taken for the hours spent in the tipped occupation and no tip credit 
can be taken for the hours of employment in the non-tipped occupation. 
Such a situation is distinguishable from that of a tipped employee 
performing incidental duties that are related to the tipped occupation 
but that are not directed toward producing tips, for example when a 
server spends part of his or her time cleaning and setting tables, 
toasting bread, making coffee and occasionally washing dishes or 
glasses. Related duties may not comprise more than 20 percent of the 
hours worked in the tipped occupation in a workweek.
    (c) Characteristics of tips. A tip is a sum presented by a customer 
as a gift or gratuity in recognition of some service performed for the 
customer. It is to be distinguished from payment of a fixed charge, if 
any, made for the service. Whether a tip is to be given, and its amount, 
are matters determined solely by the customer. Tips are the property of 
the employee whether or not the employer has taken a tip credit. The 
employer is prohibited from using an employee's tips, whether or not it 
has taken a tip credit, for any reason other than as a credit against 
its minimum wage obligations under the Executive Order to the employee, 
or in furtherance of a valid tip pool. An employer and employee cannot 
agree to waive the workers right to retain his or her tips. Customers 
may present cash tips directly to the employee or may designate a tip 
amount to be added to their bill when paying with a credit card or by 
other electronic means. Special gifts in forms other than money or its 
equivalent such as theater tickets, passes, or merchandise, are not 
counted as tips received by the employee for purposes of determining 
wages paid under the Executive Order.
    (d) Service charges. (1) A compulsory charge for service, such as 15 
percent of the amount of the bill, imposed on a customer by an 
employer's establishment, is not a tip and, even if distributed by the 
employer to its workers, cannot be counted as a tip for purposes of 
determining if the worker is a tipped employee. Similarly, where 
negotiations between a hotel and a customer for banquet facilities 
include amounts for distribution to workers of the hotel, the amounts so 
distributed are not tips.
    (2) As stated above, service charges and other similar sums are 
considered to be part of the employer's gross receipts and are not tips 
for the purposes of the Executive Order. Where such sums are distributed 
by the employer to its workers, however, they may be used in their 
entirety to satisfy the wage payment requirements of the Executive 
Order.
    (e) Tip pooling. Where tipped employees share tips through a tip 
pool, only the amounts retained by the tipped employees after any 
redistribution through a tip pool are considered tips in applying the 
provisions of FLSA section 3(t) and the wage payment provisions of 
section 3 of the Executive Order. There is no maximum contribution 
percentage on valid mandatory tip pools, which can only include tipped 
employees. However, an employer must notify its employees of any 
required tip pool contribution amount, may only take a tip credit for 
the amount of tips each employee ultimately receives, and may not retain 
any of the employees' tips for any other purpose.

[[Page 188]]

    (f) Notice. An employer is not eligible to take the tip credit 
unless it has informed its tipped employees in advance of the employer's 
use of the tip credit. The employer must inform the tipped employee of 
the amount of the cash wage that is to be paid by the employer, which 
cannot be lower than the cash wage required by paragraph (a)(1) of this 
section; the additional amount by which the wages of the tipped employee 
will be considered increased on account of the tip credit claimed by the 
employer, which amount may not exceed the value of the tips actually 
received by the employee; that all tips received by the tipped employee 
must be retained by the employee except for a valid tip pooling 
arrangement limited to tipped employees; and that the tip credit shall 
not apply to any worker who has not been informed of these requirements 
in this section.



Sec.  10.29  Notice.

    (a) The contractor must notify all workers performing work on or in 
connection with a covered contract of the applicable minimum wage rate 
under the Executive Order. With respect to service employees on 
contracts covered by the Service Contract Act and laborers and mechanics 
on contracts covered by the Davis-Bacon Act, the contractor may meet 
this requirement by posting, in a prominent and accessible place at the 
worksite, the applicable wage determination under those statutes.
    (b) With respect to workers performing work on or in connection with 
a covered contract whose wages are governed by the FLSA, the contractor 
must post a notice provided by the Department of Labor in a prominent 
and accessible place at the worksite so it may be readily seen by 
workers.
    (c) Contractors that customarily post notices to workers 
electronically may post the notice electronically, provided such 
electronic posting is displayed prominently on any Web site that is 
maintained by the contractor, whether external or internal, and 
customarily used for notices to workers about terms and conditions of 
employment.



                          Subpart D_Enforcement



Sec.  10.41  Complaints.

    (a) Any worker, contractor, labor organization, trade organization, 
contracting agency, or other person or entity that believes a violation 
of the Executive Order or this part has occurred may file a complaint 
with any office of the Wage and Hour Division. No particular form of 
complaint is required. A complaint may be filed orally or in writing. If 
the complainant is unable to file the complaint in English, the Wage and 
Hour Division will accept the complaint in any language.
    (b) It is the policy of the Department of Labor to protect the 
identity of its confidential sources and to prevent an unwarranted 
invasion of personal privacy. Accordingly, the identity of any 
individual who makes a written or oral statement as a complaint or in 
the course of an investigation, as well as portions of the statement 
which would reveal the individual's identity, shall not be disclosed in 
any manner to anyone other than Federal officials without the prior 
consent of the individual. Disclosure of such statements shall be 
governed by the provisions of the Freedom of Information Act (5 U.S.C. 
552, see 29 CFR part 70) and the Privacy Act of 1974 (5 U.S.C. 552a).



Sec.  10.42  Wage and Hour Division conciliation.

    After receipt of a complaint, the Administrator may seek to resolve 
the matter through conciliation.



Sec.  10.43  Wage and Hour Division investigation.

    The Administrator may investigate possible violations of the 
Executive Order or this part either as the result of a complaint or at 
any time on his or her own initiative. As part of the investigation, the 
Administrator may conduct interviews with the relevant contractor, as 
well as the contractor's workers at the worksite during normal work 
hours; inspect the relevant contractor's records (including contract 
documents and payrolls, if applicable); make copies and transcriptions 
of such records; and require the production of any documentary or other 
evidence the

[[Page 189]]

Administrator deems necessary to determine whether a violation, 
including conduct warranting imposition of debarment, has occurred. 
Federal agencies and contractors shall cooperate with any authorized 
representative of the Department of Labor in the inspection of records, 
in interviews with workers, and in all aspects of investigations.



Sec.  10.44  Remedies and sanctions.

    (a) Unpaid wages. When the Administrator determines a contractor has 
failed to pay the applicable Executive Order minimum wage to workers, 
the Administrator will notify the contractor and the applicable 
contracting agency of the unpaid wage violation and request the 
contractor to remedy the violation. If the contractor does not remedy 
the violation of the Executive Order or this part, the Administrator 
shall direct the contractor to pay all unpaid wages to the affected 
workers in the investigative findings letter it issues pursuant to Sec.  
10.51. The Administrator may additionally direct that payments due on 
the contract or any other contract between the contractor and the 
Government be withheld as necessary to pay unpaid wages. Upon the final 
order of the Secretary that unpaid wages are due, the Administrator may 
direct the relevant contracting agency to transfer the withheld funds to 
the Department of Labor for disbursement.
    (b) Antiretaliation. When the Administrator determines that any 
person has discharged or in any other manner retaliated against any 
worker because such worker filed any complaint or instituted or caused 
to be instituted any proceeding under or related to the Executive Order 
or this part, or because such worker testified or is about to testify in 
any such proceeding, the Administrator may provide for any relief to the 
worker as may be appropriate, including employment, reinstatement, 
promotion, and the payment of lost wages.
    (c) Debarment. Whenever a contractor is found by the Secretary of 
Labor to have disregarded its obligations under the Executive Order, or 
this part, such contractor and its responsible officers, and any firm, 
corporation, partnership, or association in which the contractor or 
responsible officers have an interest, shall be ineligible to be awarded 
any contract or subcontract subject to the Executive Order for a period 
of up to three years from the date of publication of the name of the 
contractor or responsible officer on the ineligible list. Neither an 
order for debarment of any contractor or its responsible officers from 
further Government contracts nor the inclusion of a contractor or its 
responsible officers on a published list of noncomplying contractors 
under this section shall be carried out without affording the contractor 
or responsible officers an opportunity for a hearing before an 
Administrative Law Judge.
    (d) Civil action to recover greater underpayments than those 
withheld. If the payments withheld under Sec.  10.11(c) are insufficient 
to reimburse all workers' lost wages, or if there are no payments to 
withhold, the Department of Labor, following a final order of the 
Secretary, may bring action against the contractor in any court of 
competent jurisdiction to recover the remaining amount of underpayments. 
The Department of Labor shall, to the extent possible, pay any sums it 
recovers in this manner directly to the underpaid workers. Any sum not 
paid to a worker because of inability to do so within three years shall 
be transferred into the Treasury of the United States as miscellaneous 
receipts.
    (e) Retroactive inclusion of contract clause. If a contracting 
agency fails to include the applicable contract clause in a contract to 
which the Executive Order applies, the contracting agency, on its own 
initiative or within 15 calendar days of notification by an authorized 
representative of the Department of Labor, shall incorporate the 
contract clause in the contract retroactive to commencement of 
performance under the contract through the exercise of any and all 
authority that may be needed (including, where necessary, its authority 
to negotiate or amend, its authority to pay any necessary additional 
costs, and its authority under any contract provision authorizing 
changes, cancellation and termination).

[[Page 190]]



                  Subpart E_Administrative Proceedings



Sec.  10.51  Disputes concerning contractor compliance.

    (a) This section sets forth the procedure for resolution of disputes 
of fact or law concerning a contractor's compliance with subpart C of 
this part. The procedures in this section may be initiated upon the 
Administrator's own motion or upon request of the contractor.
    (b)(1) In the event of a dispute described in paragraph (a) of this 
section in which it appears that relevant facts are at issue, the 
Administrator will notify the affected contractor(s) and the prime 
contractor (if different) of the investigative findings by certified 
mail to the last known address.
    (2) A contractor desiring a hearing concerning the Administrator's 
investigative findings letter shall request such a hearing by letter 
postmarked within 30 calendar days of the date of the Administrator's 
letter. The request shall set forth those findings which are in dispute 
with respect to the violations and/or debarment, as appropriate, and 
explain how the findings are in dispute, including by making reference 
to any affirmative defenses.
    (3) Upon receipt of a timely request for a hearing, the 
Administrator shall refer the case to the Chief Administrative Law Judge 
by Order of Reference, to which shall be attached a copy of the 
investigative findings letter from the Administrator and response 
thereto, for designation to an Administrative Law Judge to conduct such 
hearings as may be necessary to resolve the disputed matters. The 
hearing shall be conducted in accordance with the procedures set forth 
in 29 CFR part 6.
    (c)(1) In the event of a dispute described in paragraph (a) of this 
section in which it appears that there are no relevant facts at issue, 
and where there is not at that time reasonable cause to institute 
debarment proceedings under Sec.  10.52, the Administrator shall notify 
the contractor(s) of the investigation findings by certified mail to the 
last known address, and shall issue a ruling in the investigative 
findings letter on any issues of law known to be in dispute.
    (2)(i) If the contractor disagrees with the factual findings of the 
Administrator or believes that there are relevant facts in dispute, the 
contractor shall so advise the Administrator by letter postmarked within 
30 calendar days of the date of the Administrator's letter. In the 
response, the contractor shall explain in detail the facts alleged to be 
in dispute and attach any supporting documentation.
    (ii) Upon receipt of a timely response under paragraph (c)(2)(i) of 
this section alleging the existence of a factual dispute, the 
Administrator shall examine the information submitted. If the 
Administrator determines that there is a relevant issue of fact, the 
Administrator shall refer the case to the Chief Administrative Law Judge 
in accordance with paragraph (b)(3) of this section. If the 
Administrator determines that there is no relevant issue of fact, the 
Administrator shall so rule and advise the contractor accordingly.
    (3) If the contractor desires review of the ruling issued by the 
Administrator under paragraph (c)(1) or (c)(2)(ii) of this section, the 
contractor shall file a petition for review thereof with the 
Administrative Review Board postmarked within 30 calendar days of the 
date of the ruling, with a copy thereof to the Administrator. The 
petition for review shall be filed in accordance with the procedures set 
forth in 29 CFR part 7.
    (d) If a timely response to the Administrator's investigative 
findings letter is not made or a timely petition for review is not 
filed, the Administrator's investigative findings letter shall become 
the final order of the Secretary. If a timely response or petition for 
review is filed, the Administrator's letter shall be inoperative unless 
and until the decision is upheld by the Administrative Law Judge or the 
Administrative Review Board, or otherwise becomes a final order of the 
Secretary.



Sec.  10.52  Debarment proceedings.

    (a) Whenever any contractor is found by the Secretary of Labor to 
have disregarded its obligations to workers or subcontractors under 
Executive Order 13658 or this part, such contractor and its responsible 
officers, and any firm,

[[Page 191]]

corporation, partnership, or association in which such contractor or 
responsible officers have an interest, shall be ineligible for a period 
of up to three years to receive any contracts or subcontracts subject to 
Executive Order 13658 from the date of publication of the name or names 
of the contractor or persons on the ineligible list.
    (b)(1) Whenever the Administrator finds reasonable cause to believe 
that a contractor has committed a violation of Executive Order 13658 or 
this part which constitutes a disregard of its obligations to workers or 
subcontractors, the Administrator shall notify by certified mail to the 
last known address, the contractor and its responsible officers (and any 
firms, corporations, partnerships, or associations in which the 
contractor or responsible officers are known to have an interest), of 
the finding. The Administrator shall afford such contractor and any 
other parties notified an opportunity for a hearing as to whether 
debarment action should be taken under Executive Order 13658 or this 
part. The Administrator shall furnish to those notified a summary of the 
investigative findings. If the contractor or any other parties notified 
wish to request a hearing as to whether debarment action should be 
taken, such a request shall be made by letter to the Administrator 
postmarked within 30 calendar days of the date of the investigative 
findings letter from the Administrator, and shall set forth any findings 
which are in dispute and the reasons therefor, including any affirmative 
defenses to be raised. Upon receipt of such timely request for a 
hearing, the Administrator shall refer the case to the Chief 
Administrative Law Judge by Order of Reference, to which shall be 
attached a copy of the investigative findings letter from the 
Administrator and the response thereto, for designation of an 
Administrative Law Judge to conduct such hearings as may be necessary to 
determine the matters in dispute.
    (2) Hearings under this section shall be conducted in accordance 
with the procedures set forth in 29 CFR part 6. If no hearing is 
requested within 30 calendar days of the letter from the Administrator, 
the Administrator's findings shall become the final order of the 
Secretary.



Sec.  10.53  Referral to Chief Administrative Law Judge; 
amendment of pleadings.

    (a) Upon receipt of a timely request for a hearing under Sec.  10.51 
(where the Administrator has determined that relevant facts are in 
dispute) or Sec.  10.52 (debarment), the Administrator shall refer the 
case to the Chief Administrative Law Judge by Order of Reference, to 
which shall be attached a copy of the investigative findings letter from 
the Administrator and response thereto, for designation of an 
Administrative Law Judge to conduct such hearings as may be necessary to 
decide the disputed matters. A copy of the Order of Reference and 
attachments thereto shall be served upon the respondent. The 
investigative findings letter from the Administrator and response 
thereto shall be given the effect of a complaint and answer, 
respectively, for purposes of the administrative proceedings.
    (b) At any time prior to the closing of the hearing record, the 
complaint (investigative findings letter) or answer (response) may be 
amended with the permission of the Administrative Law Judge and upon 
such terms as he/she may approve. For proceedings pursuant to Sec.  
10.51, such an amendment may include a statement that debarment action 
is warranted under Sec.  10.52. Such amendments shall be allowed when 
justice and the presentation of the merits are served thereby, provided 
there is no prejudice to the objecting party's presentation on the 
merits. When issues not raised by the pleadings are reasonably within 
the scope of the original complaint and are tried by express or implied 
consent of the parties, they shall be treated in all respects as if they 
had been raised in the pleadings, and such amendments may be made as 
necessary to make them conform to the evidence. The presiding 
Administrative Law Judge may, upon reasonable notice and upon such terms 
as are just, permit supplemental pleadings setting forth transactions, 
occurrences or events which have happened since the date of the 
pleadings and which are relevant to any of the issues

[[Page 192]]

involved. A continuance in the hearing may be granted or the record left 
open to enable the new allegations to be addressed.



Sec.  10.54  Consent findings and order.

    (a) At any time prior to the receipt of evidence or, at the 
Administrative Law Judge's discretion prior to the issuance of the 
Administrative Law Judge's decision, the parties may enter into consent 
findings and an order disposing of the proceeding in whole or in part.
    (b) Any agreement containing consent findings and an order disposing 
of a proceeding in whole or in part shall also provide:
    (1) That the order shall have the same force and effect as an order 
made after full hearing;
    (2) That the entire record on which any order may be based shall 
consist solely of the Administrator's findings letter and the agreement;
    (3) A waiver of any further procedural steps before the 
Administrative Law Judge and the Administrative Review Board regarding 
those matters which are the subject of the agreement; and
    (4) A waiver of any right to challenge or contest the validity of 
the findings and order entered into in accordance with the agreement.
    (c) Within 30 calendar days after receipt of an agreement containing 
consent findings and an order disposing of the disputed matter in whole, 
the Administrative Law Judge shall, if satisfied with its form and 
substance, accept such agreement by issuing a decision based upon the 
agreed findings and order. If such agreement disposes of only a part of 
the disputed matter, a hearing shall be conducted on the matters 
remaining in dispute.



Sec.  10.55  Proceedings of the Administrative Law Judge.

    (a) The Office of Administrative Law Judges has jurisdiction to hear 
and decide appeals concerning questions of law and fact from the 
Administrator's investigative findings letters issued under Sec. Sec.  
10.51 and 10.52. Any party may, when requesting an appeal or during the 
pendency of a proceeding on appeal, timely move an Administrative Law 
Judge to consolidate a proceeding initiated hereunder with a proceeding 
initiated under the Service Contract Act or the Davis-Bacon Act.
    (b) Proposed findings of fact, conclusions, and order. Within 20 
calendar days of filing of the transcript of the testimony or such 
additional time as the Administrative Law Judge may allow, each party 
may file with the Administrative Law Judge proposed findings of fact, 
conclusions of law, and a proposed order, together with a supporting 
brief expressing the reasons for such proposals. Each party shall serve 
such proposals and brief on all other parties.
    (c) Decision. (1) Within a reasonable period of time after the time 
allowed for filing of proposed findings of fact, conclusions of law, and 
order, or within 30 calendar days of receipt of an agreement containing 
consent findings and order disposing of the disputed matter in whole, 
the Administrative Law Judge shall issue a decision. The decision shall 
contain appropriate findings, conclusions, and an order, and be served 
upon all parties to the proceeding.
    (2) If the respondent is found to have violated Executive Order 
13658 or this part, and if the Administrator requested debarment, the 
Administrative Law Judge shall issue an order as to whether the 
respondent is to be subject to the ineligible list, including findings 
that the contractor disregarded its obligations to workers or 
subcontractors under the Executive Order or this part.
    (d) Limit on scope of review. The Equal Access to Justice Act, as 
amended, does not apply to proceedings under this part. Accordingly, 
Administrative Law Judges shall have no authority to award attorney's 
fees and/or other litigation expenses pursuant to the provisions of the 
Equal Access to Justice Act for any proceeding under this part.
    (e) Orders. If the Administrative Law Judge concludes a violation 
occurred, the final order shall mandate action to remedy the violation, 
including, but not limited to, monetary relief for unpaid wages. Where 
the Administrator has sought imposition of debarment, the Administrative 
Law Judge shall determine whether an order imposing debarment is 
appropriate.

[[Page 193]]

    (f) Finality. The Administrative Law Judge's decision shall become 
the final order of the Secretary, unless a timely petition for review is 
filed with the Administrative Review Board.



Sec.  10.56  Petition for review.

    (a) Within 30 calendar days after the date of the decision of the 
Administrative Law Judge (or such additional time as is granted by the 
Administrative Review Board), any party aggrieved thereby who desires 
review thereof shall file a petition for review of the decision with 
supporting reasons. Such party shall transmit the petition in writing to 
the Administrative Review Board with a copy thereof to the Chief 
Administrative Law Judge. The petition shall refer to the specific 
findings of fact, conclusions of law, or order at issue. A petition 
concerning the decision on debarment shall also state the disregard of 
obligations to workers and/or subcontractors, or lack thereof, as 
appropriate. A party must serve the petition for review, and all briefs, 
on all parties and the Chief Administrative Law Judge. It must also 
timely serve copies of the petition and all briefs on the Administrator, 
Wage and Hour Division, and on the Associate Solicitor, Division of Fair 
Labor Standards, Office of the Solicitor, U.S. Department of Labor, 
Washington, DC 20210.
    (b) Effect of filing. If a party files a timely petition for review, 
the Administrative Law Judge's decision shall be inoperative unless and 
until the Administrative Review Board issues an order affirming the 
letter or decision, or the letter or decision otherwise becomes a final 
order of the Secretary. If a petition for review concerns only the 
imposition of debarment, however, the remainder of the decision shall be 
effective immediately. No judicial review shall be available unless a 
timely petition for review to the Administrative Review Board is first 
filed.



Sec.  10.57  Administrative Review Board proceedings.

    (a) Authority--(1) General. The Administrative Review Board has 
jurisdiction to hear and decide in its discretion appeals concerning 
questions of law and fact from investigative findings letters of the 
Administrator issued under Sec.  10.51(c)(1) or (2), Administrator's 
rulings issued under Sec.  10.58, and decisions of Administrative Law 
Judges issued under Sec.  10.55. In considering the matters within the 
scope of its jurisdiction, the Administrative Review Board shall act as 
the authorized representative of the Secretary and shall act fully and 
finally on behalf of the Secretary concerning such matters.
    (2) Limit on scope of review. (i) The Board shall not have 
jurisdiction to pass on the validity of any provision of this part. The 
Board is an appellate body and shall decide cases properly before it on 
the basis of substantial evidence contained in the entire record before 
it. The Board shall not receive new evidence into the record.
    (ii) The Equal Access to Justice Act, as amended, does not apply to 
proceedings under this part. Accordingly, the Administrative Review 
Board shall have no authority to award attorney's fees and/or other 
litigation expenses pursuant to the provisions of the Equal Access to 
Justice Act for any proceeding under this part.
    (b) Decisions. The Board's final decision shall be issued within a 
reasonable period of time following receipt of the petition for review 
and shall be served upon all parties by mail to the last known address 
and on the Chief Administrative Law Judge (in cases involving an appeal 
from an Administrative Law Judge's decision).
    (c) Orders. If the Board concludes a violation occurred, the final 
order shall mandate action to remedy the violation, including, but not 
limited to, monetary relief for unpaid wages. Where the Administrator 
has sought imposition of debarment, the Board shall determine whether an 
order imposing debarment is appropriate.
    (d) Finality. The decision of the Administrative Review Board shall 
become the final order of the Secretary.



Sec.  10.58  Administrator ruling.

    (a) Questions regarding the application and interpretation of the 
rules contained in this part may be referred to the Administrator, who 
shall issue an appropriate ruling. Requests for such rulings should be 
addressed to the

[[Page 194]]

Administrator, Wage and Hour Division, U.S. Department of Labor, 
Washington, DC 20210.
    (b) Any interested party may appeal to the Administrative Review 
Board for review of a final ruling of the Administrator issued under 
paragraph (a) of this section. The petition for review shall be filed 
with the Administrative Review Board within 30 calendar days of the date 
of the ruling.



           Sec. Appendix A to 29 CFR Part 10--Contract Clause

    The following clause shall be included by the contracting agency in 
every contract, contract-like instrument, and solicitation to which 
Executive Order 13658 applies, except for procurement contracts subject 
to the Federal Acquisition Regulation (FAR):
    (a) Executive Order 13658. This contract is subject to Executive 
Order 13658, the regulations issued by the Secretary of Labor in 29 CFR 
part 10 pursuant to the Executive Order, and the following provisions.
    (b) Minimum Wages. (1) Each worker (as defined in 29 CFR 10.2) 
engaged in the performance of this contract by the prime contractor or 
any subcontractor, regardless of any contractual relationship which may 
be alleged to exist between the contractor and worker, shall be paid not 
less than the applicable minimum wage under Executive Order 13658.
    (2) The minimum wage required to be paid to each worker performing 
work on or in connection with this contract between January 1, 2015 and 
December 31, 2015 shall be $10.10 per hour. The minimum wage shall be 
adjusted each time the Secretary of Labor's annual determination of the 
applicable minimum wage under section 2(a)(ii) of Executive Order 13658 
results in a higher minimum wage. Adjustments to the Executive Order 
minimum wage under section 2(a)(ii) of Executive Order 13658 will be 
effective for all workers subject to the Executive Order beginning 
January 1 of the following year. If appropriate, the contracting 
officer, or other agency official overseeing this contract shall ensure 
the contractor is compensated only for the increase in labor costs 
resulting from the annual inflation increases in the Executive Order 
13658 minimum wage beginning on January 1, 2016. The Secretary of Labor 
will publish annual determinations in the Federal Register no later than 
90 days before such new wage is to take effect. The Secretary will also 
publish the applicable minimum wage on www.wdol.gov (or any successor 
Web site). The applicable published minimum wage is incorporated by 
reference into this contract.
    (3) The contractor shall pay unconditionally to each worker all 
wages due free and clear and without subsequent deduction (except as 
otherwise provided by 29 CFR 10.23), rebate, or kickback on any account. 
Such payments shall be made no later than one pay period following the 
end of the regular pay period in which such wages were earned or 
accrued. A pay period under this Executive Order may not be of any 
duration longer than semi-monthly.
    (4) The prime contractor and any upper-tier subcontractor shall be 
responsible for the compliance by any subcontractor or lower-tier 
subcontractor with the Executive Order minimum wage requirements. In the 
event of any violation of the minimum wage obligation of this clause, 
the contractor and any subcontractor(s) responsible therefore shall be 
liable for the unpaid wages.
    (5) If the commensurate wage rate paid to a worker on a covered 
contract whose wages are calculated pursuant to a special certificate 
issued under 29 U.S.C. 214(c), whether hourly or piece rate, is less 
than the Executive Order minimum wage, the contractor must pay the 
Executive Order minimum wage rate to achieve compliance with the Order. 
If the commensurate wage due under the certificate is greater than the 
Executive Order minimum wage, the contractor must pay the 14(c) worker 
the greater commensurate wage.
    (c) Withholding. The agency head shall upon its own action or upon 
written request of an authorized representative of the Department of 
Labor withhold or cause to be withheld from the prime contractor under 
this or any other Federal contract with the same prime contractor, so 
much of the accrued payments or advances as may be considered necessary 
to pay workers the full amount of wages required by Executive Order 
13658.
    (d) Contract Suspension/Contract Termination/Contractor Debarment. 
In the event of a failure to pay any worker all or part of the wages due 
under Executive Order 13658 or 29 CFR part 10, or a failure to comply 
with any other term or condition of Executive Order 13658 or 29 CFR part 
10, the contracting agency may on its own action or after authorization 
or by direction of the Department of Labor and written notification to 
the contractor, take action to cause suspension of any further payment, 
advance or guarantee of funds until such violations have ceased. 
Additionally, any failure to comply with the requirements of this clause 
may be grounds for termination of the right to proceed with the contract 
work. In such event, the Government may enter into other contracts or 
arrangements for completion of the work, charging the contractor in 
default with any additional cost. A breach of the contract clause may be 
grounds for debarment as a contractor and subcontractor as provided in 
29 CFR 10.52.

[[Page 195]]

    (e) The contractor may not discharge any part of its minimum wage 
obligation under Executive Order 13658 by furnishing fringe benefits or, 
with respect to workers whose wages are governed by the Service Contract 
Act, the cash equivalent thereof.
    (f) Nothing herein shall relieve the contractor of any other 
obligation under Federal, State or local law, or under contract, for the 
payment of a higher wage to any worker, nor shall a lower prevailing 
wage under any such Federal, State, or local law, or under contract, 
entitle a contractor to pay less than $10.10 (or the minimum wage as 
established each January thereafter) to any worker.
    (g) Payroll Records. (1) The contractor shall make and maintain for 
three years records containing the information specified in paragraphs 
(g)(1) (i) through (vi) of this section for each worker and shall make 
the records available for inspection and transcription by authorized 
representatives of the Wage and Hour Division of the U.S. Department of 
Labor:
    (i) Name, address, and social security number.
    (ii) The worker's occupation(s) or classification(s)
    (iii) The rate or rates of wages paid.
    (iv) The number of daily and weekly hours worked by each worker.
    (v) Any deductions made; and
    (vi) Total wages paid.
    (2) The contractor shall also make available a copy of the contract, 
as applicable, for inspection or transcription by authorized 
representatives of the Wage and Hour Division.
    (3) Failure to make and maintain or to make available such records 
for inspection and transcription shall be a violation of 29 CFR part 10 
and this contract, and in the case of failure to produce such records, 
the contracting officer, upon direction of an authorized representative 
of the Department of Labor, or under its own action, shall take such 
action as may be necessary to cause suspension of any further payment or 
advance of funds until such time as the violations are discontinued.
    (4) The contractor shall permit authorized representatives of the 
Wage and Hour Division to conduct investigations, including interviewing 
workers at the worksite during normal working hours.
    (5) Nothing in this clause limits or otherwise modifies the 
contractor's payroll and recordkeeping obligations, if any, under the 
Davis-Bacon Act, as amended, and its implementing regulations; the 
Service Contract Act, as amended, and its implementing regulations; the 
Fair Labor Standards Act, as amended, and its implementing regulations; 
or any other applicable law.
    (h) The contractor (as defined in 29 CFR 10.2) shall insert this 
clause in all of its covered subcontracts and shall require its 
subcontractors to include this clause in any covered lower-tier 
subcontracts. The prime contractor and any upper-tier subcontractor 
shall be responsible for the compliance by any subcontractor or lower-
tier subcontractor with this contract clause.
    (i) Certification of Eligibility. (1) By entering into this 
contract, the contractor (and officials thereof) certifies that neither 
it (nor he or she) nor any person or firm who has an interest in the 
contractor's firm is a person or firm ineligible to be awarded 
Government contracts by virtue of the sanctions imposed pursuant to 
section 5 of the Service Contract Act, section 3(a) of the Davis-Bacon 
Act, or 29 CFR 5.12(a)(1).
    (2) No part of this contract shall be subcontracted to any person or 
firm whose name appears on the list of persons or firms ineligible to 
receive Federal contracts.
    (3) The penalty for making false statements is prescribed in the 
U.S. Criminal Code, 18 U.S.C. 1001.
    (j) Tipped employees. In paying wages to a tipped employee as 
defined in section 3(t) of the Fair Labor Standards Act, 29 U.S.C. 
203(t), the contractor may take a partial credit against the wage 
payment obligation (tip credit) to the extent permitted under section 
3(a) of Executive Order 13658. In order to take such a tip credit, the 
employee must receive an amount of tips at least equal to the amount of 
the credit taken; where the tipped employee does not receive sufficient 
tips to equal the amount of the tip credit the contractor must increase 
the cash wage paid for the workweek so that the amount of cash wage paid 
and the tips received by the employee equal the applicable minimum wage 
under Executive Order 13658. To utilize this proviso:
    (1) The employer must inform the tipped employee in advance of the 
use of the tip credit;
    (2) The employer must inform the tipped employee of the amount of 
cash wage that will be paid and the additional amount by which the 
employee's wages will be considered increased on account of the tip 
credit;
    (3) The employees must be allowed to retain all tips (individually 
or through a pooling arrangement and regardless of whether the employer 
elects to take a credit for tips received); and
    (4) The employer must be able to show by records that the tipped 
employee receives at least the applicable Executive Order minimum wage 
through the combination of direct wages and tip credit.
    (k) Antiretaliation. It shall be unlawful for any person to 
discharge or in any other manner discriminate against any worker because 
such worker has filed any complaint or instituted or caused to be 
instituted any proceeding under or related to Executive Order

[[Page 196]]

13658 or 29 CFR part 10, or has testified or is about to testify in any 
such proceeding.
    (l) Disputes concerning labor standards. Disputes related to the 
application of Executive Order 13658 to this contract shall not be 
subject to the general disputes clause of the contract. Such disputes 
shall be resolved in accordance with the procedures of the Department of 
Labor set forth in 29 CFR part 10. Disputes within the meaning of this 
contract clause include disputes between the contractor (or any of its 
subcontractors) and the contracting agency, the U.S. Department of 
Labor, or the workers or their representatives.
    (m) Notice. The contractor must notify all workers performing work 
on or in connection with a covered contract of the applicable minimum 
wage rate under the Executive Order. With respect to service employees 
on contracts covered by the Service Contract Act and laborers and 
mechanics on contracts covered by the Davis-Bacon Act, the contractor 
may meet this requirement by posting, in a prominent and accessible 
place at the worksite, the applicable wage determination under those 
statutes. With respect to workers performing work on or in connection 
with a covered contract whose wages are governed by the FLSA, the 
contractor must post a notice provided by the Department of Labor in a 
prominent and accessible place at the worksite so it may be readily seen 
by workers. Contractors that customarily post notices to workers 
electronically may post the notice electronically provided such 
electronic posting is displayed prominently on any Web site that is 
maintained by the contractor, whether external or internal, and 
customarily used for notices to workers about terms and conditions of 
employment.



PART 11_DEPARTMENT OF LABOR NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) 
COMPLIANCE PROCEDURES--Table of Contents



                      Subpart A_General Provisions

Sec.
11.1 Purpose and scope.
11.2 Applicability.
11.3 Responsible agency officials.

                   Subpart B_Administrative Procedures

11.10 Identification of agency actions.
11.11 Development of environmental analyses and documents.
11.12 Content and format of environmental documents.
11.13 Public participation.
11.14 Legislation.

    Authority: NEPA, (42 U.S.C. 4321 et seq.), Executive Order 11514, 
Protection and Enhancement of Environmental Quality (March 5, 1970, as 
amended by Executive Order 11991, May 24, 1977) and Council on 
Environmental Quality Regulations (National Environmental Policy Act, 
Implementation of Procedural Provisions) 40 CFR parts 1500-1508 (43 FR 
55978).

    Source: 45 FR 51188, Aug. 1, 1980, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  11.1  Purpose and scope.

    (a) The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
4321 et seq.) directs that, ``to the fullest extent possible, * * * the 
policies, regulations and public laws of the United States shall be 
interpreted and administered in accordance with the policies set forth'' 
in the Act for the preservation of the environment. As a means for 
achieving this objective, Executive Order 11991 of May 24, 1977 
(amending E.O. 11514 of March 5, 1970) directed the Council on 
Environmental Quality (CEQ) to issue uniform regulations for 
implementation of NEPA by all Federal agencies. These regulations were 
published in final form on November 29, 1978 (43 FR 55978) as 40 CFR 
parts 1500-1508. The CEQ's NEPA regulations require that each Federal 
agency adopt implementing procedures to supplement their regulations (40 
CFR 1507.3). Accordingly, the purpose of this part is to prescribe 
procedures to be followed by Department of Labor agencies when such 
agencies are contemplating actions which may be subject to the 
requirements of NEPA. These regulations do not replace 40 CFR parts 
1500-1508; rather they are to be read together with, and as a supplement 
to, the CEQ's regulations.
    (b) It is the responsibility of each agency to comply with the 
policies set forth in NEPA to the fullest extent possible and consistent 
with its statutory authority. Each agency shall comply with all 
applicable requirements of this part except where compliance would be 
inconsistent with other statutory requirements. However, no trivial 
violation of, or noncompliance with, these procedures shall give rise to 
an independent cause of action (cf. 40 CFR 1500.3 and 1507.3(b)).

[[Page 197]]



Sec.  11.2  Applicability.

    Although all Department of Labor agencies are subject to NEPA, only 
three of its agencies routinely propose or consider actions which may 
require the preparation of environment assessments or environmental 
impact statements. These are the Occupational Safety and Health 
Administration (OSHA), which acts pursuant to the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 651, et seq.); the Mine Safety and 
Health Administration (MSHA), which acts pursuant to the Federal Mine 
Safety and Health Act of 1977 (30 U.S.C. 801, et seq.); and the Office 
of Job Corps which purchases and leases land and constructs Job Corps 
centers pursuant to the Workforce Investment Act of 1998 (29 U.S.C. 
2801, et seq.). Therefore, these procedures have been designed primarily 
with the duties and rulemaking processes of these agencies in mind. If 
and when other Department of Labor agencies propose actions requiring 
environmental impact analyses, they shall use these procedures, to the 
extent that they are applicable, in performing such analyses.

[45 FR 51188, Aug. 1, 1980, as amended at 72 FR 37098, July 9, 2007]



Sec.  11.3  Responsible agency officials.

    (a) The Assistant Secretary for Policy shall be responsible for the 
following:
    (1) Overall review of Department of Labor agency compliance with the 
requirements of NEPA, the CEQ's regulations and these Departmental 
procedures;
    (2) Maintaining contacts with CEQ and the Environmental Protection 
Agency (EPA) as the Departmental NEPA liaison; and
    (3) Preparing and coordinating Departmental comments in response to 
environmental impact statements prepared by other Federal agencies which 
have been submitted to the Department for review, as required by 40 CFR 
1503.2.
    (b) Assistant Secretaries of Labor and other officials of equivalent 
rank or responsibility (hereinafter ``agency heads'') shall be 
responsible for their agencies' compliance with NEPA.
    (1) These responsibilities shall include the following:
    (i) Assuring that the agencies under their control observe the 
requirements of 40 CFR 1507.2 on compliance capability;
    (ii) Preparing environmental impact assessments and statements in 
accordance with the requirements of these regulations and 40 CFR parts 
1501 and 1502, and advising private applicants, or other non-Federal 
entities, of the possible need for information foreseeably required for 
later Federal action pursuant to 40 CFR 1501.2(d);
    (iii) Assuring public participation in the NEPA process in 
accordance with 40 CFR parts 1503 and 1506;
    (iv) Commenting on environmental impact statements prepared by other 
agencies, when their agencies have jurisdiction by law or special 
expertise with respect to any environmental impacts connected with a 
proposed action, as required by 40 CFR part 1503;
    (v) Assuring that environmental documents prepared by their agencies 
accompany proposed actions through existing agency review processes, and 
that, along with other relevant materials, and consistent with 40 CFR 
1505.1(e), the full range of alternatives discussed in these documents 
are considered in the planning of agency actions and in the making of 
decisions and that the alternatives considered are encompassed by those 
discussed in the documents; and
    (vi) Assuring, where possible, the mitigation of adverse 
environmental effects of agency actions.
    (2) In accordance with 40 CFR 1506.5(c), agency heads will also be 
responsible for assuring the quality of environmental impact statements 
prepared by their agencies. Where environmental impact statements will 
be prepared by a contractor, the agency heads will assure that their 
agencies furnish guidance to the contractor, participate in the 
document's preparation, independently evaluate the statement prior to 
approval and take responsibility for the scope and contents.
    (c) Agency heads may designate program offices or individuals as 
NEPA contacts for their agencies. The name and address of the NEPA 
contact shall be included on the cover sheet of each

[[Page 198]]

environmental document published by the agency, or if no cover sheet is 
provided, the name and address of this office or individual shall be 
included with any instructions to the public on obtaining further 
information or submitting comments on the document.
    (1) It shall be the duty of an agency's NEPA contact to know the 
status of all environmental documents being prepared by the agency or in 
cooperation with another agency.
    (2) The NEPA contact shall receive and respond to inquiries 
concerning the status of all environmental documents being prepared 
within the agency or in cooperation with another agency.

[45 FR 51188, Aug. 1, 1980, as amended at 71 FR 16665, Apr. 3, 2006]



                   Subpart B_Administrative Procedures



Sec.  11.10  Identification of agency actions.

    Pursuant to the CEQ definition of ``major Federal action'' (40 CFR 
1508.18) and 40 CFR 1507.3(b)(2), the following paragraphs identify and 
classify Department of Labor actions which: normally will not require 
preparation of an environmental document (i.e. an environmental 
assessment or an environmental impact statement); or usually will 
require preparation of an environmental document.
    (a) OSHA/MSHA actions. Actions of the Occupational Safety and Health 
Administration (OSHA) and the Mine Safety and Health Administration 
(MSHA) are classified as follows:
    (1) Categorically excluded actions. OSHA/MSHA actions listed in the 
following Table will normally qualify for categorical exclusion from 
NEPA requirements: i.e., such actions do not require preparation of 
either an environmental assessment or an environmental impact statement, 
because they do not have a significant impact on the quality of the 
human environment. Classification as a categorical exclusion, however, 
does not prohibit OSHA or MSHA from preparing an environmental 
assessment or environmental impact statement on any of the following 
actions when OSHA or MSHA determines it to be appropriate. Also, in 
extraordinary circumstances where a normally excluded action is found to 
have a potentially significant environmental effect, OSHA or MSHA shall 
prepare an environmental assessment and/or an environmental impact 
statement as required.

                    OSHA/MSHA Categorical Exclusions
------------------------------------------------------------------------
              Type of action                    Reason for exclusion
------------------------------------------------------------------------
(i) Promulgation, modification or          Safety standards promote
 revocation of any safety standard.         injury avoidance by means of
 Examples of these actions are: Machine     mechanical applications or
 guarding requirements, safety lines,       work practices, the effects
 warning signals, etc.                      of which do not impact on
                                            air, water or soil quality,
                                            plant or animal life, the
                                            use of land or other aspects
                                            of the human environment.
(ii) Approval of petitions for variances   Variances are taken from
 from MSHA/OSHA safety standards or OSHA    existing standards. Thus
 health standards.                          environmental documents, as
                                            appropriate, will already
                                            have been prepared. In terms
                                            of worker health and safety,
                                            any variance must be at
                                            least as effective as the
                                            original standard.
(iii) Agency legislative requests for      Exempted by 40 CFR 1508.17.
 appropriations.
(iv) Recordkeeping and reporting           No possibility of significant
 requirements.                              environmental impact.
(v) Routine agency personnel actions.....  Such actions typically
                                            involve small numbers of
                                            individuals and have no
                                            possibility of significant
                                            environmental impact.
(vi) Training of employers, employees,     These actions involve
 agency personnel and others in the         educational activities which
 recognition, avoidance or abatement of     have no possibility of
 occupational hazards. Providing            significant environmental
 consultative services to industry.         impact.
(vii) Enforcement proceedings............  Exempted by 40 CFR 1508.18.
(viii) Equipment approvals...............  No possibility of significant
                                            environmental impact.
(ix) State grants under Sec. 503 of the    These grants assist States in
 Federal Mine Safety and Health Act.        developing and implementing
                                            laws to improve mine safety
                                            and health and to promote
                                            coordination between State
                                            and Federal governments.
                                            They have no possibility of
                                            significant environmental
                                            impact.
(x) Certification or qualification         No possibility of significant
 proceedings.                               environmental impact.
------------------------------------------------------------------------

    (2) Actions requiring environmental assessment. Several classes of 
OSHA/MSHA actions normally require the preparation of an environmental 
assessment prior to determining whether either a finding of no 
significant impact or an environmental impact statement must be 
prepared. (However,

[[Page 199]]

OSHA or MSHA may proceed to prepare an environmental impact statement, 
without first preparing an environmental assessment, if it determines 
such action to be appropriate or necessary, as provided by 40 CFR 
1501.3(a)). Actions in this classification include:
    (i) Promulgation, modification or revocation of a health standard; 
and
    (ii) Approval or revocation of State plans for the enforcement of 
safety and health standards (not applicable to MSHA).
    (3) Actions requiring preparation of an environmental impact 
statement. Preparation of an environmental impact statement will always 
be required for proposals for promulgation, modification or revocation 
of health standards which will significantly affect air, water or soil 
quality, plant or animal life, the use of land or other aspects of the 
human environment.
    (4) Emergency temporary standards. Situations requiring the issuance 
of emergency temporary standards (issued for a period of up to six 
months, pursuant to section 6(c) of the Occupational Safety and Health 
Act of 1970, and for a period of up to nine months, pursuant to section 
101(b) of the Federal Mine Safety and Health Act of 1977) are of such 
nature that the provisions of 40 CFR parts 1500 et seq. may not be 
strictly observable. Pursuant to 40 CFR 1506.11, however, OSHA and MSHA 
will consult with the Council on Environmental Quality in connection 
with such situations, and will, in any event, prepare environmental 
assessments or environmental impact statements, as appropriate, on any 
proposed permanent regulation to be promulgated for the purpose of 
replacing the temporary action.
    (b) Real property actions. Actions that will involve construction, 
or the purchase or lease of property, in connection with the 
establishment or substantial alteration of a Job Corps center, of any 
similar Job Corps facility, or other property actions of a similar 
character by another agency, will normally require the preparation of an 
environmental assessment prior to determining whether either a finding 
of no significant impact or an environmental impact statement must be 
prepared.
    (c) Other Departmental actions. Certain actions taken to implement 
other Department of Labor programs will normally qualify for categorical 
exclusion from NEPA requirements. These matters are excluded because the 
possibility of environmental impact is remote. However, classification 
as a categorical exclusion does not prohibit or release an agency from 
preparing an environmental assessment or environmental impact statement 
when the agency determines it to be appropriate. These actions include:
    (1) Office of Workforce Investment activities and related placement, 
counseling, recruitment, information, testing, certification and 
associated actions;
    (2) Apprenticeship activities and related certification and 
technical assistance actions;
    (3) Training activities, other than Job Corps, including work 
experience, classroom training and public service employment;
    (4) Unemployment insurance, trade adjustment assistance, workers' 
compensation programs, retirement programs, employee protection 
programs, and related employees benefit programs or activities involving 
the replacement or regulation of employee wages;
    (5) Wage and hour programs to protect low-income workers, eliminate 
discriminatory employment practices, prevent curtailment of employment 
and earnings for certain groups of workers, minimize loss of income due 
to indebtedness, protect farm and migrant labor and related activities;
    (6) Contract compliance programs to ensure equal employment 
opportunity and related actions;
    (7) Labor-management relations activities and activities of labor 
organizations, employers and their officers or representatives;
    (8) Research, evaluation, development and information collection 
projects related to any of the aforementioned activities;
    (9) Labor statistics programs; and

[[Page 200]]

    (10) Matters involving personnel policy, procurement policy, freedom 
of information and privacy policy, and related matters of Departmental 
management.

[45 FR 51188, Aug. 1, 1980, as amended at 72 FR 37098, July 9, 2007]



Sec.  11.11  Development of environmental analyses and documents.

    (a) Potential environmental effects of agency actions shall begin to 
be examined at the time a topic for potential action is submitted to the 
agency staff for research, proposal development, or other consideration. 
During this stage the agency shall determine whether the type of action 
which may be proposed may be categorically excluded from NEPA 
environmental analysis requirements pursuant to Sec.  11.10. If the type 
of action being considered is not categorically excluded, or is an 
extraordinary case of a normally excluded action which may have 
significant environmental impacts, development of the information needed 
to make an environmental assessment shall begin. Actions described in 
Sec.  11.10(b) shall be submitted to the Assistant Secretary for 
Administration and Management at this point, pursuant to applicable 
Departmental procedures, for appropriate review, including a 
determination with respect to whether or not the action is located in or 
near a floodplain or wetlands area in connection with the requirements 
of Executive Orders 11988 and 11990.
    (b) When information gathered during the early stages of proposal 
development indicates that preparation of an environmental impact 
statement will be required, the agency shall begin preparation of such a 
document by initiating the scoping process in accordance with 40 CFR 
1501.7. However, if the information is not clearly indicative of the 
need for preparation of an environmental impact statement, an 
environmental assessment shall be prepared.
    (c) Agencies are encouraged, in developing environmental 
assessments, to explore all factors which it may become necessary to 
examine should it be determined that preparation of an environmental 
impact statement is necessary, even though some of those factors, such 
as economic and social effects, ``are not intended by themselves to 
require preparation of an environmental impact statement'' (40 CFR 
1508.14). Thus in making environmental assessments of real property 
actions described in Sec.  11.10(b), agencies are encouraged to consider 
the following factors, among others:
    (1) The nature and degree of any former use of a proposed facility 
and the number of individuals the facility formerly served, as compared 
with its use and population to be served under the new proposal;
    (2) The population of the area (numbers, density and makeup);
    (3) Community facilities and services, taking into consideration 
capacity and present and former use, including: Health services 
(hospitals, physicians), business and community development policy, 
recreational facilities (parks, theaters), fire and police protection, 
schools, energy resources, waste disposal, water, traffic and roadway 
systems, sewage systems, communications, and public transportation;
    (4) The proximity of the facility to residential areas;
    (5) The potential impact on the quality of drinking water, air 
quality, noise levels, designated scenic areas, land use, soil quality 
(including drainage or erosion problems), buildings valued for their 
design or which are otherwise locally significant, the listing or 
eligibility for listing of a site in the National Register for Historic 
places, consistent with the requirements of 20 CFR 684.24a where 
applicable, neighborhood character, and health and safety of residents;
    (6) The potential impact on natural systems and resources including 
rivers and streams, forests, wetlands, floodplains, wilderness areas or 
places, and species designated for preservation, including species of 
plants and animals and their critical habitats as identified in 
regulations published by the Secretary of the Interior (50 CFR chapter 
I, part 17), and by the Secretary of Commerce (50 CFR chapter II, parts 
217, 222.23, 223, and 227.4); and
    (7) Other considerations appropriate in light of the nature and size 
of the project.
    (d) If an agency determines, on the basis of an environmental 
assessment,

[[Page 201]]

that preparation of an environmental impact statement is not required, 
notice of a finding of no significant impact and the availability of the 
environmental assessment shall be prepared and published in the Federal 
Register. In the case of proposed rulemaking, the notice of a finding of 
no significant impact may be published in the Federal Register at any 
time prior to the publication of the proposed action, or it may be 
included in the Federal Register notice of proposed rulemaking. Issuance 
of a finding of no significant impact at the proposal stage of 
rulemaking shall not foreclose further consideration of environmental 
issues during the rulemaking proceedings. Therefore the Department of 
Labor notes that, consistent with 40 CFR 1500.3, the finding shall not 
be considered final until promulgation of the rule involved (the action 
affecting the environment).
    (1) If it is determined that preparation of an environmental impact 
statement is not required for an action, but that action is one which 
would normally require the preparation of an environmental impact 
statement, an action closely similar to one which would normally require 
the preparation of an environmental impact statement, or an action 
without precedent in this regard, the agency shall make a preliminary 
finding of no significant impact available for public review and 
comment. In accordance with 40 CFR 1501.4(e)(2), this finding shall be 
made available for at least 30 days before a final determination is made 
as to whether an environmental impact statement will be prepared, and 
before any public record may be closed and the proposed action may 
become effective.
    (2) Although not required by 40 CFR 1501.4(e)(2), an agency may use 
the procedure described in Sec.  11.11(d)(1) whenever the agency 
determines it to be appropriate.
    (e) If it is determined on the basis of an environmental assessment, 
prepared in connection with an action described in Sec.  11.10(b), that 
preparation of an environmental impact statement is required, or that 
public review is required in connection with actions in floodplains or 
wetlands that do not require environmental impact statements under E.O. 
11988 or E.O. 11990, the agency shall consider altering the proposed 
action or changing the site of the proposed project, and shall proceed 
with preparation of an environmental impact statement or appropriate 
public review actions only after obtaining written authorization from 
the Assistant Secretary for Administration and Management.
    (f) Filing of any draft environmental impact statement with the 
Environmental Protection Agency (EPA), pursuant to 40 CFR 1506.9, and 
circulation to the public, will ordinarily coincide with publication of 
the proposed agency action, which is the subject of that document, in 
the Federal Register. In any event, the statement will be made available 
for public comment for at least a 45-day period.
    (g) The final decision on the proposed action shall be made not 
earlier than 90 days following publication of EPA's notice of the filing 
of the draft environmental impact statement, and, except as provided 
below, not earlier than 30 days following publication of EPA's notice of 
the filing of the final environmental impact statement.
    (1) In accordance with 40 CFR 1506.10, an agency engaged in 
rulemaking under the Administrative Procedure Act or other statute, for 
the purpose of protecting the public health or safety, may waive the 30-
day time period noted above and publish a decision on a final rule 
simultaneously with publication of the notice of the availability of the 
final environmental impact statement. Therefore, Departmental agencies 
(such as OSHA and MSHA) meeting these requirements, may file and 
circulate the final environmental impact statement at the same time a 
notice of decision is being published, provided that the final rule or 
action may not become effective for at least 30 days from the date of 
publication of the EPA's notice of filing of the final environmental 
impact statement.
    (2) If a supplement to a final environmental impact statement is 
prepared, it shall be incorporated into the rulemaking record. If the 
supplement is prepared following the close of the rulemaking record and 
is based on, or

[[Page 202]]

introduces, new data or major new alternatives or analyses, the 
rulemaking record will be reopened for at least 30 days to receive 
public comments. The final action may not become effective for at least 
30 days following EPA publication of the filing of the supplemental 
statement.
    (h) In accordance with 40 CFR 1505.2, when an agency prepares a 
final environmental impact statement, the agency shall prepare a concise 
public record of decision detailing what the decision was, what 
alternatives were considered (specifying the environmentally preferable 
alternative), how those considerations entered into the decision, and 
whether all practicable means to avoid or minimize environmental harm 
from the alternative selected have been adopted, and if not, the reason 
they were not. This record may be contained in, or integrated with, the 
preamble to the Federal Register notice of final action or in any other 
public document considered appropriate by the agency.



Sec.  11.12  Content and format of environmental documents.

    (a) An environmental assessment may be prepared in any format 
considered effective by the agency involved. When such a document is 
prepared in connection with a proposed action, it must be made readily 
available to the public either by placement into the public record (with 
public notice provided in accordance with 40 CFR part 1506) or by 
publication in the Federal Register. The preamble to the Federal 
Register notice of proposed rulemaking may be considered the 
environmental assessment provided that the document contains the 
elements required by 40 CFR 1508.9(b).
    (b) A finding of no significant impact (40 CFR 1508.13) may be 
prepared in any format considered to be effective or necessary by the 
agency involved in the proposed action.
    (c) The finding of no significant impact, and the environmental 
assessment on which it was based, as well as any comments received in 
response to these documents shall be included in the public record of 
the proposed action.
    (d) Department of Labor agencies shall comply with the format 
requirements for environmental impact statements as set forth at 40 CFR 
1502.10, except when an agency determines that there is a compelling 
reason to do otherwise, such as more effective communication or reduced 
duplication of effort and paperwork (40 CFR 1506.4). For example, in 
OSHA/MSHA informal rulemaking proceedings, environmental documents may 
be combined with the Federal Register notice of proposed or final 
rulemaking. Filing and circulation of the combined preamble/
environmental document shall be in accordance with the requirements of 
40 CFR 1506.9.
    (e) The final environmental impact statement shall contain any 
changes in information or supplemental information received since the 
filing and circulation of the draft environmental impact statement, as 
well as a summary, or copies of the substantive comments received in 
response to the draft environmental impact statement. If such changes 
and comments are minor, an agency may circulate only the changes and 
comments, including responses to the comments, rather than the entire 
impact statement, to the extent permitted by 40 CFR 1502.19. However, 
the entire document, with a new cover sheet, shall be filed with EPA and 
placed in the rulemaking record.



Sec.  11.13  Public participation.

    (a) When an agency has determined that preparation of an 
environmental impact statement is required, the agency shall publish a 
notice of intent to prepare an environmental impact statement in the 
Federal Register and shall invite public participation in the agency's 
scoping process as required by 40 CFR 1501.7.
    (b) When the draft environmental impact statement has been prepared 
and filed with the EPA pursuant to Sec.  11.11(f), comments on the 
document shall be solicited from appropriate Federal, State and local 
agencies, Indian tribes, and other persons or organizations who may be 
interested or affected, as required by 40 CFR 1503.1.
    (c) In the case of an action with effects primarily of local 
concern, agencies shall consider the use of clearinghouses, newspapers 
and other public

[[Page 203]]

media likely to generate local participation in the agency process as 
ways of supplementing the notices otherwise specified in this part. The 
use of such public media does not, however, require or authorized the 
use of paid advertising.



Sec.  11.14  Legislation.

    Notwithstanding any provisions of this part, environmental 
assessments or impact statements prepared in connection with requests 
for new legislation or modification of existing statutes shall be 
handled in accordance with applicable OMB and Department of Labor 
procedures on the preparation and submission of legislative proposals 
and the requirements of 40 CFR 1506.8.



PART 12_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION 
FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents



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



Sec.  12.1  Uniform relocation assistance and real property acquisition.

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

[52 FR 48020, Dec. 17, 1987, and 54 FR 8912, Mar. 2, 1989]



PART 13_ESTABLISHING PAID SICK LEAVE FOR FEDERAL CONTRACTORS--
Table of Contents



                            Subpart A_General

Sec.
13.1 Purpose and scope.
13.2 Definitions.
13.3 Coverage.
13.4 Exclusions.
13.5 Paid sick leave for Federal contractors and subcontractors.
13.6 Prohibited acts.
13.7 Waiver of rights.
13.8 Multiemployer plans or other funds, plans, or programs.

                Subpart B_Federal Government Requirements

13.11 Contracting agency requirements.
13.12 Department of Labor requirements.

                    Subpart C_Contractor Requirements

13.21 Contract clause.
13.22 Paid sick leave.
13.23 Deductions.
13.24 Anti-kickback.
13.25 Records to be kept by contractors.
13.26 Notice.
13.27 Timing of pay.

                          Subpart D_Enforcement

13.41 Complaints.
13.42 Wage and Hour Division conciliation.
13.43 Wage and Hour Division investigation.
13.44 Remedies and sanctions.

                  Subpart E_Administrative Proceedings

13.51 Disputes concerning contractor compliance.
13.52 Debarment proceedings.
13.53 Referral to Chief Administrative Law Judge; amendment of 
          pleadings.
13.54 Consent findings and order.
13.55 Administrative Law Judge proceedings.
13.56 Petition for review.
13.57 Administrative Review Board proceedings.
13.58 Administrator ruling.

Appendix A to Part 13--Contract Clause

    Authority: 5 U.S.C. 301; E.O. 13706, 80 FR 54697, 3 CFR, 2016 Comp., 
p. 367; Secretary's Order 01-2014, 79 FR 77527.

    Source: 81 FR 67709, Sept. 30, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  13.1  Purpose and scope.

    (a) Purpose. This part contains the Department of Labor's rules 
relating to the administration and enforcement of Executive Order 13706 
(Executive Order or the Order), ``Establishing Paid Sick Leave for 
Federal Contractors.'' The Order states that providing paid sick leave 
to employees will improve the health and performance of employees

[[Page 204]]

of Federal contractors and will bring benefits packages offered by 
Federal contractors in line with model employers, ensuring they remain 
competitive in the search for dedicated and talented employees. The 
Executive Order concludes that providing paid sick leave will result in 
savings and quality improvements in the work performed by parties who 
contract with the Federal Government that will in turn lead to improved 
economy and efficiency in Government procurement.
    (b) Policy. Executive Order 13706 sets forth the general position of 
the Federal Government that providing access to paid sick leave on 
Federal contracts will increase efficiency and cost savings for the 
Federal Government. The Order therefore provides that executive 
departments and agencies shall, to the extent permitted by law, ensure 
that new covered contracts, contract-like instruments, and solicitations 
(collectively referred to as ``contracts'') include a clause, which the 
contractor and any subcontractors shall incorporate into lower-tier 
subcontracts, specifying, as a condition of payment, that employees will 
earn not less than 1 hour of paid sick leave for every 30 hours worked 
on or in connection with covered contracts.
    (c) Scope. Neither Executive Order 13706 nor this part creates or 
changes any rights under the Contract Disputes Act or creates any 
private right of action. The Executive Order provides that disputes 
regarding whether a contractor has provided paid sick leave as 
prescribed by the Order, to the extent permitted by law, shall be 
disposed of only as provided in this part. However, nothing in the Order 
or this part is intended to limit or preclude a civil action under the 
False Claims Act, 31 U.S.C. 3730, or criminal prosecution under 18 
U.S.C. 1001. The Order and this part similarly do not preclude judicial 
review of final decisions by the Secretary of Labor in accordance with 
the Administrative Procedure Act, 5 U.S.C. 701 et seq.



Sec.  13.2  Definitions.

    For purposes of this part:
    Accrual year means the 12-month period during which a contractor may 
limit an employee's accrual of paid sick leave to no less than 56 hours.
    Administrative Review Board (ARB or Board) means the Administrative 
Review Board, U.S. Department of Labor.
    Administrator means the Administrator of the Wage and Hour Division 
and includes any official of the Wage and Hour Division authorized to 
perform any of the functions of the Administrator under this part.
    As soon as is practicable means as soon as both possible and 
practical, taking into account all of the facts and circumstances of the 
individual case.
    Certification issued by a health care provider means any type of 
written document created or signed by a health care provider (or by a 
representative of the health care provider) that contains information 
verifying that the physical or mental illness, injury, medical 
condition, or need for diagnosis, care, or preventive care or other need 
for care referred to in Sec.  13.5(c)(1)(i), (ii), or (iii) exists. The 
health care provider (or representative) need not have seen the employee 
or the individual for whom the employee is caring in person to create a 
valid certification.
    Child means:
    (1) A biological, adopted, step, or foster son or daughter of the 
employee;
    (2) A person who is a legal ward or was a legal ward of the employee 
when that individual was a minor or required a legal guardian;
    (3) A person for whom the employee stands in loco parentis or stood 
in loco parentis when that individual was a minor or required someone to 
stand in loco parentis; or
    (4) A child, as described in paragraphs (1) through (3) of this 
definition, of an employee's spouse or domestic partner.
    Concessions contract or contract for concessions means a contract 
under which the Federal Government grants a right to use Federal 
property, including land or facilities, for furnishing services. The 
term concessions contract includes, but is not limited to, a contract 
the principal purpose of which is to furnish food, lodging, automobile 
fuel, souvenirs, newspaper stands, and/or recreational equipment, 
regardless of whether the services are of direct

[[Page 205]]

benefit to the Government, its personnel, or the general public.
    Contract or contract-like instrument means an agreement between two 
or more parties creating obligations that are enforceable or otherwise 
recognizable at law. This definition includes, but is not limited to, a 
mutually binding legal relationship obligating one party to furnish 
services (including construction) and another party to pay for them. The 
term contract includes all contracts and any subcontracts of any tier 
thereunder, whether negotiated or advertised, including any procurement 
actions, lease agreements, cooperative agreements, provider agreements, 
intergovernmental service agreements, service agreements, licenses, 
permits, or any other type of agreement, regardless of nomenclature, 
type, or particular form, and whether entered into verbally or in 
writing. The term contract shall be interpreted broadly to include, but 
not be limited to, any contract that may be consistent with the 
definition provided in the Federal Acquisition Regulation (FAR) or 
applicable Federal statutes. This definition includes, but is not 
limited to, any contract that may be covered under any Federal 
procurement statute. Contracts may be the result of competitive bidding 
or awarded to a single source under applicable authority to do so. In 
addition to bilateral instruments, contracts include, but are not 
limited to, awards and notices of awards; job orders or task letters 
issued under basic ordering agreements; letter contracts; orders, such 
as purchase orders, under which the contract becomes effective by 
written acceptance or performance; and bilateral contract modifications. 
The term contract includes contracts covered by the Service Contract 
Act, contracts covered by the Davis-Bacon Act, concessions contracts not 
subject to the Service Contract Act, and contracts in connection with 
Federal property or land and related to offering services for Federal 
employees, their dependents, or the general public.
    Contracting officer means a representative of an executive 
department or agency with the authority to enter into, administer, and/
or terminate contracts and make related determinations and findings. 
This term includes certain authorized representatives of the contracting 
officer acting within the limits of their authority as delegated by the 
contracting officer.
    Contractor means any individual or other legal entity that is 
awarded a Federal Government contract or subcontract under a Federal 
Government contract. The term contractor refers to both a prime 
contractor and all of its subcontractors of any tier on a contract with 
the Federal Government. The term contractor includes lessors and 
lessees. The term employer is used interchangeably with the terms 
contractor and subcontractor in various sections of this part. The U.S. 
Government, its agencies, and instrumentalities are not contractors, 
subcontractors, employers, or joint employers for purposes of compliance 
with the provisions of the Executive Order.
    Davis-Bacon Act (DBA) means the Davis-Bacon Act of 1931, as amended, 
40 U.S.C. 3141 et seq., and its implementing regulations.
    Domestic partner means an adult in a committed relationship with 
another adult. A committed relationship is one in which the employee and 
the domestic partner of the employee are each other's sole domestic 
partner (and are not married to or domestic partners with anyone else) 
and share responsibility for a significant measure of each other's 
common welfare and financial obligations. This includes, but is not 
limited to, any relationship between two individuals of the same or 
opposite sex that is granted legal recognition by a State or by the 
District of Columbia as a marriage or analogous relationship (including, 
but not limited to, a civil union).
    Domestic violence means:
    (1) Felony or misdemeanor crimes of violence (including threats or 
attempts) committed:
    (i) By a current or former spouse, domestic partner, or intimate 
partner of the victim;
    (ii) By a person with whom the victim shares a child in common;
    (iii) By a person who is cohabitating with or has cohabitated with 
the victim as a spouse, domestic partner, or intimate partner;
    (iv) By a person similarly situated to a spouse of the victim under 
civil or

[[Page 206]]

criminal domestic or family violence laws of the jurisdiction in which 
the victim resides or the events occurred; or
    (v) By any other adult person against a victim who is protected from 
that person's acts under the civil or criminal domestic or family 
violence laws of the jurisdiction in which the victim resides or the 
events occurred.
    (2) Domestic violence also includes any crime of violence considered 
to be an act of domestic violence under the civil or criminal domestic 
or family violence laws of the jurisdiction in which the victim resides 
or the events occurred.
    Employee means any person engaged in performing work on or in 
connection with a contract covered by the Executive Order, and whose 
wages under such contract are governed by the Service Contract Act, the 
Davis-Bacon Act, or the Fair Labor Standards Act, including employees 
who qualify for an exemption from the Fair Labor Standards Act's minimum 
wage and overtime provisions, regardless of the contractual relationship 
alleged to exist between the individual and the employer. The term 
employee includes any person performing work on or in connection with a 
covered contract and individually registered in a bona fide 
apprenticeship or training program registered with the U.S. Department 
of Labor's Employment and Training Administration, Office of 
Apprenticeship, or with a State Apprenticeship Agency recognized by the 
Office of Apprenticeship. An employee performs ``on'' a contract if the 
employee directly performs the specific services called for by the 
contract. An employee performs ``in connection with'' a contract if the 
employee's work activities are necessary to the performance of a 
contract but are not the specific services called for by the contract.
    Executive departments and agencies means executive departments 
within the meaning of 5 U.S.C. 101, military departments within the 
meaning of 5 U.S.C. 102, or any independent establishments within the 
meaning of 5 U.S.C. 104(1) or 39 U.S.C. 201, and any wholly owned 
Government corporation within the meaning of 31 U.S.C. 9101.
    Executive Order 13495 or Nondisplacement Executive Order means 
Executive Order 13495 of January 30, 2009, Nondisplacement of Qualified 
Workers Under Service Contracts, 74 FR 6103 (Feb. 4, 2009), and its 
implementing regulations at 29 CFR part 9.
    Executive Order 13658 or Minimum Wage Executive Order means 
Executive Order 13658 of February 12, 2014, Establishing a Minimum Wage 
for Contractors, 79 FR 9851 (Feb. 20, 2014), and its implementing 
regulations at 29 CFR part 10.
    Fair Labor Standards Act (FLSA) means the Fair Labor Standards Act 
of 1938, as amended, 29 U.S.C. 201 et seq., and its implementing 
regulations.
    Family and Medical Leave Act (FMLA) means the Family and Medical 
Leave Act of 1993, as amended, 29 U.S.C. 2601 et seq., and its 
implementing regulations.
    Family violence means any act or threatened act of violence, 
including any forceful detention of an individual that results or 
threatens to result in physical injury and is committed by a person 
against another individual (including an elderly individual) to or with 
whom such person is related by blood, is or was related by marriage or 
is or was otherwise legally related, or is or was lawfully residing.
    Federal Government means an agency or instrumentality of the United 
States that enters into a contract pursuant to authority derived from 
the Constitution or the laws of the United States. For purposes of the 
Executive Order and this part, this definition does not include the 
District of Columbia, any Territory or possession of the United States, 
or any independent regulatory agency within the meaning of 44 U.S.C. 
3502(5).
    Health care provider means any practitioner who is licensed or 
certified under Federal or State law to provide the health-related 
service in question or any practitioner recognized by an employer or the 
employer's group health plan. The term includes, but is not limited to, 
doctors of medicine or osteopathy, podiatrists, dentists, psychologists, 
optometrists, chiropractors, nurse practitioners, nurse-midwives, 
clinical social workers, physician assistants, physical therapists, and

[[Page 207]]

Christian Science Practitioners listed with the First Church of Christ, 
Scientist in Boston, Massachusetts.
    Independent agencies means independent regulatory agencies within 
the meaning of 44 U.S.C. 3502(5).
    Individual related by blood or affinity whose close association with 
the employee is the equivalent of a family relationship means any person 
with whom the employee has a significant personal bond that is or is 
like a family relationship, regardless of biological or legal 
relationship.
    Intimate partner means a person who is or has been in a social 
relationship of a romantic or intimate nature with the victim, where the 
existence of such a relationship shall be determined based on a 
consideration of the length of the relationship; the type of 
relationship; and the frequency of interaction between the persons 
involved in the relationship.
    Multiemployer plan means a plan to which more than one employer is 
required to contribute and which is maintained pursuant to one or more 
collective bargaining agreements between one or more employee 
organizations and more than one employer.
    New contract means a contract that results from a solicitation 
issued on or after January 1, 2017, or a contract that is awarded 
outside the solicitation process on or after January 1, 2017. This term 
includes both new contracts and replacements for expiring contracts. It 
does not apply to the unilateral exercise of a pre-negotiated option to 
renew an existing contract by the Federal Government. For purposes of 
the Executive Order, a contract that is entered into prior to January 1, 
2017 will constitute a new contract if, through bilateral negotiation, 
on or after January 1, 2017:
    (1) The contract is renewed;
    (2) The contract is extended, unless the extension is made pursuant 
to a term in the contract as of December 31, 2016 providing for a short-
term limited extension; or
    (3) The contract is amended pursuant to a modification that is 
outside the scope of the contract.
    Obtain additional counseling, seek relocation, seek assistance from 
a victim services organization, or take related legal action, used in 
reference to domestic violence, sexual assault, or stalking, means to 
spend time arranging, preparing for, or executing acts related to 
addressing physical injuries or mental or emotional impacts resulting 
from being a victim of domestic violence, sexual assault, or stalking. 
Such acts include finding and using services of a counselor or victim 
services organization intended to assist a victim to respond to or 
prevent future incidents of domestic violence, sexual assault, or 
stalking; identifying and moving to a different residence to avoid being 
a victim of domestic violence, sexual assault, or stalking; or a 
victim's pursuing any related legal action.
    Obtaining diagnosis, care, or preventive care from a health care 
provider means receiving services from a health care provider, whether 
to identify, treat, or otherwise address an existing condition or to 
prevent potential conditions from arising. The term includes time spent 
traveling to and from the location at which such services are provided 
or recovering from receiving such services.
    Office of Administrative Law Judges means the Office of 
Administrative Law Judges, U.S. Department of Labor.
    Option means a unilateral right in a contract by which, for a 
specified time, the Government may elect to purchase additional supplies 
or services called for by the contract, or may elect to extend the term 
of the contract.
    Paid sick leave means compensated absence from employment that is 
required by Executive Order 13706 and this part.
    Parent means:
    (1) A biological, adoptive, step, or foster parent of the employee, 
or a person who was a foster parent of the employee when the employee 
was a minor;
    (2) A person who is the legal guardian of the employee or was the 
legal guardian of the employee when the employee was a minor or required 
a legal guardian;
    (3) A person who stands in loco parentis to the employee or stood in 
loco parentis to the employee when the employee was a minor or required 
someone to stand in loco parentis; or
    (4) A parent, as described in paragraphs (1) through (3) of this 
definition,

[[Page 208]]

of an employee's spouse or domestic partner.
    Physical or mental illness, injury, or medical condition means any 
disease, sickness, disorder, or impairment of, or any trauma to, the 
body or mind.
    Procurement contract for construction means a procurement contract 
for the construction, alteration, or repair (including painting and 
decorating) of public buildings or public works and which requires or 
involves the employment of mechanics or laborers, and any subcontract of 
any tier thereunder. The term procurement contract for construction 
includes any contract subject to the Davis-Bacon Act.
    Procurement contract for services means a contract the principal 
purpose of which is to furnish services in the United States through the 
use of service employees, and any subcontract of any tier thereunder. 
The term procurement contract for services includes any contract subject 
to the Service Contract Act.
    Related legal action or related civil or criminal legal proceeding, 
used in reference to domestic violence, sexual assault, or stalking, 
means any type of legal action, in any forum, that relates to the 
domestic violence, sexual assault, or stalking, including, but not 
limited to, family, tribal, territorial, immigration, employment, 
administrative agency, housing matters, campus administrative or 
protection or stay-away order proceedings, and other similar matters; 
and criminal justice investigations, prosecutions, and post-trial 
matters (including sentencing, parole, and probation) that impact the 
victim's safety and privacy.
    Secretary means the Secretary of Labor and includes any official of 
the U.S. Department of Labor authorized to perform any of the functions 
of the Secretary of Labor under this part.
    Service Contract Act (SCA) means the McNamara-O'Hara Service 
Contract Act of 1965, as amended, 41 U.S.C. 6701 et seq., and its 
implementing regulations.
    Sexual assault means any nonconsensual sexual act proscribed by 
Federal, tribal, or State law, including when the victim lacks capacity 
to consent.
    Solicitation means any request to submit offers, bids, or quotations 
to the Federal Government.
    Spouse means the other person with whom an individual entered into 
marriage as defined or recognized under State law for purposes of 
marriage in the State in which the marriage was entered into or, in the 
case of a marriage entered into outside of any State, if the marriage is 
valid in the place where entered into and could have been entered into 
in at least one State. This definition includes an individual in a 
common law marriage that was entered into in a State that recognizes 
such marriages or, if entered into outside of any State, is valid in the 
place where entered into and could have been entered into in at least 
one State.
    Stalking means engaging in a course of conduct directed at a 
specific person that would cause a reasonable person to fear for his or 
her safety or the safety of others or suffer substantial emotional 
distress.
    United States means the United States and all executive departments, 
independent establishments, administrative agencies, and 
instrumentalities of the United States, including corporations of which 
all or substantially all of the stock is owned by the United States, by 
the foregoing departments, establishments, agencies, and 
instrumentalities, including nonappropriated fund instrumentalities. 
When used in a geographic sense, the United States means the 50 States 
and the District of Columbia.
    Victim services organization means a nonprofit, nongovernmental, or 
tribal organization or rape crisis center, including a State or tribal 
coalition, that assists or advocates for victims of domestic violence, 
sexual assault, or stalking, including domestic violence shelters, 
faith-based organizations, and other organizations, with a documented 
history of effective work concerning domestic violence, sexual assault, 
or stalking.
    Violence Against Women Act (VAWA) means the Violence Against Women 
Act of 1994, 42 U.S.C. 13925 et seq., and its implementing regulations.
    Wage and Hour Division means the Wage and Hour Division, U.S. 
Department of Labor.

[[Page 209]]



Sec.  13.3  Coverage.

    (a) This part applies to any new contract with the Federal 
Government, unless excluded by Sec.  13.4, provided that:
    (1)(i) It is a procurement contract for construction covered by the 
Davis-Bacon Act;
    (ii) It is a contract for services covered by the Service Contract 
Act;
    (iii) It is a contract for concessions, including any concessions 
contract excluded from coverage under the Service Contract Act by 
Department of Labor regulations at Sec.  4.133(b); or
    (iv) It is a contract in connection with Federal property or lands 
and related to offering services for Federal employees, their 
dependents, or the general public; and
    (2) The wages of employees performing on or in connection with such 
contract are governed by the Davis-Bacon Act, the Service Contract Act, 
or the Fair Labor Standards Act, including employees who qualify for an 
exemption from the Fair Labor Standards Act's minimum wage and overtime 
provisions.
    (b) For contracts covered by the Service Contract Act or the Davis-
Bacon Act, this part applies to prime contracts only at the thresholds 
specified in those statutes. For procurement contracts where employees' 
wages are governed by the Fair Labor Standards Act, this part applies 
when the prime contract exceeds the micro-purchase threshold, as defined 
in 41 U.S.C. 1902(a). For all other prime contracts covered by Executive 
Order 13706 and this part and for all subcontracts awarded under prime 
contracts covered by Executive Order 13706 and this part, this part 
applies regardless of the value of the contract.
    (c) This part only applies to contracts with the Federal Government 
requiring performance in whole or in part within the United States. If a 
contract with the Federal Government is to be performed in part within 
and in part outside the United States and is otherwise covered by the 
Executive Order and this part, the requirements of the Order and this 
part would apply with respect to that part of the contract that is 
performed within the United States.
    (d) This part does not apply to contracts for the manufacturing or 
furnishing of materials, supplies, articles, or equipment to the Federal 
Government, including those that are subject to the Walsh-Healey Public 
Contracts Act, 41 U.S.C. 6501 et seq.



Sec.  13.4  Exclusions.

    (a) Grants. The requirements of this part do not apply to grants 
within the meaning of the Federal Grant and Cooperative Agreement Act, 
as amended, 31 U.S.C. 6301 et seq.
    (b) Contracts and agreements with and grants to Indian Tribes. This 
part does not apply to contracts and agreements with and grants to 
Indian Tribes under the Indian Self-Determination and Education 
Assistance Act, as amended, 25 U.S.C. 450 et seq.
    (c) Procurement contracts for construction that are excluded from 
coverage of the Davis-Bacon Act. Procurement contracts for construction 
that are not covered by the Davis-Bacon Act are not subject to this 
part.
    (d) Contracts for services that are exempted from coverage under the 
Service Contract Act. Service contracts, except for those expressly 
covered by Sec.  13.3(a)(1)(iii) or (iv), that are exempt from coverage 
of the Service Contract Act pursuant to its statutory language at 41 
U.S.C. 6702(b) or its implementing regulations, including those at Sec.  
4.115 through 4.122 and Sec.  4.123(d) and (e), are not subject to this 
part.
    (e) Employees performing in connection with covered contracts for 
less than 20 percent of their work hours in a given workweek. The 
accrual requirements of this part do not apply to employees performing 
in connection with covered contracts, i.e., those employees who perform 
work duties necessary to the performance of the contract but who are not 
directly engaged in performing the specific work called for by the 
contract, who spend less than 20 percent of their hours worked in a 
particular workweek performing in connection with such contracts. This 
exclusion is inapplicable to employees performing on covered contracts, 
i.e., those employees directly engaged in performing

[[Page 210]]

the specific work called for by the contract, at any point during the 
workweek. This exclusion is also inapplicable to employees performing in 
connection with covered contracts with respect to any workweek in which 
the employees spend 20 percent or more of their hours worked performing 
in connection with a covered contract.
    (f) Employees whose covered work is governed by a collective 
bargaining agreement that already provides 56 hours of paid sick time. 
If a collective bargaining agreement ratified before September 30, 2016 
applies to an employee's work performed on or in connection with a 
covered contract and provides the employee with at least 56 hours (or 7 
days, if the agreement refers to days rather than hours) of paid sick 
time (or paid time off that may be used for reasons related to sickness 
or health care) each year, the requirements of the Executive Order and 
this part do not apply to the employee until the earlier of the date the 
agreement terminates or January 1, 2020. If a collective bargaining 
agreement ratified before September 30, 2016 applies to an employee's 
work performed on or in connection with a covered contract and provides 
the employee with paid sick time (or paid time off that may be used for 
reasons related to sickness or health care) each year, but the amount of 
such leave provided under the agreement is less than 56 hours (or 7 
days, if the agreement refers to days rather than hours), the 
requirements of the Executive Order and this part do not apply to the 
employee until the earlier of the date the agreement terminates or 
January 1, 2020, provided that each year the contractor provides covered 
employees with the difference between 56 hours (or 7 days) and the 
amount provided under the existing agreement in a manner consistent with 
either the Executive Order and this part or the terms and conditions of 
the collective bargaining agreement.



Sec.  13.5  Paid sick leave for Federal contractors and subcontractors.

    (a) Accrual. (1) A contractor shall permit an employee to accrue not 
less than 1 hour of paid sick leave for every 30 hours worked on or in 
connection with a covered contract. A contractor shall aggregate an 
employee's hours worked on or in connection with all covered contracts 
for that contractor for purposes of paid sick leave accrual.
    (i) Hours worked has the same meaning for purposes of Executive 
Order 13706 and this part as it does under the Fair Labor Standards Act, 
as set forth in 29 CFR part 785. To properly exclude time spent on non-
covered work from an employee's hours worked that count toward the 
accrual of paid sick leave, a contractor must accurately identify in its 
records the employee's covered and non-covered hours worked, or, if the 
employee performs work in connection with rather than on covered 
contracts, a contractor may estimate the portion of an employee's hours 
worked spent in connection with covered contracts provided the estimate 
is reasonable and based on verifiable information.
    (ii) A contractor shall calculate an employee's accrual of paid sick 
leave no less frequently than at the conclusion of each pay period or 
each month, whichever interval is shorter. A contractor need not allow 
an employee to accrue paid sick leave in increments smaller than 1 hour 
for completion of any fraction of 30 hours worked. Any such fraction of 
hours worked shall be added to hours worked for the same contractor in 
subsequent pay periods to reach the next 30 hours worked provided that 
the next pay period in which the employee performs on or in connection 
with a covered contract occurs within the same accrual year.
    (iii) If a contractor is not obligated by the Service Contract Act, 
Davis-Bacon Act, or Fair Labor Standards Act to keep records of an 
employee's hours worked, such as because the employee is employed in a 
bona fide executive, administrative, or professional capacity as those 
terms are defined in 29 CFR part 541, the contractor may, as to that 
employee, calculate paid sick leave accrual by tracking the employee's 
actual hours worked or by using the assumption that the employee works 
40 hours on or in connection with a covered contract in each workweek. 
If such an employee regularly works fewer than 40 hours per week on or 
in connection with covered contracts, whether because the employee's 
time is split between covered and non-

[[Page 211]]

covered contracts or because the employee has a part-time schedule, the 
contractor may allow the employee to accrue paid sick leave based on the 
employee's typical number of hours worked on or in connection with 
covered contracts per workweek provided the contractor has probative 
evidence to support the number it uses or, if the employee performs work 
in connection with rather than on covered contracts, a contractor may 
estimate the employee's typical number of hours worked in connection 
with covered contracts per workweek provided the estimate is reasonable 
and based on verifiable information.
    (2) A contractor shall inform an employee, in writing, of the amount 
of paid sick leave that the employee has accrued but not used no less 
than once each pay period or each month, whichever interval is shorter, 
as well as upon a separation from employment and upon reinstatement of 
paid sick leave pursuant to paragraph (b)(4) of this section. A 
contractor's existing procedure for informing employees of their 
available leave, such as notification accompanying each paycheck or an 
online system an employee can check at any time, may be used to satisfy 
or partially satisfy these requirements provided it is written 
(including electronically, if the contractor customarily corresponds 
with or makes information available to its employees by electronic 
means).
    (3) A contractor may choose to provide an employee with at least 56 
hours of paid sick leave at the beginning of each accrual year rather 
than allowing the employee to accrue such leave based on hours worked 
over time.
    (i) If a contractor chooses to use the option described in this 
paragraph, the contractor need not comply with the accrual requirements 
described in paragraph (a)(1) of this section. The contractor must, 
however, allow carryover of paid sick leave as required by paragraph 
(b)(2) of this section, and although the contractor may limit the amount 
of paid sick leave an employee may carry over to no less than 56 hours, 
the contractor may not limit the amount of paid sick leave an employee 
has available for use at any point as is otherwise permitted by 
paragraph (b)(3) of this section.
    (ii) If a contractor chooses to use the option described in this 
paragraph and the contractor hires an employee or newly assigns the 
employee to work on or in connection with a covered contract after the 
beginning of the accrual year, the contractor may provide the employee 
with a prorated amount of paid sick leave based on the number of pay 
periods remaining in the accrual year.
    (iii) A contractor may use the option described in this paragraph as 
to any or all of its employees in any or all accrual years.
    (b) Maximum accrual, carryover, reinstatement, and payment for 
unused leave. (1) A contractor may limit the amount of paid sick leave 
an employee is permitted to accrue to not less than 56 hours in each 
accrual year. An accrual year is a 12-month period beginning on the date 
an employee's work on or in connection with a covered contract began or 
any other fixed date chosen by the contractor, such as the date a 
covered contract began, the date the contractor's fiscal year begins, a 
date relevant under State law, or the date a contractor uses for 
determining employees' leave entitlements under the FMLA pursuant to 
Sec.  825.200 of this title. A contractor may choose its accrual year 
but must use a consistent option for all, or across similarly situated 
groups of, employees and may not select or change any employee's accrual 
year in order to avoid the paid sick leave requirements of Executive 
Order 13706 and this part.
    (2) Paid sick leave shall carry over from one accrual year to the 
next. Paid sick leave carried over from the previous accrual year shall 
not count toward any limit the contractor sets on annual accrual.
    (3) A contractor may limit the amount of paid sick leave an employee 
is permitted to have available for use at any point to not less than 56 
hours. Accordingly, even if an employee has accrued fewer than 56 hours 
of paid sick leave since the beginning of the accrual year, the employee 
need only be permitted to accrue additional paid sick leave if the 
employee has fewer than 56 hours available for use.

[[Page 212]]

    (4) Paid sick leave shall be reinstated for employees rehired by the 
same contractor within 12 months after a job separation. This 
reinstatement requirement applies whether the employee leaves and 
returns to a job on or in connection with a single covered contract or 
works for a single contractor on or in connection with more than one 
covered contract, regardless of whether the employee remains employed by 
the contractor in between periods of working on covered contracts.
    (5) Nothing in Executive Order 13706 or this part shall require a 
contractor to make a financial payment to an employee for accrued paid 
sick leave that has not been used upon a separation from employment. If 
a contractor nevertheless makes such a payment in an amount equal to or 
greater than the value of the pay and benefits the employee would have 
received pursuant to paragraph (c)(3) of this section had the employee 
used the paid sick leave, the contractor is relieved of the obligation 
to reinstate an employee's accrued paid sick leave upon rehiring the 
employee within 12 months of the separation pursuant to paragraph (b)(4) 
of this section.
    (c) Use. (1) Subject to the conditions described in paragraphs (d) 
and (e) of this section and the amount of paid sick leave the employee 
has available for use, a contractor must permit an employee to use paid 
sick leave to be absent from work for that contractor during time the 
employee would have been performing work on or in connection with a 
covered contract or, if the contractor estimates the employee's hours 
worked in connection with such contracts for purposes of accrual, during 
any work time because of:
    (i) A physical or mental illness, injury, or medical condition of 
the employee;
    (ii) Obtaining diagnosis, care, or preventive care from a health 
care provider by the employee;
    (iii) Caring for the employee's child, parent, spouse, domestic 
partner, or any other individual related by blood or affinity whose 
close association with the employee is the equivalent of a family 
relationship who has any of the conditions or needs for diagnosis, care, 
or preventive care referred to in paragraphs (c)(1)(i) or (ii) of this 
section or is otherwise in need of care; or
    (iv) Domestic violence, sexual assault, or stalking, if the time 
absent from work is for the purposes otherwise described in paragraphs 
(c)(1)(i) or (ii) of this section or to obtain additional counseling, 
seek relocation, seek assistance from a victim services organization, 
take related legal action, including preparation for or participation in 
any related civil or criminal legal proceeding, or assist an individual 
related to the employee as described in paragraph (c)(1)(iii) of this 
section in engaging in any of these activities.
    (2) A contractor shall account for an employee's use of paid sick 
leave in increments of no greater than 1 hour.
    (i) A contractor may not reduce an employee's accrued paid sick 
leave by more than the amount of time the employee is actually absent 
from work, and a contractor may not require an employee to use more 
leave than is necessary to address the circumstances that precipitated 
the need for the leave, provided that the leave is counted using an 
increment of no greater than 1 hour.
    (ii) The amount of paid sick leave used may not exceed the hours an 
employee would have worked if the need for leave had not arisen.
    (iii) If it is physically impossible for an employee using paid sick 
leave to commence or end work mid-way through a shift, such as if a 
flight attendant or a railroad conductor is scheduled to work aboard an 
airplane or train, or a laboratory employee is unable to enter or leave 
a sealed ``clean room'' during a certain period of time, and no 
equivalent position is available, the entire period that the employee is 
forced to be absent constitutes paid sick leave. The period of the 
physical impossibility is limited to the period during which the 
contractor is unable to permit the employee to work prior to the use of 
paid sick leave or return the employee to the same or an equivalent 
position due to the physical impossibility after the use of paid sick 
leave.
    (3) A contractor shall provide to an employee using paid sick leave 
the

[[Page 213]]

same regular pay and benefits the employee would have received had the 
employee not been absent from work. Regular pay means payments that 
would be included in the calculation of the employee's regular rate for 
hours worked under the Fair Labor Standards Act as set forth in 29 CFR 
part 778.
    (4) A contractor may not limit the amount of paid sick leave an 
employee may use per year or at once on any basis other than the amount 
of paid sick leave an employee has available.
    (5) An employee is encouraged to make a reasonable effort to 
schedule preventive care or another foreseeable need to use paid sick 
leave to suit the needs of both the contractor and employee, and a 
contractor may ask an employee to make a reasonable effort to schedule 
foreseeable paid sick leave so as to not disrupt unduly the contractor's 
operations, but a contractor may not make an employee's use of paid sick 
leave contingent on the employee's finding a replacement worker to cover 
any work time to be missed or on the fulfillment of the contractor's 
operational needs.
    (d) Request for leave. (1) A contractor shall permit an employee to 
use any or all of the employee's available paid sick leave upon the oral 
or written request of an employee that includes information sufficient 
to inform the contractor that the employee is seeking to be absent from 
work for a purpose described in paragraph (c)(1) of this section and, to 
the extent reasonably feasible, the anticipated duration of the leave.
    (i) An employee's request to use paid sick leave need not include a 
specific reference to the Executive Order or this part or even use the 
words ``sick leave'' or ``paid sick leave,'' and a contractor may not 
require an employee to provide extensive or detailed information about 
the need to be absent from work or the employee's family or family-like 
relationship with an individual for whom the employee is requesting to 
care.
    (ii) Although an employee shall make a good faith effort to provide 
a reasonable estimate of the length of the requested absence from work, 
a contractor shall permit the employee to return to work earlier, or 
continue to use available paid sick leave for longer, than anticipated.
    (iii) The employee's request shall be directed to the appropriate 
personnel pursuant to a contractor's policy or, in the absence of a 
formal policy, any personnel who typically receive requests for other 
types of leave or otherwise address scheduling issues on behalf of the 
contractor.
    (iv) The contractor shall maintain the confidentiality of any 
medical or other personal information contained in an employee's request 
to use paid sick leave as required by Sec.  13.25(d).
    (2) If the need for leave is foreseeable, the employee's request 
shall be made at least 7 calendar days in advance. If the employee is 
unable to request paid sick leave at least 7 calendar days in advance, 
the request shall be made as soon as is practicable. When an employee 
becomes aware of a need to use paid sick leave less than 7 calendar days 
in advance, it should typically be practicable for the employee to make 
a request for leave either the day the employee becomes aware of the 
need to use paid sick leave or the next business day. In all cases, 
however, the determination of when an employee could practicably make a 
request must take into account the individual facts and circumstances.
    (3)(i) A contractor may communicate its grant of a request to use 
paid sick leave either orally or in writing (including electronically, 
if the contractor customarily corresponds with or makes information 
available to its employees by such means).
    (ii) A contractor shall communicate any denial of a request to use 
paid sick leave in writing (including electronically, if the contractor 
customarily corresponds with or makes information available to its 
employees by such means), with an explanation for the denial. Denial is 
appropriate if, for example, the employee did not provide sufficient 
information about the need for paid sick leave; the reason given is not 
consistent with the uses of paid sick leave described in paragraph 
(c)(1) of this section; the employee did not indicate when the need 
would arise; the employee has not accrued, and will not have accrued by 
the date of leave anticipated in the request, a sufficient

[[Page 214]]

amount of paid sick leave to cover the request (in which case, if the 
employee will have any paid sick leave available for use, only a partial 
denial is appropriate); or the request is to use paid sick leave during 
time the employee is scheduled to be performing non-covered work. If the 
denial is based on insufficient information provided in the request, 
such as if the employee did not state the time of an appointment with a 
health care provider, the contractor must permit the employee to submit 
a new, corrected request. If the denial is based on an employee's 
request to use paid sick leave during time she is scheduled to be 
performing non-covered work, the denial must be supported by records 
adequately segregating the employee's time spent on covered and non-
covered contracts.
    (iii) A contractor shall respond to any request to use paid sick 
leave as soon as is practicable after the request is made. Although the 
determination of when it is practicable for a contractor to provide a 
response will take into account the individual facts and circumstances, 
it should in many circumstances be practicable for the contractor to 
respond to a request immediately or within a few hours. In some 
instances, however, such as if it is unclear at the time of the request 
whether the employee will be working on or in connection with a covered 
or non-covered contract at the time for which paid sick leave is 
requested, as soon as practicable could mean within a day or no longer 
than within a few days.
    (e) Certification or documentation for leave of 3 or more 
consecutive full workdays. (1)(i) A contractor may require certification 
issued by a health care provider to verify the need for paid sick leave 
used for a purpose described in paragraphs (c)(1)(i), (ii), or (iii) of 
this section only if the employee is absent for 3 or more consecutive 
full workdays. The contractor shall protect the confidentiality of any 
certification as required by Sec.  13.25(d).
    (ii) A contractor may only require documentation from an appropriate 
individual or organization to verify the need for paid sick leave used 
for a purpose described in paragraph (c)(1)(iv) of this section only if 
the employee is absent for 3 or more consecutive full workdays. The 
source of such documentation may be any person involved in providing or 
assisting with the care, counseling, relocation, assistance of a victim 
services organization, or related legal action, such as, but not limited 
to, a health care provider, counselor, representative of a victim 
services organization, attorney, clergy member, family member, or close 
friend. Self-certification is also permitted. The contractor may only 
require that such documentation contain the minimum necessary 
information establishing a need for the employee to be absent from work. 
The contractor shall not disclose any verification information and shall 
maintain confidentiality about the domestic abuse, sexual assault, or 
stalking, as required by Sec.  13.25(d).
    (2) If certification or documentation is to verify the illness, 
injury, or condition, need for diagnosis, care, or preventive care, or 
activity related to domestic violence, sexual assault, or stalking of an 
individual related to the employee as described in paragraph (c)(1)(iii) 
of this section, a contractor may also require the employee to provide 
reasonable documentation or a statement of the family or family-like 
relationship. This documentation may take the form of a simple written 
statement from the employee or could be a legal or other document 
proving the relationship, such as a birth certificate or court order.
    (3)(i) A contractor may only require certification or documentation 
if the contractor informs an employee before the employee returns to 
work that certification or documentation will be required to verify the 
use of paid sick leave if the employee is absent for 3 or more 
consecutive full workdays. The contractor may inform an employee of this 
requirement each time the employee requests to use or does use paid sick 
leave, or the contractor may inform employees of a general policy to 
require certification or documentation for absences of 3 or more 
consecutive full workdays if it does so in a manner reasonably 
calculated to provide actual notice of the requirement to employees.

[[Page 215]]

    (ii) A contractor may require the employee to provide certification 
or documentation within 30 days of the first day of the 3 or more 
consecutive full workdays of paid sick leave but may not set a shorter 
deadline for its submission.
    (iii) While a contractor is waiting for or reviewing certification 
or documentation, it must treat the employee's otherwise proper request 
for 3 or more consecutive full workdays of paid sick leave as valid. If 
the employee provides certification or documentation that is 
insufficient to verify the employee's need for paid sick leave, the 
contractor shall notify the employee of the deficiency and allow the 
employee at least 5 days to provide new or supplemental certification or 
documentation. If after 30 days the employee has not provided any 
certification or documentation, or if after the 5 or more days allowed 
for resubmission the employee has either provided no new or supplemental 
certification or documentation or the new certification or documentation 
is still insufficient to verify the employee's need for paid sick leave, 
the contractor may, within 10 calendar days of the employee's deadline 
for providing sufficient certification or documentation, retroactively 
deny the employee's request to use paid sick leave. In such 
circumstances, the contractor may recover the value of the pay and 
benefits the employee received but to which the employee was not 
entitled, including through deduction from any sums due to the employee 
(e.g., unpaid wages, vacation pay, profit sharing, etc.), provided such 
deductions do not otherwise violate applicable Federal, State, or local 
wage payment or other laws.
    (4) A contractor may contact the health care provider or other 
individual who created or signed the certification or documentation only 
for purposes of authenticating the document or clarifying its contents. 
The contractor may not request additional details about the medical or 
other condition referenced, seek a second opinion, or otherwise question 
the substance of the certification. To make such contact, the contractor 
must use a human resources professional, a leave administrator, or a 
management official. The employee's direct supervisor may not contact 
the employee's health care provider unless there is no other appropriate 
individual who can do so. The requirements of the Health Insurance 
Portability and Accountability Act (HIPAA) Privacy Rule, set forth at 45 
CFR parts 160 and 164, must be satisfied when individually identifiable 
health information of an employee is shared with a contractor by a 
HIPAA-covered health care provider.
    (f) Interaction with other laws and paid time off policies. (1) 
General. Nothing in Executive Order 13706 or this part shall excuse 
noncompliance with or supersede any applicable Federal or State law, any 
applicable law or municipal ordinance, or a collective bargaining 
agreement requiring greater paid sick leave or leave rights than those 
established under the Executive Order and this part.
    (2) SCA and DBA requirements. (i) Paid sick leave required by 
Executive Order 13706 and this part is in addition to a contractor's 
obligations under the Service Contract Act and Davis-Bacon Act. A 
contractor may not receive credit toward its prevailing wage or fringe 
benefit obligations under those Acts for any paid sick leave provided in 
satisfaction of the requirements of Executive Order 13706 and this part.
    (ii) A contractor may count the value of any paid sick time provided 
in excess of the requirements of Executive Order 13706 and this part 
(and any other law) toward its obligations under the Service Contract 
Act or Davis-Bacon Act in keeping with the requirements of those Acts.
    (3) FMLA. A contractor's obligations under the Executive Order and 
this part have no effect on its obligations to comply with, or ability 
to act pursuant to, the Family and Medical Leave Act. Paid sick leave 
may be substituted for (that is, may run concurrently with) unpaid FMLA 
leave under the same conditions as other paid time off pursuant to Sec.  
825.207 of this title. As to time off that is designated as FMLA leave 
and for which an employee uses paid sick leave, all notices and 
certifications that satisfy the FMLA requirements set forth at Sec.  
825.300 through

[[Page 216]]

300.308 of this title will satisfy the request for leave and 
certification requirements of paragraphs (d) and (e) of this section.
    (4) State and local paid sick time laws. A contractor's compliance 
with a State or local law requiring that employees be provided with paid 
sick time does not excuse the contractor from compliance with any of its 
obligations under the Executive Order 13706 or this part. A contractor 
may, however, satisfy its obligations under the Order and this part by 
providing paid sick time that fulfills the requirements of a State or 
local law provided that the paid sick time is accrued and may be used in 
a manner that meets or exceeds all of the requirements of the Order and 
this part including but not limited to the accrual and use requirements 
in this section and the prohibitions on interference and discrimination 
in Sec.  13.6. Where the requirements of an applicable State or local 
law and the Order and this part differ, satisfying both will require a 
contractor to comply with the requirement that is more generous to 
employees.
    (5) Paid time off policies. (i) The paid sick leave requirements of 
Executive Order 13706 and this part need not have any effect on a 
contractor's voluntary paid time off policy, whether provided pursuant 
to a collective bargaining agreement or otherwise.
    (ii) A contractor's existing paid time off policy (if provided in 
addition to the fulfillment of Service Contract Act or Davis-Bacon Act 
obligations, if applicable) will satisfy the requirements of the 
Executive Order and this part if the paid time off is made available to 
all employees described in Sec.  13.3(a)(2) (other than those excluded 
by Sec.  13.4(e)); may be used for at least all of the purposes 
described in paragraph (c)(1) of this section; is provided in a manner 
and an amount sufficient to comply with the rules and restrictions 
regarding the accrual of paid sick leave set forth in paragraph (a) of 
this section and regarding maximum accrual, carryover, reinstatement, 
and payment for unused leave set forth in paragraph (b) of this section; 
is provided pursuant to policies sufficient to comply with the rules and 
restrictions regarding use of paid sick leave set forth in paragraph (c) 
of this section, regarding requests for leave set forth in paragraph (d) 
of this section, and regarding certification and documentation set forth 
in paragraph (e) of this section, at least with respect to any paid time 
off used for the purposes described in paragraph (c)(1) of this section; 
and is protected by the prohibitions against interference, 
discrimination, and recordkeeping violations described in Sec.  13.6 and 
the prohibition against waiver of rights described in Sec.  13.7, at 
least with respect to any paid time off used for the purposes described 
in paragraph (c)(1) of this section.
    (iii) A contractor satisfying the requirements of the Executive 
Order and this part with a paid time off policy that provides more than 
56 hours of leave per accrual year may choose to either provide all paid 
time off as described in paragraph (f)(5)(ii) of this section or track, 
and make and maintain records reflecting, the amount of paid time off an 
employee uses for the purposes described in paragraph (c)(1) of this 
section, in which case the contractor need only provide, for each 
accrual year, up to 56 hours of paid time off the employee requests to 
use for such purposes in compliance with the Order and this part.



Sec.  13.6  Prohibited acts.

    (a) Interference. (1) A contractor may not in any manner interfere 
with an employee's accrual or use of paid sick leave as required by 
Executive Order 13706 or this part.
    (2) Interference includes, but is not limited to, miscalculating the 
amount of paid sick leave an employee has accrued, denying or 
unreasonably delaying a response to a proper request to use paid sick 
leave, discouraging an employee from using paid sick leave, reducing an 
employee's accrued paid sick leave by more than the amount of such leave 
used, transferring the employee to work on non-covered contracts to 
prevent the accrual or use of paid sick leave, disclosing confidential 
information contained in certification or other documentation provided 
to verify the need to use paid sick leave, or making the use of paid 
sick leave contingent on the employee's finding a

[[Page 217]]

replacement worker or the fulfillment of the contractor's operational 
needs.
    (b) Discrimination. (1) A contractor may not discharge or in any 
other manner discriminate against any employee for:
    (i) Using, or attempting to use, paid sick leave as provided for 
under Executive Order 13706 and this part;
    (ii) Filing any complaint, initiating any proceeding, or otherwise 
asserting any right or claim under Executive Order 13706 or this part;
    (iii) Cooperating in any investigation or testifying in any 
proceeding under Executive Order 13706 or this part; or
    (iv) Informing any other person about his or her rights under 
Executive Order 13706 or this part.
    (2) Discrimination includes, but is not limited to, a contractor's 
considering any of the activities described in paragraph (b)(1) of this 
section as a negative factor in employment actions, such as hiring, 
promotions, or disciplinary actions, or a contractor's counting paid 
sick leave under a no fault attendance policy.
    (c) Recordkeeping. A contractor's failure to make and maintain or to 
make available to authorized representatives of the Wage and Hour 
Division records for inspection, copying, and transcription as required 
by Sec.  13.25, or any other failure to comply with the requirements of 
Sec.  13.25, constitutes a violation of Executive Order 13706, this 
part, and the underlying contract.



Sec.  13.7  Waiver of rights.

    Employees cannot waive, nor may contractors induce employees to 
waive, their rights under Executive Order 13706 or this part.



Sec.  13.8  Multiemployer plans or other funds, plans, or programs.

    (a) A contractor may fulfill its obligations under Executive Order 
13706 and this part jointly with other contractors--that is, as though 
all of the contractors are a single contractor--through a multiemployer 
plan that provides paid sick leave in compliance with the rules and 
requirements of Executive Order 13706 and this part. Regardless of what 
functions the plan performs, each contractor remains responsible for any 
violation of the Order or this part that occurs during its employment of 
the employee.
    (b) Nothing in this part prohibits a contractor from providing paid 
sick leave through a fund, plan, or program. Regardless of the manner in 
which a contractor provides paid sick leave or what functions any fund, 
plan, or program performs, the contractor remains responsible for any 
violation of the Order or this part with respect to any of its 
employees.



                Subpart B_Federal Government Requirements



Sec.  13.11  Contracting agency requirements.

    (a) Contract clause. The contracting agency shall include the 
Executive Order paid sick leave contract clause set forth in Appendix A 
of this part in all covered contracts and solicitations for such 
contracts, as described in Sec.  13.3, except for procurement contracts 
subject to the FAR. The required contract clause directs, as a condition 
of payment, that all employees performing work on or in connection with 
covered contracts shall be provided paid sick leave as required by 
Executive Order 13706 and this part. For procurement contracts subject 
to the FAR, contracting agencies must use the clause set forth in the 
FAR developed to implement this rule. Such clause will accomplish the 
same purposes as the clause set forth in Appendix A and be consistent 
with the requirements set forth in this rule.
    (b) Failure to include the contract clause. Where the Department of 
Labor or the contracting agency discovers or determines, whether before 
or subsequent to a contract award, that a contracting agency made an 
erroneous determination that Executive Order 13706 and this part did not 
apply to a particular contract and/or failed to include the applicable 
contract clause in a contract to which the Executive Order and this part 
apply, the contracting agency, on its own initiative or within 15 
calendar days of notification by an authorized representative of the 
Department of Labor, shall incorporate the contract clause in the 
contract retroactive to commencement of performance under the contract

[[Page 218]]

through the exercise of any and all authority that may be needed 
(including, where necessary, its authority to negotiate or amend, its 
authority to pay any necessary additional costs, and its authority under 
any contract provision authorizing changes, cancellation, and 
termination).
    (c) Withholding. A contracting officer shall, upon his or her own 
action or upon written request of the Administrator, withhold or cause 
to be withheld from the prime contractor under the covered contract or 
any other Federal contract with the same prime contractor, so much of 
the accrued payments or advances as may be considered necessary to pay 
employees the full amount owed to compensate for any violation of 
Executive Order 13706 or this part. In the event of any such violation, 
the agency may, after authorization or by direction of the Administrator 
and written notification to the contractor, take action to cause 
suspension of any further payment, advance, or guarantee of funds until 
such violations have ceased. Additionally, any failure to comply with 
the requirements of Executive Order 13706 or this part may be grounds 
for termination of the right to proceed with the contract work. In such 
event, the contracting agency may enter into other contracts or 
arrangements for completion of the work, charging the contractor in 
default with any additional cost.
    (d) Suspending payment. A contracting officer shall, upon his or her 
own action or upon the direction of the Administrator and notification 
of the contractor, take action to cause suspension of any further 
payment, advance, or guarantee of funds to a contractor that has failed 
to make available for inspection, copying, and transcription any of the 
records identified in Sec.  13.25.
    (e) Actions on complaints--(1) Reporting time frame. The contracting 
agency shall forward all information listed in paragraph (e)(2) of this 
section to the Office of Government Contracts Enforcement, Wage and Hour 
Division, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210 within 14 calendar days of receipt of a complaint 
alleging contractor noncompliance with Executive Order 13706 or this 
part or within 14 calendar days of being contacted by the Wage and Hour 
Division regarding any such complaint.
    (2) Report contents. The contracting agency shall forward to the 
Office of Government Contracts Enforcement, Wage and Hour Division, U.S. 
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210 
any:
    (i) Complaint of contractor noncompliance with Executive Order 13706 
or this part;
    (ii) Available statements by the worker, contractor, or any other 
person regarding the alleged violation;
    (iii) Evidence that the Executive Order paid sick leave contract 
clause was included in the contract;
    (iv) Information concerning known settlement negotiations between 
the parties, if applicable; and
    (v) Any other relevant facts known to the contracting agency or 
other information requested by the Wage and Hour Division.



Sec.  13.12  Department of Labor requirements.

    (a) Notice--(1) Wage Determinations OnLine Web site. The 
Administrator will publish and maintain on Wage Determinations OnLine 
(WDOL), http://www.wdol.gov, or any successor site, a notice that 
Executive Order 13706 creates a requirement to allow employees 
performing work on or in connection with contracts covered by Executive 
Order 13706 and this part to accrue and use paid sick leave, as well as 
an indication of where to find more complete information about that 
requirement.
    (2) Wage determinations. The Administrator will publish on all wage 
determinations issued under the Davis-Bacon Act and the Service Contract 
Act a notice that Executive Order 13706 creates a requirement to allow 
employees performing work on or in connection with contracts covered by 
Executive Order 13706 and this part to accrue and use paid sick leave, 
as well as an indication of where to find more complete information 
about that requirement.
    (b) Notification to a contractor of the withholding of funds. If the 
Administrator requests that a contracting

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agency withhold funds from a contractor pursuant to Sec.  13.11(c), or 
suspend payment, advance, or guarantee of funds pursuant to Sec.  
13.11(d), the Administrator and/or contracting agency shall notify the 
affected prime contractor of the Administrator's request to the 
contracting agency.



                    Subpart C_Contractor Requirements



Sec.  13.21  Contract clause.

    (a) The contractor, as a condition of payment, shall abide by the 
terms of the applicable Executive Order paid sick leave contract clause 
referred to in Sec.  13.11(a).
    (b) The contractor shall include in any covered subcontracts the 
applicable Executive Order paid sick leave contract clause referred to 
in Sec.  13.11(a) and shall require, as a condition of payment, that the 
subcontractor include the contract clause in any lower-tier 
subcontracts. The prime contractor and any upper-tier contractor shall 
be responsible for the compliance by any subcontractor or lower-tier 
subcontractor with the requirements of Executive Order 13706 and this 
part, whether or not the contract clause was included in the 
subcontract.



Sec.  13.22  Paid sick leave.

    The contractor shall allow all employees performing work on or in 
connection with a covered contract to accrue and use paid sick leave as 
required by Executive Order 13706 and this part.



Sec.  13.23  Deductions.

    The contractor may make deductions from the pay and benefits of an 
employee who is using paid sick leave only if such deduction qualifies 
as a:
    (a) Deduction required by Federal, State, or local law, such as 
Federal or State withholding of income taxes;
    (b) Deduction for payments made to third parties pursuant to court 
order;
    (c) Deduction directed by a voluntary assignment of the employee or 
his or her authorized representative;
    (d) Deduction for the reasonable cost or fair value, as determined 
by the Administrator, of furnishing such employee with ``board, lodging, 
or other facilities,'' as defined in 29 U.S.C. 203(m) and 29 CFR part 
531;
    (e) Deduction, to the extent permitted by law, for the purpose of 
recouping pay and benefits provided for paid sick leave as to which the 
contractor retroactively denied the employee's request pursuant to Sec.  
13.5(e)(3)(iii) or because the contractor approved the use of the paid 
sick leave based on a fraudulent request.



Sec.  13.24  Anti-kickback.

    All paid sick leave used by employees performing on or in connection 
with covered contracts must be paid free and clear and without 
subsequent deduction (except as set forth in Sec.  13.23), rebate, or 
kickback on any account. Kickbacks directly or indirectly to the 
contractor or to another person for the contractor's benefit for the 
whole or part of the paid sick leave are prohibited.



Sec.  13.25  Records to be kept by contractors.

    (a) The contractor and each subcontractor performing work subject to 
Executive Order 13706 and this part shall make and maintain during the 
course of the covered contract, and preserve for no less than 3 years 
thereafter, records containing the information specified in paragraphs 
(a)(1) through (15) of this section for each employee and shall make 
them available for inspection, copying, and transcription by authorized 
representatives of the Wage and Hour Division of the U.S. Department of 
Labor:
    (1) Name, address, and Social Security number of each employee;
    (2) The employee's occupation(s) or classification(s);
    (3) The rate or rates of wages paid (including all pay and benefits 
provided);
    (4) The number of daily and weekly hours worked;
    (5) Any deductions made;
    (6) The total wages paid (including all pay and benefits provided) 
each pay period;
    (7) A copy of notifications to employees of the amount of paid sick 
leave the employees have accrued as required under Sec.  13.5(a)(2);

[[Page 220]]

    (8) A copy of employees' requests to use paid sick leave, if in 
writing, or, if not in writing, any other records reflecting such 
employee requests;
    (9) Dates and amounts of paid sick leave used by employees (unless a 
contractor's paid time off policy satisfies the requirements of 
Executive Order 13706 and this part as described in Sec.  13.5(f)(5), 
leave must be designated in records as paid sick leave pursuant to 
Executive Order 13706);
    (10) A copy of any written responses to employees' requests to use 
paid sick leave, including explanations for any denials of such 
requests, as required under Sec.  13.5(d)(3);
    (11) Any records relating to the certification and documentation a 
contractor may require an employee to provide under Sec.  13.5(e), 
including copies of any certification or documentation provided by an 
employee;
    (12) Any other records showing any tracking of or calculations 
related to an employee's accrual and/or use of paid sick leave;
    (13) The relevant covered contract;
    (14) The regular pay and benefits provided to an employee for each 
use of paid sick leave; and
    (15) Any financial payment made for unused paid sick leave upon a 
separation from employment intended, pursuant to Sec.  13.5(b)(5), to 
relieve a contractor from the obligation to reinstate such paid sick 
leave as otherwise required by Sec.  13.5(b)(4).
    (b) Segregation of time. (1) If a contractor wishes to distinguish 
between an employee's covered and non-covered work (such as time spent 
performing work on or in connection with a covered contract versus time 
spent performing work on or in connection with non-covered contracts or 
time spent performing work on or in connection with a covered contract 
in the United States versus time spent performing work outside the 
United States, or to establish that time spent performing solely in 
connection with covered contracts constituted less than 20 percent of an 
employee's hours worked during a particular workweek), the contractor 
must keep records or other proof reflecting such distinctions. Only if 
the contractor adequately segregates the employee's time will time spent 
on non-covered work be excluded from hours worked counted toward the 
accrual of paid sick leave. Similarly, only if that contractor 
adequately segregates the employee's time may a contractor properly deny 
an employee's request to take leave under Sec.  13.5(d) on the ground 
that the employee was scheduled to perform non-covered work during the 
time she asked to use paid sick leave.
    (2) If a contractor estimates covered hours worked by an employee 
who performs work in connection with covered contracts pursuant to Sec.  
13.5(a)(1)(i) or (iii), the contractor must keep records or other proof 
of the verifiable information on which such estimates are reasonably 
based. Only if the contractor relies on an estimate that is reasonable 
and based on verifiable information will an employee's time spent in 
connection with non-covered contracts be excluded from hours worked 
counted toward the accrual of paid sick leave. If a contractor estimates 
the amount of time an employee spends performing in connection with 
covered contracts, the contractor must permit the employee to use her 
paid sick leave during any work time for the contractor.
    (c) If a contractor is not obligated by the Service Contract Act, 
Davis-Bacon Act, or Fair Labor Standards Act to keep records of an 
employee's hours worked, such as because the employee is employed in a 
bona fide executive, administrative, or professional capacity as those 
terms are defined in 29 CFR part 541, and the contractor chooses to use 
the assumption permitted by Sec.  13.5(a)(1)(iii), the contractor is 
excused from the requirement in paragraph (a)(4) of this section to keep 
records of the employee's number of daily and weekly hours worked.
    (d)(1) Records relating to medical histories or domestic violence, 
sexual assault, or stalking, created by or provided to a contractor for 
purposes of Executive Order 13706, whether of an employee or an 
employee's child, parent, spouse, domestic partner, or other individual 
related by blood or affinity

[[Page 221]]

whose close association with the employee is the equivalent of a family 
relationship, shall be maintained as confidential records in separate 
files/records from the usual personnel files.
    (2) If the confidentiality requirements of the Genetic Information 
Nondiscrimination Act of 2008 (GINA), section 503 of the Rehabilitation 
Act of 1973, and/or the Americans with Disabilities Act (ADA) apply to 
medical information contained in records or documents that the 
contractor created or received in connection with compliance with the 
recordkeeping or other requirements of this part, the records and 
documents must also be maintained in compliance with the confidentiality 
requirements of the GINA, section 503 of the Rehabilitation Act of 1973, 
and/or ADA as described in Sec.  1635.9 of this title, 41 CFR 60-
741.23(d), and Sec.  1630.14(c)(1) of this title, respectively.
    (3) The contractor shall not disclose any documentation used to 
verify the need to use 3 or more consecutive days of paid sick leave for 
the purposes listed in Sec.  13.5(c)(1)(iv) (as described in Sec.  
13.5(d)(2)) and shall maintain confidentiality about any domestic abuse, 
sexual assault, or stalking, unless the employee consents or when 
disclosure is required by law.
    (e) The contractor shall permit authorized representatives of the 
Wage and Hour Division to conduct interviews with employees at the 
worksite during normal working hours.
    (f) Nothing in this part limits or otherwise modifies the 
contractor's recordkeeping obligations, if any, under the Davis-Bacon 
Act, the Service Contract Act, the Fair Labor Standards Act, the Family 
and Medical Leave Act, Executive Order 13658, their implementing 
regulations, or other applicable law.



Sec.  13.26  Notice.

    (a) The contractor must notify all employees performing work on or 
in connection with a covered contract of the paid sick leave 
requirements of Executive Order 13706 and this part by posting a notice 
provided by the Department of Labor in a prominent and accessible place 
at the worksite so it may be readily seen by employees.
    (b) Contractors that customarily post notices to employees 
electronically may post the notice electronically, provided such 
electronic posting is displayed prominently on any Web site that is 
maintained by the contractor, whether external or internal, and 
customarily used for notices to employees about terms and conditions of 
employment.



Sec.  13.27  Timing of pay.

    The contractor shall compensate an employee for time during which 
the employee used paid sick leave no later than one pay period following 
the end of the regular pay period in which the paid sick leave was used.



                          Subpart D_Enforcement



Sec.  13.41  Complaints.

    (a) Any employee, contractor, labor organization, trade 
organization, contracting agency, or other person or entity that 
believes a violation of the Executive Order or this part has occurred 
may file a complaint with any office of the Wage and Hour Division. No 
particular form of complaint is required. A complaint may be filed 
orally or in writing. If the complainant is unable to file the complaint 
in English, the Wage and Hour Division will accept the complaint in any 
language.
    (b) It is the policy of the Department of Labor to protect the 
identity of its confidential sources and to prevent an unwarranted 
invasion of personal privacy. Accordingly, the identity of any 
individual who makes a written or oral statement as a complaint or in 
the course of an investigation, as well as portions of the statement 
which would reveal the individual's identity, shall not be disclosed in 
any manner to anyone other than Federal officials without the prior 
consent of the individual. Disclosure of such statements shall be 
governed by the provisions of the Freedom of Information Act, 5 U.S.C. 
552, 29 CFR part 70, and the Privacy Act of 1974, 5 U.S.C. 552a.



Sec.  13.42  Wage and Hour Division conciliation.

    After receipt of a complaint, the Administrator may seek to resolve 
the matter through conciliation.

[[Page 222]]



Sec.  13.43  Wage and Hour Division investigation.

    The Administrator may investigate possible violations of the 
Executive Order or this part either as the result of a complaint or at 
any time on his or her own initiative. As part of the investigation, the 
Administrator may conduct interviews with the relevant contractor, as 
well as the contractor's employees at the worksite during normal work 
hours; inspect the relevant contractor's records (including contract 
documents and payrolls, if applicable); make copies and transcriptions 
of such records; and require the production of any documentary or other 
evidence the Administrator deems necessary to determine whether a 
violation, including conduct warranting imposition of debarment, has 
occurred. Federal agencies and contractors shall cooperate with any 
authorized representative of the Department of Labor in the inspection 
of records, in interviews with employees, and in all aspects of 
investigations.



Sec.  13.44  Remedies and sanctions.

    (a) Interference. When the Administrator determines that a 
contractor has interfered with an employee's accrual or use of paid sick 
leave in violation of Sec.  13.6(a), the Administrator will notify the 
contractor and the relevant contracting agency of the interference and 
request that the contractor remedy the violation. If the contractor does 
not remedy the violation, the Administrator shall direct the contractor 
to provide any appropriate relief to the affected employee(s) in the 
investigative findings letter issued pursuant to Sec.  13.51. Such 
relief may include any pay and/or benefits denied or lost by reason of 
the violation; other actual monetary losses sustained as a direct result 
of the violation; or appropriate equitable or other relief. Payment of 
liquidated damages in an amount equaling any monetary relief may also be 
directed unless such amount is reduced by the Administrator because the 
violation was in good faith and the contractor had reasonable grounds 
for believing it had not violated the Order or this part. The 
Administrator may additionally direct that payments due on the contract 
or any other contract between the contractor and the Federal Government 
be withheld as may be necessary to provide any appropriate monetary 
relief. Upon the final order of the Secretary that monetary relief is 
due, the Administrator may direct the relevant contracting agency to 
transfer the withheld funds to the Department of Labor for disbursement.
    (b) Discrimination. When the Administrator determines that a 
contractor has discriminated against an employee in violation of Sec.  
13.6(b), the Administrator will notify the contractor and the relevant 
contracting agency of the discrimination and request that the contractor 
remedy the violation. If the contractor does not remedy the violation, 
the Administrator shall direct the contractor to provide appropriate 
relief to the affected employee(s) in the investigative findings letter 
issued pursuant to Sec.  13.51. Such relief may include, but is not 
limited to, employment, reinstatement, promotion, restoration of leave, 
or lost pay and/or benefits. Payment of liquidated damages in an amount 
equaling any monetary relief may also be directed unless such amount is 
reduced by the Administrator because the violation was in good faith and 
the contractor had reasonable grounds for believing the contractor had 
not violated the Order or this part. The Administrator may additionally 
direct that payments due on the contract or any other contract between 
the contractor and the Federal Government be withheld as may be 
necessary to provide any appropriate monetary relief. Upon the final 
order of the Secretary that monetary relief is due, the Administrator 
may direct the relevant contracting agency to transfer the withheld 
funds to the Department of Labor for disbursement.
    (c) Recordkeeping. When a contractor fails to comply with the 
requirements of Sec.  13.25 in violation of Sec.  13.6(c), the 
Administrator will request that the contractor remedy the violation. If 
the contractor fails to produce required records upon request, the 
contracting officer, upon direction of an authorized representative of 
the Department of Labor, or under its own action, shall take such action 
as may be necessary to cause suspension of any further payment, advance, 
or guarantee of funds

[[Page 223]]

on the contract until such time as the violations are discontinued.
    (d) Debarment. Whenever a contractor is found by the Secretary to 
have disregarded its obligations under the Executive Order or this part, 
such contractor and its responsible officers, and any firm, corporation, 
partnership, or association in which the contractor or responsible 
officers have an interest, shall be ineligible to be awarded any 
contract or subcontract subject to the Executive Order for a period of 
up to 3 years from the date of publication of the name of the contractor 
or responsible officer on the excluded parties list currently maintained 
on the System for Award Management Web site, http://www.SAM.gov. Neither 
an order of debarment of any contractor or its responsible officers from 
further Government contracts nor the inclusion of a contractor or its 
responsible officers on a published list of noncomplying contractors 
under this section shall be carried out without affording the contractor 
or responsible officers an opportunity for a hearing before an 
Administrative Law Judge.
    (e) Civil actions to recover greater underpayments than those 
withheld. If the payments withheld under Sec.  13.11(c) are insufficient 
to reimburse all monetary relief due, or if there are no payments to 
withhold, the Department of Labor, following a final order of the 
Secretary, may bring an action against the contractor in any court of 
competent jurisdiction to recover the remaining amount. The Department 
of Labor shall, to the extent possible, pay any sums it recovers in this 
manner directly to the employees who suffered the violation(s) of Sec.  
13.6(a) or (b). Any sum not paid to an employee because of inability to 
do so within 3 years shall be transferred into the Treasury of the 
United States as miscellaneous receipts.
    (f) Retroactive inclusion of contract clause. If a contracting 
agency fails to include the applicable contract clause in a contract to 
which the Executive Order applies, the contracting agency, on its own 
initiative or within 15 calendar days of notification by an authorized 
representative of the Department of Labor, shall incorporate the 
contract clause in the contract retroactive to commencement of 
performance under the contract through the exercise of any and all 
authority that may be needed (including, where necessary, its authority 
to negotiate or amend, its authority to pay any necessary additional 
costs, and its authority under any contract provision authorizing 
changes, cancellation, and termination).



                  Subpart E_Administrative Proceedings



Sec.  13.51  Disputes concerning contractor compliance.

    (a) This section sets forth the procedures for resolution of 
disputes of fact or law concerning a contractor's compliance with this 
part. The procedures in this section may be initiated upon the 
Administrator's own motion or upon request of the contractor.
    (b)(1) In the event of a dispute described in paragraph (a) of this 
section in which it appears that relevant facts are at issue, the 
Administrator will notify the affected contractor(s) and the prime 
contractor (if different) of the investigative findings by certified 
mail to the last known address.
    (2) A contractor desiring a hearing concerning the Administrator's 
investigative findings letter shall request such a hearing by letter 
postmarked within 30 calendar days of the date of the Administrator's 
letter. The request shall set forth those findings that are in dispute 
with respect to the violations and/or debarment, as appropriate, explain 
how the findings are in dispute including by making reference to any 
affirmative defenses.
    (3) Upon receipt of a timely request for a hearing, the 
Administrator shall refer the case to the Chief Administrative Law Judge 
by Order of Reference, to which shall be attached a copy of the 
investigative findings letter from the Administrator and response 
thereto, for designation to an Administrative Law Judge to conduct such 
hearings as may be necessary to resolve the disputed matters. The 
hearing shall be conducted in accordance with the procedures set forth 
in 29 CFR part 6.
    (c)(1) In the event of a dispute described in paragraph (a) of this 
section in which it appears that there are no

[[Page 224]]

relevant facts at issue, and where there is not at that time reasonable 
cause to institute debarment proceedings under Sec.  13.52, the 
Administrator shall notify the contractor(s) of the investigative 
findings by certified mail to the last known address, and shall issue a 
ruling in the investigative findings letter on any issues of law known 
to be in dispute.
    (2)(i) If the contractor disagrees with the factual findings of the 
Administrator or believes that there are relevant facts in dispute, the 
contractor shall so advise the Administrator by letter postmarked within 
30 calendar days of the date of the Administrator's letter. In the 
response, the contractor shall explain in detail the facts alleged to be 
in dispute and attach any supporting documentation.
    (ii) Upon receipt of a timely response under paragraph (c)(2)(i) of 
this section alleging the existence of a factual dispute, the 
Administrator shall examine the information submitted. If the 
Administrator determines that there is a relevant issue of fact, the 
Administrator shall refer the case to the Chief Administrative Law Judge 
in accordance with paragraph (b)(3) of this section. If the 
Administrator determines that there is no relevant issue of fact, the 
Administrator shall so rule and advise the contractor accordingly.
    (3) If the contractor desires review of the ruling issued by the 
Administrator under paragraph (c)(1) or the final sentence of (c)(2)(ii) 
of this section, the contractor shall file a petition for review thereof 
with the Administrative Review Board postmarked within 30 calendar days 
of the date of the ruling, with a copy thereof to the Administrator. The 
petition for review shall be filed in accordance with the procedures set 
forth in 29 CFR part 7.
    (d) If a timely response to the Administrator's investigative 
findings letter is not made or a timely petition for review is not 
filed, the Administrator's investigative findings letter shall become 
the final order of the Secretary. If a timely response or petition for 
review is filed, the Administrator's letter shall be inoperative unless 
and until the decision is upheld by an Administrative Law Judge or the 
Administrative Review Board or otherwise becomes a final order of the 
Secretary.



Sec.  13.52  Debarment proceedings.

    (a) Whenever any contractor is found by the Secretary of Labor to 
have disregarded its obligations to employees or subcontractors under 
Executive Order 13706 or this part, such contractor and its responsible 
officers, and any firm, corporation, partnership, or association in 
which such contractor or responsible officers have an interest, shall be 
ineligible for a period up to 3 years to receive any contracts or 
subcontracts subject to Executive Order 13706 from the date of 
publication of the name or names of the contractor or persons on the 
excluded parties list currently maintained on the System for Award 
Management Web site, http://www.SAM.gov.
    (b)(1) Whenever the Administrator finds reasonable cause to believe 
that a contractor has committed a violation of Executive Order 13706 or 
this part which constitutes a disregard of its obligations to employees 
or subcontractors, the Administrator shall notify by certified mail to 
the last known address or by personal delivery, the contractor and its 
responsible officers (and any firms, corporations, partnerships, or 
associations in which the contractor or responsible officers are known 
to have an interest), of the finding. The Administrator shall afford 
such contractor and any other parties notified an opportunity for a 
hearing as to whether debarment action should be taken under Executive 
Order 13706 or this part. The Administrator shall furnish to those 
notified a summary of the investigative findings. If the contractor or 
any other parties notified wish to request a hearing as to whether 
debarment action should be taken, such a request shall be made by letter 
to the Administrator postmarked within 30 calendar days of the date of 
the investigative findings letter from the Administrator, and shall set 
forth any findings which are in dispute and the reasons therefor, 
including any affirmative defenses to be raised. Upon receipt of such 
timely request for a hearing, the Administrator shall refer the case to 
the Chief Administrative Law Judge by Order of Reference, to which

[[Page 225]]

shall be attached a copy of the investigative findings letter from the 
Administrator and the response thereto, for designation of an 
Administrative Law Judge to conduct such hearings as may be necessary to 
determine the matters in dispute.
    (2) Hearings under this section shall be conducted in accordance 
with the procedures set forth in 29 CFR part 6. If no hearing is 
requested within 30 calendar days of the letter from the Administrator, 
the Administrator's findings shall become the final order of the 
Secretary.



Sec.  13.53  Referral to Chief Administrative Law Judge; 
amendment of pleadings.

    (a) Upon receipt of a timely request for a hearing under Sec.  13.51 
(where the Administrator has determined that relevant facts are in 
dispute) or Sec.  13.52 (debarment), the Administrator shall refer the 
case to the Chief Administrative Law Judge by Order of Reference, to 
which shall be attached a copy of the investigative findings letter from 
the Administrator and response thereto, for designation of an 
Administrative Law Judge to conduct such hearings as may be necessary to 
decide the disputed matters. A copy of the Order of Reference and 
attachments thereto shall be served upon the respondent. The 
investigative findings letter from the Administrator and response 
thereto shall be given the effect of a complaint and answer, 
respectively, for purposes of the administrative proceedings.
    (b) At any time prior to the closing of the hearing record, the 
complaint (investigative findings letter) or answer (response) may be 
amended with the permission of the Administrative Law Judge and upon 
such terms as the Administrative Law Judge may approve. For proceedings 
pursuant to Sec.  13.51, such an amendment may include a statement that 
debarment action is warranted under Sec.  13.52. Such amendments shall 
be allowed when justice and the presentation of the merits are served 
thereby, provided there is no prejudice to the objecting party's 
presentation on the merits. When issues not raised by the pleadings are 
reasonably within the scope of the original complaint and are tried by 
express or implied consent of the parties, they shall be treated in all 
respects as if they had been raised in the pleadings, and such 
amendments may be made as necessary to make them conform to the 
evidence. The presiding Administrative Law Judge may, upon reasonable 
notice and upon such terms as are just, permit supplemental pleadings 
setting forth transactions, occurrences, or events that have happened 
since the date of the pleadings and that are relevant to any of the 
issues involved. A continuance in the hearing may be granted or the 
record left open to enable the new allegations to be addressed.



Sec.  13.54  Consent findings and order.

    (a) At any time prior to the receipt of evidence or, at the 
Administrative Law Judge's discretion prior to the issuance of the 
Administrative Law Judge's decision, the parties may enter into consent 
findings and an order disposing of the proceeding in whole or in part.
    (b) Any agreement containing consent findings and an order disposing 
of a proceeding in whole or in part shall also provide:
    (1) That the order shall have the same force and effect as an order 
made after full hearing;
    (2) That the entire record on which any order may be based shall 
consist solely of the Administrator's findings letter and the agreement;
    (3) A waiver of any further procedural steps before the 
Administrative Law Judge and the Administrative Review Board regarding 
those matters which are the subject of the agreement; and
    (4) A waiver of any right to challenge or contest the validity of 
the findings and order entered into in accordance with the agreement.
    (c) Within 30 calendar days after receipt of an agreement containing 
consent findings and an order disposing of the disputed matter in whole, 
the Administrative Law Judge shall, if satisfied with its form and 
substance, accept such agreement by issuing a decision based upon the 
agreed findings and order. If such agreement disposes of only a part of 
the disputed matter, a

[[Page 226]]

hearing shall be conducted on the matters remaining in dispute.



Sec.  13.55  Administrative Law Judge proceedings.

    (a) Jurisdiction. The Office of Administrative Law Judges has 
jurisdiction to hear and decide appeals concerning questions of law and 
fact from the Administrator's investigative findings letters issued 
under Sec. Sec.  13.51 and 13.52.
    (b) Proposed findings of fact, conclusions, and order. Within 20 
calendar days of filing of the transcript of the testimony or such 
additional time as the Administrative Law Judge may allow, each party 
may file with the Administrative Law Judge proposed findings of fact, 
conclusions of law, and a proposed order, together with a supporting 
brief expressing the reasons for such proposals. Each party shall serve 
such proposals and brief on all other parties.
    (c) Decision. (1) Within a reasonable period of time after the time 
allowed for filing of proposed findings of fact, conclusions of law, and 
order, or within 30 calendar days of receipt of an agreement containing 
consent findings and order disposing of the disputed matter in whole, 
the Administrative Law Judge shall issue a decision. The decision shall 
contain appropriate findings, conclusions, and an order, and be served 
upon all parties to the proceeding.
    (2) If the respondent is found to have violated Executive Order 
13706 or this part, and if the Administrator requested debarment, the 
Administrative Law Judge shall issue an order as to whether the 
respondent is to be subject to the excluded parties list, including 
findings that the contractor disregarded its obligations to employees or 
subcontractors under the Executive Order or this part.
    (d) Limit on scope of review. The Equal Access to Justice Act, as 
amended, does not apply to proceedings under this part. Accordingly, 
Administrative Law Judges shall have no authority to award attorney's 
fees and/or other litigation expenses pursuant to the provisions of the 
Equal Access to Justice Act for any proceeding under this part.
    (e) Orders. If the Administrative Law Judge concludes a violation 
occurred, the final order shall mandate action to remedy the violation, 
including any monetary or equitable relief described in Sec.  13.44. 
Where the Administrator has sought imposition of debarment, the 
Administrative Law Judge shall determine whether an order imposing 
debarment is appropriate.
    (f) Finality. The Administrative Law Judge's decision shall become 
the final order of the Secretary, unless a timely petition for review is 
filed with the Administrative Review Board.



Sec.  13.56  Petition for review.

    (a) Filing. Within 30 calendar days after the date of the decision 
of the Administrative Law Judge (or such additional time as is granted 
by the Administrative Review Board), any party aggrieved thereby who 
desires review thereof shall file a petition for review of the decision 
with supporting reasons. Such party shall transmit the petition in 
writing to the Administrative Review Board with a copy thereof to the 
Chief Administrative Law Judge. The petition shall refer to the specific 
findings of fact, conclusions of law, or order at issue. A petition 
concerning the decision on debarment shall also state the disregard of 
obligations to employees and/or subcontractors, or lack thereof, as 
appropriate. A party must serve the petition for review, and all briefs, 
on all parties and the Chief Administrative Law Judge. It must also 
timely serve copies of the petition and all briefs on the Administrator, 
Wage and Hour Division, and on the Associate Solicitor, Division of Fair 
Labor Standards, Office of the Solicitor, U.S. Department of Labor, 
Washington, DC 20210.
    (b) Effect of filing. If a party files a timely petition for review, 
the Administrative Law Judge's decision shall be inoperative unless and 
until the Administrative Review Board issues an order affirming the 
decision, or the decision otherwise becomes a final order of the 
Secretary. If a petition for review concerns only the imposition of 
debarment, however, the remainder of the decision shall be effective 
immediately. No judicial review shall be available unless a timely 
petition for review to the Administrative Review Board is first filed.

[[Page 227]]



Sec.  13.57  Administrative Review Board proceedings.

    (a) Authority--(1) General. The Administrative Review Board has 
jurisdiction to hear and decide in its discretion appeals concerning 
questions of law and fact from investigative findings letters of the 
Administrator issued under Sec.  13.51(c)(1) or the final sentence of 
Sec.  13.51(c)(2)(ii), Administrator's rulings issued under Sec.  13.58, 
and decisions of Administrative Law Judges issued under Sec.  13.55. In 
considering the matters within the scope of its jurisdiction, the 
Administrative Review Board shall act as the authorized representative 
of the Secretary and shall act fully and finally on behalf of the 
Secretary concerning such matters.
    (2) Limit on scope of review. (i) The Administrative Review Board 
shall not have jurisdiction to pass on the validity of any provision of 
this part. The Administrative Review Board is an appellate body and 
shall decide cases properly before it on the basis of substantial 
evidence contained in the entire record before it. The Administrative 
Review Board shall not receive new evidence into the record.
    (ii) The Equal Access to Justice Act, as amended, does not apply to 
proceedings under this part. Accordingly, the Administrative Review 
Board shall have no authority to award attorney's fees and/or other 
litigation expenses pursuant to the provisions of the Equal Access to 
Justice Act for any proceeding under this part.
    (b) Decisions. The Administrative Review Board's final decision 
shall be issued within a reasonable period of time following receipt of 
the petition for review and shall be served upon all parties by mail to 
the last known address and on the Chief Administrative Law Judge (in 
cases involving an appeal from an Administrative Law Judge's decision).
    (c) Orders. If the Administrative Review Board concludes a violation 
occurred, the final order shall mandate action to remedy the violation, 
including, but not limited to, any monetary or equitable relief 
described in Sec.  13.44. Where the Administrator has sought imposition 
of debarment, the Administrative Review Board shall determine whether an 
order imposing debarment is appropriate.
    (d) Finality. The decision of the Administrative Review Board shall 
become the final order of the Secretary.



Sec.  13.58  Administrator ruling.

    (a) Questions regarding the application and interpretation of the 
rules contained in this part may be referred to the Administrator, who 
shall issue an appropriate ruling. Requests for such rulings should be 
addressed to the Administrator, Wage and Hour Division, U.S. Department 
of Labor, Washington, DC 20210.
    (b) Any interested party may appeal to the Administrative Review 
Board for review of a final ruling of the Administrator issued under 
paragraph (a) of this section. The petition for review shall be filed 
with the Administrative Review Board within 30 calendar days of the date 
of the ruling.



               Sec. Appendix A to Part 13--Contract Clause

    The following clause shall be included by the contracting agency in 
every contract, contract-like instrument, and solicitation to which 
Executive Order 13706 applies, except for procurement contracts subject 
to the Federal Acquisition Regulation (FAR):
    (a) Executive Order 13706. This contract is subject to Executive 
Order 13706, the regulations issued by the Secretary of Labor in 29 CFR 
part 13 pursuant to the Executive Order, and the following provisions.
    (b) Paid Sick Leave. (1) The contractor shall permit each employee 
(as defined in 29 CFR 13.2) engaged in the performance of this contract 
by the prime contractor or any subcontractor, regardless of any 
contractual relationship that may be alleged to exist between the 
contractor and employee, to earn not less than 1 hour of paid sick leave 
for every 30 hours worked. The contractor shall additionally allow 
accrual and use of paid sick leave as required by Executive Order 13706 
and 29 CFR part 13. The contractor shall in particular comply with the 
accrual, use, and other requirements set forth in 29 CFR 13.5 and 13.6, 
which are incorporated by reference in this contract.
    (2) The contractor shall provide paid sick leave to all employees 
when due free and clear and without subsequent deduction (except as 
otherwise provided by 29 CFR 13.24), rebate, or kickback on any account. 
The contractor shall provide pay and benefits for paid sick leave used 
no later than one pay period following the end of the regular pay

[[Page 228]]

period in which the paid sick leave was taken.
    (3) The prime contractor and any upper-tier subcontractor shall be 
responsible for the compliance by any subcontractor or lower-tier 
subcontractor with the requirements of Executive Order 13706, 29 CFR 
part 13, and this clause.
    (c) Withholding. The contracting officer shall, upon its own action 
or upon written request of an authorized representative of the 
Department of Labor, withhold or cause to be withheld from the prime 
contractor under this or any other Federal contract with the same prime 
contractor, so much of the accrued payments or advances as may be 
considered necessary to pay employees the full amount owed to compensate 
for any violation of the requirements of Executive Order 13706, 29 CFR 
part 13, or this clause, including any pay and/or benefits denied or 
lost by reason of the violation; other actual monetary losses sustained 
as a direct result of the violation, and liquidated damages.
    (d) Contract Suspension/Contract Termination/Contractor Debarment. 
In the event of a failure to comply with Executive Order 13706, 29 CFR 
part 13, or this clause, the contracting agency may on its own action or 
after authorization or by direction of the Department of Labor and 
written notification to the contractor, take action to cause suspension 
of any further payment, advance, or guarantee of funds until such 
violations have ceased. Additionally, any failure to comply with the 
requirements of this clause may be grounds for termination of the right 
to proceed with the contract work. In such event, the Government may 
enter into other contracts or arrangements for completion of the work, 
charging the contractor in default with any additional cost. A breach of 
the contract clause may be grounds for debarment as a contractor and 
subcontractor as provided in 29 CFR 13.52.
    (e) The paid sick leave required by Executive Order 13706, 29 CFR 
part 13, and this clause is in addition to a contractor's obligations 
under the Service Contract Act and Davis-Bacon Act, and a contractor may 
not receive credit toward its prevailing wage or fringe benefit 
obligations under those Acts for any paid sick leave provided in 
satisfaction of the requirements of Executive Order 13706 and 29 CFR 
part 13.
    (f) Nothing in Executive Order 13706 or 29 CFR part 13 shall excuse 
noncompliance with or supersede any applicable Federal or State law, any 
applicable law or municipal ordinance, or a collective bargaining 
agreement requiring greater paid sick leave or leave rights than those 
established under Executive Order 13706 and 29 CFR part 13.
    (g) Recordkeeping. (1) Any contractor performing work subject to 
Executive Order 13706 and 29 CFR part 13 must make and maintain, for no 
less than three (3) years from the completion of the work on the 
contract, records containing the information specified in paragraphs (i) 
through (xv) of this section for each employee and shall make them 
available for inspection, copying, and transcription by authorized 
representatives of the Wage and Hour Division of the U.S. Department of 
Labor:
    (i) Name, address, and Social Security number of each employee;
    (ii) The employee's occupation(s) or classification(s);
    (iii) The rate or rates of wages paid (including all pay and 
benefits provided);
    (iv) The number of daily and weekly hours worked;
    (v) Any deductions made;
    (vi) The total wages paid (including all pay and benefits provided) 
each pay period;
    (vii) A copy of notifications to employees of the amount of paid 
sick leave the employee has accrued, as required under 29 CFR 
13.5(a)(2);
    (viii) A copy of employees' requests to use paid sick leave, if in 
writing, or, if not in writing, any other records reflecting such 
employee requests;
    (ix) Dates and amounts of paid sick leave taken by employees (unless 
a contractor's paid time off policy satisfies the requirements of 
Executive Order 13706 and 29 CFR part 13 as described in Sec.  
13.5(f)(5), leave must be designated in records as paid sick leave 
pursuant to Executive Order 13706);
    (x) A copy of any written responses to employees' requests to use 
paid sick leave, including explanations for any denials of such 
requests, as required under 29 CFR 13.5(d)(3);
    (xi) Any records reflecting the certification and documentation a 
contractor may require an employee to provide under 29 CFR 13.5(e), 
including copies of any certification or documentation provided by an 
employee;
    (xii) Any other records showing any tracking of or calculations 
related to an employee's accrual or use of paid sick leave;
    (xiii) The relevant covered contract;
    (xiv) The regular pay and benefits provided to an employee for each 
use of paid sick leave; and
    (xv) Any financial payment made for unused paid sick leave upon a 
separation from employment intended, pursuant to 29 CFR 13.5(b)(5), to 
relieve a contractor from the obligation to reinstate such paid sick 
leave as otherwise required by 29 CFR 13.5(b)(4).
    (2)(i) If a contractor wishes to distinguish between an employee's 
covered and non-covered work, the contractor must keep records or other 
proof reflecting such distinctions. Only if the contractor adequately 
segregates the employee's time will time spent on non-covered work be 
excluded from hours worked counted toward the accrual of paid sick 
leave. Similarly, only if that contractor adequately segregates the 
employee's time may a contractor properly refuse an employee's

[[Page 229]]

request to use paid sick leave on the ground that the employee was 
scheduled to perform non-covered work during the time she asked to use 
paid sick leave.
    (ii) If a contractor estimates covered hours worked by an employee 
who performs work in connection with covered contracts pursuant to 29 
CFR 13.5(a)(i) or (iii), the contractor must keep records or other proof 
of the verifiable information on which such estimates are reasonably 
based. Only if the contractor relies on an estimate that is reasonable 
and based on verifiable information will an employee's time spent in 
connection with non-covered work be excluded from hours worked counted 
toward the accrual of paid sick leave. If a contractor estimates the 
amount of time an employee spends performing in connection with covered 
contracts, the contractor must permit the employee to use her paid sick 
leave during any work time for the contractor.
    (3) In the event a contractor is not obligated by the Service 
Contract Act, the Davis-Bacon Act, or the Fair Labor Standards Act to 
keep records of an employee's hours worked, such as because the employee 
is exempt from the FLSA's minimum wage and overtime requirements, and 
the contractor chooses to use the assumption permitted by 29 CFR 
13.5(a)(1)(iii), the contractor is excused from the requirement in 
paragraph (1)(d) of this section to keep records of the employee's 
number of daily and weekly hours worked.
    (4)(i) Records relating to medical histories or domestic violence, 
sexual assault, or stalking, created for purposes of Executive Order 
13706, whether of an employee or an employee's child, parent, spouse, 
domestic partner, or other individual related by blood or affinity whose 
close association with the employee is the equivalent of a family 
relationship, shall be maintained as confidential records in separate 
files/records from the usual personnel files.
    (ii) If the confidentiality requirements of the Genetic Information 
Nondiscrimination Act of 2008 (GINA), section 503 of the Rehabilitation 
Act of 1973, and/or the Americans with Disabilities Act (ADA) apply to 
records or documents created to comply with the recordkeeping 
requirements in this contract clause, the records and documents must 
also be maintained in compliance with the confidentiality requirements 
of the GINA, section 503 of the Rehabilitation Act of 1973, and/or ADA 
as described in 29 CFR 1635.9, 41 CFR 60-741.23(d), and 29 CFR 
1630.14(c)(1), respectively.
    (iii) The contractor shall not disclose any documentation used to 
verify the need to use 3 or more consecutive days of paid sick leave for 
the purposes listed in 29 CFR 13.5(c)(1)(iv) (as described in 29 CFR 
13.5(e)(1)(ii)) and shall maintain confidentiality about any domestic 
abuse, sexual assault, or stalking, unless the employee consents or when 
disclosure is required by law.
    (5) The contractor shall permit authorized representatives of the 
Wage and Hour Division to conduct interviews with employees at the 
worksite during normal working hours.
    (6) Nothing in this contract clause limits or otherwise modifies the 
contractor's recordkeeping obligations, if any, under the Davis-Bacon 
Act, the Service Contract Act, the Fair Labor Standards Act, the Family 
and Medical Leave Act, Executive Order 13658, their respective 
implementing regulations, or any other applicable law.
    (h) The contractor (as defined in 29 CFR 13.2) shall insert this 
clause in all of its covered subcontracts and shall require its 
subcontractors to include this clause in any covered lower-tier 
subcontracts.
    (i) Certification of Eligibility. (1) By entering into this 
contract, the contractor (and officials thereof) certifies that neither 
it (nor he or she) nor any person or firm who has an interest in the 
contractor's firm is a person or firm ineligible to be awarded 
Government contracts by virtue of the sanctions imposed pursuant to 
section 5 of the Service Contract Act, section 3(a) of the Davis-Bacon 
Act, or 29 CFR 5.12(a)(1).
    (2) No part of this contract shall be subcontracted to any person or 
firm whose name appears on the list of persons or firms ineligible to 
receive Federal contracts currently maintained on the System for Award 
Management Web site, http://www.SAM.gov.
    (3) The penalty for making false statements is prescribed in the 
U.S. Criminal Code, 18 U.S.C. 1001.
    (j) Interference/Discrimination. (1) A contractor may not in any 
manner interfere with an employee's accrual or use of paid sick leave as 
required by Executive Order 13706 or 29 CFR part 13. Interference 
includes, but is not limited to, miscalculating the amount of paid sick 
leave an employee has accrued, denying or unreasonably delaying a 
response to a proper request to use paid sick leave, discouraging an 
employee from using paid sick leave, reducing an employee's accrued paid 
sick leave by more than the amount of such leave used, transferring an 
employee to work on non-covered contracts to prevent the accrual or use 
of paid sick leave, disclosing confidential information contained in 
certification or other documentation provided to verify the need to use 
paid sick leave, or making the use of paid sick leave contingent on the 
employee's finding a replacement worker or the fulfillment of the 
contractor's operational needs.
    (2) A contractor may not discharge or in any other manner 
discriminate against any employee for:
    (i) Using, or attempting to use, paid sick leave as provided for 
under Executive Order 13706 and 29 CFR part 13;

[[Page 230]]

    (ii) Filing any complaint, initiating any proceeding, or otherwise 
asserting any right or claim under Executive Order 13706 and 29 CFR part 
13;
    (iii) Cooperating in any investigation or testifying in any 
proceeding under Executive Order 13706 and 29 CFR part 13; or
    (iv) Informing any other person about his or her rights under 
Executive Order 13706 and 29 CFR part 13.
    (k) Waiver. Employees cannot waive, nor may contractors induce 
employees to waive, their rights under Executive Order 13706, 29 CFR 
part 13, or this clause.
    (l) Notice. The contractor must notify all employees performing work 
on or in connection with a covered contract of the paid sick leave 
requirements of Executive Order 13706, 29 CFR part 13, and this clause 
by posting a notice provided by the Department of Labor in a prominent 
and accessible place at the worksite so it may be readily seen by 
employees. Contractors that customarily post notices to employees 
electronically may post the notice electronically, provided such 
electronic posting is displayed prominently on any Web site that is 
maintained by the contractor, whether external or internal, and 
customarily used for notices to employees about terms and conditions of 
employment.
    (m) Disputes concerning labor standards. Disputes related to the 
application of Executive Order 13706 to this contract shall not be 
subject to the general disputes clause of the contract. Such disputes 
shall be resolved in accordance with the procedures of the Department of 
Labor set forth in 29 CFR part 13. Disputes within the meaning of this 
contract clause include disputes between the contractor (or any of its 
subcontractors) and the contracting agency, the U.S. Department of 
Labor, or the employees or their representatives.



PART 14_SECURITY REGULATIONS--Table of Contents



             Subpart A_Introduction to Security Regulations

Sec.
14.1 Purpose.
14.2 Policy.
14.3 DOL Classification Review Committee.
14.4 Definitions.

               Subpart B_Review of Classified Information

14.10 Mandatory review for declassification.

            Subpart C_Transmission of Classified Information

14.20 Dissemination to individuals and firms outside the executive 
          branch.
14.21 Release of classified information to foreign governments.
14.22 Availability of classified information to persons not employed by 
          the Department of Labor.

    Authority: E.O. 12356 of April 2, 1982 (47 FR 14874).

    Source: 50 FR 51391, Dec. 17, 1985, unless otherwise noted.



             Subpart A_Introduction to Security Regulations



Sec.  14.1  Purpose.

    These regulations implement Executive Order 12356, entitled National 
Security Information, dated April 2, 1982, and directives issued 
pursuant to that Order through the National Security Council and the 
Atomic Energy Act of 1954, as amended.



Sec.  14.2  Policy.

    The interests of the United States and its citizens are best served 
when information regarding the affairs of Government is readily 
available to the public. Provisions for such an informed citizenry are 
reflected in the Freedom of Information Act (5 U.S.C. 552) and in the 
current public information policies of the executive branch.
    (a) Safeguarding national security information. Some official 
information within the Federal Government is directly concerned with 
matters of national defense and the conduct of foreign relations. This 
information must, therefore, be subject to security constraints, and 
limited in term of its distribution.
    (b) Exemption from public disclosure. Official information of a 
sensitive nature, hereinafter referred to as national security 
information, is expressly exempted from compulsory public disclosure by 
Section 552(b)(1) of title 5 U.S.C. Persons wrongfully disclosing such 
information are subject to prosecution under United States criminal 
laws.
    (c) Scope. To ensure that national security information is 
protected, but only to the extent and for such a period as is necessary, 
these regulations:
    (1) Identify information to be protected.

[[Page 231]]

    (2) Prescribe procedures on classification, declassification, 
downgrading, and safeguarding of information.
    (3) Establish a monitoring system to ensure the effectiveness of the 
Department of Labor (DOL) security program and regulations.
    (d) Limitation. The need to safeguard national security information 
in no way implies an indiscriminate license to withhold information from 
the public. It is important that the citizens of the United States have 
access, consistent with national security, to information concerning the 
policies and programs of their Government.



Sec.  14.3  DOL Classification Review Committee.

    A DOL Classification Review Committee is hereby established.
    (a) Composition of committee. The members of this Committee are:

Chairperson--Deputy Assistant Secretary for Security and Emergency 
Management, OASAM.
Member--Administrative Officer, Office of the Solicitor.
Member--Director, Office of Foreign Relations, Bureau of International 
Labor Affairs.
Advisor--DOL Document Security Officer.

    (b) Responsibilities. The Committee is responsible for:
    (1) Acting on all suggestions and complaints arising with respect to 
the DOL's information security program.
    (2) Reviewing all requests for records under the Freedom of 
Information Act, 5 U.S.C. 552, when a proposed denial is based on 
classification under Executive Order 12356 to determine if such 
classification is current.
    (3) Recommending to the Secretary of Labor appropriate 
administrative actions to correct abuses or violations of any provision 
of Executive Order 12356 or directives thereunder. Recommended 
administrative actions may include notification by warning letter, 
formal reprimand, and, to the extent permitted by law, suspension 
without pay and removal. Upon receipt of any such recommendation, the 
Secretary shall immediately advise the Committee of the action taken.

[50 FR 51391, Dec. 17, 1985, as amended at 72 FR 37098, July 9, 2007]



Sec.  14.4  Definitions.

    The following definitions apply under these regulations:
    (a) Primary organization unit--refers to an agency headed by an 
official reporting to the Secretary or Deputy Secretary.
    (b) Classify--to assign information to one of the classification 
categories after determining that the information requires protection in 
the interest of national security.
    (c) Courier--an individual designated by appropriate authority to 
protect classified and administratively controlled information in 
transit.
    (d) Custodian--the person who has custody or is responsible for the 
custody of classified information.
    (e) Declassify--the authorized removal of an assigned 
classification.
    (f) Document--any recorded information regardless of its physical 
form or characteristics, including (but not limited to):
    (1) Written material--(whether handwritten, printed or typed).
    (2) Painted, drawn, or engraved material.
    (3) Sound or voice recordings.
    (4) Printed photographs and exposed or printed films (either still 
or motion picture).
    (5) Reproductions of the foregoing, by whatever process.
    (g) Downgrade--to assign lower classfication than that previously 
assigned.
    (h) Derivative classification--a determination that information is 
in substance the same as information that is currently classified. It is 
to incorporate, paraphrase, restate or generate in new form information 
that is already classified (usually by another Federal agency).
    (i) Information Security Oversight Office (ISOO)--an office located 
in the National Archives and Records Administration (GSA) that monitors 
the implementation of E.O. 12356.
    (j) Marking--the physical act of indicating the assigned security 
classification on national security information.
    (k) Material--any document, product, or substance on or in which 
information is recorded or embodied.

[[Page 232]]

    (l) Nonrecord material--extra copies and duplicates, the use of 
which is temporary, including shorthand notes, used carbon paper, 
preliminary drafts, and other material of similar nature.
    (m) Paraphrasing--a restatement of the text without alteration of 
its meaning.
    (n) Product and substance--any item of material (other than a 
document) in all stages of development, processing, or construction and 
including elements, ingredients, components, accessories, fixtures, 
dies, models, and mockup associated with such items.
    (o) Record material--all books, papers, maps, photographs, or other 
documentary materials, regardless of physical form or characteristics, 
made or received by the U.S. Government in connection with the 
transaction of public business; this includes material preserved by an 
agency or its legitimate successor as evidence of its organization, 
functions, policies, decisions, procedures, or other activities, or 
because of the informational data contained herein.
    (p) True reading--the paraphrased literal text.
    (q) Upgraded--to assign a higher classification than that previously 
assigned.

[50 FR 51391, Dec. 17, 1985, as amended at 72 FR 37098, July 9, 2007]



               Subpart B_Review of Classified Information



Sec.  14.10  Mandatory review for declassification.

    (a) Scope of review. The mandatory review procedures apply to 
information originally classified by the DOL when it had such authority, 
i.e., before December 1, 1978. Requests may come from members of the 
public or a government employee or agency. The procedures do not apply 
to information originated by other agencies and merely held in 
possession of the DOL. Requests for disclosure submitted under 
provisions of the Freedom of Information Act are to be processed in 
accordance with provisions of that Act.
    (b) Where requests should be directed. Requests for mandatory review 
for declassification should be directed to the Department of Labor, 
Office of the Assistant Secretary for Administration and Management 
(OASAM), Washington, DC 20210. Requests should be in writing and should 
reasonably describe the classified information to allow identification. 
Whenever a request does not reasonably describe the information sought, 
the requestor will be notified that unless additional information is 
provided or the scope of the request is narrowed, no further action will 
be undertaken.
    (c) Processing. The OASAM will assign the request for information to 
the appropriate DOL office for declassification consideration. A 
decision will be made within 60 days as to whether the requested 
information may be declassified and, if so, made available to the 
requestor. If the information may not be released in whole or in part, 
the requestor will be given a brief statement as to the reasons for 
denial, and a notice of the right to appeal the determination to the DOL 
Classification Review Committee, Office of the Assistant Secretary for 
Administration and Management, Washington, DC 20210. The requestor is to 
be told that such an appeal must be filed with the DOL within 60 days.
    (d) Appeals procedure. The DOL Classification Review Committee will 
review and act within 30 days on all applications and appeals for the 
declassification of information. The Committee is authorized to overrule 
on behalf of the Secretary, Agency determinations in whole or in part, 
when it decides that continued protection is not required. It will 
notify the requestor of the declassification and provide the 
information. If the Committee determines that continued classification 
is required, it will promply notify the requestor and provide the 
reasons for the determination.
    (e) Burden of proof. In evaluating requests for declassification the 
DOL Classification Review Committee will require the DOL office having 
jurisdiction over the document to prove that continued classification is 
warranted.
    (f) Fees. If the request requires a service for which fair and 
equitable fees may be charged pursuant to title 5 of the Independent 
Office Appropriation Act, 31 U.S.C. 483a (1976), the requestor will be 
notified and charged.

[[Page 233]]



            Subpart C_Transmission of Classified Information



Sec.  14.20  Dissemination to individuals and firms 
outside the executive branch.

    Request for classified information received from sources outside the 
executive branch of the Federal Government, provided the information has 
been originated by the DOL, will be honored in accordance with the 
following guidelines:
    (a) Top Secret information. All requests for Top Secret information 
by an individual or firm outside the executive branch must be referred 
promptly to the OASAM for consideration on an individual basis.
    (b) Secret and Confidential information. Subject to the restrictions 
below, Secret or Confidential information may be furnished to an 
individual or firm outside the executive branch if the action furthers 
the official program of the organization unit in which the information 
originated. The official furnishing such information must ensure that 
the individuals to whom the information is to be furnished have the 
appropriate DOL clearance, or at least clearance for the same or higher 
classification for another Federal department, or outside agency whose 
security clearances are acceptable to the DOL. The official must also 
ensure that the person to whom the classified information is being 
furnished possess the proper facilities for safeguarding such 
information. No Secret or Confidential information may be furnished to 
an individual or firm outside the executive branch without written 
concurrence from the primary organizational unit head or the Security 
Officer of that unit.
    (c) Unauthorized knowledge of classified information. Upon receipt 
of a request for classified information which raised a suspicion that an 
individual or organization outside the executive branch has unauthorized 
knowledge of the existence of Confidential, Secret, or Top Secret 
information, a report providing all available details must be 
immediately submitted to the DOL Document Security Officer for 
appropriate action and disposition.
    (d) Requests from outside the United States. All requests from 
outside the United States for Top Secret, Secret or Confidential 
information, except those received from foreign offices of the primary 
organizational unit or from U.S. embassies or similar missions, will be 
referred to the Deputy Under Secretary for International Labor Affairs.
    (e) Access by historical researchers. Individuals outside the 
executive branch engaged in historical research may be authorized access 
to classified information over which the DOL has jurisdiction provided:
    (1) The research and need for access conform to the requirements of 
section 4-3 of Executive Order 12356.
    (2) The information requested is reasonably accessible and can be 
located and compiled with a reasonable amount of effort.
    (3) The researcher agrees to safeguard the information in a manner 
consistent with E.O. 12356 and directives thereunder.
    (4) The researcher agrees to a review of the notes and manuscript to 
determine that no classified information is contained therein.

Authorization for access is valid for the period required but no longer 
than two years from the date of issuance unless it is renewed under the 
conditions and regulations governing its original authorization.
    (f) Access by former presidential appointees. Individuals who have 
previously occupied policymaking positions to which they were appointed 
by the President may be authorized access to classified information 
which they originated, reviewed, signed, or received while in public 
office. Upon request, information identified by such individuals will be 
reviewed for declassification in accordance with the provisions of these 
regulations.

[50 FR 51391, Dec. 17, 1985, as amended at 72 FR 37098, July 9, 2007]



Sec.  14.21  Release of classified information to foreign governments.

    National security information will be released to foreign 
governments in accordance with the criteria and procedures stated in the 
President's Directive entitled ``Basic Policy Governing

[[Page 234]]

the Release of Classified Defense Information to Foreign Governments'' 
dated September 25, 1958. All requests for the release of such 
information will be referred to the Deputy Under Secretary for 
International Labor Affairs.

[50 FR 51391, Dec. 17, 1985, as amended at 72 FR 37098, July 9, 2007]



Sec.  14.22  Availability of classified information to persons 
not employed by the Department of Labor.

    (a) Approval for access. Access to classified information in the 
possession or custody of the primary organizational units of the 
Department by individuals who are not employees of the executive branch 
shall be approved in advance by the DOL Document Security Officer.
    (b) Access to Top Secret material. Access to Top Secret Information 
within the primary organizational units of the DOL by employees of other 
Federal agencies must be approved in advance by the Top Secret Control 
Officer of the primary organizational unit.
    (c) Access to Secret and Confidential information. Secret and 
Confidential information may be made available to properly cleared 
employees of other Federal departments or outside agencies if authorized 
by the primary organizational units having custody of the information.



PART 15_ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT 
AND RELATED CLAIMS STATUTES--Table of Contents



                         Subpart A_Introduction

Sec.
15.1 What is the scope and purpose of this part?
15.2 What definitions apply to this part?

 Subpart B_Claims Against the Government Under the Federal Tort Claims 
                                   Act

15.100 What claims against the Department are covered by the FTCA?
15.101 Who may file an administrative claim under the FTCA against the 
          Department?
15.102 May an insurance company file an FTCA administrative claim on 
          behalf of a claimant?
15.103 May an agent or legal representative file an FTCA administrative 
          claim on behalf of a claimant?
15.104 Where should the FTCA administrative claim be filed?
15.105 What information and evidence should be provided to DOL to 
          substantiate an FTCA administrative claim?
15.106 How is the administrative claim processed?
15.107 What must be provided in the administrative report?
15.108 Who is authorized to decide an administrative claim?
15.109 What if the claim is denied?
15.110 What must a claimant do if the administrative claim is approved?
15.111 If the administrative claim is approved, how is the award paid?

 Subpart C_Claims Under the Military Personnel and Civilian Employees' 
                           Claims Act of 1964

15.200 What is a claim under the MPCECA and who may file such a claim?
15.201 Where should the MPCECA claim be filed?
15.202 How is a claim filed under the MPCECA?
15.203 When should a claim under the MPCECA be filed?
15.204 Are there limits on claims under the MPCECA?
15.205 What types of claims for property damage are allowed under the 
          MPCECA?
15.206 What claims arising at a residence or Telework location may be 
          covered under the MPCECA?
15.207 What are examples of claims allowed under the MPCECA?
15.208 What are the restrictions on otherwise allowable claims?
15.209 What claims are not allowed?
15.210 What affect does insurance have on a claim under the MPCECA?
15.211 How is a claim under this subpart processed?
15.212 How is the amount of the award under this subpart calculated?
15.213 Are there limits to representatives' fees for claims under this 
          subpart?
15.214 How may a decision under this subpart be reconsidered?

     Subpart D_Claims Arising Out of the Operation of the Job Corps

15.300 How are claims involving the Job Corps initiated?
15.301 What office is responsible for determining liability in claims 
          arising out of the Job Corps?
15.302 What procedures apply to these claims?
15.303 How does a Job Corps student file a claim for loss of or damages 
          to personal property under the WIA?

[[Page 235]]

15.304 Are there limits to claims for loss of or damages to personal 
          property under the WIA?

    Authority: 28 U.S.C. 2672; 28 CFR Sec.  14.11; 31 U.S.C. 3721; 29 
U.S.C. 2897(b).

    Source: 77 FR 22207, Apr. 13, 2012, unless otherwise noted.



                         Subpart A_Introduction



Sec.  15.1  What is the scope and purpose of this part?

    (a) The regulations in this part provide procedures to be followed 
for claims asserted against the Department of Labor under the Federal 
Tort Claims Act, 28 U.S.C. 2671, et seq., under the Military Personnel 
and Civilian Employees' Claims Act of 1964, 31 U.S.C. 3721, and for 
claims arising out of the operation of Job Corps Centers under the 
Workforce Investment Act of 1998, 29 U.S.C. 2897(b).
    (b) Subpart B of this part provides the procedures followed in 
processing claims asserted under the Federal Tort Claims Act, as 
amended, 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 or employee of the Department of 
Labor while acting within the scope of his or her office or employment. 
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).
    (c) Subpart C of this part provides the procedures for processing 
claims filed by or on behalf of employees of the Department of Labor for 
loss of or damage to personal property incident to their service with 
the Department under the Military Personnel and Civilian Employees' 
Claims Act of 1964.
    (d) Subpart D of this part provides the procedures used in 
processing claims relating to damage to persons or property arising out 
of the operation of Job Corps, pursuant to the Workforce Investment Act, 
including damages under the Federal Tort Claims Act, damage to personal 
property of Job Corps students, and claims which the Secretary of Labor 
finds to be a proper charge against the United States but which are not 
cognizable under the Federal Tort Claims Act.



Sec.  15.2  What definitions apply to this part?

    (a) Department means the Department of Labor.
    (b) Organizational unit means the jurisdictional area of each 
Assistant Secretary and each office head within the Department reporting 
directly to the Secretary.
    (c) Counsel for Claims and Compensation means the Department's 
deciding official in the Office of the Solicitor for certain 
administrative claims under this part. The address for the Counsel for 
Claims and Compensation is U.S. Department of Labor, 200 Constitution 
Avenue NW., Suite S4325, Washington, DC 20210. Telephone and fax numbers 
for this official may be found on the Department's Web site at 
www.dol.gov.
    (d) Regional Solicitor means the head of the appropriate Regional 
Office (Regional Solicitor) or Branch Office (Associate Regional 
Solicitor) of the Office of Solicitor with jurisdiction to handle 
certain claims under this part.
    (e) FTCA means the Federal Tort Claims Act, as amended, 28 U.S.C. 
1346(b), 28 U.S.C. 2671, et seq.
    (f) MPCECA means the Military Personnel and Civilian Employees' 
Claims Act of 1964, 31 U.S.C. 3721.
    (g) WIA means the Workforce Investment Act of 1998, 29 U.S.C. 
2897(b).



 Subpart B_Claims Against the Government Under the Federal Tort Claims 
                                   Act



Sec.  15.100  What claims against the Department are covered by the FTCA?

    (a) The FTCA is a limited waiver of sovereign immunity that allows 
claims for money damages against the Department for negligent acts or 
omissions of its employees acting within the course and scope of their 
employment. Subject to the exception set forth in paragraph (b) of this 
section, all such claims against the Department should be handled under 
the procedures in this subpart.
    (b) In instances where a third party has agreed to insure the 
Federal government, such as under a U.S. Government Car Rental 
Agreement, claimants

[[Page 236]]

are required to pursue those claims in accordance with such agreements.



Sec.  15.101  Who may file an administrative claim under the FTCA 
against the Department?

    (a) A claim for the injury to or loss of property may be presented 
by the owner of the property, his or her duly authorized agent, or his 
or her legal representative.
    (b) A claim for personal injury may be presented by the injured 
person, his or her duly authorized agent, or his or her legal 
representative.
    (c) A claim for 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 presented by an agent or legal representative shall be 
presented in the name of the claimant, be signed by the agent or 
representative, show the title or legal capacity of the person signing 
and be accompanied by evidence of his or her authority to present a 
claim on behalf of the claimant as agent, executor, administrator, 
parent, guardian, or legal representative.
    (e) Only claims involving alleged acts or omissions of Department 
employees (including Job Corps students) should be presented to the 
Department.



Sec.  15.102  May an insurance company file an FTCA administrative claim 
on behalf of a claimant?

    (a) A claim for loss wholly compensated by an insurance company may 
be presented by that company.
    (b) A claim for loss partially compensated by an insurance company 
may be presented by the company or the insured individually, in 
accordance with their respective interests or jointly. It should be 
noted, however, that if the insurance company claims only part of the 
insured's interests, an acceptance of that claim may bar any additional 
claim by the insured for damages beyond that claimed by the insurance 
company as such acceptance would be in full and final settlement of all 
such claims arising out the incident that gave rise to the claim as 
described in Sec.  15.110(b).
    (c) If the claimant is directly compensated by the Department for 
medical bills under this subpart, the claimant may be required to 
reimburse his or her insurance company in accordance with the terms of 
his or her insurance policy if the company has already paid those bills.
    (d) Whenever an insurance company presents a claim on behalf of the 
insured (such as a claim for an auto loss that includes the deductible), 
it shall present with its claim appropriate evidence that it has the 
rights of a subrogee, such as a copy of the signed policy.



Sec.  15.103  May an agent or legal representative file an FTCA 
administrative claim on behalf of a claimant?

    (a) An agent or legal representative may file a claim on behalf of a 
claimant.
    (b) Representative's fees are limited to not more than 20 percent of 
the amount paid for a claim settled in an administrative claim, and to 
not more than 25 percent of a judgment or settlement award after 
litigation is initiated. 28 U.S.C. 2678.
    (c) If a representative is dismissed from representing a claimant 
before the claim is resolved, the representative may not place a lien on 
the claimant's recoveries under the claim.
    (d) Any purported representative of a minor must provide 
documentation that he or she is the legal agent of that minor.



Sec.  15.104  Where should the FTCA administrative claim be filed?

    (a) Only claims involving alleged acts or omissions of Department 
employees should be presented to the Department. For the purposes of 
this subpart, an FTCA claim shall be deemed to have been presented when 
the Department receives, at a place designated in paragraph (b) of this 
section, a properly executed ``Claim for Damage, Injury, or Death'' on 
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 or personal injury or death by reason of the 
incident.

[[Page 237]]

    (b) In any FTCA case where the claim seeks damages for an incident 
resulting in aggregate claims in excess of $25,000 or which involves an 
alleged act or omission of an employee of the Department whose official 
duty station is in Washington, DC, the claimant shall mail or deliver 
the claim for money damages for injury to or loss of property or 
personal injury or death caused by the negligent or wrongful act or 
omission of any employee of the Department while acting within the scope 
of office or employment to the Counsel for Claims and Compensation, 
Office of the Solicitor, U.S. Department of Labor, 200 Constitution 
Avenue NW., Suite S4325, Washington, DC 20210.
    (c) In all other cases, the claimant shall submit his or her claim 
to the official duty station of the employee whose act or omission forms 
the basis of the complaint, which should be immediately forwarded to the 
appropriate Regional Office of the Office of the Solicitor with all 
currently available documentation (such as a Standard Form 91, Motor 
Vehicle Accident Report).



Sec.  15.105  What information and evidence should be provided to DOL 
to substantiate an FTCA administrative claim?

    (a) Personal injury. In support of a claim for personal injury, 
including pain and suffering, the claimant is required to submit the 
following evidence or information:
    (1) A written report by the attending physician or dentist setting 
forth the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent impairment, the 
prognosis, period of hospitalization, if any, 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 Department or another Federal agency. A copy of the report of the 
examining physician shall be made available to the claimant upon the 
claimant's written request.
    (2) Itemized bills for medical, dental and hospital, or any other, 
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) 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, an autopsy report and or 
other competent evidence that includes cause or causes of death, date of 
death, and age of the decedent.
    (2) Decedent's employment or occupation at the time of death, 
including his or her monthly or yearly salary or earnings (if any), and 
the duration of his or her last employment or occupation.
    (3) Full name, address, birth date, kinship and marital status of 
the decedent's survivors, including identification of those survivors 
who were dependent for support upon the decedent at the time of his or 
her death.
    (4) Degree of support afforded by the decedent to each survivor 
dependent upon him or her for support at the time of his or her death.
    (5) Decedent's general physical and mental condition before his or 
her 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 the 
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 damages 
claimed.
    (c) Property damages. 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 with respect to each item of property:

[[Page 238]]

    (1) Proof of ownership.
    (2) A detailed statement of the amount claimed.
    (3) An itemized receipt of payment for necessary repairs or itemized 
written estimates of the cost of such 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.
    (d) Loss of income. In support of a claim based on loss of income, 
the claimant may be required to submit the following evidence or 
information:
    (1) A written statement from his or her employer showing actual time 
lost from employment, whether he or she is a full or part-time employee, 
and wages or salary actually lost.
    (2) If the claimant is self-employed, documentary evidence showing 
the amount of earnings lost such as:
    (i) Income tax returns for several years prior to the injury in 
question and the year in which the injury occurred may be used to 
indicate or measure lost income; or
    (ii) A statement of the actual or projected cost for the claimant to 
hire someone else to do the same work he or she was doing at the time of 
injury.
    (3) 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.



Sec.  15.106  How is the administrative claim processed?

    (a) Investigation. When an organizational unit learns of an incident 
that reasonably can be expected to result in an allegation of harm 
caused to an individual or organization by an alleged negligent act or 
omission by an employee of that organizational unit or when it learns of 
an administrative claim or of litigation alleging such harm, it has the 
responsibility to fully investigate the incident and to take all actions 
necessary to preserve all relevant documents and other evidence. Each 
organizational unit should institute appropriate procedures to ensure 
that notification of such incidents are reported to the office 
responsible for ensuring that evidence is preserved and investigation 
undertaken.
    (b) Notification. Upon receipt of an administrative claim under the 
Act or of notice of litigation seeking damages for an alleged negligent 
act or omission of an employee of the Department acting within the scope 
of his or her employment, the Office of the Solicitor shall notify the 
organizational unit responsible for the activity which gave rise to the 
claim or litigation and shall provide a copy of the administrative claim 
or the claim filed in the litigation.
    (c) FTCA Contact. Each organizational unit will establish an FTCA 
contact, unless this requirement is waived by the Counsel for Claims and 
Compensation. The FTCA contact will coordinate and oversee the 
preservation of documents related to the circumstances of all claims 
arising from his or her organizational unit. The FTCA contact will 
arrange for the preparation and submission of the Administrative Report 
relating to each claim within 30 days after notification of receipt of 
an administrative claim, unless the Office of the Solicitor grants 
additional time.
    (d) Litigation. During the course of any litigation, organizational 
units are responsible for providing assistance to the Office of the 
Solicitor in responding to discovery requests such as interrogatories 
and requests to produce documents, for providing assistance in analyzing 
factual and program issues, for providing witnesses for depositions and 
trials, and for assistance in producing affidavits and exhibits for use 
in the litigation.



Sec.  15.107  What must be provided in the administrative report?

    (a) The administrative report shall be in the form of a single 
memorandum in narrative form with attachments. It should contain all of 
the following elements, unless permission is obtained from the Office of 
the Solicitor to dispense with a particular element:
    (1) A brief explanation of the organization and operation of the 
program involved including statutory authority and applicable 
regulations;

[[Page 239]]

    (2) A complete description of the events that gave rise to the claim 
or litigation, including a specific response to every allegation in the 
claim or litigation;
    (3) Any information available regarding the questions of whether the 
claimant or plaintiff actually suffered the harm alleged in the claim or 
litigation and what individual or organization caused any harm which 
appears to have occurred;
    (4) Any information available regarding the damages claimed;
    (5) Any policy reasons which the organizational unit wishes to 
advance for or against settlement of the claim or litigation; and
    (6) Details of any claims the Department may have against the 
claimant or plaintiff, whether or not they appear to be related to the 
subject matter of the claim or litigation.
    (b) A copy of all documents relevant to the issues involved in the 
claim or litigation should be attached to each copy of the 
Administrative Report. Original records should not be forwarded to the 
Office of the Solicitor unless specifically requested. They should be 
preserved, however, and remain available for litigation if necessary.
    (c) Organizational units should ensure that all Administrative 
Reports are either prepared or reviewed by an official of the 
organizational unit who was not personally involved in the incident in 
question prior to filing of the claim or suit.
    (d) The Office of the Solicitor may waive the requirement of an 
Administrative Report. If the Administrative Report is waived, the 
organizational unit or units involved in the circumstances of the claim 
or litigation shall provide certification from the supervisor of the 
employee whose alleged negligent act or omission gave rise to the claim, 
certifying that the employee was acting within the scope of his or her 
employment at the time of the alleged negligent act or omission.



Sec.  15.108  Who is authorized to decide an administrative claim?

    (a) The Counsel for Claims and Compensation shall have the authority 
to consider, ascertain, adjust, determine, compromise and settle claims 
pursuant to the Federal Tort Claims Act which involve an alleged 
negligent or wrongful act or omission of an employee whose official duty 
station is the Department's national office in Washington, DC, or which 
involve aggregate claims in excess of $25,000, or which involve a new 
point of law or a question of policy.
    (b) Regional Solicitors and the Associate Regional Solicitors are 
authorized to consider, ascertain, adjust, determine, compromise and 
settle claims arising in their respective jurisdictions pursuant to the 
Federal Tort Claims Act where the aggregate claimed does not exceed 
$25,000 in amount and which do not involve a new point of law or a 
question of policy.



Sec.  15.109  What if the claim is denied?

    Denial of an administrative claim under this subpart shall be in 
writing, and notification of denial shall be sent to the claimant, or 
his or her attorney or legal representative by certified or registered 
mail. The notification of final denial shall include a statement of the 
reasons for the denial and shall include a statement that, if the 
claimant is dissatisfied with the Department's action, that claimant may 
file suit in an appropriate U.S. District Court not later than 6 months 
after the date of mailing of the notification.



Sec.  15.110  What must a claimant do if the administrative claim is approved?

    (a) Payment of a claim approved under this subpart is contingent 
upon claimant's execution of the appropriate forms, such as the SF-194, 
SF-196, or SF-197, in accordance with instructions by the Department of 
Justice and/or the Judgment Fund. When a claimant is represented by an 
attorney, the voucher for payment shall designate the claimant as payee 
(as the beneficial interest holder), and the check shall be delivered to 
the attorney whose address appears on the voucher.
    (b) Acceptance by the claimant, or his or her agent or legal 
representative, of an award, compromise, or settlement under 28 U.S.C. 
2672 or 28 U.S.C. 2677 is final and conclusive on the claimant, his or 
her agent or legal representative, and any other person

[[Page 240]]

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.



Sec.  15.111  If the administrative claim is approved, how is the award paid?

    (a) Any award, compromise, or settlement in the amount of $2,500 or 
less made pursuant to this section shall be paid by the Secretary of 
Labor out of appropriations available to the Department.
    (b) Payment of an award, compromise, or settlement in an amount in 
excess of $2,500 made pursuant to this subpart shall be made in 
accordance with 28 CFR 14.10.
    (c) An award, compromise or settlement of a claim under 28 U.S.C. 
2672 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 subpart, a principal claim and any derivative or 
subrogated claim shall be treated as a single claim.



 Subpart C_Claims Under the Military Personnel and Civilian Employees' 
                           Claims Act of 1964



Sec.  15.200  What is a claim under the MPCECA and who may file such a claim?

    (a) A claim under the MPCECA for damage or loss is allowable only if 
the property involved was being used incident to service with the 
Department.
    (b) A claim may be made under this subpart by an employee of the 
Department or by a spouse or authorized agent, or legal representative 
on behalf of the employee. If the employee is deceased, the claim may be 
filed by a survivor in the following order of preference: Spouse, 
children, parent, brother or sister or the authorized agent or legal 
representative of such person or persons.
    (c) An MPCECA claim may not be made by or for the benefit of an 
insurance company, subrogee, assignee, conditional vendor or other third 
party.



Sec.  15.201  Where should the MPCECA claim be filed?

    (a) If the claimant's official duty station is at the Department's 
national office in Washington, DC, or if the claim is for an amount in 
excess of $25,000, the claim should be filed with the Counsel for Claims 
and Compensation, Office of the Solicitor of Labor, U.S. Department of 
Labor, Suite S4325, 200 Constitution Avenue NW., Washington, DC, 20210.
    (b) In all other cases, the claimant shall address the claim to the 
regional or branch office of the Office of the Solicitor servicing the 
claimant's official duty station.



Sec.  15.202  How is a claim filed under the MPCECA?

    (a) A claim under this subpart must be presented in writing. A 
sample claim, located on the Department's Office of the Solicitor, 
Federal Employees' and Energy Workers' Compensation Division Web site at 
www.dol.gov, is provided as an example for convenience of filing. The 
SF-95 for FTCA claims is not an appropriate form for a MPCECA claim.
    (b) The claimant is responsible for substantiating ownership or 
possession, the facts surrounding the loss or damage, and the value of 
the property. Any claim filed must be accompanied by the following:
    (1) A written statement, signed by the claimant or his or her 
authorized agent, setting forth the circumstances under which the damage 
or loss occurred. This statement may also include:
    (i) A description of the type, design, model number or other 
identification of the property.
    (ii) The date of purchase or acquisition and the original cost of 
the property.
    (iii) The location of the property when the loss or damage occurred.
    (iv) The value of the property when lost or damaged.
    (v) The actual or estimated cost of the repair of any damaged item.
    (vi) The purpose of and authority for travel, if the loss or damage 
occurred incident to transportation or to the use of a motor vehicle.

[[Page 241]]

    (vii) Any and all available information as to the party responsible 
for the loss or damage, if such party is someone other than the 
claimant, and all information as to insurance contracts, whether held by 
the claimant or by the party responsible.
    (2) Copies of all available and appropriate documents such as bills 
of sale, estimates of repairs, or travel orders. In the case of an 
automobile, the claimant must file two estimates of repair or a 
certified paid bill showing the damage incurred and the cost of all 
parts, labor and other items necessary to the repair of the vehicle or a 
statement from an authorized dealer or repair garage showing that the 
cost of such repairs exceeds the value of the vehicle. The Office of the 
Solicitor may waive the requirement of two estimates of repair.
    (3) A copy of the power of attorney or other authorization if 
someone other than the employee files the claim.
    (4) A statement from the employee's immediate supervisor confirming 
that possession of the property was reasonable, useful or proper under 
the circumstances and that the damage or loss was incident to service.



Sec.  15.203  When should a claim under the MPCECA be filed?

    A claim under this subpart may be allowed only if it is filed in 
writing within 2 years after accrual of the claim. For the purpose of 
this part, a claim accrues at the later of:
    (a) The time of the accident or incident causing the loss or damage;
    (b) Such time as the loss or damage should have been discovered by 
the claimant by the exercise of due diligence; or
    (c) Such time as cause preventing filing no longer exists or as war 
or armed conflict ends, whichever is earlier, if a claim otherwise 
accrues during war or an armed conflict or has accrued within 2 years 
before war or an armed conflict begins, and for cause shown.



Sec.  15.204  Are there limits on claims under the MPCECA?

    (a) The maximum amount that can be paid for any claim under the 
MPCECA is $40,000, or, if the claim arises from emergency evacuation or 
extraordinary circumstances, up to $100,000, and property may be 
replaced in kind at the option of the Government. 31 U.S.C. 3721(b)(1).
    (b) The Department is not an insurer and does not underwrite all 
personal property losses that an employee may sustain. Employees are 
encouraged to carry private insurance to the maximum extent practicable 
to avoid losses, which may not be recoverable from the Department.



Sec.  15.205  What types of claims for property damage are allowed 
under the MPCECA?

    (a) Claims for property damage are allowed under the MPCECA only if 
the property involved was being used incident to service with the 
Department and:
    (l) The damage or loss was not caused wholly or partly by the 
negligent or wrongful act or omission of the claimant, his or her agent, 
the members of his or her family, or his or her private employee (the 
standard to be applied is that of reasonable care under the 
circumstances); and
    (2) The possession of the property lost or damaged and the quantity 
and the quality possessed is determined by the claimant's supervisor to 
have been reasonable, useful or proper under the circumstances; and
    (3) The claim is substantiated by proper and convincing evidence.
    (b) Claims otherwise allowable under this subpart shall not be 
disallowed solely because the claimant was not the legal owner of the 
property for which the claim is made.



Sec.  15.206  What claims arising at a residence or Telework location 
may be covered under the MPCECA?

    (a) Claims arising at a residence, Telework center or other 
flexiplace location may be covered under the MPCECA.
    (b) For the purpose of this subpart, residence means a house, 
apartment or other location that is a Department employee's principal 
abode.
    (c) Claims for property damage at an alternative work location at 
which the employee is performing duties pursuant to an approved Telework 
agreement may be covered by the MPCECA

[[Page 242]]

if the property was being used incident to service with the Department, 
as, for the purposes of this subpart, that location is considered to be 
an official duty station. Under most circumstances, property damage will 
only be allowed if it occurs at or in connection with the employee's 
workstation.
    (d) Claims under the MPCECA at a residence not covered by paragraph 
(c) of this section may be allowable for damage to, or loss of, property 
arising from fire, flood, hurricane, other natural disaster, theft, or 
other unusual occurrence, if the property was being used incident to 
service with the Department, while such property is located at:
    (1) Residences within the 50 States or the District of Columbia that 
were assigned to the claimant or otherwise provided in kind by the 
United States; or
    (2) Residences outside the 50 States and the District of Columbia 
that were occupied by the claimant, whether or not they were assigned or 
otherwise provided in kind by the United States, except when the 
claimant is a civilian employee who is a local inhabitant; or
    (3) Any warehouse, office, working area or other place (except 
residences) authorized or apparently authorized for the reception or 
storage of property.



Sec.  15.207  What are examples of claims allowed under the MPCECA?

    The following are examples of the principal types of allowable 
claims, but these examples are not exclusive; other claims may be 
allowed, unless hereinafter excluded:
    (a) Transportation or travel losses. Claims may be allowed for 
damage to, or loss of, property incident to transportation or storage 
pursuant to order or in connection with travel under orders, including 
property in the custody of a carrier, an agent or agency of the 
Government, or the claimant.
    (b) Enemy action or public service. Claims may be allowed for damage 
to, or loss of, property as a direct consequence of:
    (1) Enemy action or threat thereof, or terrorism, combat, guerrilla, 
brigandage, or other belligerent activity, or unjust confiscation by a 
foreign power or its nationals.
    (2) Action by the claimant to quiet a civil disturbance or to 
alleviate a public disaster.
    (3) Efforts by the claimant to save human life or Government 
property.
    (c) Property used for the benefit of the Government. Claims may be 
allowed for damage to, or loss, of property when used for the benefit of 
the Government at the request of, or with the knowledge and consent of 
superior authority.
    (d) Electronics and cellular phones. Claims may be allowed for loss 
of, or damage to, cellular phones, personal data assistants and similar 
communication and electronic devices subject to the limitations in Sec.  
15.209(e).
    (e) Clothing and accessories. Claims may be allowed for damage to, 
or loss of, clothing and accessories customarily worn on the person, 
such as eyeglasses, hearing aids, or dentures subject to the limitations 
in Sec.  15.209(e).
    (f) Expenses incident to repair. Claimants may be reimbursed for the 
payment of any sales tax incurred in connection with repairs to an item. 
The costs of obtaining estimates of repair (subject to the limitations 
set forth in Sec.  15.208(c)) are also allowable.



Sec.  15.208  What are the restrictions on otherwise allowable claims?

    (a) Money or currency. Claims may be allowed for loss of money or 
currency (which includes coin collections) only when lost incident to 
fire, flood, hurricane, other natural disaster, or by theft from 
residence (as limited by Sec.  15.206). In incidents of theft from a 
residence, it must be conclusively shown that the residence was locked 
at the time of the theft. Reimbursement for loss of money or currency is 
limited to an amount, which is determined to have been reasonable for 
the claimant to have had in his or her possession at the time of the 
loss.
    (b) Government property. Claims may only be allowed for property 
owned by the United States for which the claimant is financially 
responsible to an agency of the Government other than the Department.
    (c) Estimate fees. Claims may include fees paid to obtain estimates 
of repairs only when it is clear that an estimate could not have been 
obtained without paying a fee. In that case, the fee may

[[Page 243]]

be allowed only in an amount determined to be reasonable in relation to 
the value of the property or the cost of the repairs.
    (d) Automobiles and motor vehicles. Claims may only be allowed for 
damage to, or loss of automobiles and other motor vehicles if:
    (1) Such motor vehicles were required to be used for official 
Government business (official Government business, as used here, does 
not include travel, or parking incident thereto, between residence and 
office, or use of vehicles for the convenience of the owner. However, it 
does include travel, and parking incident thereto, between a residence 
and an assigned place of duty specifically authorized or otherwise shown 
to be permitted by the employee's supervisor as being more advantageous 
to the Government); or
    (2) Shipment of such motor vehicles was being furnished or provided 
by the Government, subject to the provisions of Sec.  15.210.



Sec.  15.209  What claims are not allowed?

    (a) Unassigned residences in United States. Property loss or damage 
in quarters occupied by the claimant within the 50 States or the 
District of Columbia that were not assigned to him or otherwise provided 
in kind by the United States or part of an approved Telework agreement.
    (b) Business property. Property used for business or profit.
    (c) Unserviceable property. Wornout or unserviceable property.
    (d) Illegal possession. Property acquired, possessed or transferred 
in violation of the law or in violation of applicable regulations or 
directives.
    (e) Articles of extraordinary value. Valuable articles, such as 
watches, jewelry, furs, clothes, electronics or other articles of 
extraordinary value. This prohibition does not apply to articles in the 
personal custody of the claimant or articles properly checked, if the 
claimant has taken reasonable protection or security measures.
    (f) Intangible property. Loss of property that has no extrinsic and 
marketable value but is merely representative or evidence of value (such 
as a non-negotiable stock certificate or warehouse receipt) is not 
compensable. Intangible value is not compensable.
    (g) Incidental expenses and consequential damages. The MPCECA and 
this subpart authorize payment for loss of or damage to personal 
property only. Except as provided in Sec.  15.207(f), consequential 
damages or other types of loss or incidental expenses (such as loss of 
use, interest, carrying charges, cost of lodging or food while awaiting 
arrival of shipment, attorney fees, telephone calls, cost of 
transporting claimant or family members, inconvenience, time spent in 
preparation of claim, or cost of insurance premiums) are not 
compensable.
    (h) Real property. Damage to real property is not compensable. In 
determining whether an item is considered to be an item of personal 
property, as opposed to real property, normally, any movable item is 
considered personal property even if physically joined to the land.
    (i) Commercial property. Articles acquired or held for sale or 
disposition by other commercial transactions on more than an occasional 
basis, or for use in a private profession or business enterprise.
    (j) Commercial storage. Property stored at a commercial facility for 
the convenience of the claimant and at his or her expense.
    (k) Minimum amount. Loss or damage amounting to less than $40.



Sec.  15.210  What affect does insurance have on a claim under the MPCECA?

    In the event the property, which is the subject of the claim, was 
lost or damaged while in the possession of a commercial carrier or was 
insured, the following procedures will apply:
    (a) Whenever property is damaged, lost or destroyed while being 
shipped pursuant to authorized travel orders, the owner must file a 
written claim for reimbursement with the last commercial carrier known 
or believed to have handled the goods, or the carrier known to be in 
possession of the property when the damage or loss occurred, according 
to the terms of its bill of lading or contract, before submitting a 
claim against the Government under this subpart.

[[Page 244]]

    (b) Whenever property is damaged, lost or destroyed incident to the 
claimant's service and is insured in whole or in part, the claimant 
should make demand in writing against the insurer for reimbursement 
under the terms and conditions of the insurance coverage, prior to the 
filing of the claim against the Government, unless, in the subsequent 
determination of the deciding official, the filing of such a demand was 
impracticable or inequitable. For example, if the value of a claim is 
$535 and the insurance deductible is $500, the deciding official may 
determine that no claim need be made against the insurer.
    (c) Unless the deciding official determines that no demand should 
have been or need be made, failure to make a demand on a carrier or 
insurer or to make all reasonable efforts to protect and prosecute 
rights available against a carrier or insurer and to collect the amount 
recoverable from the carrier or insurer may result in reducing the 
amount recoverable from the Government by the maximum amount which would 
have been recoverable from the carrier or insurer had the claim been 
timely or diligently prosecuted.
    (d) Following the submission of the claim against the carrier or 
insurer, the claimant may immediately submit his claim against the 
Government in accordance with the provisions of this subpart, without 
waiting until either final approval or denial of the claim is made by 
the carrier or insurer.
    (1) Upon submitting his or her claim, the claimant shall certify in 
the claim that he or she has or has not gained any recovery from a 
carrier or insurer, and enclose all correspondence pertinent thereto.
    (2) If final action has not been taken by the carrier or insurer on 
the claim, the claimant shall immediately notify them to address all 
correspondence in regard to the claim to the appropriate Office of the 
Solicitor of Labor.
    (3) The claimant shall advise the appropriate Office of the 
Solicitor of any action taken by the carrier or insurer on the claim 
and, upon request, shall furnish all correspondence, documents, and 
other evidence pertinent to the matter.
    (e) The claimant shall assign to the United States, to the extent of 
any payment on the claim accepted by him or her, all rights, title and 
interest in any claim he or she may have against any carrier, insurer, 
or other party arising out of the incident on which the claim against 
the United States is based. After payment of the claim by the United 
States, the claimant shall, upon receipt of any payment from a carrier 
or insurer, pay the proceeds to the United States to the extent of the 
payment received by him or her from the United States.
    (f) Where a claimant recovers for the loss from the carrier or 
insurer before his or her claim under this subpart is settled, the 
amount of recovery shall be applied to the claim as follows:
    (1) When the amount recovered from a carrier, insurer, or other 
third party is greater than or equal to the claimant's total loss as 
determined under this part, no compensation is allowable under this 
subpart.
    (2) When the amount recovered is less than such total loss, the 
allowable amount is determined by deducting the recovery from the amount 
of such total loss.
    (3) For this purpose, the claimant's total loss is to be determined 
without regard to the maximum payment limitations set forth in Sec.  
15.204. However, if the resulting amount, after making this deduction 
exceeds the maximum payment limitations, the claimant shall be allowed 
only the maximum amount set forth in Sec.  15.204.



Sec.  15.211  How is a claim under this subpart processed?

    (a) The Counsel for Claims and Compensation, the Regional 
Solicitors, and the Associate Regional Solicitors are authorized to 
consider, ascertain, adjust, determine, compromise and settle claims 
filed under this subpart that arise within their respective 
jurisdictions, except that any claim for an amount in excess of $25,000 
shall fall within the exclusive jurisdiction of the Counsel for Claims 
and Compensation.
    (b) Any writing received by the Office of the Solicitor within the 
time limits set forth in Sec.  15.203 will be accepted and considered a 
claim under the MPCECA

[[Page 245]]

if it constitutes a demand for compensation from the Department. A 
sample claim, located on the Department's Office of the Solicitor, 
Federal Employees' and Energy Workers' Compensation Division Web site at 
www.dol.gov, is provided for convenience of filing. The SF-95 form used 
to file a claim under the FTCA is not an appropriate form for a claim 
under the MPCECA claim.
    (c) A demand is not required to be for a specific sum of money.
    (d) The determination upon the claim shall be provided to the 
claimant in writing by the deciding official.



Sec.  15.212  How is the amount of the award under this subpart calculated?

    (a) The amount allowable for damage to or loss of any item of 
property may not exceed the lowest of:
    (1) The amount requested by the claimant for the item as a result of 
its loss, damage or the cost of its repair;
    (2) The actual or estimated cost of its repair; or
    (3) The actual value at the time of its loss, damage, or 
destruction. The actual value is determined by using the current 
replacement cost or the depreciated value of the item since its 
acquisition, whichever is lower, less any salvage value of the item in 
question.
    (b) Depreciation in value is determined by considering the type of 
article involved, its cost, its condition when damaged or lost, and the 
time elapsed between the date of acquisition and the date of damage or 
loss.
    (c) Current replacement cost and depreciated value are determined by 
use of publicly available adjustment rates or through use of other 
reasonable methods at the discretion of the official authorized to issue 
a determination upon the claim in question.
    (d) Replacement of lost or damaged property may be made in kind 
wherever appropriate.
    (e) At the discretion of the official authorized to issue the 
determination upon the claim in question, a claimant may be required to 
turn over an item alleged to have been damaged beyond economical repair 
to the United States, in which case no deduction for salvage value will 
be made in the calculation of actual value.
    (f) Notwithstanding any other provisions of law, settlement of 
claims under the MPCECA is final and conclusive.



Sec.  15.213  Are there limits to representatives' fees for claims 
under this subpart?

    Yes. No more than 10 percent of the amount in settlement of each 
individual claim submitted and settled under this subpart shall be paid 
or delivered to or received by any agent or attorney on account of 
services rendered in connection with that claim. 31 U.S.C. 3721(i).



Sec.  15.214  How may a decision under this subpart be reconsidered?

    (a) While there is no appeal from the decision of the deciding 
official in regard to claims under the MPCECA, the deciding official may 
always reconsider his or her determination of a claim.
    (b) A claimant may request reconsideration from the deciding 
official by directing a written request for reconsideration to the 
deciding official within 60 days of the date of the original 
determination. The claimant must clearly state the factual or legal 
basis upon which he or she rests the request for a more favorable 
determination.
    (c) The determination upon the reconsideration will be provided to 
the claimant in writing by the deciding official.



     Subpart D_Claims Arising Out of the Operation of the Job Corps



Sec.  15.300  How are claims involving the Job Corps initiated?

    (a) Claims involving the Job Corps, including claims against Job 
Corps Centers run by other Federal agencies, claims by third parties 
involving the acts or omissions of students of Job Corps, and claims 
involving the loss of personal property of students of Job Corps should 
be submitted to the appropriate Job Corps Regional Office. Claims under 
the MPCECA for non-Department Federal employees should be sent to and 
must be handled by their respective Federal employer, subject to that 
employer's procedures. FTCA

[[Page 246]]

claims over $25,000 should be sent to and must be handled by the Counsel 
for Claims and Compensation under subpart B of this part.
    (b) The Job Corps Regional Office shall investigate all facts of the 
claim, including accident and medical reports, interview witnesses, and, 
where necessary, prepare the appropriate administrative reports.
    (c) Following the investigation, the Job Corps Regional Office will 
determine the appropriate reviewing official and if necessary forward 
the claim to the appropriate office immediately with all currently 
available documentation, as described in Sec.  15.301.



Sec.  15.301  What office is responsible for determining liability in claims 
arising out of the Job Corps?

    (a) The Director of the appropriate Job Corps Regional Office is 
responsible for claims not cognizable under the FTCA pursuant to the WIA 
arising out of the operation of the Job Corps involving loss or damage 
to persons or personal property of students of Job Corps Centers that do 
not exceed $300.
    (b) The Regional Solicitor is responsible for claims not cognizable 
under the FTCA pursuant to the WIA arising out of the operation of the 
Job Corps involving loss or damage to persons or personal property of 
students of Job Corps Centers for claims exceeding $300.
    (c) The Regional Solicitor is responsible for all FTCA claims 
involving damage to persons or property arising out of an act or 
omission of a Job Corps student or Federal employee that do not exceed 
$25,000 and do not involve a new point of law or a question of policy.
    (d) All remaining claims with aggregate damages of $25,000 or more 
are the responsibility of the Counsel for Claims and Compensation.
    (e) The Job Corps Regional Office Director, the Regional Solicitors 
and the Associate Regional Solicitors are authorized to consider, 
determine and settle claims filed under this subpart that arose within 
their respective jurisdictions.



Sec.  15.302  What procedures apply to these claims?

    (a) Claims involving the negligent acts or omissions of Job Corps 
students or Federal employees are claims under the FTCA and are 
determined under the procedures in subpart B of this part. FTCA claims 
must be forwarded to and decided by the responsible Solicitor's Office.
    (b) Claims involving loss or damage to persons or the personal 
property of Job Corps students are covered by the WIA, 29 U.S.C. 
2897(b), which provides that the Secretary of Labor may adjust or settle 
claims for damages to a person or property of up to $1,500 if those 
claims are found to be a proper charge against the United States and are 
not cognizable under the FTCA.



Sec.  15.303  How does a Job Corps student file a claim for loss of 
or damages to personal property under the WIA?

    (a) A WIA claim under this subpart must be in writing and signed by 
the claimant or by an authorized representative. In order to be a proper 
claim, a WIA claim must fully describe the property and the 
circumstances that gave rise to the loss or damage.
    (b) All WIA claims under this subpart must be filed with the 
appropriate Job Corps Regional Office within 2 years of the date upon 
which the claim accrued. The Job Corps Regional Office may consult with 
the Regional Solicitor and/or Counsel for Claims and Compensation as 
necessary.
    (c) The determination upon the claim shall be provided to the 
claimant in writing by the appropriate deciding official.
    (d) Reconsideration of a determination under this subpart shall be 
available upon written request received within 60 days by the 
appropriate deciding official. The deciding official will provide a 
written response to the claimant within 60 days of such request. No 
further review of the matter will be permitted.



Sec.  15.304  Are there limits to claims for loss of or damages 
to personal property under the WIA?

    (a) Only claims involving damage or loss to personal property that 
occurred while at the Job Corps Center or while

[[Page 247]]

on authorized travel, training or other authorized activities may be 
considered under the WIA.
    (b) The Job Corps will only reimburse up to $300.00 per item for 
claims for loss or damage of personal property under the WIA, up to a 
maximum of $1,500 per occurrence.
    (c) If the property in question is not of a type that the student is 
authorized to bring to the Job Corps Center, no compensation will be 
made under this subpart. For example, if the Job Corps Center has 
explicit written rules imposing limitations on the type of electronic 
equipment or other personal items such as jewelry that may be brought to 
the center, no compensation will be awarded for the loss or damage of 
such property.



PART 16_EQUAL ACCESS TO JUSTICE ACT--Table of Contents



                      Subpart A_General Provisions

Sec.
16.101 Purpose of these rules.
16.102 Definitions.
16.103 When the Act applies.
16.104 Proceedings covered.
16.105 Eligibility of applicants.
16.106 Standards for awards.
16.107 Allowable fees and expenses.
16.108 Awards against other agencies.

             Subpart B_Information Required From Applicants

16.201 Contents of application.
16.202 Net worth exhibit.
16.203 Documentation of fees and expenses.
16.204 When an application may be filed.

            Subpart C_Procedures for Considering Applications

16.301 Filing and service of documents.
16.302 Answer to application.
16.303 Settlement.
16.304 Further proceedings.
16.305 Decision.
16.306 Review by the Secretary.
16.307 Judicial review.
16.308 Payment of award.

    Authority: Pub. L. 96-481, 94 Stat. 2327 (5 U.S.C. 504).

    Source: 46 FR 63021, Dec. 29, 1981, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  16.101  Purpose of these rules.

    Section 203(a)(1) of the Equal Access to Justice Act amends section 
504 of the Administrative Procedure Act to provide for the award of 
attorney fees and other expenses to eligible individuals and entities 
who are parties to certain administrative proceedings before the 
Department of Labor. An eligible party may receive an award when it 
prevails over an agency, unless the agency's position in the proceeding 
was substantially justified or special circumstances make an award 
unjust. The rules in this part describe the parties eligible for awards, 
the proceedings that are covered, how to apply for awards, and the 
standards under which awards will be granted.



Sec.  16.102  Definitions.

    As used in this part:
    (a) The Act means section 504 of title 5 U.S.C., as amended by 
section 203(a)(1) of the Equal Access to Justice Act, Public Law No. 96-
481.
    (b) Adversary adjudication means an adjudication under 5 U.S.C. 554 
or other proceeding required by statute to be determined on the record 
after an opportunity for an agency hearing, but excludes an adjudication 
for the purpose of establishing or fixing a rate or for the purpose of 
granting or renewing a license.
    (c) Adjudicative officer means the official who presides at the 
adversary adjudication, without regard to whether the official is 
designated as an administrative law judge, a hearing officer or 
examiner, or otherwise.
    (d) Department refers to the cognizant departmental component which 
is participating in the adversary adjudication, (e.g., Occupational 
Safety and Health Administration, Mine Safety and Health Administration, 
and Employment Standards Administration).
    (e) Proceeding means an adversary adjudication as defined in 
paragraph (b) of this section.



Sec.  16.103  When the Act applies.

    The Act applies to any adversary adjudication pending before the 
Department at any time between October 1,

[[Page 248]]

1981 and September 30, 1984. This includes proceedings begun before 
October 1, 1981 if final agency action has not been taken before that 
date, and proceedings pending on September 30, 1984, regardless of when 
they were initiated or when final agency action occurs, except that it 
shall not apply in any case pending on October 1, 1981 in which a 
decision has been issued, but final agency action has not been taken by 
reason of an abatement.



Sec.  16.104  Proceedings covered.

    (a) The Act applies in adversary adjudications in which the position 
of the Department or another agency of the United States is presented by 
an attorney or other representative who enters an appearance and 
participates in the proceeding in an adversarial capacity. Any 
proceeding which prescribes a lawful present or future rate or is 
primarily rule-making is not covered. Proceedings to grant or renew 
licenses are also excluded, but proceedings to modify, suspend or revoke 
licenses are covered if they are otherwise adversary adjudications. The 
following types of proceedings are deemed to be adversarial 
adjudications which will be covered by the Act, when all other 
conditions in the Act and in these rules are met:
    (1) Hearings conducted by the Occupational Safety and Health Review 
Commission under the authority of 29 U.S.C. 661 of the Occupational 
Safety and Health Act; and hearings conducted by the Federal Mine Safety 
and Health Review Commission under the authority of 30 U.S.C. 823 of the 
Mine Safety and Health Act. In these proceedings, the rules of the 
respective Commissions rather than the instant rules will be applicable.
    (2) Wage and Hour Division, Employment Standards Administration:
    (i) Civil money penalties under the child labor provisions of the 
Fair Labor Standards Act at 29 U.S.C. 216(e) and 29 CFR part 579.
    (ii) Violations and debarment in Federal contracts under the Walsh-
Healey Act at 41 U.S.C. 39 and 41 CFR 50-203.1.
    (iii) Revocation, modification and suspension of licenses under the 
Farm Labor Contractor Registration Act at 7 U.S.C. 2045(b) and 29 CFR 
40.101.
    (iv) Civil money penalties under the Farm Labor Contractor 
Registration Act at 7 U.S.C. 2048(b)(2) and 29 CFR 40.101.
    (v) Revocation and suspension of certificates under the Migrant and 
Seasonal Agricultural Worker Protection Act at 29 U.S.C. 1813(b) and 29 
CFR 500.200.
    (vi) Civil money penalties under the Migrant and Seasonal 
Agricultural Worker Protection Act at 29 U.S.C. 1853(b) and 29 CFR 
500.200.
    (3) Office of Federal Contract Compliance Programs, Employment 
Standards Administration hearings prior to the denial, withholding, 
termination or suspension of a government contract or any portion of a 
contract under title VII of the Civil Rights Act of 1964, as amended, at 
42 U.S.C. 2000e-17 and 41 CFR part 60-30.
    (4) Civil Rights Center:
    (i) Fund termination under title VI of the Civil Rights Act at 42 
U.S.C. 2000d2 and 29 CFR part 31.
    (ii) Fund termination under the Age Discrimination in Federally 
Assisted Programs Act of 1975 at 42 U.S.C. 6104(a).
    (iii) Fund termination or refusal to grant because of discrimination 
under 20 U.S.C. 1682.
    (5) Employment and Training Administration:
    (i) Proceedings under the Workforce Investment Act at 29 U.S.C. 
2936, where the Department determines that a recipient of WIA funds is 
failing to comply with the requirements of the Act and the implementing 
regulations.
    (ii) Conformity and compliance under the Federal Unemployment Tax 
Act at 26 U.S.C. 3303(b) and 3304(c).
    (iii) Proceedings under section 303(b) of the Social Security Act of 
1935, as amended, 42 U.S.C. 503(b).
    (6) Mine Safety and Health Administration:
    (i) Petitions for modification of a mandatory safety standard under 
the Mine Safety and Health Act at 30 U.S.C. 811(c) and 30 CFR 44.20.
    (7) Occupational Safety and Health Administration:
    (i) Exemptions, tolerances and variances under the Occupational 
Safety and Health Act at 29 U.S.C. 655 and 29 CFR 1905.3.

[[Page 249]]

    (b) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to the covered issues.

[46 FR 63021, Dec. 29, 1981, as amended at 48 FR 43322, Sept. 23, 1983; 
72 FR 37098, July 9, 2007]



Sec.  16.105  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party, as that term is defined in 
5 U.S.C. 551(3), to an adversary adjudication for which it seeks an 
award; the applicant must prevail; and must meet all the conditions of 
eligibility set out in this subpart and subpart B.
    (b) To be eligible for an award, the applicant must be:
    (1) An individual with a net worth of not more than $1 million;
    (2) The sole owner of an unincorporated business which has a net 
worth of not more than $5 million, including both personal and business 
interests, and not more than 500 employees;
    (3) A charitable or other tax exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees;
    (5) Any other partnership, corporation, association or public or 
private organization with a net worth of not more than $5 million and 
not more than 500 employees. A unit of state or local government is not 
a public organization within the meaning of this provision.
    (c) For purposes of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
proceeding was initiated.
    (d) An applicant who owns an unincorporated business will be 
considered as an individual rather than a sole owner of an 
unincorporated business if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The employees of an applicant include all persons who perform 
services for remuneration for the applicant, under the applicant's 
direction and control. Part-time employees shall be included.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares of another business, or 
controls, in any manner, the election of a majority of that business' 
board of directors, trustees or other persons exercising similar 
functions, shall be considered an affiliate for purposes of this part, 
unless the adjudicative officer determines that such treatment would be 
unjust and contrary to the purposes of the Act in light of the actual 
relationship between the affiliated entities. In addition, the 
adjudicative officer may determine that financial relationships of the 
applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.
    (g) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.

[46 FR 63021, Dec. 29, 1981, as amended at 72 FR 37098, July 9, 2007]



Sec.  16.106  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding, or in a significant 
and discrete substantive portion of the proceeding, unless the position 
of the Department as a party over which the applicant has prevailed was 
substantially justified or if special circumstances make the award 
sought unjust. No presumption arises that the Department's position was 
not substantially justified simply because the Department did not 
prevail.
    (b) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding.

[[Page 250]]



Sec.  16.107  Allowable fees and expenses.

    (a) The following fees and other expenses are allowable under the 
Act:
    (1) Reasonable expenses of expert witnesses;
    (2) Reasonable cost of any study, analysis, engineering report, 
test, or project necessary for the preparation of the party's case;
    (3) Reasonable attorney or agent fees;
    (b) Awards will be based on the prevailing market rates for the kind 
and quality of services furnished not to exceed the rates set forth in 
paragraph (c) of this section.
    (c) No award under these rules for the fee of an attorney or agent 
may exceed $125.00 per hour. No award to compensate an expert witness 
may exceed $24.09 per hour.
    (d) In determining the reasonableness of the fee sought, the 
adjudicative officer shall consider the following:
    (1) The prevailing rate for similar services in the community in 
which the attorney, agent or witness ordinarily performs services;
    (2) The time actually spent in the representation of the applicant;
    (3) The difficulty or complexity of the issues in the proceeding;
    (4) Such other factors as may bear on the value of the services 
performed.

[46 FR 63021, Dec. 29, 1981, as amended at 72 FR 37098, July 9, 2007]



Sec.  16.108  Awards against other agencies.

    If an applicant is entitled to an award because it prevails over 
another agency of the United States that participates in a proceeding 
before the Department of Labor and the other agency takes a position 
that is not substantially justified, the award or an appropriate portion 
of the award shall be made against that agency by the adjudicative 
officer for the Department of Labor.



             Subpart B_Information Required From Applicants



Sec.  16.201  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of an agency or agencies in the proceeding that 
the applicant alleges was not substantially justified. Unless the 
applicant is an individual, the application shall also state the number 
of employees of the applicant at the time the proceeding was instituted 
and describe briefly the type and purpose of its organization or 
business.
    (b) The application shall also include a statement that the 
applicant's net worth at the time the formal proceedings were instituted 
did not exceed $1 million (if an individual) or $5 million (for all 
other applicants, including their affiliates). However, an applicant may 
omit this statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) If the applicant is a partnership, corporation, association, or 
organization, or a sole owner of an unincorporated business, the 
application shall certify that it did not have more than 500 employees 
at the time the formal proceedings were initiated, giving the number of 
its employees and describing briefly the type and purpose of its 
organization or business.
    (d) The application shall state the amount of fees and expenses for 
which an award is sought.
    (e) The application may also include any other matters that the 
applicant wishes the adjudicative officer to consider in determining 
whether and in what amount an award should be made.
    (f) The application shall be signed by the applicant with respect to 
the eligibility of the applicant and by the attorney of the applicant 
with respect to fees and expenses sought. It shall also contain or be 
accompanied by a written

[[Page 251]]

verification under oath or under penalty of perjury that the information 
provided in the application is true and correct.

(Approved by the Office of Management and Budget under control number 
1225-0013)

[46 FR 63021, Dec. 29, 1981, as amended at 47 FR 14696, Apr. 6, 1982]



Sec.  16.202  Net worth exhibit.

    (a) Each applicant except a qualified tax-exempt organization or 
cooperative association must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec.  16.105(f) of this part) as of the date when the 
proceeding was initiated, i.e. the date the complaint was filed. The 
exhibit may be in any form convenient to the applicant that provides 
full disclosure of the applicant's and its affiliates' assets and 
liabilities and is sufficient to determine whether the applicant 
qualifies under the standards in this part. The adjudicative officer may 
require an applicant to file additional information to determine its 
eligibility for an award.
    (b) The net worth exhibit shall be included in the public record of 
the proceeding in which an award is sought.

(Approved by the Office of Management and Budget under control number 
1225-0013)

[46 FR 63021, Dec. 29, 1981, as amended at 47 FR 14696, Apr. 6, 1982]



Sec.  16.203  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
the fees and expenses, including the cost of any study, analysis, 
engineering report, test, project or similar matter, for which an award 
is sought.
    (b) The document shall include an affidavit from each professional 
firm or individual whose services are covered by the application, 
showing the hours spent in connection with the proceeding by each 
individual, a description of the specific services performed, the rate 
at which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total amount 
paid or payable by the applicant or by any other person or entity for 
the services provided.
    (1) The affidavit shall itemize in detail the services performed by 
the date, number of hours per date and the services performed during 
those hours. In order to establish the hourly rate, the affidavit shall 
state the hourly rate which is billed and paid by the majority of 
clients during the relevant time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide affidavits from 
two attorneys or agents with similar experience, who perform similar 
work, stating the hourly rate which they bill and are paid by the 
majority of their clients during a comparable time period.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The adjudicative officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any expenses claimed.

(Approved by the Office of Management and Budget under control number 
1225-0013)

[46 FR 63021, Dec. 29, 1981, as amended at 47 FR 14696, Apr. 6, 1982]



Sec.  16.204  When an application may be filed.

    (a) An application may be filed whenever the applicant has prevailed 
in the proceeding or in a significant and discrete substantive portion 
of the proceeding, but in no case later than 30 days after the agency's 
final disposition of the proceeding.
    (b) If review or reconsideration is sought or taken of a decision as 
to which an applicant believes it has prevailed, matters related to the 
consideration of an award of fees and expenses shall be stayed pending 
final disposition of the underlying controversy.
    (c) For purposes of this rule final disposition means the later of:
    (1) The date on which an initial decision or other recommended 
disposition of the merits of the proceeding by an

[[Page 252]]

adjudicative officer or intermediate review board becomes 
administratively final;
    (2) Issuance of an order disposing of any petitions for 
reconsideration of this agency's final order in the proceeding; (3) if 
no petition for reconsideration is filed, the last date on which such a 
petition could have been filed; or
    (4) Issuance of a final order or any other final resolution of a 
proceeding, such as a settlement or voluntary dismissal, which is not 
subject to a petition for reconsideration, or, in the case of an 
abatement, the end of the abatement period or the date on which an order 
is issued terminating the abatement period.

(Approved by the Office of Management and Budget under control number 
1225-0013)

[46 FR 63021, Dec. 29, 1981, as amended at 47 FR 14696, Apr. 6, 1982]



            Subpart C_Procedures for Considering Applications



Sec.  16.301  Filing and service of documents.

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



Sec.  16.302  Answer to application.

    (a) Within 30 days after service of an application, counsel 
representing the agency against which an award is sought may file an 
answer to the application. Unless agency counsel requests an extension 
of time for filing or files a statement of intent to negotiate under 
paragraph (b) of this section, failure to file an answer within the 30 
day period may be treated as a consent to the award requested.
    (b) If agency counsel and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement of 
their intent to negotiate a settlement. The filing of this statement 
shall extend the time for filing an answer for an additional 30 days, 
and further extensions may be granted by the adjudicative officer upon 
request by agency counsel and the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of agency 
counsel's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, agency counsel shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec.  16.304.



Sec.  16.303  Settlement.

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



Sec.  16.304  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the applicant 
or agency counsel, or on his or her own initiative, the adjudicative 
officer may order further proceedings, such as an informal conference, 
oral argument, additional written submissions or an evidentiary hearing. 
Such further proceedings shall be held only when necessary for full and 
fair resolution of the issues arising from the application, and shall be 
conducted as promptly as possible.
    (b) A request that the adjudicative officer order further 
proceedings under this section shall specifically identify the 
information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.



Sec.  16.305  Decision.

    The adjudicative officer shall issue a recommended decision on the 
application which shall include written findings and conclusions on the 
applicant's eligibility and status as a prevailing

[[Page 253]]

party, and an explanation of the reasons for any difference between the 
amount requested and the amount awarded. The decisions shall also 
include, if at issue, findings on whether the agency's position was 
substantially justified, whether the applicant unduly protracted the 
proceedings, or whether special circumstances make an award unjust. If 
the applicant has sought an award against more than one agency, the 
decision shall allocate responsibility for payment of any award made 
among the agencies, and shall explain the reasons for the allocation 
made.



Sec.  16.306  Review by the Secretary.

    The Secretary, for purposes of this subsection, means the Secretary 
of Labor or a person, board or other organizational unit authorized to 
perform the review function. Either the applicant or agency counsel may 
seek review of the recommended decision on the fee application, or the 
Secretary may decide to review the decision on his or her own 
initiative, in accordance with the Department of Labor's regular review 
procedures. If neither the applicant nor agency counsel seeks review and 
the Secretary does not take review on his or her own initiative, the 
adjudicative officer's decision on the application shall become a final 
decision of the Department 45 days after it is issued. If review is 
taken, the Secretary will issue a final decision on the application or 
remand the application to the adjudicative officer for further 
proceedings.



Sec.  16.307  Judicial review.

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



Sec.  16.308  Payment of award.

    An applicant seeking payment of an award shall submit to the 
Comptroller for the Department of Labor a copy of the final decision 
granting the award, accompanied by a statement that the applicant will 
not seek review of the decision in the United States courts. The request 
for payment shall be addressed to: Comptroller, U.S. Department of 
Labor, Frances S. Perkins Building, 200 Constitution Avenue, NW., 
Washington, DC 20210.



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



Sec.
17.1 What is the purpose of these regulations?
17.2 What definitions apply to these regulations?
17.3 What programs and activities of the Department are subject to these 
          regulations?
17.4 What are the Secretary's general responsibilities under the Order?
17.5 What is the Secretary's obligation with respect to Federal 
          interagency coordination?
17.6 What procedures apply to the selection of programs and activities 
          under these regulations?
17.7 How does the Secretary communicate with state and local officials 
          concerning the Department's programs and activities?
17.8 How does the Secretary provide states an opportunity to comment on 
          proposed Federal financial assistance?
17.9 How does the Secretary receive and respond to comments?
17.10 How does the Secretary make efforts to accommodate 
          intergovernmental concerns?
17.11 What are the Secretary's obligations in interstate situations?
17.12 How may a state simplify, consolidate, or substitute federally 
          required state plans?
17.13 May the Secretary waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 
8, 1983 (48 FR 15887): sec. 401 of the Intergovernmental Cooperation Act 
of 1968, as amended (31 U.S.C. 6506).

    Source: 48 FR 29258, June 24, 1983, unless otherwise noted.



Sec.  17.1  What is the purpose of these regulations?

    (a) The regulations in this part implement E.O. 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state,

[[Page 254]]

areawide, regional and local coordination for review of proposed Federal 
financial assistance and direct Federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec.  17.2  What definitions apply to these regulations?

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



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

    The Secretary publishes in the Federal Register a list of the 
Department's programs and activities that are subject to these 
regulations.



Sec.  17.4  What are the Secretary's general responsibilities under the Order?

    (a) The Secretary provides opportunities for consultation by elected 
officials of those state and local governments that would provide the 
non-Federal funds for, or that would be directly affected by, proposed 
Federal financial assistance from, or direct Federal development by, the 
Department.
    (b) If a state adopts a process under the Order to review and 
coordinate proposed Federal financial assistance and direct Federal 
development, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine official views of state and 
local elected officials;
    (2) Communicates with state and local elected officials as early in 
a program planning cycle as is reasonably feasible to explain specific 
plans and actions;
    (3) Makes efforts to accommodate state and local elected officials' 
concerns with proposed Federal financial assistance and direct Federal 
development that are communicated through the state process;
    (4) Allows the states to simplify and consolidate existing federally 
required state plan submissions;
    (5) Where state planning and budgeting systems are sufficient and 
where permitted by law, encourages the substitution of state plans for 
federally required state plans;
    (6) Seeks the coordination of views of affected state and local 
elected officials in one state with those of another state when proposed 
Federal financial assistance or direct Federal development has an impact 
on interstate metropolitan urban centers or other interstate areas; and
    (7) Supports state and local governments by discouraging the 
reauthorization or creation of any planning organization which is 
federally-funded, which has a limited purpose, and which is not 
adequately representative of, or accountable to, state or local elected 
officials.



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

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



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

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec.  17.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities shall consult with local elected 
officials.

[[Page 255]]

    (b) Each state that adopts a process shall notify the Secretary of 
the Department's programs and activities selected for that process.
    (c) A state may notify the Secretary of changes in its selections at 
any time. For each change, the state shall submit to the Secretary an 
assurance that the state has consulted with elected local officials 
regarding the change. The Department may establish deadlines by which 
states are required to inform the Secretary of changes in their program 
selections.
    (d) The Secretary uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Secretary is 
notified of its selections.



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

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

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



Sec.  17.8  How does the Secretary provide states an opportunity to comment 
on proposal Federal financial assistance?

    (a) Except in unusual circumstances, the Secretary gives state 
processes or directly affected state, areawide, regional and local 
officials and entities:
    (1) At least 30 days from the date established by the Secretary to 
comment on proposed Federal financial assistance in the form of 
noncompeting continuation awards; and
    (2) At least 60 days from the date established by the Secretary to 
comment on proposed Federal financial assistance other than noncompeting 
continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.



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

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

[[Page 256]]

the Secretary is not required to apply the procedures of Sec.  17.10 of 
this part, when such comments are provided by a single point of contact, 
or directly to the Department by a commenting party.



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

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



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

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



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

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



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

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

[[Page 257]]



PART 18_RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS 
BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES--Table of Contents



                            Subpart A_General

                           General Provisions

Sec.
18.10 Scope and purpose.
18.11 Definitions.
18.12 Proceedings before administrative law judge.
18.13 Settlement judge procedure.
18.14 Ex parte communication.
18.15 Substitution of administrative law judge.
18.16 Disqualification.
18.17 Legal assistance.

                       Parties and Representatives

18.20 Parties to a proceeding.
18.21 Party appearance and participation.
18.22 Representatives.
18.23 Disqualification of representatives.
18.24 Briefs from amicus curiae.

         Service, Format, and Timing of Filings and Other Papers

18.30 Service and filing.
18.31 Privacy protection for filings and exhibits.
18.32 Computing and extending time.
18.33 Motions and other papers.
18.34 Format of papers filed.
18.35 Signing motions and other papers; representations to the judge; 
          sanctions.
18.36 Amendments after referral to the Office of Administrative Law 
          Judges.

                          Prehearing Procedure

18.40 Notice of hearing.
18.41 Continuances and changes in place of hearing.
18.42 Expedited proceedings.
18.43 Consolidation; separate hearings.
18.44 Prehearing conference.

                        Disclosure and Discovery

18.50 General provisions governing disclosure and discovery.
18.51 Discovery scope and limits.
18.52 Protective orders.
18.53 Supplementing disclosures and responses.
18.54 Stipulations about discovery procedure.
18.55 Using depositions at hearings.
18.56 Subpoena.
18.57 Failure to make disclosures or to cooperate in discovery; 
          sanctions.

                           Types of Discovery

18.60 Interrogatories to parties.
18.61 Producing documents, electronically stored information, and 
          tangible things, or entering onto land, for inspection and 
          other purposes.
18.62 Physical and mental examinations.
18.63 Requests for admission.
18.64 Depositions by oral examination.
18.65 Depositions by written questions.

                       Disposition Without Hearing

18.70 Motions for dispositive action.
18.71 Approval of settlement or consent findings.
18.72 Summary decision.

                                 Hearing

18.80 Prehearing statement.
18.81 Formal hearing.
18.82 Exhibits.
18.83 Stipulations.
18.84 Official notice.
18.85 Privileged, sensitive, or classified material.
18.86 Hearing room conduct.
18.87 Standards of conduct.
18.88 Transcript of proceedings.

                              Post Hearing

18.90 Closing the record; subsequent motions.
18.91 Post-hearing brief.
18.92 Decision and order.
18.93 Motion for reconsideration.
18.94 Indicative ruling on a motion for relief that is barred by a 
          pending petition for review.
18.95 Review of decision

                       Subpart B_Rules of Evidence

                           General Provisions

18.101 Scope.
18.102 Purpose and construction.
18.103 Rulings on evidence.
18.104 Preliminary questions.
18.105 Limited admissibility.
18.106 Remainder of or related writings or recorded statements.

                             Official Notice

18.201 Official notice of adjudicative facts.

                              Presumptions

18.301 Presumptions in general.
18.302 Applicability of state law.

                        Relevancy and Its Limits

18.401 Definition of relevant evidence.
18.402 Relevant evidence generally admissible; irrelevant evidence 
          inadmissible.
18.403 Exclusion of relevant evidence on grounds of confusion or waste 
          of time.

[[Page 258]]

18.404 Character evidence not admissible to prove conduct; exceptions; 
          other crimes.
18.405 Methods of proving character.
18.406 Habit; routine practice.
18.407 Subsequent remedial measures.
18.408 Compromise and offers to compromise.
18.409 Payment of medical and similar expenses.
18.410 Inadmissibility of pleas, plea discussion, and related 
          statements.
18.411 Liability insurance.

                               Privileges

18.501 General rule.

                                Witnesses

18.601 General rule of competency.
18.602 Lack of personal knowledge.
18.603 Oath or affirmation.
18.604 Interpreters.
18.605 Competency of judge as witness.
18.606 [Reserved]
18.607 Who may impeach.
18.608 Evidence of character and conduct of witness.
18.609 Impeachment by evidence of conviction of crime.
18.610 Religious beliefs or opinions.
18.611 Mode and order of interrogation and presentation.
18.612 Writing used to refresh memory.
18.613 Prior statements of witnesses.
18.614 Calling and interrogation of witnesses by judge.
18.615 Exclusion of witnesses.

                      Opinions and Expert Testimony

18.701 Opinion testimony by lay witnesses.
18.702 Testimony by experts.
18.703 Bases of opinion testimony by experts.
18.704 Opinion on ultimate issue.
18.705 Disclosure of facts or data underlying expert opinion.
18.706 Judge appointed experts.

                                 Hearsay

18.801 Definitions.
18.802 Hearsay rule.
18.803 Hearsay exceptions; availability of declarant immaterial.
18.804 Hearsay exceptions; declarant unavailable.
18.805 Hearsay within hearsay.
18.806 Attacking and supporting credibility of declarant.

                    Authentication and Identification

18.901 Requirement of authentication or identification.
18.902 Self-authentication.
18.903 Subscribing witness' testimony unnecessary.

            Contents of Writings, Recordings, and Photographs

18.1001 Definitions.
18.1002 Requirement of original.
18.1003 Admissibility of duplicates.
18.1004 Admissibility of other evidence of contents.
18.1005 Public records.
18.1006 Summaries.
18.1007 Testimony or written admission of party.
18.1008 Functions of the judge.

                              Applicability

18.1101 Applicability of the rules.
18.1102 [Reserved]
18.1103 Title.
18.1104 Effective date.

Appendix to Subpart B of Part 18--Reporter's Notes

    Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 
12778; 57 FR 7292.

    Source: 48 FR 32538, July 15, 1983, unless otherwise noted.



                            Subpart A_General

    Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

                           General Provisions



Sec.  18.10  Scope and purpose.

    (a) In general. These rules govern the procedure in proceedings 
before the United States Department of Labor, Office of Administrative 
Law Judges. They should be construed and administered to secure the 
just, speedy, and inexpensive determination of every proceeding. To the 
extent that these rules may be inconsistent with a governing statute, 
regulation, or executive order, the latter controls. If a specific 
Department of Labor regulation governs a proceeding, the provisions of 
that regulation apply, and these rules apply to situations not addressed 
in the governing regulation. The Federal Rules of Civil Procedure (FRCP) 
apply in any situation not provided for or controlled by these rules, or 
a governing statute, regulation, or executive order.
    (b) Type of proceeding. Unless the governing statute, regulation, or 
executive order prescribes a different procedure, proceedings follow the 
Administrative Procedure Act, 5 U.S.C. 551 through 559.
    (c) Waiver, modification, and suspension. Upon notice to all 
parties, the

[[Page 259]]

presiding judge may waive, modify, or suspend any rule under this 
subpart when doing so will not prejudice a party and will serve the ends 
of justice.



Sec.  18.11  Definitions.

    For purposes of these rules, these definitions supplement the 
definitions in the Administrative Procedure Act, 5 U.S.C. 551.
    Calendar call means a meeting in which the judge calls cases 
awaiting hearings, determines case status, and assigns a hearing date 
and time.
    Chief Judge means the Chief Administrative Law Judge of the United 
States Department of Labor Office of Administrative Law Judges and 
judges to whom the Chief Judge delegates authority.
    Docket clerk means the Chief Docket Clerk at the Office of 
Administrative Law Judges in Washington, DC. But once a case is assigned 
to a judge in a district office, docket clerk means the docket staff in 
that office.
    Hearing means that part of a proceeding consisting of a session to 
decide issues of fact or law that is recorded and transcribed and 
provides the opportunity to present evidence or argument.
    Judge means an administrative law judge appointed under the 
provisions of 5 U.S.C. 3105.
    Order means the judge's disposition of one or more procedural or 
substantive issues, or of the entire matter.
    Proceeding means an action before the Office of Administrative Law 
Judges that creates a record leading to an adjudication or order.
    Representative means any person permitted to represent another in a 
proceeding before the Office of Administrative Law Judges.



Sec.  18.12  Proceedings before administrative law judge.

    (a) Designation. The Chief Judge designates the presiding judge for 
all proceedings.
    (b) Authority. In all proceedings under this part, the judge has all 
powers necessary to conduct fair and impartial proceedings, including 
those described in the Administrative Procedure Act, 5 U.S.C. 556. Among 
them is the power to:
    (1) Regulate the course of proceedings in accordance with applicable 
statute, regulation or executive order;
    (2) Administer oaths and affirmations and examine witnesses;
    (3) Compel the production of documents and appearance of witnesses 
within a party's control;
    (4) Issue subpoenas authorized by law;
    (5) Rule on offers of proof and receive relevant evidence;
    (6) Dispose of procedural requests and similar matters;
    (7) Terminate proceedings through dismissal or remand when not 
inconsistent with statute, regulation, or executive order;
    (8) Issue decisions and orders;
    (9) Exercise powers vested in the Secretary of Labor that relate to 
proceedings before the Office of Administrative Law Judges; and
    (10) Where applicable take any appropriate action authorized by the 
FRCP.



Sec.  18.13  Settlement judge procedure.

    (a) How initiated. The Office of Administrative Law Judges provides 
settlement judges to aid the parties in resolving the matter that is the 
subject of the controversy. Upon a joint request by the parties or upon 
referral by the judge when no party objects, the Chief Judge may appoint 
a settlement judge. A settlement judge will not be appointed when 
settlement proceedings would be inconsistent with a statute, regulation, 
or executive order.
    (b) Appointment. The Chief Judge has discretion to appoint a 
settlement judge, who must be an active or retired judge. The settlement 
judge will not be appointed to hear and decide the case or approve the 
settlement without the parties' consent and the approval of the Chief 
Judge.
    (c) Duration of settlement proceeding. Unless the Chief Judge 
directs otherwise, settlement negotiations under this section must be 
completed within 60 days from the date of the settlement judge's 
appointment. The settlement judge may request that the Chief Judge 
extend the appointment. The negotiations will be terminated if a party 
withdraws from participation, or if the

[[Page 260]]

settlement judge determines that further negotiations would be 
unproductive or inappropriate.
    (d) Powers of the settlement judge. The settlement judge may convene 
settlement conferences; require the parties or their representatives to 
attend with full authority to settle any disputes; and impose other 
reasonable requirements to expedite an amicable resolution of the case.
    (e) Stay of proceedings before presiding judge. The appointment of a 
settlement judge does not stay any aspect of the proceeding before the 
presiding judge. Any motion to stay must be directed to the presiding 
judge.
    (f) Settlement conferences. Settlement conferences may be conducted 
by telephone, videoconference or in person at the discretion of the 
settlement judge after considering the nature of the case, location of 
the participants, availability of technology, and efficiency of 
administration.
    (g) Confidentiality. All discussions with the settlement judge are 
confidential; none may be recorded or transcribed. The settlement judge 
must not disclose any confidential communications made during settlement 
proceedings, except as required by statute, executive order, or court 
order. The settlement judge may not be subpoenaed or called as a witness 
in any hearing of the case or any subsequent administrative proceedings 
before the Department to testify to statements made or conduct during 
the settlement discussions.
    (h) Report. The parties must promptly inform the presiding judge of 
the outcome of the settlement negotiations. If a settlement is reached, 
the parties must submit the required documents to the presiding judge 
within 14 days of the conclusion of settlement discussions unless the 
presiding judge orders otherwise.
    (i) Non-reviewable decisions. Whether a settlement judge should be 
appointed, the selection of a particular settlement judge, and the 
termination of proceedings under this section are matters not subject to 
review by Department officials.



Sec.  18.14  Ex parte communication.

    The parties, their representatives, or other interested persons must 
not engage in ex parte communications on the merits of a case with the 
judge.



Sec.  18.15  Substitution of administrative law judge.

    (a) Substitution during hearing. If the judge is unable to complete 
a hearing, a successor judge designated pursuant to Sec.  18.12 may 
proceed upon certifying familiarity with the record and determining that 
the case may be completed without prejudice to the parties. The 
successor judge must, at a party's request, recall any witness whose 
testimony is material and disputed and who is available to testify again 
without undue burden. The successor judge may also recall any other 
witness.
    (b) Substitution following hearing. If the judge is unable to 
proceed after the hearing is concluded, the successor judge appointed 
pursuant to Sec.  18.12 may issue a decision and order based upon the 
existing record after notifying the parties and giving them an 
opportunity to respond. Within 14 days of receipt of the judge's notice, 
a party may file an objection to the judge issuing a decision based on 
the existing record. If no objection is filed, the objection is 
considered waived. Upon good cause shown, the judge may order 
supplemental proceedings.



Sec.  18.16  Disqualification.

    (a) Disqualification on judge's initiative. A judge must withdraw 
from a proceeding whenever he or she considers himself or herself 
disqualified.
    (b) Request for disqualification. A party may file a motion to 
disqualify the judge. The motion must allege grounds for 
disqualification, and include any appropriate supporting affidavits, 
declarations or other documents. The presiding judge must rule on the 
motion in a written order that states the grounds for the ruling.



Sec.  18.17  Legal assistance.

    The Office of Administrative Law Judges does not appoint 
representatives, refer parties to representatives, or provide legal 
assistance.

[[Page 261]]

                       Parties and Representatives



Sec.  18.20  Parties to a proceeding.

    A party seeking original relief or action is designated a 
complainant, claimant or plaintiff, as appropriate. A party against whom 
relief or other action is sought is designated a respondent or 
defendant, as appropriate. When participating in a proceeding, the 
applicable Department of Labor's agency is a party or party-in-interest.



Sec.  18.21  Party appearance and participation.

    (a) In general. A party may appear and participate in the proceeding 
in person or through a representative.
    (b) Waiver of participation. By filing notice with the judge, a 
party may waive the right to participate in the hearing or the entire 
proceeding. When all parties waive the right to participate in the 
hearing, the judge may issue a decision and order based on the 
pleadings, evidence, and briefs.
    (c) Failure to appear. When a party has not waived the right to 
participate in a hearing, conference or proceeding but fails to appear 
at a scheduled hearing or conference, the judge may, after notice and an 
opportunity to be heard, dismiss the proceeding or enter a decision and 
order without further proceedings if the party fails to establish good 
cause for its failure to appear.



Sec.  18.22  Representatives.

    (a) Notice of appearance. When first making an appearance, each 
representative must file a notice of appearance that indicates on whose 
behalf the appearance is made and the proceeding name and docket number. 
Any attorney representative must include in the notice of appearance the 
license registration number(s) assigned to the attorney.
    (b)  Categories of representation; admission standards--(1) Attorney 
representative. Under these rules, ``attorney'' or ``attorney 
representative'' means an individual who has been admitted to the bar of 
the highest court of a State, Commonwealth, or Territory of the United 
States, or the District of Columbia.
    (i) Attorney in good standing. An attorney who is in good standing 
in his or her licensing jurisdiction may represent a party or subpoenaed 
witness before the Office of Administrative Law Judges. The filing of 
the Notice of Appearance required in paragraph (a) of this section 
constitutes an attestation that:
    (A) The attorney is a member of a bar in good standing of the 
highest court of a State, Commonwealth, or Territory of the United 
States, or the District of Columbia where the attorney has been licensed 
to practice law; and
    (B) No disciplinary proceeding is pending against the attorney in 
any jurisdiction where the attorney is licensed to practice law.
    (ii) Attorney not in good standing. An attorney who is not in good 
standing in his or her licensing jurisdiction may not represent a party 
or subpoenaed witness before the Office of Administrative Law Judges, 
unless he or she obtains the judge's approval. Such an attorney must 
file a written statement that establishes why the failure to maintain 
good standing is not disqualifying. The judge may deny approval for the 
appearance of such an attorney after providing notice and an opportunity 
to be heard.
    (iii) Disclosure of discipline. An attorney representative must 
promptly disclose to the judge any action suspending, enjoining, 
restraining, disbarring, or otherwise currently restricting the attorney 
in the practice of law in any jurisdiction where the attorney is 
licensed to practice law.
    (2) Non-attorney representative. An individual who is not an 
attorney as defined by paragraph (b)(1) of this section may represent a 
party or subpoenaed witness upon the judge's approval. The individual 
must file a written request to serve as a non-attorney representative 
that sets forth the name of the party or subpoenaed witness represented 
and certifies that the party or subpoenaed witness desires the 
representation. The judge may require that the representative establish 
that he or she is subject to the laws of the United States and possesses 
communication skills, knowledge, character, thoroughness and preparation 
reasonably necessary to render appropriate assistance. The judge may 
inquire as to

[[Page 262]]

the qualification or ability of a non-attorney representative to render 
assistance at any time. The judge may deny the request to serve as non-
attorney representative after providing the party or subpoenaed witness 
with notice and an opportunity to be heard.
    (c) Duties. A representative must be diligent, prompt, and 
forthright when dealing with parties, representatives and the judge, and 
act in a manner that furthers the efficient, fair and orderly conduct of 
the proceeding. An attorney representative must adhere to the applicable 
rules of conduct for the jurisdiction(s) in which the attorney is 
admitted to practice.
    (d) Prohibited actions. A representative must not:
    (1) Threaten, coerce, intimidate, deceive or knowingly mislead a 
party, representative, witness, potential witness, judge, or anyone 
participating in the proceeding regarding any matter related to the 
proceeding;
    (2) Knowingly make or present false or misleading statements, 
assertions or representations about a material fact or law related to 
the proceeding;
    (3) Unreasonably delay, or cause to be delayed without good cause, 
any proceeding; or
    (4) Engage in any other action or behavior prejudicial to the fair 
and orderly conduct of the proceeding.
    (e) Withdrawal of appearance. A representative who desires to 
withdraw after filing a notice of appearance or a party desiring to 
withdraw the appearance of a representative must file a motion with the 
judge. The motion must state that notice of the withdrawal has been 
given to the party, client or representative. The judge may deny a 
representative's motion to withdraw when necessary to avoid undue delay 
or prejudice to the rights of a party.



Sec.  18.23  Disqualification of representatives.

    (a) Disqualification--(1) Grounds for disqualification. 
Representatives qualified under Sec.  18.22 may be disqualified for:
    (i) Suspension of a license to practice law or disbarment from the 
practice of law by any court or agency of the United States, highest 
court of a State, Commonwealth, or Territory of the United States, or 
the District of Columbia;
    (ii) Disbarment from the practice of law on consent or resignation 
from the bar of a court or agency while an investigation into an 
allegation of misconduct is pending; or
    (iii) Committing an act, omission, or contumacious conduct that 
violates these rules, an applicable statute, an applicable regulation, 
or the judge's order(s).
    (2) Disqualification procedure. The Chief Judge must provide notice 
and an opportunity to be heard as to why the representative should not 
be disqualified from practice before the Office of Administrative Law 
Judges. The notice will include a copy of the document that provides the 
grounds for the disqualification. Unless otherwise directed, any 
response must be filed within 21 days of service of the notice. The 
Chief Judge's determination must be based on the reliable, probative and 
substantial evidence of record, including the notice and response.
    (b) Notification of disqualification action. When an attorney 
representative is disqualified, the Chief Judge will notify the 
jurisdiction(s) in which the attorney is licensed to practice and the 
National Lawyer Regulatory Data Bank maintained by the American Bar 
Association Standing Committee on Professional Discipline, by providing 
a copy of the decision and order.
    (c) Application for reinstatement. A representative disqualified 
under this section may be reinstated by the Chief Judge upon 
application. At the discretion of the Chief Judge, consideration of an 
application for reinstatement may be limited to written submissions or 
may be referred for further proceedings before the Chief Judge.



Sec.  18.24  Briefs from amicus curiae.

    The United States or an officer or agency thereof, or a State, 
Territory, Commonwealth, or the District of Columbia may file an amicus 
brief without the consent of the parties or leave of the judge. Any 
other amicus curiae may file a brief only by leave of the judge, upon 
the judge's request, or if the brief states that all parties have 
consented to its filing. A request for

[[Page 263]]

leave to file an amicus brief must be made by written motion that states 
the interest of the movant in the proceeding. The deadline for 
submission of an amicus brief will be set by the presiding judge.

         Service, Format, and Timing of Filings and Other Papers



Sec.  18.30  Service and filing.

    (a) Service on parties--(1) In general. Unless these rules provide 
otherwise, all papers filed with OALJ or with the judge must be served 
on every party.
    (2) Service: how made--(i) Serving a party's representative. If a 
party is represented, service under this section must be made on the 
representative. The judge also may order service on the party.
    (ii) Service in general. A paper is served under this section by:
    (A) Handing it to the person;
    (B) Leaving it;
    (1) At the person's office with a clerk or other person in charge 
or, if no one is in charge, in a conspicuous place in the office; or
    (2) If the person has no office or the office is closed, at the 
person's dwelling or usual place of abode with someone of suitable age 
and discretion who resides there.
    (C) Mailing it to the person's last known address--in which event 
service is complete upon mailing;
    (D) Leaving it with the docket clerk if the person has no known 
address;
    (E) Sending it by electronic means if the person consented in 
writing--in which event service is complete upon transmission, but is 
not effective if the serving party learns that it did not reach the 
person to be served; or
    (F) Delivering it by any other means that the person consented to in 
writing--in which event service is complete when the person making 
service delivers it to the agency designated to make delivery.
    (3) Certificate of service. A certificate of service is a signed 
written statement that the paper was served on all parties. The 
statement must include:
    (i) The title of the document;
    (ii) The name and address of each person or representative being 
served;
    (iii) The name of the party filing the paper and the party's 
representative, if any;
    (iv) The date of service; and
    (v) How the paper was served.
    (b) Filing with Office of Administrative Law Judges--(1) Required 
filings. Any paper that is required to be served must be filed within a 
reasonable time after service with a certificate of service. But 
disclosures under Sec.  18.50(c) and the following discovery requests 
and responses must not be filed until they are used in the proceeding or 
the judge orders filing:
    (i) Notices of deposition,
    (ii) Depositions,
    (iii) Interrogatories,
    (iv) Requests for documents or tangible things or to permit entry 
onto land;
    (v) Requests for admission, and
    (vi) The notice (and the related copy of the subpoena) that must be 
served on the parties under rule 18.56(b)(1) before a ``documents only'' 
subpoena may be served on the person commended to produce the material.
    (2) Filing: when made--in general. A paper is filed when received by 
the docket clerk or the judge during a hearing.
    (3) Filing how made. A paper may be filed by mail, courier service, 
hand delivery, facsimile or electronic delivery.
    (i) Filing by facsimile--(A) When permitted. A party may file by 
facsimile only as directed or permitted by the judge. If a party cannot 
obtain prior permission because the judge is unavailable, a party may 
file by facsimile up to 12 pages, including a statement of the 
circumstances precluding filing by delivery or mail. Based on the 
statement, the judge may later accept the document as properly filed at 
the time transmitted.
    (B) Cover sheet. Filings by facsimile must include a cover sheet 
that identifies the sender, the total number of pages transmitted, and 
the matter's docket number and the document's title.
    (C) Retention of the original document. The original signed document 
will not be substituted into the record unless required by law or the 
judge.
    (ii) Any party filing a facsimile of a document must maintain the 
original

[[Page 264]]

document and transmission record until the case is final. A transmission 
record is a paper printed by the transmitting facsimile machine that 
states the telephone number of the receiving machine, the number of 
pages sent, the transmission time and an indication that no error in 
transmission occurred.
    (iii) Upon a party's request or judge's order, the filing party must 
provide for review the original transmitted document from which the 
facsimile was produced.
    (4) Electronic filing, signing, or verification. A judge may allow 
papers to be filed, signed, or verified by electronic means.



Sec.  18.31  Privacy protection for filings and exhibits.

    (a) Redacted filings and exhibits. Unless the judge orders 
otherwise, in an electronic or paper filing or exhibit that contains an 
individual's social-security number, taxpayer-identification number, or 
birth date, the name of an individual known to be a minor, or a 
financial-account number, the party or nonparty making the filing must 
redact all such information, except:
    (1) The last four digits of the social-security number and taxpayer-
identification number;
    (2) The year of the individual's birth;
    (3) The minor's initials; and
    (4) The last four digits of the financial-account number.
    (b) Exemptions from the redaction requirement. The redaction 
requirement does not apply to the following:
    (1) The record of an administrative or agency proceeding;
    (2) The official record of a state-court proceeding;
    (3) The record of a court or tribunal, if that record was not 
subject to the redaction requirement when originally filed; and
    (4) A filing or exhibit covered by paragraph (c) of this section.
    (c) Option for filing a reference list. A filing that contains 
redacted information may be filed together with a reference list that 
identifies each item of redacted information and specifies an 
appropriate identifier that uniquely corresponds to each item listed. 
The reference list must be filed under seal and may be amended as of 
right. Any reference in the case to a listed identifier will be 
construed to refer to the corresponding item of information.
    (d) Waiver of protection of identifiers. A person waives the 
protection of paragraph (a) of this section as to the person's own 
information by filing or offering it without redaction and not under 
seal.
    (e) Protection of material. For good cause, the judge may order 
protection of material pursuant to Sec. Sec.  18.85 and 18.52.



Sec.  18.32  Computing and extending time.

    (a) Computing time. The following rules apply in computing any time 
period specified in these rules, a judge's order, or in any statute, 
regulation, or executive order that does not specify a method of 
computing time.
    (1) When the period is stated in days or a longer unit of time:
    (i) Exclude the day of the event that triggers the period;
    (ii) Count every day, including intermediate Saturdays, Sundays, and 
legal holidays; and
    (iii) Include the last day of the period, but if the last day is a 
Saturday, Sunday, or legal holiday, the period continues to run until 
the end of the next day that is not a Saturday, Sunday, or legal 
holiday.
    (2) ``Last day'' defined. Unless a different time is set by a 
statute, regulation, executive order, or judge's order, the ``last day'' 
ends at 4:30 p.m. local time where the event is to occur.
    (3) ``Next day'' defined. The ``next day'' is determined by 
continuing to count forward when the period is measured after an event 
and backward when measured before an event.
    (4) ``Legal holiday'' defined. ``Legal holiday'' means the day set 
aside by statute for observing New Year's Day, Martin Luther King Jr.'s 
Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor 
Day, Columbus Day, Veterans' Day, Thanksgiving Day, or Christmas Day; 
and any day on which the district office in which the document is to be 
filed is closed or otherwise inaccessible.
    (b) Extending time. When an act may or must be done within a 
specified time, the judge may, for good cause, extend the time:

[[Page 265]]

    (1) With or without motion or notice if the judge acts, or if a 
request is made, before the original time or its extension expires; or
    (2) On motion made after the time has expired if the party failed to 
act because of excusable neglect.
    (c) Additional time after certain kinds of service. When a party may 
or must act within a specified time after service and service is made 
under Sec.  18.30(a)(2)(ii)(C) or (D), 3 days are added after the period 
would otherwise expire under paragraph (a) of this section.

[80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015]



Sec.  18.33  Motions and other papers.

    (a) In general. A request for an order must be made by motion. The 
motion must:
    (1) Be in writing, unless made during a hearing;
    (2) State with particularity the grounds for seeking the order;
    (3) State the relief sought;
    (4) Unless the relief sought has been agreed to by all parties, be 
accompanied by affidavits, declarations, or other evidence; and
    (5) If required by paragraph (c)(4) of this section, include a 
memorandum of points and authority supporting the movant's position.
    (b) Form. The rules governing captions and other matters of form 
apply to motions and other requests.
    (c) Written motion before hearing. (1) A written motion before a 
hearing must be served with supporting papers, at least 21 days before 
the time specified for the hearing, with the following exceptions:
    (i) When the motion may be heard ex parte;
    (ii) When these rules or an appropriate statute, regulation, or 
executive order set a different time; or
    (iii) When an order sets a different time.
    (2) A written motion served within 21 days before the hearing must 
state why the motion was not made earlier.
    (3) A written motion before hearing must state that counsel 
conferred, or attempted to confer, with opposing counsel in a good faith 
effort to resolve the motion's subject matter, and whether the motion is 
opposed or unopposed. A statement of consultation is not required with 
pro se litigants or with the following motions:
    (i) To dismiss;
    (ii) For summary decision; and
    (iii) Any motion filed as ``joint,'' ``agreed,'' or ``unopposed.''
    (4) Unless the motion is unopposed, the supporting papers must 
include affidavits, declarations or other proof to establish the factual 
basis for the relief. For a dispositive motion and a motion relating to 
discovery, a memorandum of points and authority must also be submitted. 
A judge may direct the parties file additional documents in support of 
any motion.
    (d) Opposition or other response to a motion filed prior to hearing. 
A party to the proceeding may file an opposition or other response to 
the motion within 14 days after the motion is served. The opposition or 
response may be accompanied by affidavits, declarations, or other 
evidence, and a memorandum of the points and authorities supporting the 
party's position. Failure to file an opposition or response within 14 
days after the motion is served may result in the requested relief being 
granted. Unless the judge directs otherwise, no further reply is 
permitted and no oral argument will be heard prior to hearing.
    (e) Motions made at hearing. A motion made at a hearing may be 
stated orally unless the judge determines that a written motion or 
response would best serve the ends of justice.
    (f) Renewed or repeated motions. A motion seeking the same or 
substantially similar relief previously denied, in whole or in part, 
must include the following information:
    (1) The earlier motion(s),
    (2) When the respective motion was made,
    (3) The judge to whom the motion was made,
    (4) The earlier ruling(s), and
    (5) The basis for the current motion.
    (g) Motion hearing. The judge may order a hearing to take evidence 
or oral argument on a motion.

[80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015]

[[Page 266]]



Sec.  18.34  Format of papers filed.

    Every paper filed must be printed in black ink on 8.5 x 11-inch 
opaque white paper and begin with a caption that includes:
    (a) The parties' names,
    (b) A title that describes the paper's purpose, and
    (c) The docket number assigned by the Office of Administrative Law 
Judges. If the Office has not assigned a docket number, the paper must 
bear the case number assigned by the Department of Labor agency where 
the matter originated. If the case number is an individual's Social 
Security number then only the last four digits may be used. See Sec.  
18.31(a)(1).



Sec.  18.35  Signing motions and other papers; representations to the judge; 
sanctions.

    (a) Date and signature. Every written motion and other paper filed 
with OALJ must be dated and signed by at least one representative of 
record in the representative's name--or by a party personally if the 
party is unrepresented. The paper must state the signer's address, 
telephone number, facsimile number and email address, if any. The judge 
must strike an unsigned paper unless the omission is promptly corrected 
after being called to the representative's or party's attention.
    (b) Representations to the judge. By presenting to the judge a 
written motion or other paper--whether by signing, filing, submitting, 
or later advocating it--the representative or unrepresented party 
certifies that to the best of the person's knowledge, information, and 
belief, formed after an inquiry reasonable under the circumstances:
    (1) It is not being presented for any improper purpose, such as to 
harass, cause unnecessary delay, or needlessly increase the cost of the 
proceedings;
    (2) The claims, defenses, and other legal contentions are warranted 
by existing law or by a nonfrivolous argument for extending, modifying, 
or reversing existing law or for establishing new law;
    (3) The factual contentions have evidentiary support or, if 
specifically so identified, will likely have evidentiary support after a 
reasonable opportunity for further investigation or discovery; and
    (4) The denials of factual contentions are warranted on the evidence 
or, if specifically so identified, are reasonably based on belief or a 
lack of information.
    (c) Sanctions--(1) In general. If, after notice and a reasonable 
opportunity to respond, the judge determines that paragraph (b) of this 
section has been violated, the judge may impose an appropriate sanction 
on any representative, law firm, or party that violated the rule or is 
responsible for the violation. Absent exceptional circumstances, a law 
firm must be held jointly responsible for a violation committed by its 
partner, associate, or employee.
    (2) Motion for sanctions. A motion for sanctions must be made 
separately from any other motion and must describe the specific conduct 
that allegedly violates paragraph (b) of this section. The motion must 
be served under Sec.  18.30(a), but it must not be filed or be presented 
to the judge if the challenged paper, claim, defense, contention, or 
denial is withdrawn or appropriately corrected within 21 days after 
service or within another time the judge sets.
    (3) On the judge's initiative. On his or her own, the judge may 
order a representative, law firm, or party to show cause why conduct 
specifically described in the order has not violated paragraph (b) of 
this section.
    (4) Nature of a sanction. A sanction imposed under this section may 
include, but is not limited to, striking part or all of the offending 
document, forbidding the filing of any further documents, excluding 
related evidence, admonishment, referral of counsel misconduct to the 
appropriate licensing authority, and including the sanctioned activity 
in assessing the quality of representation when determining an 
appropriate hourly rate and billable hours when adjudicating attorney 
fees.
    (5) Requirements for an order. An order imposing a sanction must 
describe the sanctioned conduct and explain the basis for the sanction.
    (d) Inapplicability to discovery. This section does not apply to 
disclosures

[[Page 267]]

and discovery requests, responses, objections, and motions under 
Sec. Sec.  18.50 through 18.65.



Sec.  18.36  Amendments after referral to the Office of Administrative 
Law Judges.

    The judge may allow parties to amend and supplement their filings.

                          Prehearing Procedure



Sec.  18.40  Notice of hearing.

    (a) In general. Except when the hearing is scheduled by calendar 
call, the judge must notify the parties of the hearing's date, time, and 
place at least 14 days before the hearing. The notice is sent by 
regular, first-class mail, unless the judge determines that 
circumstances require service by certified mail or other means. The 
parties may agree to waive the 14-day notice for the hearing.
    (b) Date, time, and place. The judge must consider the convenience 
and necessity of the parties and the witnesses in selecting the date, 
time, and place of the hearing.



Sec.  18.41  Continuances and changes in place of hearing.

    (a) By the judge. Upon reasonable notice to the parties, the judge 
may change the time, date, and place of the hearing.
    (b) By a party's motion. A request by a party to continue a hearing 
or to change the place of the hearing must be made by motion.
    (1) Continuances. A motion for continuance must be filed promptly 
after the party becomes aware of the circumstances supporting the 
continuance. In exceptional circumstances, a party may orally request a 
continuance and must immediately notify the other parties of the 
continuance request.
    (2) Change in place of hearing. A motion to change the place of a 
hearing must be filed promptly.



Sec.  18.42  Expedited proceedings.

    A party may move to expedite the proceeding. The motion must 
demonstrate the specific harm that would result if the proceeding is not 
expedited. If the motion is granted, the formal hearing ordinarily will 
not be scheduled with less than 7 days notice to the parties, unless all 
parties consent to an earlier hearing.



Sec.  18.43  Consolidation; separate hearings.

    (a) Consolidation. If separate proceedings before the Office of the 
Administrative Law Judges involve a common question of law or fact, a 
judge may:
    (1) Join for hearing any or all matters at issue in the proceedings;
    (2) Consolidate the proceedings; or
    (3) Issue any other orders to avoid unnecessary cost or delay.
    (b) Separate hearings. For convenience, to avoid prejudice, or to 
expedite and economize, the judge may order a separate hearing of one or 
more issues.



Sec.  18.44  Prehearing conference.

    (a) In general. The judge, with or without a motion, may order one 
or more prehearing conferences for such purposes as:
    (1) Expediting disposition of the proceeding;
    (2) Establishing early and continuing control so that the case will 
not be protracted because of lack of management;
    (3) Discouraging wasteful prehearing activities;
    (4) Improving the quality of the hearing through more thorough 
preparation; and
    (5) Facilitating settlement.
    (b) Scheduling. Prehearing conferences may be conducted in person, 
by telephone, or other means after reasonable notice of time, place and 
manner of conference has been given.
    (c) Participation. All parties must participate in prehearing 
conferences as directed by the judge. A represented party must authorize 
at least one of its attorneys or representatives to make stipulations 
and admissions about all matters that can reasonably be anticipated for 
discussion at the prehearing conference, including possible settlement.
    (d) Matters for consideration. At the conference, the judge may 
consider and take appropriate actions on the following matters:

[[Page 268]]

    (1) Formulating and simplifying the issues, and eliminating 
frivolous claims or defenses;
    (2) Amending the papers that had framed the issues before the matter 
was referred for hearing;
    (3) Obtaining admissions and stipulations about facts and documents 
to avoid unnecessary proof, and ruling in advance on the admissibility 
of evidence;
    (4) Avoiding unnecessary proof and cumulative evidence, and limiting 
the number of expert or other witnesses;
    (5) Determining the appropriateness and timing of dispositive 
motions under Sec. Sec.  18.70 and 18.72;
    (6) Controlling and scheduling discovery, including orders affecting 
disclosures and discovery under Sec. Sec.  18.50 through 18.65;
    (7) Identifying witnesses and documents, scheduling the filing and 
exchange of any exhibits and prehearing submissions, and setting dates 
for further conferences and for the hearing;
    (8) Referring matters to a special master;
    (9) Settling the case and using special procedures to assist in 
resolving the dispute such as the settlement judge procedure under Sec.  
18.13, private mediation, and other means authorized by statute or 
regulation;
    (10) Determining the form and content of prehearing orders;
    (11) Disposing of pending motions;
    (12) Adopting special procedures for managing potentially difficult 
or protracted proceedings that may involve complex issues, multiple 
parties, difficult legal questions, or unusual proof problems;
    (13) Consolidating or ordering separate hearings under Sec.  18.43;
    (14) Ordering the presentation of evidence early in the proceeding 
on a manageable issue that might, on the evidence, be the basis for 
disposing of the proceeding;
    (15) Establishing a reasonable limit on the time allowed to present 
evidence; and
    (16) Facilitating in other ways the just, speedy, and inexpensive 
disposition of the proceeding.
    (e) Reporting. The judge may direct that the prehearing conference 
be recorded and transcribed. If the conference is not recorded, the 
judge should summarize the conference proceedings on the record at the 
hearing or by separate prehearing notice or order.

                        Disclosure and Discovery



Sec.  18.50  General provisions governing disclosure and discovery.

    (a) Timing and sequence of discovery--(1) Timing. A party may seek 
discovery at any time after a judge issues an initial notice or order. 
But if the judge orders the parties to confer under paragraph (b) of 
this section:
    (i) The time to respond to any pending discovery requests is 
extended until the time agreed in the discovery plan, or that the judge 
sets in resolving disputes about the discovery plan, and
    (ii) No party may seek additional discovery from any source before 
the parties have conferred as required by paragraph (b) of this section, 
except by stipulation.
    (2) Sequence. Unless, on motion, the judge orders otherwise for the 
parties' and witnesses' convenience and in the interests of justice:
    (i) Methods of discovery may be used in any sequence; and
    (ii) Discovery by one party does not require any other party to 
delay its discovery.
    (b) Conference of the parties; planning for discovery--(1) In 
general. The judge may order the parties to confer on the matters 
described in paragraphs (b)(2) and (3) of this section.
    (2) Conference content; parties' responsibilities. In conferring, 
the parties must consider the nature and basis of their claims and 
defenses and the possibilities for promptly settling or resolving the 
case; make or arrange for the disclosures required by paragraph (c) of 
this section; discuss any issues about preserving discoverable 
information; and develop a proposed discovery plan. The representatives 
of record and all unrepresented parties that have appeared in the case 
are jointly responsible for arranging the conference, for attempting in 
good faith to agree on the proposed discovery plan, and for submitting 
to the judge within 14 days after the conference a written report 
outlining the plan. The judge may

[[Page 269]]

order the parties or representatives to attend the conference in person.
    (3) Discovery plan. A discovery plan must state the parties' views 
and proposals on:
    (i) What changes should be made in the timing, form, or requirement 
for disclosures under paragraph (c) of this section, including a 
statement of when initial disclosures were made or will be made;
    (ii) The subjects on which discovery may be needed, when discovery 
should be completed, and whether discovery should be conducted in phases 
or be limited to or focused on particular issues;
    (iii) Any issues about disclosure or discovery of electronically 
stored information, including the form or forms in which it should be 
produced;
    (iv) Any issues about claims of privilege or of protection as 
hearing-preparation materials, including--if the parties agree on a 
procedure to assert these claims after production--whether to ask the 
judge to include their agreement in an order;
    (v) What changes should be made in the limitations on discovery 
imposed under these rules and what other limitations should be imposed; 
and
    (vi) Any other orders that the judge should issue under Sec.  18.52 
or Sec.  18.44.
    (c) Required disclosures--(1) Initial disclosure--(i) In general. 
Except as exempted by paragraph (c)(1)(ii) of this section or otherwise 
ordered by the judge, a party must, without awaiting a discovery 
request, provide to the other parties:
    (A) The name and, if known, the address and telephone number of each 
individual likely to have discoverable information--along with the 
subjects of that information--that the disclosing party may use to 
support its claims or defenses, unless the use would be solely for 
impeachment;
    (B) A copy--or a description by category and location--of all 
documents, electronically stored information, and tangible things that 
the disclosing party has in its possession, custody, or control and may 
use to support its claims or defenses, unless the use would be solely 
for impeachment; and
    (C) A computation of each category of damages claimed by the 
disclosing party--who must also make available for inspection and 
copying as under Sec.  18.61 the documents or other evidentiary 
material, unless privileged or protected from disclosure, on which each 
computation is based, including materials bearing on the nature and 
extent of injuries suffered.
    (ii) Proceedings exempt from initial disclosure. The following 
proceedings are exempt from initial disclosure:
    (A) A proceeding under 29 CFR part 20 for review of an agency 
determination regarding the existence or amount of a debt, or the 
repayment schedule proposed by the agency;
    (B) A proceeding before the Board of Alien Labor Certification 
Appeals under the Immigration and Nationality Act; and
    (C) A proceeding under the regulations governing certification of H-
2 non-immigrant temporary agricultural employment at 20 CFR part 655, 
subpart B;
    (D) A rulemaking proceeding under the Occupational Safety and Health 
Act of 1970; and
    (E) A proceeding for civil penalty assessments under Employee 
Retirement Income Security Act of 1974, 29 U.S.C. 1132.
    (iii) Parties exempt from initial disclosure. The following parties 
are exempt from initial disclosure:
    (A) In a Black Lung benefits proceeding under 30 U.S.C. 901 et seq., 
the representative of the Office of Workers' Compensation Programs of 
the Department of Labor, if an employer has been identified as the 
Responsible Operator and is a party to the proceeding, see 20 CFR 
725.418(d); and
    (B) In a proceeding under the Longshore and Harbor Workers' 
Compensation Act, 33 U.S.C. 901-950, or an associated statute such as 
the Defense Base Act, 42 U.S.C. 1651-1654, the representative of the 
Office of Workers' Compensation Programs of the Department of Labor, 
unless the Solicitor of Labor or the Solicitor's designee has elected to 
participate in the proceeding under 20 CFR 702.333(b), or unless an 
employer or carrier has applied for relief under the special fund, as 
defined in 33 U.S.C. 908(f).

[[Page 270]]

    (iv) Time for initial disclosures--in general. A party must make the 
initial disclosures required by paragraph (c)(1)(i) of this section 
within 21 days after an initial notice or order is entered acknowledging 
that the proceeding has been docketed at the OALJ unless a different 
time is set by stipulation or a judge's order, or a party objects during 
the conference that initial disclosures are not appropriate in the 
proceeding and states the objection in the proposed discovery plan. In 
ruling on the objection, the judge must determine what disclosures, if 
any, are to be made and must set the time for disclosure.
    (v) Time for initial disclosures--for parties served or joined 
later. A party that is first served or otherwise joined later in the 
proceeding must make the initial disclosures within 21 days after being 
served or joined, unless a different time is set by stipulation or the 
judge's order. Copies of all prior disclosures must be served on a newly 
served or joined party within 21 days of the service or joinder.
    (vi) Basis for initial disclosure; unacceptable excuses. A party 
must make its initial disclosures based on the information then 
reasonably available to it. A party is not excused from making its 
disclosures because it has not fully investigated the case or because it 
challenges the sufficiency of another party's disclosures or because 
another party has not made its disclosures.
    (2) Disclosure of expert testimony--(i) In general. A party must 
disclose to the other parties the identity of any witness who may 
testify at hearing, either live or by deposition. The judge should set 
the time for the disclosure by prehearing order.
    (ii) Witnesses who must provide a written report. Unless otherwise 
stipulated or ordered by the judge, this disclosure must be accompanied 
by a written report--prepared and signed by the witness--if the witness 
is one retained or specially employed to provide expert testimony in the 
case or one whose duties as the party's employee regularly involve 
giving expert testimony. The report must contain:
    (A) A complete statement of all opinions the witness will express 
and the basis and reasons for them;
    (B) The facts or data considered by the witness in forming them;
    (C) Any exhibits that will be used to summarize or support them;
    (D) The witness's qualifications, including a list of all 
publications authored in the previous 10 years;
    (E) A list of all other cases in which, during the previous 4 years, 
the witness testified as an expert at trial, a hearing, or by 
deposition; and
    (F) A statement of the compensation to be paid for the study and 
testimony in the case.
    (iii) Witnesses who do not provide a written report. Unless 
otherwise stipulated or ordered by the judge that the witness is not 
required to provide a written report, this disclosure must state:
    (A) The subject matter on which the witness is expected to present 
expert opinion evidence; and
    (B) A summary of the facts and opinions to which the witness is 
expected to testify.
    (iv) Supplementing the disclosure. The parties must supplement these 
disclosures when required under Sec.  18.53.
    (3) Prehearing disclosures. In addition to the disclosures required 
by paragraphs (c)(1) and (2) of this section, a party must provide to 
the other parties and promptly file the prehearing disclosures described 
in Sec.  18.80.
    (4) Form of disclosures. Unless the judge orders otherwise, all 
disclosures under this paragraph (c) must be in writing, signed, and 
served.
    (d) Signing disclosures and discovery requests, responses, and 
objections--(1) Signature required; effect of signature. Every 
disclosure under paragraph (c) of this section and every discovery 
request, response, or objection must be signed by at least one of the 
party's representatives in the representative's own name, or by the 
party personally if unrepresented, and must state the signer's address, 
telephone number, facsimile number, and email address, if any. By 
signing, a representative or party certifies that to the best of the 
person's knowledge, information, and belief formed after a reasonable 
inquiry:
    (i) With respect to a disclosure, it is complete and correct as of 
the time it is made; and

[[Page 271]]

    (ii) With respect to a discovery request, response, or objection, it 
is:
    (A) Consistent with these rules and warranted by existing law or by 
a nonfrivolous argument for extending, modifying, or reversing existing 
law, or for establishing new law;
    (B) Not interposed for any improper purpose, such as to harass, 
cause unnecessary delay, or needlessly increase the cost of litigation; 
and
    (C) Neither unreasonable nor unduly burdensome or expensive, 
considering the needs of the case, prior discovery in the case, the 
amount in controversy, and the importance of the issues at stake in the 
action.
    (2) Failure to sign. Other parties have no duty to act on an 
unsigned disclosure, request, response, or objection until it is signed, 
and the judge must strike it unless a signature is promptly supplied 
after the omission is called to the representative's or party's 
attention.
    (3) Sanction for improper certification. If a certification violates 
this section without substantial justification, the judge, on motion or 
on his or her own, must impose an appropriate sanction, as provided in 
Sec.  18.57, on the signer, the party on whose behalf the signer was 
acting, or both.



Sec.  18.51  Discovery scope and limits.

    (a) Scope in general. Unless otherwise limited by a judge's order, 
the scope of discovery is as follows: Parties may obtain discovery 
regarding any nonprivileged matter that is relevant to any party's claim 
or defense--including the existence, description, nature, custody, 
condition, and location of any documents or other tangible things and 
the identity and location of persons who know of any discoverable 
matter. For good cause, the judge may order discovery of any matter 
relevant to the subject matter involved in the proceeding. Relevant 
information need not be admissible at the hearing if the discovery 
appears reasonably calculated to lead to the discovery of admissible 
evidence. All discovery is subject to the limitations imposed by 
paragraph (b)(4) of this section.
    (b) Limitations on frequency and extent--(1) When permitted. By 
order, the judge may alter the limits in these rules on the number of 
depositions and interrogatories or on the length of depositions under 
Sec.  18.64. The judge's order may also limit the number of requests 
under Sec.  18.63.
    (2) Specific limitations on electronically stored information. A 
party need not provide discovery of electronically stored information 
from sources that the party identifies as not reasonably accessible 
because of undue burden or cost. On motion to compel discovery or for a 
protective order, the party from whom discovery is sought must show that 
the information is not reasonably accessible because of undue burden or 
cost. If that showing is made, the judge may nonetheless order discovery 
from such sources if the requesting party shows good cause, considering 
the limitations of paragraph (b)(4) of this section. The judge may 
specify conditions for the discovery.
    (3) Inadvertently disclosed privileged or protected information. By 
requesting electronically stored information, a party consents to the 
application of Federal Rule of Evidence 502 with regard to inadvertently 
disclosed privileged or protected information.
    (4) When required. On motion or on his or her own, the judge must 
limit the frequency or extent of discovery otherwise allowed by these 
rules when:
    (i) The discovery sought is unreasonably cumulative or duplicative, 
or can be obtained from some other source that is more convenient, less 
burdensome, or less expensive;
    (ii) The party seeking discovery has had ample opportunity to obtain 
the information by discovery in the action; or
    (iii) The burden or expense of the proposed discovery outweighs its 
likely benefit, considering the needs of the case, the amount in 
controversy, the parties' resources, the importance of the issues at 
stake in the action, and the importance of the discovery in resolving 
the issues.
    (c) Hearing preparation: Materials--(1) Documents and tangible 
things. Ordinarily, a party may not discover documents and tangible 
things that are prepared in anticipation of litigation or for hearing by 
or for another party or its representative (including the other party's 
attorney, consultant, surety,

[[Page 272]]

indemnitor, insurer, or agent). But, subject to paragraph (d) of this 
section, those materials may be discovered if:
    (i) They are otherwise discoverable under paragraph (a) of this 
section; and
    (ii) The party shows that it has substantial need for the materials 
to prepare its case and cannot, without undue hardship, obtain their 
substantial equivalent by other means.
    (2) Protection against disclosure. A judge who orders discovery of 
those materials must protect against disclosure of the mental 
impressions, conclusions, opinions, or legal theories of a party's 
representative concerning the litigation.
    (3) Previous statement. Any party or other person may, on request 
and without the required showing, obtain the person's own previous 
statement about the action or its subject matter. If the request is 
refused, the person may move for a judge's order. A previous statement 
is either:
    (i) A written statement that the person has signed or otherwise 
adopted or approved; or
    (ii) A contemporaneous stenographic, mechanical, electrical, or 
other recording--or a transcription of it--that recites substantially 
verbatim the person's oral statement.
    (d) Hearing preparation: Experts--(1) Deposition of an expert who 
may testify. A party may depose any person who has been identified as an 
expert whose opinions may be presented at trial. If Sec.  
18.50(c)(2)(ii) requires a report from the expert the deposition may be 
conducted only after the report is provided, unless the parties 
stipulate otherwise.
    (2) Hearing-preparation protection for draft reports or disclosures. 
Paragraphs (c)(1) and (2) of this section protect drafts of any report 
or disclosure required under Sec.  18.50(c)(2), regardless of the form 
in which the draft is recorded.
    (3) Hearing-preparation protection for communications between a 
party's representative and expert witnesses. Paragraphs (c)(1) and (2) 
under this section protect communications between the party's 
representative and any witness required to provide a report under Sec.  
18.50(c)(2)(ii), regardless of the form of the communications, except to 
the extent that the communications:
    (i) Relate to compensation for the expert's study or testimony;
    (ii) Identify facts or data that the party's representative provided 
and that the expert considered in forming the opinions to be expressed; 
or
    (iii) Identify assumptions that the party's representative provided 
and that the expert relied on in forming the opinions to be expressed.
    (4) Expert employed only for hearing preparation. Ordinarily, a 
party may not, by interrogatories or deposition, discover facts known or 
opinions held by an expert who has been retained or specially employed 
by another party in anticipation of litigation or to prepare for hearing 
and whose testimony is not anticipated to be used at the hearing. But a 
party may do so only:
    (i) As provided in Sec.  18.62(c); or
    (ii) On showing exceptional circumstances under which it is 
impracticable for the party to obtain facts or opinions on the same 
subject by other means.
    (e) Claiming privilege or protecting hearing-preparation materials--
(1) Information withheld. When a party withholds information otherwise 
discoverable by claiming that the information is privileged or subject 
to protection as hearing-preparation material, the party must:
    (i) Expressly make the claim; and
    (ii) Describe the nature of the documents, communications, or 
tangible things not produced or disclosed--and do so in a manner that, 
without revealing information itself privileged or protected, will 
enable other parties to assess the claim.
    (2) Information produced. If information produced in discovery is 
subject to a claim of privilege or of protection as hearing-preparation 
material, the party making the claim must notify any party that received 
the information of the claim and the basis for it. After being notified, 
a party must promptly return, sequester, or destroy the specified 
information and any copies it has; must not use or disclose the 
information until the claim is resolved; must take reasonable steps to 
retrieve the information if the party disclosed it before being 
notified; and may promptly present the information to

[[Page 273]]

the judge for an in camera determination of the claim. The producing 
party must preserve the information until the claim is resolved.

[80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015]



Sec.  18.52  Protective orders.

    (a) In general. A party or any person from whom discovery is sought 
may file a written motion for a protective order. The motion must 
include a certification that the movant has in good faith conferred or 
attempted to confer with other affected parties in an effort to resolve 
the dispute without the judge's action. The judge may, for good cause, 
issue an order to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) Forbidding the disclosure or discovery;
    (2) Specifying terms, including time and place, for the disclosure 
or discovery;
    (3) Prescribing a discovery method other than the one selected by 
the party seeking discovery;
    (4) Forbidding inquiry into certain matters, or limiting the scope 
of disclosure or discovery to certain matters;
    (5) Designating the persons who may be present while the discovery 
is conducted;
    (6) Requiring that a deposition be sealed and opened only on the 
judge's order;
    (7) Requiring that a trade secret or other confidential research, 
development, or commercial information not be revealed or be revealed 
only in a specified way;
    and
    (8) Requiring that the parties simultaneously file specified 
documents or information in sealed envelopes, to be opened as the judge 
directs.
    (b) Ordering discovery. If a motion for a protective order is wholly 
or partly denied, the judge may, on just terms, order that any party or 
person provide or permit discovery.



Sec.  18.53  Supplementing disclosures and responses.

    (a) In general. A party who has made a disclosure under Sec.  
18.50(c)--or who has responded to an interrogatory, request for 
production, or request for admission--must supplement or correct its 
disclosure or response:
    (1) In a timely manner if the party learns that in some material 
respect the disclosure or response is incomplete or incorrect, and if 
the additional or corrective information has not otherwise been made 
known to the other parties during the discovery process or in writing; 
or
    (2) As ordered by the judge.
    (b) Expert witness. For an expert whose report must be disclosed 
under Sec.  18.50(c)(2)(ii), the party's duty to supplement extends both 
to information included in the report and to information given during 
the expert's deposition. Any additions or changes to this information 
must be disclosed by the time the party's prehearing disclosures under 
Sec.  18.50(c)(3) are due.

[80 FR 28785, May 19, 2015, as amended at 80 FR 37540, July 1, 2015]



Sec.  18.54  Stipulations about discovery procedure.

    Unless the judge orders otherwise, the parties may stipulate that:
    (a) A deposition may be taken before any person, at any time or 
place, on any notice, and in the manner specified--in which event it may 
be used in the same way as any other deposition; and
    (b) Other procedures governing or limiting discovery be modified-- 
but a stipulation extending the time for any form of discovery must have 
the judge's approval if it would interfere with the time set for 
completing discovery, for hearing a motion, or for hearing.



Sec.  18.55  Using depositions at hearings.

    (a) Using depositions--(1) In general. If there is no objection, all 
or part of a deposition may be used at a hearing to the extent it would 
be admissible under the applicable rules of evidence as if the deponent 
were present and testifying.

[[Page 274]]

    (2) Over objection. Notwithstanding any objection, all or part of a 
deposition may be used at a hearing against a party on these conditions:
    (i) The party was present or represented at the taking of the 
deposition or had reasonable notice of it;
    (ii) It is used to the extent it would be admissible under the 
applicable rules of evidence if the deponent were present and 
testifying; and
    (iii) The use is allowed by paragraphs (a)(3) through (9) of this 
section.
    (3) Impeachment and other uses. Any party may use a deposition to 
contradict or impeach the testimony given by the deponent as a witness, 
or for any other purpose allowed by the applicable rules of evidence.
    (4) Deposition of party, agent, or designee. An adverse party may 
use for any purpose the deposition of a party or anyone who, when 
deposed, was the party's officer, director, managing agent, or designee 
under Sec.  18.64(b)(6) or Sec.  18.65(a)(4).
    (5) Deposition of expert, treating physician, or examining 
physician. A party may use for any purpose the deposition of an expert 
witness, treating physician or examining physician.
    (6) Unavailable witness. A party may use for any purpose the 
deposition of a witness, whether or not a party, if the judge finds:
    (i) That the witness is dead;
    (ii) That the witness is more than 100 miles from the place of 
hearing or is outside the United States, unless it appears that the 
witness's absence was procured by the party offering the deposition;
    (iii) That the witness cannot attend or testify because of age, 
illness, infirmity, or imprisonment;
    (iv) That the party offering the deposition could not procure the 
witness's attendance by subpoena; or
    (v) on motion and notice, that exceptional circumstances make it 
desirable--in the interests of justice and with due regard to the 
importance of live testimony in an open hearing--to permit the 
deposition to be used.
    (7) Limitations on use--(i) Deposition taken on short notice. A 
deposition must not be used against a party who, having received less 
than 14 days' notice of the deposition, promptly moved for a protective 
order under Sec.  18.52(a)(2) requesting that it not be taken or be 
taken at a different time or place--and this motion was still pending 
when the deposition was taken.
    (ii) Unavailable deponent; party could not obtain a representative. 
A deposition taken without leave of the judge under the unavailability 
provision of Sec.  18.64(a)(2)(i)(C) must not be used against a party 
who shows that, when served with the notice, it could not, despite 
diligent efforts, obtain a representative to represent it at the 
deposition.
    (8) Using part of a deposition. If a party offers in evidence only 
part of a deposition, an adverse party may require the offeror to 
introduce other parts that in fairness should be considered with the 
part introduced, and any party may itself introduce any other parts.
    (9) Deposition taken in an earlier action. A deposition lawfully 
taken may be used in a later action involving the same subject matter 
between the same parties, or their representatives or successors in 
interest, to the same extent as if taken in the later action. A 
deposition previously taken may also be used as allowed by the 
applicable rules of evidence.
    (b) Objections to admissibility. Subject to paragraph (d)(3) of this 
section, an objection may be made at a hearing to the admission of any 
deposition testimony that would be inadmissible if the witness were 
present and testifying.
    (c) Form of presentation. Unless the judge orders otherwise, a party 
must provide a transcript of any deposition testimony the party offers, 
but the judge may receive the testimony in nontranscript form as well.
    (d) Waiver of objections--(1) To the notice. An objection to an 
error or irregularity in a deposition notice is waived unless promptly 
served in writing on the party giving the notice.
    (2) To the officer's qualification. An objection based on 
disqualification of the officer before whom a deposition is to be taken 
is waived if not made:
    (i) Before the deposition begins; or
    (ii) Promptly after the basis for disqualification becomes known or, 
with reasonable diligence, could have been known.

[[Page 275]]

    (3) To the taking of the deposition--(i) Objection to competence, 
relevance, or materiality. An objection to a deponent's competence--or 
to the competence, relevance, or materiality of testimony--is not waived 
by a failure to make the objection before or during the deposition, 
unless the ground for it might have been corrected at that time.
    (ii) Objection to an error or irregularity. An objection to an error 
or irregularity at an oral examination is waived if:
    (A) It relates to the manner of taking the deposition, the form of a 
question or answer, the oath or affirmation, a party's conduct, or other 
matters that might have been corrected at that time; and
    (B) It is not timely made during the deposition.
    (iii) Objection to a written question. An objection to the form of a 
written question under Sec.  18.65 is waived if not served in writing on 
the party submitting the question within the time for serving responsive 
questions or, if the question is a recross-question, within 7 days after 
being served with it.
    (4) To completing and returning the deposition. An objection to how 
the officer transcribed the testimony--or prepared, signed, certified, 
sealed, endorsed, sent, or otherwise dealt with the deposition--is 
waived unless a motion to suppress is made promptly after the error or 
irregularity becomes known or, with reasonable diligence, could have 
been known.



Sec.  18.56  Subpoena.

    (a) In general. (1) Upon written application of a party the judge 
may issue a subpoena authorized by statute or law that requires a 
witness to attend and to produce relevant papers, books, documents, or 
tangible things in the witness' possession or under the witness' 
control.
    (2) Form and contents--(i) Requirements--in general. Every subpoena 
must:
    (A) State the title of the matter and show the case number assigned 
by the Office of Administrative Law Judges or the Office of Worker's 
Compensation Programs. In the event that the case number is an 
individual's Social Security number only the last four numbers may be 
used. See Sec.  18.31(a)(1);
    (B) Bear the signature of the issuing judge;
    (C) Command each person to whom it is directed to do the following 
at a specified time and place: attend and testify; produce designated 
documents, electronically stored information, or tangible things in that 
person's possession, custody, or control; or permit the inspection of 
premises; and
    (D) Set out the text of paragraphs (c) and (d) of this section.
    (ii) Command to attend a deposition--notice of the recording method. 
A subpoena commanding attendance at a deposition must state the method 
for recording the testimony.
    (iii) Combining or separating a command to produce or to permit 
inspection; specifying the form for electronically stored information. A 
command to produce documents, electronically stored information, or 
tangible things or to permit the inspection of premises may be included 
in a subpoena commanding attendance at a deposition or hearing, or may 
be set out in a separate subpoena. A subpoena may specify the form or 
forms in which electronically stored information is to be produced.
    (iv) Command to produce; included obligations. A command in a 
subpoena to produce documents, electronically stored information, or 
tangible things requires the responding party to permit inspection, 
copying, testing, or sampling of the materials.
    (b) Service--(1) By whom; tendering fees; serving a copy of certain 
subpoenas. Any person who is at least 18 years old and not a party may 
serve a subpoena. Serving a subpoena requires delivering a copy to the 
named person and, if the subpoena requires that person's attendance, 
tendering with it the fees for 1 day's attendance and the mileage 
allowed by law. Service may also be made by certified mail with return 
receipt. Fees and mileage need not be tendered when the subpoena issues 
on behalf of the United States or any of its officers or agencies. If 
the subpoena commands the production of documents, electronically stored 
information, or tangible things or the inspection of premises before the 
formal

[[Page 276]]

hearing, then before it is served on the person to whom it is directed, 
a notice and copy of the subpoena must be served on each party.
    (2) Service in the United States. Subject to paragraph (c)(3)(i)(B) 
of this section, a subpoena may be served at any place within a State, 
Commonwealth, or Territory of the United States, or the District of 
Columbia.
    (3) Service in a foreign country. 28 U.S.C. 1783 governs issuing and 
serving a subpoena directed to a United States national or resident who 
is in a foreign country.
    (4) Proof of service. Proving service, when necessary, requires 
filing with the judge a statement showing the date and manner of service 
and the names of the persons served. The statement must be certified by 
the server.
    (c) Protecting a person subject to a subpoena--(1) Avoiding undue 
burden; sanctions. A party or representative responsible for requesting, 
issuing, or serving a subpoena must take reasonable steps to avoid 
imposing undue burden on a person subject to the subpoena. The judge 
must enforce this duty and impose an appropriate sanction.
    (2) Command to produce materials or permit inspection--(i) 
Appearance not required. A person commanded to produce documents, 
electronically stored information, or tangible things, or to permit the 
inspection of premises, need not appear in person at the place of 
production or inspection unless also commanded to appear for a 
deposition or hearing.
    (ii) Objections. A person commanded to produce documents or tangible 
things or to permit inspection may serve on the party or representative 
designated in the subpoena a written objection to inspecting, copying, 
testing or sampling any or all of the materials or to inspecting the 
premises--or to producing electronically stored information in the form 
or forms requested. The objection must be served before the earlier of 
the time specified for compliance or 14 days after the subpoena is 
served. If an objection is made, the following rules apply:
    (A) At any time, on notice to the commanded person, the serving 
party may move the judge for an order compelling production or 
inspection.
    (B) These acts may be required only as directed in the order, and 
the order must protect a person who is neither a party nor a party's 
officer from significant expense resulting from compliance.
    (3) Quashing or modifying a subpoena--(i) When required. On timely 
motion, the judge must quash or modify a subpoena that:
    (A) Fails to allow a reasonable time to comply;
    (B) Requires a person who is neither a party nor a party's officer 
to travel more than 100 miles from where that person resides, is 
employed, or regularly transacts business in person--except that, 
subject to paragraph (c)(3)(ii)(C) of this section, the person may be 
commanded to attend the formal hearing;
    (C) Requires disclosure of privileged or other protected matter, if 
no exception or waiver applies; or
    (D) Subjects a person to undue burden.
    (ii) When permitted. To protect a person subject to or otherwise 
affected by a subpoena, the judge may, on motion, quash or modify the 
subpoena if it requires:
    (A) Disclosing a trade secret or other confidential research, 
development, or commercial information;
    (B) Disclosing an unretained expert's opinion or information that 
does not describe specific occurrences in dispute and results from the 
expert's study that was not requested by a party; or
    (C) A person who is neither a party nor a party's officer to incur 
substantial expense to travel more than 100 miles to attend the formal 
hearing.
    (iii) Specifying conditions as an alternative. In the circumstances 
described in paragraph (c)(3)(ii) of this section, the judge may, 
instead of quashing or modifying a subpoena, order appearance or 
production under specified conditions if the serving party:
    (A) Shows a substantial need for the testimony or material that 
cannot be otherwise met without undue hardship; and
    (B) Ensures that the subpoenaed person will be reasonably 
compensated.

[[Page 277]]

    (d) Duties in responding to a subpoena--(1) Producing documents or 
electronically stored information. These procedures apply to producing 
documents or electronically stored information:
    (i) Documents. A person responding to a subpoena to produce 
documents must produce them as they are kept in the ordinary course of 
business or must organize and label them to correspond to the categories 
in the demand.
    (ii) Form for producing electronically stored information not 
specified. If a subpoena does not specify a form for producing 
electronically stored information, the person responding must produce it 
in a form or forms in which it is ordinarily maintained or in a 
reasonably usable form or forms.
    (iii) Electronically stored information produced in only one form. 
The person responding need not produce the same electronically stored 
information in more than one form.
    (iv) Inaccessible electronically stored information. The person 
responding need not provide discovery of electronically stored 
information from sources that the person identifies as not reasonably 
accessible because of undue burden or cost. On motion to compel 
discovery or for a protective order, the person responding must show 
that the information is not reasonably accessible because of undue 
burden or cost. If that showing is made, the judge may nonetheless order 
discovery from such sources if the requesting party shows good cause, 
considering the limitations of Sec.  18.51(b)(4)(iii). The judge may 
specify conditions for the discovery.
    (2) Claiming privilege or protection--(i) Information withheld. A 
person withholding subpoenaed information under a claim that it is 
privileged or subject to protection as hearing-preparation material 
must:
    (A) Expressly make the claim; and
    (B) Describe the nature of the withheld documents, communications, 
or tangible things in a manner that, without revealing information 
itself privileged or protected, will enable the parties to assess the 
claim.
    (ii) Information produced. If information produced in response to a 
subpoena is subject to a claim of privilege or of protection as hearing-
preparation material, the person making the claim may notify any party 
that received the information of the claim and the basis for it. After 
being notified, a party must promptly return, sequester, or destroy the 
specified information and any copies it has; must not use or disclose 
the information until the claim is resolved; must take reasonable steps 
to retrieve the information if the party disclosed it before being 
notified; and may promptly present the information to the judge in 
camera for a determination of the claim. The person who produced the 
information must preserve the information until the claim is resolved.
    (e) Failure to obey. When a person fails to obey a subpoena, the 
party adversely affected by the failure may, when authorized by statute 
or by law, apply to the appropriate district court to enforce the 
subpoena.



Sec.  18.57  Failure to make disclosures or to cooperate in discovery; 
sanctions.

    (a) Motion for an order compelling disclosure or discovery--(1) In 
general. On notice to other parties and all affected persons, a party 
may move for an order compelling disclosure or discovery. The motion 
must include a certification that the movant has in good faith conferred 
or attempted to confer with the person or party failing to make 
disclosure or discovery in an effort to obtain it without the judge's 
action.
    (2) Specific motions--(i) To compel disclosure. If a party fails to 
make a disclosure required by Sec.  18.50(c), any other party may move 
to compel disclosure and for appropriate sanctions.
    (ii) To compel a discovery response. A party seeking discovery may 
move for an order compelling an answer, designation, production, or 
inspection. This motion may be made if:
    (A) A deponent fails to answer a question asked under Sec. Sec.  
18.64 and 18.65;
    (B) A corporation or other entity fails to make a designation under 
Sec. Sec.  18.64(b)(6) and 18.65(a)(4);
    (C) A party fails to answer an interrogatory submitted under Sec.  
18.60; or
    (D) A party fails to respond that inspection will be permitted--or 
fails to permit inspection--as requested under Sec.  18.61.

[[Page 278]]

    (iii) Related to a deposition. When taking an oral deposition, the 
party asking a question may complete or adjourn the examination before 
moving for an order.
    (3) Evasive or incomplete disclosure, answer, or response. For 
purposes of paragraph (a) of this section, an evasive or incomplete 
disclosure, answer, or response must be treated as a failure to 
disclose, answer, or respond.
    (b) Failure to comply with a judge's order--(1) For not obeying a 
discovery order. If a party or a party's officer, director, or managing 
agent--or a witness designated under Sec. Sec.  18.64(b)(6) and 
18.65(a)(4)--fails to obey an order to provide or permit discovery, 
including an order under Sec.  18.50(b) or paragraph (a) of this 
section, the judge may issue further just orders. They may include the 
following:
    (i) Directing that the matters embraced in the order or other 
designated facts be taken as established for purposes of the proceeding, 
as the prevailing party claims;
    (ii) Prohibiting the disobedient party from supporting or opposing 
designated claims or defenses, or from introducing designated matters in 
evidence;
    (iii) Striking claims or defenses in whole or in part;
    (iv) Staying further proceedings until the order is obeyed;
    (v) Dismissing the proceeding in whole or in part; or
    (vi) Rendering a default decision and order against the disobedient 
party;
    (2) For not producing a person for examination. If a party fails to 
comply with an order under Sec.  18.62 requiring it to produce another 
person for examination, the judge may issue any of the orders listed in 
paragraph (b)(1) of this section, unless the disobedient party shows 
that it cannot produce the other person.
    (c) Failure to disclose, to supplement an earlier response, or to 
admit. If a party fails to provide information or identify a witness as 
required by Sec. Sec.  18.50(c) and 18.53, or if a party fails to admit 
what is requested under Sec.  18.63(a) and the requesting party later 
proves a document to be genuine or the matter true, the party is not 
allowed to use that information or witness to supply evidence on a 
motion or at a hearing, unless the failure was substantially justified 
or is harmless. In addition to or instead of this sanction, the judge, 
on motion and after giving an opportunity to be heard may impose other 
appropriate sanctions, including any of the orders listed in paragraph 
(b)(1) of this section.
    (d) Party's failure to attend its own deposition, serve answers to 
interrogatories, or respond to a request for inspection--(1) In 
general--(i) Motion; grounds for sanctions. The judge may, on motion, 
order sanctions if:
    (A) A party or a party's officer, director, or managing agent--or a 
person designated under Sec. Sec.  18.64(b)(6) and 18.65(a)(4)--fails, 
after being served with proper notice, to appear for that person's 
deposition; or
    (B) A party, after being properly served with interrogatories under 
Sec.  18.60 or a request for inspection under Sec.  18.61, fails to 
serve its answers, objections, or written response.
    (ii) Certification. A motion for sanctions for failing to answer or 
respond must include a certification that the movant has in good faith 
conferred or attempted to confer with the party failing to act in an 
effort to obtain the answer or response without the judge's action.
    (2) Unacceptable excuse for failing to act. A failure described in 
paragraph (d)(1)(i) of this section is not excused on the ground that 
the discovery sought was objectionable, unless the party failing to act 
has a pending motion for a protective order under Sec.  18.52(a).
    (3) Types of sanctions. Sanctions may include any of the orders 
listed in paragraph (b)(1) of this section.
    (e) Failure to provide electronically stored information. Absent 
exceptional circumstances, a judge may not impose sanctions under these 
rules on a party for failing to provide electronically stored 
information lost as a result of the routine, good-faith operation of an 
electronic information system.
    (f) Procedure. A judge may impose sanctions under this section upon:
    (1) A separately filed motion; or
    (2) Notice from the judge followed by a reasonable opportunity to be 
heard.

[[Page 279]]

                           Types of Discovery



Sec.  18.60  Interrogatories to parties.

    (a)  In general--(1) Number. Unless otherwise stipulated or ordered 
by the judge, a party may serve on any other party no more than 25 
written interrogatories, including all discrete subparts. Leave to serve 
additional interrogatories may be granted to the extent consistent with 
Sec.  18.51.
    (2) Scope. An interrogatory may relate to any matter that may be 
inquired into under Sec.  18.51. An interrogatory is not objectionable 
merely because it asks for an opinion or contention that relates to fact 
or the application of law to fact, but the judge may order that the 
interrogatory need not be answered until designated discovery is 
complete, or until a prehearing conference or some other time.
    (b) Answers and objections--(1) Responding party. The 
interrogatories must be answered:
    (i) By the party to whom they are directed; or
    (ii) If that party is a public or private corporation, a 
partnership, an association, or a governmental agency, by any officer or 
agent, who must furnish the information available to the party.
    (2) Time to respond. The responding party must serve its answers and 
any objections within 30 days after being served with the 
interrogatories. A shorter or longer time may be stipulated to under 
Sec.  18.54 or be ordered by the judge.
    (3) Answering each interrogatory. Each interrogatory must, to the 
extent it is not objected to, be answered separately and fully in 
writing under oath.
    (4) Objections. The grounds for objecting to an interrogatory must 
be stated with specificity. Any ground not stated in a timely objection 
is waived unless the judge, for good cause, excuses the failure.
    (5) Signature. The person who makes the answers must sign them, and 
the attorney or non-attorney representative who objects must sign any 
objections.
    (c) Use. An answer to an interrogatory may be used to the extent 
allowed by the applicable rules of evidence.
    (d) Option to produce business records. If the answer to an 
interrogatory may be determined by examining, auditing, compiling, 
abstracting, or summarizing a party's business records (including 
electronically stored information), and if the burden of deriving or 
ascertaining the answer will be substantially the same for either party, 
the responding party may answer by:
    (1) Specifying the records that must be reviewed, in sufficient 
detail to enable the interrogating party to locate and identify them as 
readily as the responding party could; and
    (2) Giving the interrogating party a reasonable opportunity to 
examine and audit the records and to make copies, compilations, 
abstracts, or summaries.



Sec.  18.61  Producing documents, electronically stored information, 
and tangible things, or entering onto land, for inspection and other purposes.

    (a) In general. A party may serve on any other party a request 
within the scope of Sec.  18.51:
    (1) To produce and permit the requesting party or its representative 
to inspect, copy, test, or sample the following items in the responding 
party's possession, custody, or control:
    (i) Any designated documents or electronically stored information--
including writings, drawings, graphs, charts, photographs, sound 
recordings, images, and other data or data compilations--stored in any 
medium from which information can be obtained either directly or, if 
necessary, after translation by the responding party into a reasonably 
usable form; or
    (ii) Any designated tangible things; or
    (2) To permit entry onto designated land or other property possessed 
or controlled by the responding party, so that the requesting party may 
inspect, measure, survey, photograph, test, or sample the property or 
any designated object or operation on it.
    (b) Procedure--(1) Contents of the request. The request:
    (i) Must describe with reasonable particularity each item or 
category of items to be inspected;
    (ii) Must specify a reasonable time, place, and manner for the 
inspection

[[Page 280]]

and for performing the related acts; and
    (iii) May specify the form or forms in which electronically stored 
information is to be produced.
    (2) Responses and objections--(i) Time to respond. The party to whom 
the request is directed must respond in writing within 30 days after 
being served. A shorter or longer time may be stipulated to under Sec.  
18.54 or be ordered by the judge.
    (ii) Responding to each item. For each item or category, the 
response must either state that inspection and related activities will 
be permitted as requested or state an objection to the request, 
including the reasons.
    (iii) Objections. An objection to part of a request must specify the 
part and permit inspection of the rest.
    (iv) Responding to a request for production of electronically stored 
information. The response may state an objection to a requested form for 
producing electronically stored information. If the responding party 
objects to a requested form--or if no form was specified in the 
request--the party must state the form or forms it intends to use.
    (v) Producing the documents or electronically stored information. 
Unless otherwise stipulated or ordered by the judge, these procedures 
apply to producing documents or electronically stored information:
    (A) A party must produce documents as they are kept in the usual 
course of business or must organize and label them to correspond to the 
categories in the request;
    (B) If a request does not specify a form for producing 
electronically stored information, a party must produce it in a form or 
forms in which it is ordinarily maintained or in a reasonably usable 
form or forms; and
    (C) A party need not produce the same electronically stored 
information in more than one form.
    (c) Nonparties. As provided in Sec.  18.56, a nonparty may be 
compelled to produce documents and tangible things or to permit an 
inspection.



Sec.  18.62  Physical and mental examinations.

    (a) Examination by notice--(1) In general. A party may serve upon 
another party whose mental or physical condition is in controversy a 
notice to attend and submit to an examination by a suitably licensed or 
certified examiner.
    (2) Contents of the notice. The notice must specify:
    (i) The legal basis for the examination;
    (ii) The time, place, manner, conditions, and scope of the 
examination, as well as the person or persons who will perform it; and
    (iii) How the reasonable transportation expenses were calculated.
    (3) Service of notice. Unless otherwise agreed by the parties, the 
notice must be served no fewer than 30 days before the examination date.
    (4) Objection. The person to be examined must serve any objection to 
the notice no later than 14 days after the notice is served. The 
objection must be stated with particularity.
    (b) Examination by motion. Upon objection by the person to be 
examined the requesting party may file a motion to compel a physical or 
mental examination. The motion must include the elements required by 
paragraph (a)(2) of this section.
    (c) Examiner's report--(1) Delivery of the report. The party who 
initiated the examination must deliver a complete copy of the 
examination report to the party examined no later than seven days after 
it receives the report, together with like reports of all earlier 
examinations of the same condition.
    (2) Contents. The examiner's report must be in writing and must set 
out in detail the examiner's findings, including diagnoses, conclusions, 
and the results of any tests.



Sec.  18.63  Requests for admission.

    (a) Scope and procedure--(1) Scope. A party may serve on any other 
party a written request to admit, for purposes of the pending action 
only, the truth of any matters within the scope of Sec.  18.51 relating 
to:
    (i) Facts, the application of law to fact, or opinions about either; 
and
    (ii) The genuineness of any described documents.
    (2) Form; copy of a document. Each matter must be separately stated. 
A request to admit the genuineness of a

[[Page 281]]

document must be accompanied by a copy of the document unless it is, or 
has been, otherwise furnished or made available for inspection and 
copying.
    (3) Time to respond; effect of not responding. A matter is admitted 
unless, within 30 days after being served, the party to whom the request 
is directed serves on the requesting party a written answer or objection 
addressed to the matter and signed by the party or its attorney. A 
shorter or longer time for responding may be stipulated to under Sec.  
18.54 or be ordered by the judge.
    (4) Answer. If a matter is not admitted, the answer must 
specifically deny it or state in detail why the answering party cannot 
truthfully admit or deny it. A denial must fairly respond to the 
substance of the matter; and when good faith requires that a party 
qualify an answer or deny only a part of a matter, the answer must 
specify the part admitted and qualify or deny the rest. The answering 
party may assert lack of knowledge or information as a reason for 
failing to admit or deny only if the party states that it has made 
reasonable inquiry and that the information it knows or can readily 
obtain is insufficient to enable it to admit or deny.
    (5) Objections. The grounds for objecting to a request must be 
stated. A party must not object solely on the ground that the request 
presents a genuine issue for hearing.
    (6) Motion regarding the sufficiency of an answer or objection. The 
requesting party may move to determine the sufficiency of an answer or 
objection. Unless the judge finds an objection justified, the judge must 
order that an answer be served. On finding that an answer does not 
comply with this section, the judge may order either that the matter is 
admitted or that an amended answer be served. The judge may defer final 
decision until a prehearing conference or a specified time before the 
hearing.
    (b) Effect of an admission; withdrawing or amending it. A matter 
admitted under this section is conclusively established unless the 
judge, on motion, permits the admission to be withdrawn or amended. The 
judge may permit withdrawal or amendment if it would promote the 
presentation of the merits of the action and if the judge is not 
persuaded that it would prejudice the requesting party in maintaining or 
defending the action on the merits. An admission under this section is 
not an admission for any other purpose and cannot be used against the 
party in any other proceeding.



Sec.  18.64  Depositions by oral examination.

    (a) When a deposition may be taken--(1) Without leave. A party may, 
by oral questions, depose any person, including a party, without leave 
of the judge except as provided in paragraph (a)(2) of this section. The 
deponent's attendance may be compelled by subpoena under Sec.  18.56.
    (2) With leave. A party must obtain leave of the judge, and the 
judge must grant leave to the extent consistent with Sec.  18.51(b):
    (i) If the parties have not stipulated to the deposition and:
    (A) The deposition would result in more than 10 depositions being 
taken under this section or Sec.  18.65 by one of the parties;
    (B) The deponent has already been deposed in the case; or
    (C) The party seeks to take the deposition before the time specified 
in Sec.  18.50(a), unless the party certifies in the notice, with 
supporting facts, that the deponent is expected to leave the United 
States and be unavailable for examination in this country after that 
time; or
    (ii) If the deponent is confined in prison.
    (b) Notice of the deposition; other formal requirements--(1) Notice 
in general. Except as stipulated or otherwise ordered by the judge, a 
party who wants to depose a person by oral questions must give 
reasonable written notice to every other party of no fewer than 14 days. 
The notice must state the time and place of the deposition and, if 
known, the deponent's name and address. If the name is unknown, the 
notice must provide a general description sufficient to identify the 
person or the particular class or group to which the person belongs.
    (2) Producing documents. If a subpoena duces tecum is to be served 
on the deponent, the materials designated for

[[Page 282]]

production, as set out in the subpoena, must be listed in the notice or 
in an attachment. If the notice to a party deponent is accompanied by a 
request for production under Sec.  18.61, the notice must comply with 
the requirements of Sec.  18.61(b).
    (3) Method of recording--(i) Method stated in the notice. The party 
who notices the deposition must state in the notice the method for 
recording the testimony. Unless the judge orders otherwise, testimony 
may be recorded by audio, audiovisual, or stenographic means. The 
noticing party bears the recording costs. Any party may arrange to 
transcribe a deposition.
    (ii) Additional method. With prior notice to the deponent and other 
parties, any party may designate another method for recording the 
testimony in addition to that specified in the original notice. That 
party bears the expense of the additional record or transcript unless 
the judge orders otherwise.
    (4) By remote means. The parties may stipulate--or the judge may on 
motion order--that a deposition be taken by telephone or other remote 
means. For the purpose of this section, the deposition takes place where 
the deponent answers the questions.
    (5) Deposition officer's duties--(i) Before the deposition. Unless 
the parties stipulate otherwise, a deposition must be conducted before a 
person having power to administer oaths. The officer must begin the 
deposition with an on-the-record statement that includes:
    (A) The officer's name and business address;
    (B) The date, time, and place of the deposition;
    (C) The deponent's name;
    (D) The officer's administration of the oath or affirmation to the 
deponent;
    (E) The identity of all persons present; and
    (F) The date and method of service of the notice of deposition.
    (ii) Conducting the deposition; avoiding distortion. If the 
deposition is recorded nonstenographically, the officer must repeat the 
items in paragraphs (b)(5)(i)(A) and (B) of this section at the 
beginning of each unit of the recording medium. The deponent's and 
attorneys' appearance or demeanor must not be distorted through 
recording techniques.
    (iii) After the deposition. At the end of a deposition, the officer 
must state on the record that the deposition is complete and must set 
out any stipulations made by the attorneys about custody of the 
transcript or recording and of the exhibits, or about any other 
pertinent matters.
    (6) Notice or subpoena directed to an organization. In its notice or 
subpoena, a party may name as the deponent a public or private 
corporation, a partnership, an association, a governmental agency, or 
other entity and must describe with reasonable particularity the matters 
for examination. The named organization must then designate one or more 
officers, directors, or managing agents, or designate other persons who 
consent to testify on its behalf; and it may set out the matters on 
which each person designated will testify. A subpoena must advise a 
nonparty organization of its duty to make this designation. The persons 
designated must testify about information known or reasonably available 
to the organization. This paragraph (b)(6) does not preclude a 
deposition by any other procedure allowed by these rules.
    (c) Examination and cross-examination; record of the examination; 
objections; written questions--(1) Examination and cross-examination. 
The examination and cross-examination of a deponent proceed as they 
would at the hearing under the applicable rules of evidence. After 
putting the deponent under oath or affirmation, the officer must record 
the testimony by the method designated under paragraph (b)(3)(i) of this 
section. The testimony must be recorded by the officer personally or by 
a person acting in the presence and under the direction of the officer.
    (2) Objections. An objection at the time of the examination--whether 
to evidence, to a party's conduct, to the officer's qualifications, to 
the manner of taking the deposition, or to any other aspect of the 
deposition--must be noted on the record, but the examination still 
proceeds; the testimony is taken subject to any objection. An objection 
must be stated concisely in a nonargumentative and nonsuggestive

[[Page 283]]

manner. A person may instruct a deponent not to answer only when 
necessary to preserve a privilege, to enforce a limitation ordered by 
the judge, or to present a motion under paragraph (d)(3) of this 
section.
    (3) Participating through written questions. Instead of 
participating in the oral examination, a party may serve written 
questions in a sealed envelope on the party noticing the deposition, who 
must deliver them to the officer. The officer must ask the deponent 
those questions and record the answers verbatim.
    (d) Duration; sanction; motion to terminate or limit--(1) Duration. 
Unless otherwise stipulated or ordered by the judge, a deposition is 
limited to 1 day of 7 hours. The judge must allow additional time 
consistent with Sec.  18.51(b) if needed to fairly examine the deponent 
or if the deponent, another person, or any other circumstance impedes or 
delays the examination.
    (2) Sanction. The judge may impose an appropriate sanction, in 
accordance with Sec.  18.57, on a person who impedes, delays, or 
frustrates the fair examination of the deponent.
    (3) Motion to terminate or limit--(i) Grounds. At any time during a 
deposition, the deponent or a party may move to terminate or limit it on 
the ground that it is being conducted in bad faith or in a manner that 
unreasonably annoys, embarrasses, or oppresses the deponent or party. If 
the objecting deponent or party so demands, the deposition must be 
suspended for the time necessary to obtain an order.
    (ii) Order. The judge may order that the deposition be terminated or 
may limit its scope and manner as provided in Sec.  18.52. If 
terminated, the deposition may be resumed only by the judge's order.
    (e) Review by the witness; changes--(1) Review; statement of 
changes. On request by the deponent or a party before the deposition is 
completed, the deponent must be allowed 30 days after being notified by 
the officer that the transcript or recording is available in which:
    (i) To review the transcript or recording; and
    (ii) If there are changes in form or substance, to sign a statement 
listing the changes and the reasons for making them.
    (2) Changes indicated in the officer's certificate. The officer must 
note in the certificate prescribed by paragraph (f)(1) of this section 
whether a review was requested and, if so, must attach any changes the 
deponent makes during the 30-day period.
    (f) Certification and delivery; exhibits; copies of the transcript 
or recording; filing--(1) Certification and delivery. The officer must 
certify in writing that the witness was duly sworn and that the 
deposition accurately records the witness's testimony. The certificate 
must accompany the record of the deposition. Unless the judge orders 
otherwise, the officer must seal the deposition in an envelope or 
package bearing the title of the action and marked ``Deposition of 
[witness's name]'' and must promptly send it to the party or the party's 
representative who arranged for the transcript or recording. The party 
or the party's representative must store it under conditions that will 
protect it against loss, destruction, tampering, or deterioration.
    (2) Documents and tangible things--(i) Originals and copies. 
Documents and tangible things produced for inspection during a 
deposition must, on a party's request, be marked for identification and 
attached to the deposition. Any party may inspect and copy them. But if 
the person who produced them wants to keep the originals, the person 
may:
    (A) Offer copies to be marked, attached to the deposition, and then 
used as originals--after giving all parties a fair opportunity to verify 
the copies by comparing them with the originals; or
    (B) Give all parties a fair opportunity to inspect and copy the 
originals after they are marked--in which event the originals may be 
used as if attached to the deposition.
    (ii) Order regarding the originals. Any party may move for an order 
that the originals be attached to the deposition pending final 
disposition of the proceeding.
    (3) Copies of the transcript or recording. Unless otherwise 
stipulated or ordered by the judge, the officer must retain the 
stenographic notes of a deposition taken stenographically or a copy of 
the

[[Page 284]]

recording of a deposition taken by another method. When paid reasonable 
charges, the officer must furnish a copy of the transcript or recording 
to any party or the deponent.
    (4) Notice of filing. A party who files the deposition must promptly 
notify all other parties of the filing.
    (g) Failure to attend a deposition or serve a subpoena. A judge may 
order sanctions, in accordance with Sec.  18.57, if a party who, 
expecting a deposition to be taken, attends in person or by an attorney, 
and the noticing party failed to:
    (1) Attend and proceed with the deposition; or
    (2) Serve a subpoena on a nonparty deponent, who consequently did 
not attend.



Sec.  18.65  Depositions by written questions.

    (a) When a deposition may be taken--(1) Without leave. A party may, 
by written questions, depose any person, including a party, without 
leave of the judge except as provided in paragraph (a)(2) of this 
section. The deponent's attendance may be compelled by subpoena under 
Sec.  18.56.
    (2) With leave. A party must obtain leave of the judge, and the 
judge must grant leave to the extent consistent with Sec.  18.51(b):
    (i) If the parties have not stipulated to the deposition and:
    (A) The deposition would result in more than 10 depositions being 
taken under this section or Sec.  18.64 by a party;
    (B) The deponent has already been deposed in the case; or
    (C) The party seeks to take a deposition before the time specified 
in Sec.  18.50(a); or
    (ii) If the deponent is confined in prison.
    (3) Service; required notice. A party who wants to depose a person 
by written questions must serve them on every other party, with a notice 
stating, if known, the deponent's name and address. If the name is 
unknown, the notice must provide a general description sufficient to 
identify the person or the particular class or group to which the person 
belongs. The notice must also state the name or descriptive title and 
the address of the officer before whom the deposition will be taken.
    (4) Questions directed to an organization. A public or private 
corporation, a partnership, an association, or a governmental agency may 
be deposed by written questions in accordance with Sec.  18.64(b)(6).
    (5) Questions from other parties. Any questions to the deponent from 
other parties must be served on all parties as follows: cross-questions, 
within 14 days after being served with the notice and direct questions; 
redirect questions, within 7 days after being served with cross-
questions; and recross-questions, within 7 days after being served with 
redirect questions. The judge may, for good cause, extend or shorten 
these times.
    (b) Delivery to the deposition officer; officer's duties. Unless a 
different procedure is ordered by the judge, the party who noticed the 
deposition must deliver to the officer a copy of all the questions 
served and of the notice. The officer must promptly proceed in the 
manner provided in Sec.  18.64(c), (e), and (f) to:
    (1) Take the deponent's testimony in response to the questions;
    (2) Prepare and certify the deposition; and
    (3) Send it to the party, attaching a copy of the questions and of 
the notice.
    (c) Notice of completion or filing--(1) Completion. The party who 
noticed the deposition must notify all other parties when it is 
completed.
    (2) Filing. A party who files the deposition must promptly notify 
all other parties of the filing.

                       Disposition Without Hearing



Sec.  18.70  Motions for dispositive action.

    (a) In general. When consistent with statute, regulation or 
executive order, any party may move under Sec.  18.33 for disposition of 
the pending proceeding. If the judge determines at any time that subject 
matter jurisdiction is lacking, the judge must dismiss the matter.
    (b) Motion to remand. A party may move to remand the matter to the 
referring agency. A remand order must include any terms or conditions 
and should state the reason for the remand.

[[Page 285]]

    (c) Motion to dismiss. A party may move to dismiss part or all of 
the matter for reasons recognized under controlling law, such as lack of 
subject matter jurisdiction, failure to state a claim upon which relief 
can be granted, or untimeliness. If the opposing party fails to respond, 
the judge may consider the motion unopposed.
    (d) Motion for decision on the record. When the parties agree that 
an evidentiary hearing is not needed, they may move for a decision based 
on stipulations of fact or a stipulated record.



Sec.  18.71  Approval of settlement or consent findings.

    (a) Motion for approval of settlement agreement. When the applicable 
statute or regulation requires it, the parties must submit a settlement 
agreement for the judge's review and approval.
    (b) Motion for consent findings and order. Parties may file a motion 
to accept and adopt consent findings. Any agreement that contains 
consent findings and an order that disposes of all or part of a matter 
must include:
    (1) A statement that the order has the same effect as one made after 
a full hearing;
    (2) A statement that the order is based on a record that consists of 
the paper that began the proceeding (such as a complaint, order of 
reference, or notice of administrative determination), as it may have 
been amended, and the agreement;
    (3) A waiver of any further procedural steps before the judge; and
    (4) A waiver of any right to challenge or contest the validity of 
the order entered into in accordance with the agreement.



Sec.  18.72  Summary decision.

    (a) Motion for summary decision or partial summary decision. A party 
may move for summary decision, identifying each claim or defense--or the 
part of each claim or defense--on which summary decision is sought. The 
judge shall grant summary decision if the movant shows that there is no 
genuine dispute as to any material fact and the movant is entitled to 
decision as a matter of law. The judge should state on the record the 
reasons for granting or denying the motion.
    (b) Time to file a motion. Unless the judge orders otherwise, a 
party may file a motion for summary decision at any time until 30 days 
before the date fixed for the formal hearing.
    (c) Procedures--(1) Supporting factual positions. A party asserting 
that a fact cannot be or is genuinely disputed must support the 
assertion by:
    (i) Citing to particular parts of materials in the record, including 
depositions, documents, electronically stored information, affidavits or 
declarations, stipulations (including those made for purposes of the 
motion only), admissions, interrogatory answers, or other materials; or
    (ii) Showing that the materials cited do not establish the absence 
or presence of a genuine dispute, or that an adverse party cannot 
produce admissible evidence to support the fact.
    (2) Objection that a fact is not supported by admissible evidence. A 
party may object that the material cited to support or dispute a fact 
cannot be presented in a form that would be admissible in evidence.
    (3) Materials not cited. The judge need consider only the cited 
materials, but the judge may consider other materials in the record.
    (4) Affidavits or declarations. An affidavit or declaration used to 
support or oppose a motion must be made on personal knowledge, set out 
facts that would be admissible in evidence, and show that the affiant or 
declarant is competent to testify on the matters stated.
    (d) When facts are unavailable to the nonmovant. If a nonmovant 
shows by affidavit or declaration that, for specified reasons, it cannot 
present facts essential to justify its opposition, the judge may:
    (1) Defer considering the motion or deny it;
    (2) Allow time to obtain affidavits or declarations or to take 
discovery; or
    (3) Issue any other appropriate order.
    (e) Failing to properly support or address a fact. If a party fails 
to properly support an assertion of fact or fails to properly address 
another party's assertion of fact as required by paragraph (c) of this 
section, the judge may:
    (1) Give an opportunity to properly support or address the fact;

[[Page 286]]

    (2) Consider the fact undisputed for purposes of the motion;
    (3) Grant summary decision if the motion and supporting materials--
including the facts considered undisputed--show that the movant is 
entitled to it; or
    (4) Issue any other appropriate order.
    (f) Decision independent of the motion. After giving notice and a 
reasonable time to respond, the judge may:
    (1) Grant summary decision for a nonmovant;
    (2) Grant the motion on grounds not raised by a party; or
    (3) Consider summary decision on the judge's own after identifying 
for the parties material facts that may not be genuinely in dispute.
    (g) Failing to grant all the requested relief. If the judge does not 
grant all the relief requested by the motion, the judge may enter an 
order stating any material fact--including an item of damages or other 
relief--that is not genuinely in dispute and treating the fact as 
established in the case.
    (h) Affidavit or declaration submitted in bad faith. If satisfied 
that an affidavit or declaration under this section is submitted in bad 
faith or solely for delay, the judge--after notice and a reasonable time 
to respond--may order sanctions or other relief as authorized by law.

                                 Hearing



Sec.  18.80  Prehearing statement.

    (a) Time for filing. Unless the judge orders otherwise, at least 21 
days before the hearing, each participating party must file a prehearing 
statement.
    (b) Required conference. Before filing a prehearing statement, the 
party must confer with all other parties in good faith to:
    (1) Stipulate to the facts to the fullest extent possible; and
    (2) Revise exhibit lists, eliminate duplicative exhibits, prepare 
joint exhibits, and attempt to resolve any objections to exhibits.
    (c) Contents. Unless ordered otherwise, the prehearing statement 
must state:
    (1) The party's name;
    (2) The issues of law to be determined with reference to the 
appropriate statute, regulation, or case law;
    (3) A precise statement of the relief sought;
    (4) The stipulated facts that require no proof;
    (5) The facts disputed by the parties;
    (6) A list of witnesses the party expects to call;
    (7) A list of the joint exhibits;
    (8) A list of the party's exhibits;
    (9) An estimate of the time required for the party to present its 
case-in-chief; and
    (10) Any additional information that may aid the parties' 
preparation for the hearing or the disposition of the proceeding, such 
as the need for specialized equipment at the hearing.
    (d) Joint prehearing statement. The judge may require the parties to 
file a joint prehearing statement rather than individual prehearing 
statements.
    (e) Signature. The prehearing statement must be in writing and 
signed. By signing, an attorney, representative, or party makes the 
certifications described in Sec.  18.50(d).



Sec.  18.81  Formal hearing.

    (a) Public. Hearings are open to the public. But, when authorized by 
law and only to the minimum extent necessary, the judge may order a 
hearing or any part of a hearing closed to the public, including 
anticipated witnesses. The order closing all or part of the hearing must 
state findings and explain why the reasons for closure outweigh the 
presumption of public access. The order and any objection must be part 
of the record.
    (b) Taking testimony. Unless a closure order is issued under 
paragraph (a) of this section, the witnesses' testimony must be taken in 
an open hearing. For good cause and with appropriate safeguards, the 
judge may permit testimony in an open hearing by contemporaneous 
transmission from a different location.
    (c) Party participation. For good cause and with appropriate 
safeguards, the judge may permit a party to participate in an open 
hearing by contemporaneous transmission from a different location.

[[Page 287]]



Sec.  18.82  Exhibits.

    (a) Identification. All exhibits offered in evidence must be marked 
with a designation identifying the party offering the exhibit and must 
be numbered and paginated as the judge orders.
    (b) Electronic data. By order the judge may prescribe the format for 
the submission of data that is in electronic form.
    (c) Exchange of exhibits. When written exhibits are offered in 
evidence, one copy must be furnished to the judge and to each of the 
parties at the hearing, unless copies were previously furnished with the 
list of proposed exhibits or the judge directs otherwise. If the judge 
does not fix a date for the exchange of exhibits, the parties must 
exchange copies of exhibits at the earliest practicable time before the 
hearing begins.
    (d) Authenticity. The authenticity of a document identified in a 
pre-hearing exhibit list is admitted unless a party files a written 
objection to authenticity at least 7 days before the hearing. The judge 
may permit a party to challenge a document's authenticity if the party 
establishes good cause for its failure to file a timely written 
objection.
    (e) Substitution of copies for original exhibits. The judge may 
permit a party to withdraw original documents offered in evidence and 
substitute accurate copies of the originals.
    (f) Designation of parts of documents. When only a portion of a 
document contains relevant matter, the offering party must exclude the 
irrelevant parts to the greatest extent practicable.
    (g) Records in other proceedings. Portions of the record of other 
administrative proceedings, civil actions or criminal prosecutions may 
be received in evidence, when the offering party shows the copies are 
accurate.



Sec.  18.83  Stipulations.

    (a) The parties may stipulate to any facts in writing at any stage 
of the proceeding or orally on the record at a deposition or at a 
hearing. These stipulations bind the parties unless the judge 
disapproves them.
    (b) Every stipulation that requests or requires a judge's action 
must be written and signed by all affected parties or their 
representatives. Any stipulation to extend time must state the reason 
for the date change.
    (c) A proposed form of order may be submitted with the stipulation; 
it may consist of an endorsement on the stipulation of the words, 
``Pursuant to stipulation, it is so ordered,'' with spaces designated 
for the date and the signature of the judge.



Sec.  18.84  Official notice.

    On motion of a party or on the judge's own, official notice may be 
taken of any adjudicative fact or other matter subject to judicial 
notice. The parties must be given an adequate opportunity to show the 
contrary of the matter noticed.



Sec.  18.85  Privileged, sensitive, or classified material.

    (a) Exclusion. On motion of any interested person or the judge's 
own, the judge may limit the introduction of material into the record or 
issue orders to protect against undue disclosure of privileged 
communications, or sensitive or classified matters. The judge may admit 
into the record a summary or extract that omits the privileged, 
sensitive or classified material.
    (b) Sealing the record. (1) On motion of any interested person or 
the judge's own, the judge may order any material that is in the record 
to be sealed from public access. The motion must propose the fewest 
redactions possible that will protect the interest offered as the basis 
for the motion. A redacted copy or summary of any material sealed must 
be made part of the public record unless the necessary redactions would 
be so extensive that the public version would be meaningless, or making 
even a redacted version or summary available would defeat the reason the 
original is sealed.
    (2) An order that seals material must state findings and explain why 
the reasons to seal adjudicatory records outweigh the presumption of 
public access. Sealed materials must be placed in a clearly marked, 
separate part of the record. Notwithstanding the judge's order, all 
parts of the record remain subject to statutes and regulations 
pertaining to public access to agency records.

[[Page 288]]



Sec.  18.86  Hearing room conduct.

    Participants must conduct themselves in an orderly manner. The 
consumption of food or beverage, and rearranging courtroom furniture are 
prohibited, unless specifically authorized by the judge. Electronic 
devices must be silenced and must not disrupt the proceedings. Parties, 
witnesses and spectators are prohibited from using video or audio 
recording devices to record hearings.



Sec.  18.87  Standards of conduct.

    (a) In general. All persons appearing in proceedings must act with 
integrity and in an ethical manner.
    (b) Exclusion for misconduct. During the course of a proceeding, the 
judge may exclude any person--including a party or a party's attorney or 
non-attorney representative--for contumacious conduct such as refusal to 
comply with directions, continued use of dilatory tactics, refusal to 
adhere to reasonable standards of orderly or ethical conduct, failure to 
act in good faith, or violation of the prohibition against ex parte 
communications. The judge must state the basis for the exclusion.
    (c) Review of representative's exclusion. Any representative 
excluded from a proceeding may appeal to the Chief Judge for 
reinstatement within 7 days of the exclusion. The exclusion order is 
reviewed for abuse of discretion. The proceeding from which the 
representative was excluded will not be delayed or suspended pending 
review by the Chief Judge, except for a reasonable delay to enable the 
party to obtain another representative.



Sec.  18.88  Transcript of proceedings.

    (a) Hearing transcript. All hearings must be recorded and 
transcribed. The parties and the public may obtain copies of the 
transcript from the official reporter at rates not to exceed the 
applicable rates fixed by the contract with the reporter.
    (b) Corrections to the transcript. A party may file a motion to 
correct the official transcript. Motions for correction must be filed 
within 14 days of the receipt of the transcript unless the judge permits 
additional time. The judge may grant the motion in whole or part if the 
corrections involve substantive errors. At any time before issuing a 
decision and upon notice to the parties, the judge may correct errors in 
the transcript.

                              Post Hearing



Sec.  18.90  Closing the record; subsequent motions.

    (a) In general. The record of a hearing closes when the hearing 
concludes, unless the judge directs otherwise. If any party waives a 
hearing, the record closes on the date the judge sets for the filing of 
the parties' submissions.
    (b) Motion to reopen the record. (1) A motion to reopen the record 
must be made promptly after the additional evidence is discovered. No 
additional evidence may be admitted unless the offering party shows that 
new and material evidence has become available that could not have been 
discovered with reasonable diligence before the record closed. Each new 
item must be designated as an exhibit under Sec.  18.82(a) and 
accompanied by proof that copies have been served on all parties.
    (2) If the record is reopened, the other parties must have an 
opportunity to offer responsive evidence, and a new evidentiary hearing 
may be set.
    (c) Motions after the decision. After the decision and order is 
issued, the judge retains jurisdiction to dispose of appropriate 
motions, such as a motion to award attorney's fees and expenses, a 
motion to correct the transcript, or a motion for reconsideration.



Sec.  18.91  Post-hearing brief.

    The judge may grant a party time to file a post-hearing brief with 
proposed findings of fact, conclusions of law, and the specific relief 
sought. The brief must refer to all portions of the record and 
authorities relied upon in support of each assertion.



Sec.  18.92  Decision and order.

    At the conclusion of the proceeding, the judge must issue a written 
decision and order.



Sec.  18.93  Motion for reconsideration.

    A motion for reconsideration of a decision and order must be filed 
no later

[[Page 289]]

than 10 days after service of the decision on the moving party.



Sec.  18.94  Indicative ruling on a motion for relief that is barred 
by a pending petition for review.

    (a) Relief pending review. If a timely motion is made for relief 
that the judge lacks authority to grant because a petition for review 
has been docketed and is pending, the judge may:
    (1) Defer considering the motion;
    (2) Deny the motion; or
    (3) State either that the judge would grant the motion if the 
reviewing body remands for that purpose or that the motion raises a 
substantial issue.
    (b) Notice to reviewing body. The movant must promptly notify the 
clerk of the reviewing body if the judge states that he or she would 
grant the motion or that the motion raises a substantial issue.
    (c) Remand. The judge may decide the motion if the reviewing body 
remands for that purpose.



Sec.  18.95  Review of decision.

    The statute or regulation that conferred hearing jurisdiction 
provides the procedure for review of a judge's decision. If the statute 
or regulation does not provide a procedure, the judge's decision becomes 
the Secretary's final administrative decision.



                       Subpart B_Rules of Evidence

    Source: 55 FR 13219, Apr. 9, 1990, unless otherwise noted.

                           General Provisions



Sec.  18.101  Scope.

    These rules govern formal adversarial adjudications of the United 
States Department of Labor conducted before a presiding officer.
    (a) Which are required by Act of Congress to be determined on the 
record after opportunity for an administrative agency hearing in 
accordance with the Administrative Procedure Act, 5 U.S.C. 554, 556 and 
557, or
    (b) Which by United States Department of Labor regulation are 
conducted in conformance with the foregoing provisions, to the extent 
and with the exceptions stated in Sec.  18.1101. Presiding officer, 
referred to in these rules as the judge, means an Administrative Law 
Judge, an agency head, or other officer who presides at the reception of 
evidence at a hearing in such an adjudication.



Sec.  18.102  Purpose and construction.

    These rules shall be construed to secure fairness in administration, 
elimination of unjustifiable expense and delay, and promotion of growth 
and development of the law of evidence to the end that the truth may be 
ascertained and proceedings justly determined.



Sec.  18.103  Rulings on evidence.

    (a) Effect of erroneous ruling. Error may not be predicated upon a 
ruling which admits or excludes evidence unless a substantial right of 
the party is affected, and
    (1) Objection. In case the ruling is one admitting evidence, a 
timely objection or motion to strike appears of record, stating the 
specific ground of objection, if the specific ground was not apparent 
from the context; or
    (2) Offer of proof. In case the ruling is one excluding evidence, 
the substance of the evidence was made known to the judge by offer or 
was apparent from the context within which questions were asked. A 
substantial right of the party is affected unless it is more probably 
true than not true that the error did not materially contribute to the 
decision or order of the judge. Properly objected to evidence admitted 
in error does not affect a substantial right if explicitly not relied 
upon by the judge in support of the decision or order.
    (b) Record of offer and ruling. The judge may add any other or 
further statement which shows the character of the evidence, the form in 
which it was offered, the objection made, and the ruling thereon. The 
judge may direct the making of an offer in question and answer form.
    (c) Plain error. Nothing in this rule precludes taking notice of 
plain errors affecting substantial rights although they were not brought 
to the attention of the judge.



Sec.  18.104  Preliminary questions.

    (a) Questions of admissibility generally. Preliminary questions 
concerning the

[[Page 290]]

qualification of a person to be a witness, the existence of a privilege, 
or the admissibility of evidence shall be determined by the judge, 
subject to the provisions of paragraph (b) of this section. In making 
such determination the judge is not bound by the rules of evidence 
except those with respect to privileges.
    (b) Relevance conditioned on fact. When the relevancy of evidence 
depends upon the fulfillment of a condition of fact, the judge shall 
admit it upon, or subject to, the introduction of evidence sufficient to 
support a finding of the fulfillment of the condition.
    (c) Weight and credibility. This rule does not limit the right of a 
party to introduce evidence relevant to weight or credibility.



Sec.  18.105  Limited admissibility.

    When evidence which is admissible as to one party or for one purpose 
but not admissible as to another party or for another purpose is 
admitted, the judge, upon request, shall restrict the evidence to its 
proper scope.



Sec.  18.106  Remainder of or related writings or recorded statements.

    When a writing or recorded statement or part thereof is introduced 
by a party, an adverse party may require the introduction at that time 
of any other part or any other writing or recorded statement which ought 
in fairness to be considered contemporaneously with it.

                             Official Notice



Sec.  18.201  Official notice of adjudicative facts.

    (a) Scope of rule. This rule governs only official notice of 
adjudicative facts.
    (b) Kinds of facts. An officially noticed fact must be one not 
subject to reasonable dispute in that it is either:
    (1) Generally known within the local area,
    (2) Capable of accurate and ready determination by resort to sources 
whose accuracy cannot reasonably be questioned, or
    (3) Derived from a not reasonably questioned scientific, medical or 
other technical process, technique, principle, or explanatory theory 
within the administrative agency's specialized field of knowledge.
    (c) When discretionary. A judge may take official notice, whether 
requested or not.
    (d) When mandatory. A judge shall take official notice if requested 
by a party and supplied with the necessary information.
    (e) Opportunity to be heard. A party is entitled, upon timely 
request, to an opportunity to be heard as to the propriety of taking 
official notice and the tenor of the matter noticed. In the absence of 
prior notification, the request may be made after official notice has 
been taken.
    (f) Time of taking notice. Official notice may be taken at any stage 
of the proceeding.
    (g) Effect of official notice. An officially noticed fact is 
accepted as conclusive.

                              Presumptions



Sec.  18.301  Presumptions in general.

    Except as otherwise provided by Act of Congress, or by rules or 
regulations prescribed by the administrative agency pursuant to 
statutory authority, or pursuant to executive order, a presumption 
imposes on the party against whom it is directed the burden of going 
forward with evidence to rebut or meet the presumption, but does not 
shift to such party the burden of proof in the sense of the risk of 
nonpersuasion, which remains throughout the trial upon the party on whom 
it was originally cast.



Sec.  18.302  Applicability of state law.

    The effect of a presumption respecting a fact which is an element of 
a claim or defense as to which State law supplies the rule of decision 
is determined in accordance with State law.

                        Relevancy and Its Limits



Sec.  18.401  Definition of relevant evidence.

    Relevant evidence means evidence having any tendency to make the 
existence of any fact that is of consequence to the determination of the

[[Page 291]]

action more probable or less probable than it would be without the 
evidence.



Sec.  18.402  Relevant evidence generally admissible; 
irrelevant evidence inadmissible.

    All relevant evidence is admissible, except as otherwise provided by 
the Constitution of the United States, by Act of Congress, pursuant to 
executive order, by these rules, or by other rules or regulations 
prescribed by the administrative agency pursuant to statutory authority. 
Evidence which is not relevant is not admissible.



Sec.  18.403  Exclusion of relevant evidence on grounds of confusion 
or waste of time.

    Although relevant, evidence may be excluded if its probative value 
is substantially outweighed by the danger of confusion of issues, or 
misleading the judge as trier of fact, or by considerations of undue 
delay, waste of time, or needless presentation of cumulative evidence.



Sec.  18.404  Character evidence not admissible to prove conduct; 
exceptions; other crimes.

    (a) Character evidence generally. Evidence of a person's character 
or a trait of character is not admissible for the purpose of proving 
action in conformity therewith on a particular occasion, except evidence 
of the character of a witness, as provided in Sec. Sec.  18.607, 18.608, 
and 18.609.
    (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, 
or acts is not admissible to prove the character of a person in order to 
show action in conformity therewith. It may, however, be admissible for 
other purposes, such as proof of motive, opportunity, intent, 
preparation, plan, knowledge, identity, or absence of mistake or 
accident.



Sec.  18.405  Methods of proving character.

    (a) Reputation of opinion. In all cases in which evidence of 
character or a trait of character of a person is admissible, proof may 
be made by testimony as to reputation or by testimony in the form of an 
opinion. On cross-examination, inquiry is allowable into relevant 
specific instances of conduct.
    (b) Specific instances of conduct. In cases in which character or a 
trait of character of a person is an essential element of a claim or 
defense, proof may also be made of specific instances of that person's 
conduct.



Sec.  18.406  Habit; routine practice.

    Evidence of the habit of a person or of the routine practice of an 
organization, whether corroborated or not and regardless of the presence 
of eyewitnesses, is relevant to prove that the conduct of the person or 
organization on a particular occasion was in conformity with the habit 
or routine practice.



Sec.  18.407  Subsequent remedial measures.

    When, after an event, measures are taken which, if taken previously, 
would have made the event less likely to occur, evidence of the 
subsequent measures is not admissible to prove negligence or culpable 
conduct in connection with the event. This rule does not require the 
exclusion of evidence of subsequent measures when offered for another 
purpose, such as proving ownership, control, or feasibility of 
precautionary measures, if controverted, or impeachment.



Sec.  18.408  Compromise and offers to compromise.

    Evidence of furnishing or offering or promising to furnish, or of 
accepting or offering or promising to accept, a valuable consideration 
in compromising or attempting to compromise a claim which was disputed 
as to either validity or amount, is not admissible to prove liability 
for or invalidity of the claim or its amount. Evidence of conduct or 
statements made in compromise negotiations is likewise not admissible. 
This rule does not require the exclusion of any evidence otherwise 
discoverable merely because it is presented in the course of compromise 
negotiations. This rule does not require exclusion when the evidence is 
offered for another purpose, such as proving bias or prejudice of a 
witness, or negativing a contention of undue delay.

[[Page 292]]



Sec.  18.409  Payment of medical and similar expenses.

    Evidence of furnishing or offering or promising to pay medical, 
hospital, or similar expenses occasioned by an injury is not admissible 
to prove liability for the injury.



Sec.  18.410  Inadmissibility of pleas, plea discussion, 
and related statements.

    Except as otherwise provided in this rule, evidence of the following 
is not admissible against the defendant who made the plea or was a 
participant in the plea discussions:
    (a) A plea of guilty which was later withdrawn;
    (b) A plea of nolo contendere;
    (c) Any statement made in the course of any proceedings under Rule 
11 of the Federal Rules of Criminal Procedure or comparable state 
procedure regarding either of the foregoing pleas; or
    (d) Any statement made in the course of plea discussions with an 
attorney for the prosecuting authority which do not result in a plea of 
guilty or which result in a plea of guilty later withdrawn. However, 
such a statement is admissible in any proceeding wherein another 
statement made in the course of the same plea discussions has been 
introduced and the statement ought in fairness be considered 
contemporaneously with it.



Sec.  18.411  Liability insurance.

    Evidence that a person was or was not insured against liability is 
not admissible upon the issue whether the person acted negligently or 
otherwise wrongfully. This rule does not require the exclusion of 
evidence of insurance against liability when offered for another 
purpose, such as proof of agency, ownership, or control, or bias or 
prejudice of a witness.

                               Privileges



Sec.  18.501  General rule.

    Except as otherwise required by the Constitution of the United 
States, or provided by Act of Congress, or by rules or regulations 
prescribed by the administrative agency pursuant to statutory authority, 
or pursuant to executive order, the privilege of a witness, person, 
government, State, or political subdivision thereof shall be governed by 
the principles of the common law as they may be interpreted by the 
courts of the United States in the light of reason and experience. 
However with respect to an element of a claim or defense as to which 
State law supplies the rule of decision, the privilege of a witness, 
person, government, State, or political subdivision thereof shall be 
determined in accordance with State law.

                                Witnesses



Sec.  18.601  General rule of competency.

    Every person is competent to be a witness except as otherwise 
provided in these rules. However with respect to an element of a claim 
or defense as to which State law supplies the rule of decision, the 
competency of a witness shall be determined in accordance with State 
law.



Sec.  18.602  Lack of personal knowledge.

    A witness may not testify to a matter unless evidence is introduced 
sufficient to support a finding that the witness has personal knowledge 
of the matter. Evidence to prove personal knowledge may, but need not, 
consist of the witness' own testimony. This rule is subject to the 
provisions of Sec.  18.703, relating to opinion testimony by expert 
witnesses.



Sec.  18.603  Oath or affirmation.

    Before testifying, every witness shall be required to declare that 
the witness will testify truthfully, by oath or affirmation administered 
in a form calculated to awaken the witness' conscience and impress the 
witness' mind with the duty to do so.



Sec.  18.604  Interpreters.

    An interpreter is subject to the provisions of these rules relating 
to qualification as an expert and the administration of an oath or 
affirmation to make a true translation.



Sec.  18.605  Competency of judge as witness.

    The judge presiding at the hearing may not testify in that hearing 
as a witness. No objection need be made in order to preserve the point.

[[Page 293]]



Sec.  18.606  [Reserved]



Sec.  18.607  Who may impeach.

    The credibility of a witness may be attacked by any party, including 
the party calling the witness.



Sec.  18.608  Evidence of character and conduct of witness.

    (a) Opinion and reputation evidence of character. The credibility of 
a witness may be attacked or supported by evidence in the form of 
opinion or reputation, but subject to these limitations:
    (1) The evidence may refer only to character for truthfulness or 
untruthfulness, and
    (2) Evidence of truthful character is admissible only after the 
character of the witness for truthfulness has been attacked by opinion 
or reputation evidence or otherwise.
    (b) Specific instances of conduct. Specific instances of the conduct 
of a witness, for the purpose of attacking or supporting the witness' 
credibility, other than conviction of crime as provided in Sec.  18.609, 
may not be proved by extrinsic evidence. They may, however, in the 
discretion of the judge, if probative of truthfulness or untruthfulness, 
be inquired into on cross-examination of the witness, concerning the 
witness' character for truthfulness or untruthfulness, or concerning the 
character for truthfulness or untruthfulness of another witness as to 
which character the witness being cross-examined has testified.
    The giving of testimony by any witness does not operate as a waiver 
of the witness' privilege against self-incrimination when examined with 
respect to matters which relate only to credibility.



Sec.  18.609  Impeachment by evidence of conviction of crime.

    (a) General rule. For the purpose of attacking the credibility of a 
witness, evidence that the witness has been convicted of a crime shall 
be admitted if the crime was punishable by death or imprisonment in 
excess of one year under the law under which the witness was convicted, 
or involved dishonesty or false statement, regardless of the punishment.
    (b) Time limit. Evidence of a conviction under this rule is not 
admissible if a period of more than ten years has elapsed since the date 
of the conviction or of the release of the witness from the confinement 
imposed for that conviction, whichever is the later date.
    (c) Effect of pardon, annulment, or certificate of rehabilitation. 
Evidence of a conviction is not admissible under this rule if:
    (1) The conviction has been the subject of a pardon, annulment, 
certificate of rehabilitation, or other equivalent procedure based on a 
finding of the rehabilitation of the person convicted, and that person 
has not been convicted of a subsequent crime which was punishable by 
death or imprisonment in excess of one year, or
    (2) The conviction has been the subject of a pardon, annulment, or 
other equivalent procedure based on a finding of innocence.
    (d) Juvenile adjudications. Evidence of juvenile adjudications is 
not admissible under this rule.
    (e) Pendency of appeal. The pendency of an appeal therefrom does not 
render evidence of a conviction inadmissible. Evidence of the pendency 
of an appeal is admissible.

[55 FR 13219, Apr. 9, 1990; 55 FR 14033, Apr. 13, 1990]



Sec.  18.610  Religious beliefs or opinions.

    Evidence of the beliefs or opinions of a witness on matters of 
religion is not admissible for the purpose of showing that by reason of 
their nature the witness' credibility is impaired or enhanced.



Sec.  18.611  Mode and order of interrogation and presentation.

    (a) Control by judge. The judge shall exercise reasonable control 
over the mode and order of interrogating witnesses and presenting 
evidence so as to:
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth,
    (2) Avoid needless consumption of time, and
    (3) Protect witnesses from harassment or undue embarrassment.
    (b) Scope of cross-examination. Cross-examination should be limited 
to the

[[Page 294]]

subject matter of the direct examination and matters affecting the 
credibility of the witness. The judge may, in the exercise of 
discretion, permit inquiry into additional matters as if on direct 
examination.
    (c) Leading questions. Leading questions should not be used on the 
direct examination of a witness except as may be necessary to develop 
the witness' testimony. Ordinarily leading questions should be permitted 
on cross-examination. When a party calls a hostile witness, an adverse 
party, or a witness identified with an adverse party, interrogation may 
be by leading questions.



Sec.  18.612  Writing used to refresh memory.

    If a witness uses a writing to refresh memory for the purpose of 
testifying, either while testifying, or before testifying if the judge 
in the judge's discretion determines it is necessary in the interest of 
justice, an adverse party is entitled to have the writing produced at 
the hearing, to inspect it, to cross-examine the witness thereon, and to 
introduce in evidence those portions which relate to the testimony of 
the witness. If it is claimed that the writing contains matters not 
related to the subject matter of the testimony the judge shall examine 
the writing in camera, excise any portion not so related, and order 
delivery of the remainder to the party entitled thereto. Any portion 
withheld over objections shall be preserved and made available in the 
event of review. If a writing is not produced or delivered pursuant to 
order under this rule, the judge shall make any order justice requires.



Sec.  18.613  Prior statements of witnesses.

    (a) Examining witness concerning prior statement. In examining a 
witness concerning a prior statement made by the witness, whether 
written or not, the statement need not be shown nor its contents 
disclosed to the witness at that time, but on request the same shall be 
shown or disclosed to opposing counsel.
    (b) Extrinsic evidence of prior inconsistent statement of witness. 
Extrinsic evidence of a prior inconsistent statement by a witness is not 
admissible unless the witness is afforded an opportunity to explain or 
deny the same and the opposite party is afforded an opportunity to 
interrogate the witness thereon, or the interests of justice otherwise 
require. This provision does not apply to admissions of a party-opponent 
as defined in Sec.  18.801(d)(2).



Sec.  18.614  Calling and interrogation of witnesses by judge.

    (a) Calling by the judge. The judge may, on the judge's own motion 
or at the suggestion of a party, call witnesses, and all parties are 
entitled to cross-examine witnesses thus called.
    (b) Interrogation by the judge. The judge may interrogate witnesses, 
whether called by the judge or by a party.
    (c) Objections. Objections to the calling of witnesses by the judge 
or to interrogation by the judge must be timely.



Sec.  18.615  Exclusion of witnesses.

    At the request of a party the judge shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses, and the judge 
may make the order of the judge's own motion. This rule does not 
authorize exclusion of a party who is a natural person, or an officer or 
employee of a party which is not a natural person designated as its 
representative by its attorney, or a person whose presence is shown by a 
party to be essential to the presentation of the party's cause.

                      Opinions and Expert Testimony



Sec.  18.701  Opinion testimony by lay witnesses.

    If the witness is not testifying as an expert, the witness' 
testimony in the form of opinions or inferences is limited to those 
opinions or inferences which are rationally based on the perception of 
the witness and helpful to a clear understanding of the witness' 
testimony or the determination of a fact in issue.



Sec.  18.702  Testimony by experts.

    If scientific, technical, or other specialized knowledge will assist 
the judge as trier of fact to understand the evidence or to determine a 
fact in issue, a

[[Page 295]]

witness qualified as an expert by knowledge, skill, experience, 
training, or education, may testify thereto in the form of an opinion or 
otherwise.



Sec.  18.703  Bases of opinion testimony by experts.

    The facts or data in the particular case upon which an expert bases 
an opinion or inference may be those perceived by or made known to the 
expert at or before the hearing. If of a type reasonably relied upon by 
experts in the particular field in forming opinions or inferences upon 
the subject, the facts or data need not be admissible in evidence.



Sec.  18.704  Opinion on ultimate issue.

    Testimony in the form of an opinion or inference otherwise 
admissible is not objectionable because it embraces an ultimate issue to 
be decided by the judge as trier of fact.



Sec.  18.705  Disclosure of facts or data underlying expert opinion.

    The expert may testify in terms of opinion or inference and give 
reasons therefor without prior disclosure of the underlying facts or 
data, unless the judge requires otherwise. The expert may in any event 
be required to disclose the underlying facts or data on cross-
examination.



Sec.  18.706  Judge appointed experts.

    (a) Appointment. The judge may on the judge's own motion or on the 
motion of any party enter an order to show cause why expert witnesses 
should not be appointed, and may request the parties to submit 
nominations. The judge may appoint any expert witnesses agreed upon by 
the parties, and may appoint expert witnesses of the judge's own 
selection. An expert witness shall not be appointed by the judge unless 
the witness consents to act. A witness so appointed shall be informed of 
the witness' duties by the judge in writing, a copy of which shall be 
filed with the clerk, or at a conference in which the parties shall have 
an opportunity to participate. A witness so appointed shall advise the 
parties of the witness' findings, if any; the witness' deposition may be 
taken by any party; and the witness may be called to testify by the 
judge or any party. The witness shall be subject to cross-examination by 
each party, including a party calling the witness.
    (b) Compensation. Expert witnesses so appointed are entitled to 
reasonable compensation in whatever sum the judge may allow. The 
compensation thus fixed is payable from funds which may be provided by 
law in hearings involving just compensation under the fifth amendment. 
In other hearings the compensation shall be paid by the parties in such 
proportion and at such time as the judge directs, and thereafter charged 
in like manner as other costs.
    (c) Parties' experts of own selection. Nothing in this rule limits 
the parties in calling expert witnesses of their own selection.

                                 Hearsay



Sec.  18.801  Definitions.

    (a) Statement. A statement is (1) an oral or written assertion, or 
(2) nonverbal conduct of a person, if it is intended by the person as an 
assertion.
    (b) Declarant. A declarant is a person who makes a statement.
    (c) Hearsay. Hearsay is a statement, other than one made by the 
declarant while testifying at the hearing, offered in evidence to prove 
the truth of the matter asserted.
    (d) Statements which are not hearsay. A statement is not hearsay if:
    (1) Prior statement by witness. The declarant testifies at the 
hearing and is subject to cross-examination concerning the statement, 
and the statement is--
    (i) Inconsistent with the declarant's testimony, or
    (ii) Consistent with the declarant's testimony and is offered to 
rebut an express or implied charge against the declarant of recent 
fabrication or improper influence or motive, or
    (iii) One of identification of a person made after perceiving the 
person; or
    (2) Admission by party-opponent. The statement is offered against a 
party and is--
    (i) The party's own statement in either an individual or a 
representative capacity, or

[[Page 296]]

    (ii) A statement of which the party has manifested an adoption or 
belief in its truth, or
    (iii) A statement by a person authorized by the party to make a 
statement concerning the subject, or
    (iv) A statement by the party's agent or servant concerning a matter 
within the scope of the agency or employment, made during the existence 
of the relationship, or
    (v) A statement by a co-conspirator of a party during the course and 
in furtherance of the conspiracy.



Sec.  18.802  Hearsay rule.

    Hearsay is not admissible except as provided by these rules, or by 
rules or regulations of the administrative agency prescribed pursuant to 
statutory authority, or pursuant to executive order, or by Act of 
Congress.



Sec.  18.803  Hearsay exceptions; availability of declarant immaterial.

    (a) The following are not excluded by the hearsay rule, even though 
the declarant is available as a witness:
    (1) Present sense impression. A statement describing or explaining 
an event or condition made while the declarant was perceiving the event 
or condition, or immediately thereafter.
    (2) Excited utterance. A statement relating to a startling event or 
condition made while the declarant was under the stress of excitement 
caused by the event or condition.
    (3) Then existing mental, emotional, or physical condition. A 
statement of the declarant's then existing state of mind, emotion, 
sensation, or physical condition (such as intent, plan, motive, design, 
mental feeling, pain, and bodily health), but not including a statement 
of memory or belief to prove the fact remembered or believed unless it 
relates to the execution, revocation, identification, or terms of 
declarant's will.
    (4) Statements for purposes of medical diagnosis or treatment. 
Statements made for purposes of medical diagnosis or treatment and 
describing medical history, or past or present symptoms, pain, or 
sensations or the inception or general character of the cause or 
external source thereof insofar as reasonably pertinent to diagnosis or 
treatment.
    (5) Recorded recollection. A memorandum or record concerning a 
matter about which a witness once had knowledge but now has insufficient 
recollection to enable the witness to testify fully and accurately, 
shown to have been made or adopted by the witness when the matter was 
fresh in the witness' memory and to reflect that knowledge correctly.
    (6) Records of regularly conducted activity. A memorandum, report, 
record, or data compilation, in any form, of acts, events, conditions, 
opinions, or diagnoses, made at or near the time by, or from information 
transmitted by, a person with knowledge, if kept in the course of a 
regularly conducted business activity, and if it was the regular 
practice of that business activity to make the memorandum, report, 
record, or data compilation, all as shown by the testimony of the 
custodian or other qualified witness, unless the source of information 
or the method or circumstances of preparation indicate lack of 
trustworthiness. The term business as used in this paragraph includes 
business, institution, association, profession, occupation, and calling 
of every kind, whether or not conducted for profit.
    (7) Absence of entry in records kept in accordance with the 
provisions of paragraph (6). Evidence that a matter is not included in 
the memoranda reports, records, or data compilations, in any form, kept 
in accordance with the provisions of paragraph (6), to prove the 
nonoccurrence or nonexistence of the matter, if the matter was of a kind 
of which a memorandum, report, record, or data compilation was regularly 
made and preserved, unless the sources of information or other 
circumstances indicate lack of trustworthiness.
    (8) Public records and reports. Records, reports, statements, or 
data compilations, in any form, of public offices or agencies, setting 
forth--
    (i) The activities of the office or agency, or
    (ii) Matters observed pursuant to duty imposed by law as to which 
matters there was a duty to report, or

[[Page 297]]

    (iii) Factual findings resulting from an investigation made pursuant 
to authority granted by law, unless the sources of information or other 
circumstances indicate lack of trustworthiness.
    (9) Records of vital statistics. Records or data compilations, in 
any form, of births, fetal deaths, deaths, or marriages, if the report 
thereof was made to a public office pursuant to requirements of law.
    (10) Absence of public record or entry. To prove the absence of a 
record, report, statement, or data compilation, in any form, or the 
nonoccurrence or nonexistence of a matter of which a record, report, 
statement, or data compilation, in any form, was regularly made and 
preserved by a public office or agency, evidence in the form of a 
certification in accordance with Sec.  18.902, or testimony, that 
diligent search failed to disclose the record, report, statement, or 
date compilation, or entry.
    (11) Records of religious organizations. Statements of births, 
marriages, divorces, deaths, legitimacy, ancestry, relationship by blood 
or marriage, or other similar facts of personal or family history, 
contained in a regularly kept record of a religious organization.
    (12) Marriage, baptismal, and similar certificates. Statements of 
fact contained in a certificate that the maker performed a marriage or 
other ceremony or administered a sacrament, made by a clergyman, public 
official, or other person authorized by the rules or practices of a 
religious organization or by law to perform the act certified, and 
purporting to have been issued at the time of the act or within a 
reasonable time thereafter.
    (13) Family records. Statements of fact concerning personal or 
family history contained in family Bibles, genealogies, charts, 
engravings on rings, inscriptions on family portraits, engravings on 
urns, crypts, or tombstones, or the like.
    (14) Records of documents affecting an interest in property. The 
record of a document purporting to establish or affect an interest in 
property, as proof of the content of the original recorded document and 
its execution and delivery by each person by whom it purports to have 
been executed, if the record is a record of a public office and an 
applicable statute authorizes the recording of documents of that kind in 
that office.
    (15) Statements in documents affecting an interest in property. A 
statement contained in a document purporting to establish or affect an 
interest in property if the matter stated was relevant to the purpose of 
the document, unless dealings with the property since the document was 
made have been inconsistent with the truth of the statement or the 
purport of the document.
    (16) Statements in ancient documents. Statements in a document in 
existence twenty years or more the authenticity of which is established.
    (17) Market reports, commercial publications. Market quotations, 
tabulations, lists, directories, or other published compilations, 
generally used and relied upon by the public or by persons in particular 
occupations.
    (18) Learned treatises. To the extent called to the attention of an 
expert witness upon cross-examination or relied upon by the expert 
witness in direct examination, statements contained in published 
treatises, periodicals, or pamphlets on a subject of history, medicine, 
or other science or art, established as a reliable authority by the 
testimony or admission of the witness or by other expert testimony or by 
official notice.
    (19) Reputation concerning personal or family history. Reputation 
among members of a person's family by blood, adoption, or marriage, or 
among a person's associates, or in the community, concerning a person's 
birth, adoption, marriage, divorce, death, legitimacy, relationship by 
blood, adoption, or marriage, ancestry, or other similar fact of 
personal or family history.
    (20) Reputation concerning boundaries or general history. Reputation 
in a community, arising before the controversy, as to boundaries of or 
customs affecting lands in the community, and reputation as to events of 
general history important to the community or State or nation in which 
located.
    (21) Reputation as to character. Reputation of a person's character 
among associates or in the community.
    (22) Judgment of previous conviction. Evidence of a final judgment, 
entered

[[Page 298]]

after a trial or upon a plea of guilty (but not upon a plea of nolo 
contendere), adjudging a person guilty of a crime punishable by death or 
imprisonment in excess of one year, to prove any fact essential to 
sustain the judgment. The pendency of an appeal may be shown but does 
not affect admissibility.
    (23) Judgment as to personal, family, or general history, or 
boundaries. Judgments as proof of matters of personal, family or general 
history, or boundaries, essential to the judgment, if the same would be 
provable by evidence of reputation.
    (24) Other exceptions. A statement not specifically covered by any 
of the foregoing exceptions but having equivalent circumstantial 
guarantees of trustworthiness to the aforementioned hearsay exceptions, 
if the judge determines that (i) the statement is offered as evidence of 
a material fact; (ii) the statement is more probative on the point for 
which it is offered than any other evidence which the proponent can 
procure through reasonable efforts; and (iii) the general purposes of 
these rules and the interests of justice will best be served by 
admission of the statement into evidence. However, a statement may not 
be admitted under this exception unless the proponent of it makes known 
to the adverse party sufficiently in advance of the hearing to provide 
the adverse party with a fair opportunity to prepare to meet it, the 
proponent's intention to offer the statement and the particulars of it, 
including the name and address of the declarant.
    (25) Self-authentication. The self-authentication of documents and 
other items as provided in Sec.  18.902.
    (26) Bills, estimates and reports. In actions involving injury, 
illness, disease, death, disability, or physical or mental impairment, 
or damage to property, the following bills, estimates, and reports as 
relevant to prove the value and reasonableness of the charges for 
services, labor and materials stated therein and, where applicable, the 
necessity for furnishing the same, unless the sources of information or 
other circumstances indicate lack of trustworthiness, provided that a 
copy of said bill, estimate, or report has been served upon the adverse 
party sufficiently in advance of the hearing to provide the adverse 
party with a fair opportunity to prepare to object or meet it:
    (i) Hospital bills on the official letterhead or billhead of the 
hospital, when dated and itemized.
    (ii) Bills of doctors and dentists, when dated and containing a 
statement showing the date of each visit and the charge therefor.
    (iii) Bills of registered nurses, licensed practical nurses and 
physical therapists, or other licensed health care providers when dated 
and containing an itemized statement of the days and hours of service 
and charges therefor.
    (iv) Bills for medicine, eyeglasses, prosthetic device, medical 
belts or similar items, when dated and itemized.
    (v) Property repair bills or estimates, when dated and itemized, 
setting forth the charges for labor and material. In the case of an 
estimate, the party intending to offer the estimate shall forward with 
his notice to the adverse party, together with a copy of the estimate, a 
statement indicating whether or not the property was repaired, and, if 
so, whether the estimated repairs were made in full or in part and by 
whom, the cost thereof, together with a copy of the bill therefore.
    (vi) Reports of past earnings, or of the rate of earnings and time 
lost from work or lost compensation, prepared by an employer on official 
letterhead, when dated and itemized. The adverse party may not dispute 
the authenticity, the value or reasonableness of such charges, the 
necessity therefore or the accuracy of the report, unless the adverse 
party files and serves written objection thereto sufficiently in advance 
of the hearing stating the objections, and the grounds thereof, that the 
adverse party will make if the bill, estimate, or reports is offered at 
the time of the hearing. An adverse party may call the author of the 
bill, estimate, or report as a witness and examine the witness as if 
under cross-examination.
    (27) Medical reports. In actions involving injury, illness, disease, 
death, disability, or physical or mental impairment, doctor, hospital, 
laboratory and

[[Page 299]]

other medical reports, made for purposes of medical treatment, unless 
the sources of information or other circumstances indicate lack of 
trustworthiness, provided that a copy of the report has been filed and 
served upon the adverse party sufficiently in advance of the hearing to 
provide the adverse party with a fair opportunity to prepare to object 
or meet it. The adverse party may not object to the admissibility of the 
report unless the adverse party files and serves written objection 
thereto sufficiently in advance of the hearing stating the objections, 
and the grounds therefor, that the adverse party will make if the report 
is offered at the time of the hearing. An adverse party may call the 
author of the medical report as a witness and examine the witness as if 
under cross-examination.
    (28) Written reports of expert witnesses. Written reports of an 
expert witness prepared with a view toward litigation, including but not 
limited to a diagnostic report of a physician, including inferences and 
opinions, when on official letterhead, when dated, when including a 
statement of the expert's qualifications, when including a summary of 
experience as an expert witness in litigation, when including the basic 
facts, data, and opinions forming the basis of the inferences or 
opinions, and when including the reasons for or explanation of the 
inferences and opinions, so far as admissible under rules of evidence 
applied as though the witness was then present and testifying, unless 
the sources of information or the method or circumstances of preparation 
indicate lack of trustworthiness, provided that a copy of the report has 
been filed and served upon the adverse party sufficiently in advance of 
the hearing to provide the adverse party with a fair opportunity to 
prepare to object or meet it. The adverse party may not object to the 
admissibility of the report unless the adverse party files and serves 
written objection thereto sufficiently in advance of the hearing stating 
the objections, and the grounds therefor, that the adverse party will 
make if the report is offered at the time of the hearing. An adverse 
party may call the expert as a witness and examine the witness as if 
under cross-examination.
    (29) Written statements of lay witnesses. Written statements of a 
lay witness made under oath or affirmation and subject to the penalty of 
perjury, so far as admissible under the rules of evidence applied as 
though the witness was then present and testifying, unless the sources 
of information or the method or circumstances of preparation indicate 
lack of trustworthiness provided that (i) a copy of the written 
statement has been filed and served upon the adverse party sufficiently 
in advance of the hearing to provide the adverse party with a fair 
opportunity to prepare to object or meet it, and (ii) if the declarant 
is reasonably available as a witness, as determined by the judge, no 
adverse party has sufficiently in advance of the hearing filed and 
served upon the noticing party a written demand that the declarant be 
produced in person to testify at the hearing. An adverse party may call 
the declarant as a witness and examine the witness as if under cross-
examination.
    (30) Deposition testimony. Testimony given as a witness in a 
deposition taken in compliance with law in the course of the same 
proceeding, so far as admissible under the rules of evidence applied as 
though the witness was then present and testifying, if the party against 
whom the testimony is now offered had an opportunity and similar motive 
to develop the testimony by direct, cross, or redirect examination, 
provided that a notice of intention to offer the deposition in evidence, 
together with a copy thereof if not otherwise previously provided, has 
been served upon the adverse party sufficiently in advance of the 
hearing to provide the adverse party with a fair opportunity to prepare 
to object or meet it. An adverse party may call the deponent as a 
witness and examine the witness as if under cross-examination.
    (b) [Reserved]



Sec.  18.804  Hearsay exceptions; declarant unavailable.

    (a) Definition of unavailability. Unavailability as a witness 
includes situations in which the declarant:

[[Page 300]]

    (1) Is exempted by ruling of the judge on the ground of privilege 
from testifying concerning the subject matter of the declarant's 
statement; or
    (2) Persists in refusing to testify concerning the subject matter of 
the declarant's statement despite an order of the judge to do so; or
    (3) Testifies to a lack of memory of the subject matter of the 
declarant's statement; or
    (4) Is unable to be present or to testify at the hearing because of 
death or then existing physical or mental illness or infirmity; or
    (5) Is absent from the hearing and the proponent of a statement has 
been unable to procure the declarant's attendance (or in the case of a 
hearsay exception under paragraph (b) (2), (3), or (4) of this section, 
the declarant's attendance or testimony) by process or other reasonable 
means.

A declarant is not unavailable as a witness if exemption, refusal, claim 
of lack of memory, inability, or absence is due to the procurement or 
wrongdoing of the proponent of a statement for the purpose of preventing 
the witness from attending or testifying.
    (b) Hearsay exceptions. The following are not excluded by the 
hearsay rule if the declarant is unavailable as a witness:
    (1) Former testimony. Testimony given as a witness at another 
hearing of the same or a different proceeding, or in a deposition taken 
in compliance with law in the course of the same or another proceeding, 
if the party against whom the testimony is now offered, or a predecessor 
in interest, had an opportunity and similar motive to develop the 
testimony by direct, cross, or redirect examination.
    (2) Statement under belief of impending death. A statement made by a 
declarant while believing that the declarant's death was imminent, 
concerning the cause or circumstances of what the declarant believed to 
be impending death.
    (3) Statement against interest. A statement which was at the time of 
its making so far contrary to the declarant's pecuniary or proprietary 
interest, or so far tended to subject the declarant to civil or criminal 
liability, or to render invalid a claim by the declarant against 
another, that a reasonable person in the declarant's position would not 
have made the statement unless believing it to be true.
    (4) Statement of personal or family history. (i) A statement 
concerning the declarant's own birth, adoption, marriage, divorce, 
legitimacy, relationship by blood, adoption, or marriage, ancestry, or 
other similar fact of personal or family history, even though declarant 
had no means of acquiring personal knowledge of the matter stated; or
    (ii) A statement concerning the foregoing matters, and death also, 
of another person, if the declarant was related to the other by blood, 
adoption, or marriage or was so intimately associated with the other's 
family as to be likely to have accurate information concerning the 
matter declared.
    (5) Other exceptions. A statement not specifically covered by any of 
the foregoing exceptions but having equivalent circumstantial guarantees 
of trustworthiness to the aforementioned hearsay exceptions, if the 
judge determines that--
    (i) The statement is offered as evidence of a material fact;
    (ii) The statement is more probative on the point for which it is 
offered than any other evidence which the proponent can procure through 
reasonable efforts; and
    (iii) The general purposes of these rules and the interests of 
justice will best be served by admission of the statement into evidence. 
However, a statement may not be admitted under this exception unless the 
proponent of it makes known to the adverse party sufficiently in advance 
of the hearing to provide the adverse party with a fair opportunity to 
prepare to meet it, the proponent's intention to offer the statement and 
the particulars of it, including the name and address of the declarant.



Sec.  18.805  Hearsay within hearsay.

    Hearsay included within hearsay is not excluded under the hearsay 
rule if each part of the combined statements conforms with an exception 
to the hearsay rule provided in these rules.

[[Page 301]]



Sec.  18.806  Attacking and supporting credibility of declarant.

    When a hearsay statement, or a statement defined in Sec.  
18.801(d)(2), (iii), (iv), or (v), has been admitted in evidence, the 
credibility of the declarant may be attacked, and if attacked may be 
supported, by any evidence which would be admissible for those purposes 
if declarant had testified as a witness. Evidence of a statement or 
conduct by the declarant at any time, inconsistent with the declarant's 
hearsay statement, is not subject to any requirement that the declarant 
may have been afforded an opportunity to deny or explain. If the party 
against whom a hearsay statement has been admitted calls the declarant 
as a witness, the party is entitled to examine the declarant on the 
statement as if under cross-examination.

                    Authentication and Identification



Sec.  18.901  Requirement of authentication or identification.

    (a) General provision. The requirement of authentication or 
identification as a condition precedent to admissibility is satisfied by 
evidence sufficient to support a finding that the matter in question is 
what its proponent claims.
    (b) Illustrations. By way of illustration only, and not by way of 
limitation, the following are examples of authentication or 
identification conforming with the requirements of this rule:
    (1) Testimony of witness with knowledge. Testimony that a matter is 
what it is claimed to be.
    (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the 
genuineness of handwriting, based upon familiarity not acquired for 
purposes of litigation.
    (3) Comparison by judge or expert witness. Comparison by the judge 
as trier of fact or by expert witnesses with specimens which have been 
authenticated.
    (4) Distinctive characteristics and the like. Appearance, contents, 
substance, internal patterns, or other distinctive characteristics, 
taken in conjunction with circumstances.
    (5) Voice identification. Identification of a voice, whether heard 
firsthand or through mechanical or electronic transmission or recording, 
by opinion based upon hearing the voice at any time under circumstances 
connecting it with the alleged speaker.
    (6) Telephone conversations. Telephone conversations, by evidence 
that a call was made to the number assigned at the time by the telephone 
company to a particular person or business, if--
    (i) In the case of a person, circumstances, including self-
identification, show the person answering to be the one called, or
    (ii) In the case of a business, the call was made to a place of 
business and the conversation related to business reasonably transacted 
over the telephone.
    (7) Public records or reports. Evidence that a writing authorized by 
law to be recorded or filed and in fact recorded or filed in a public 
office, or a purported public record, report, statement, or data 
compilation, in any form, is from the public office where items of this 
nature are kept.
    (8) Ancient documents or data compilation. Evidence that a document 
or data compilation, in any form,
    (i) Is in such condition as to create no suspicion concerning its 
authenticity,
    (ii) Was in a place where it, if authentic, would likely be, and
    (iii) Has been in existence 20 years or more at the time it is 
offered.
    (9) Process or system. Evidence describing a process or system used 
to produce a result and showing that the process or system produces an 
accurate result.
    (10) Methods provided by statute or rule. Any method of 
authentication or identification provided by Act of Congress, or by rule 
or regulation prescribed by the administrative agency pursuant to 
statutory authority, or pursuant to executive order.



Sec.  18.902  Self-authentication.

    (a) Extrinsic evidence of authenticity as a condition precedent to 
admissibility is not required with respect to the following:
    (1) Domestic public documents under seal. A document bearing a seal 
purporting to be that of the United States, or of any State, district, 
Commonwealth, territory, or insular possession

[[Page 302]]

thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific 
Islands, or of a political subdivision, department, officer, or agency 
thereof, and a signature purporting to be an attestation or execution.
    (2) Domestic public documents not under seal. A document purporting 
to bear the signature in the official capacity of an officer or employee 
of any entity included in paragraph (a)(1) of this section, having no 
seal, if a public officer having a seal and having official duties in 
the district or political subdivision of the officer or employee 
certifies under seal that the signer has the official capacity and that 
the signature is genuine.
    (3) Foreign public documents. A document purporting to be executed 
or attested in an official capacity by a person authorized by the laws 
of a foreign country to make the execution or attestation, and 
accompanied by a final certification as to the genuineness of the 
signature and official position--
    (i) Of the executing or attesting person, or
    (ii) Of any foreign official whose certificate of genuineness of 
signature and official position relates to the execution or attestation 
or is in a chain of certificates of genuineness of signature and 
official position relating to the execution or attestation. A final 
certification may be made by a secretary of embassy or legation, consul, 
vice consul, or consular agent of the United States, or a diplomatic or 
consular official of the foreign country assigned or accredited to the 
United States. If reasonable opportunity has been given to all parties 
to investigate the authenticity and accuracy of official documents, the 
judge may, for good cause shown, order that they be treated as 
presumptively authentic without final certification or permit them to be 
evidenced by an attested summary with or without final certification.
    (4) Certified copies of public records. A copy of an official record 
or report or entry therein, or of a document authorized by law to be 
recorded or filed and actually recorded or filed in a public office, 
including data compilations in any form, certified as correct by the 
custodian or other person authorized to make the certification, by 
certificate complying with paragraph (a) (1), (2), or (3) of this 
section, with any Act of Congress, or with any rule or regulation 
prescribed by the administrative agency pursuant to statutory authority, 
or pursuant to executive order.
    (5) Official publications. Books, pamphlets, or other publications 
purporting to be issued by public authority.
    (6) Newspapers and periodicals. Printed materials purporting to be 
newspapers or periodicals.
    (7) Trade inscriptions and the like. Inscriptions, signs, tags, or 
labels purporting to have been affixed in the course of business and 
indicating ownership, control, or origin.
    (8) Acknowledged documents. Documents accompanied by a certificate 
of acknowledgment executed in the manner provided by law by a notary 
public or other officer authorized by law to take acknowledgments.
    (9) Commercial paper and related documents. Commercial paper, 
signatures thereon, and documents relating thereto to the extent 
provided by general commercial law.
    (10) Presumptions under Acts of Congress or administrative agency 
rules or regulations. Any signature, document, or other matter declared 
by Act of Congress or by rule or regulation prescribed by the 
administrative agency pursuant to statutory authority or pursuant to 
executive order to be presumptively or prima facie genuine or authentic.
    (11) Certified records of regularly conducted activity. The original 
or a duplicate of a record of regularly conducted activity, within the 
scope of Sec.  18.803(6), which the custodian thereof or another 
qualified individual certifies
    (i) Was made, at or near the time of the occurrence of the matters 
set forth, by, or from information transmitted by, a person with 
knowledge of those matters,
    (ii) Is kept in the course of the regularly conducted activity, and
    (iii) Was made by the regularly conducted activity as a regular 
practice, unless the sources of information or the method or 
circumstances of preparation indicate lack of trustworthiness. A record 
so certified is not self-authenticating under this paragraph unless

[[Page 303]]

the proponent makes an intention to offer it known to the adverse party 
and makes it available for inspection sufficiently in advance of its 
offer in evidence to provide the adverse party with a fair opportunity 
to object or meet it. As used in this subsection, certifies means, with 
respect to a domestic record, a written declaration under oath subject 
to the penalty of perjury and, with respect to a foreign record, a 
written declaration signed in a foreign country which, if falsely made, 
would subject the maker to criminal penalty under the laws of that 
country.
    (12) Bills, estimates, and reports. In actions involving injury, 
illness, disease, death, disability, or physical or mental impairment, 
or damage to property, the following bills, estimates, and reports 
provided that a copy of said bill, estimate, or report has been served 
upon the adverse party sufficiently in advance of the hearing to provide 
the adverse party with a fair opportunity to prepare to object or meet 
it:
    (i) Hospital bills on the official letterhead or billhead of the 
hospital, when dated and itemized.
    (ii) Bills of doctors and dentists, when dated and containing a 
statement showing the date of each visit and the charge therefor.
    (iii) Bills of registered nurses, licensed practical nurses and 
physical therapists or other licensed health care providers, when dated 
and containing an itemized statement of the days and hours of service 
and the charges therefor.
    (iv) Bills for medicine, eyeglasses, prosthetic devices, medical 
belts or similar items, when dated and itemized.
    (v) Property repair bills or estimates, when dated and itemized, 
setting forth the charges for labor and material. In the case of an 
estimate, the party intending to offer the estimate shall forward with 
his notice to the adverse party, together with a copy of the estimate, a 
statement indicating whether or not the property was repaired, and, if 
so, whether the estimated repairs were made in full or in part and by 
whom, the cost thereof, together with a copy of the bill therefor.
    (vi) Reports of past earnings, or of the rate of earnings and time 
lost from work or lost compensation, prepared by an employer on official 
letterhead, when dated and itemized. The adverse party may not dispute 
the authenticity, therefor, unless the adverse party files and serves 
written objection thereto sufficiently in advance of the hearing stating 
the objections, and the grounds therefor, the adverse party will make if 
the bill, estimate, or report is offered at the time of the hearing. An 
adverse party may call the authors of the bill, estimate, or report as a 
witness and examine the witness as if under cross-examination.
    (13) Medical reports. In actions involving injury, illness, disease, 
death, disability or physical or mental impairment, doctor, hospital, 
laboratory and other medical reports made for purposes of medical 
treatment, provided that a copy of the report has been filed and served 
upon the adverse party sufficiently in advance of the hearing to provide 
the adverse party with a fair opportunity to prepare to object or meet 
it. The adverse party may not object to the authenticity of the report 
unless the adverse party files and serves written objection thereto 
sufficiently in advance of the hearing stating the objections, and the 
grounds therefor, that the adverse party will make if the report is 
offered at the time of the hearing. An adverse party may call the author 
of the medical report as a witness and examine the witness as if under 
cross-examination.
    (14) Written reports of expert witnesses. Written reports of an 
expert witness prepared with a view toward litigation including but not 
limited to a diagnostic report of a physician, including inferences and 
opinions, when on official letterhead, when dated, when including a 
statement of the experts qualifications, when including a summary of 
experience as an expert witness in litigation, when including the basic 
facts, data, and opinions forming the basis of the inferences or 
opinions, and when including the reasons for or explanation of the 
inferences or opinions, so far as admissible under the rules of evidence 
applied as though the witness was then present and testifying, provided 
that a copy of the report has been filed and served upon the adverse 
party sufficiently in advance of

[[Page 304]]

the hearing to provide the adverse party with a fair opportunity to 
prepare to object or meet it. The adverse party may not object to the 
authenticity of the report unless the adverse party files and serves 
written objection thereto sufficiently in advance of the hearing stating 
the objections, and the grounds therefor, that the adverse party will 
make if the report is offered at the time of the hearing. An adverse 
party may call the expert as a witness and examine the witness as if 
under cross-examination.
    (15) Written statements of lay witnesses. Written statements of a 
lay witness made under oath or affirmation and subject to the penalty of 
perjury, so far as admissible under the rules of evidence applied as 
though the witness was then present and testifying, provided that:
    (i) A copy of the written statement has been filed and served upon 
the adverse party sufficiently in advance of the hearing to provide the 
adverse party with a fair opportunity to prepare to object or meet it, 
and
    (ii) If the declarant is reasonably available as a witness, as 
determined by the judge, no adverse party has sufficiently in advance of 
the hearing filed and served upon the noticing party a written demand 
that the declarant be produced in person to testify at the hearing. An 
adverse party may call the declarant as a witness and examine the 
witness as if under cross-examination.
    (16) Deposition testimony. Testimony given as a witness in a 
deposition taken in compliance with law in the course of the same 
proceeding, so far as admissible under the rules of evidence applied as 
though the witness was then present and testifying, if the party against 
whom the testimony is now offered had an opportunity and similar motive 
to develop the testimony by direct, cross, or redirect examination, 
provided that a notice of intention to offer the deposition in evidence, 
together with a copy thereof if not otherwise previously provided, has 
been served upon the adverse party sufficiently in advance of the 
hearing to provide the adverse party with a fair opportunity to prepare 
to object or meet it. An adverse party may call the deponent as a 
witness and examine the witness as if under cross-examination.
    (b) [Reserved]



Sec.  18.903  Subscribing witness' testimony unnecessary.

    The testimony of a subscribing witness is not necessary to 
authenticate a writing unless required by the laws of the jurisdiction 
whose laws govern the validity of the writing.

            Contents of Writings, Recordings, and Photographs



Sec.  18.1001  Definitions.

    (a) For purposes of this article the following definitions are 
applicable:
    (1) Writings and recordings. Writings and recordings consist of 
letters, words, or numbers, or their equivalent, set down by 
handwriting, typewriting, printing, photostating, photographing, 
magnetic impulse, mechanical or electronic recording, or other form of 
data compilation.
    (2) Photographs. Photographs include still photographs, X-ray films, 
video tapes, and motion pictures.
    (3) Original. An original of a writing or recording is the writing 
or recording itself or any counterpart intended to have the same effect 
by a person executing or issuing it. An original of a photograph 
includes the negative or, other than with respect of X-ray films, any 
print therefrom. If data are stored in a computer or similar device, any 
printout or other output readable by sight, shown to reflect the data 
accurately, is an original.
    (4) Duplicate. A duplicate is a counterpart produced by the same 
impression as the original, or from the same matrix, or by means of 
photography, including enlargements and miniatures, or by mechanical or 
electronic rerecording, or by chemical reproduction, or by other 
equivalent techniques which accurately reproduces the original.
    (b) [Reserved]



Sec.  18.1002  Requirement of original.

    To prove the content of a writing, recording, or photograph, the 
original writing, recording, or photograph is required, except as 
otherwise provided in these rules, or by rule or regulation

[[Page 305]]

prescribed by the administrative agency pursuant to statutory authority, 
or pursuant to executive order, or by Act of Congress.



Sec.  18.1003  Admissibility of duplicates.

    A duplicate is admissible to the same extent as an original unless a 
genuine question is raised as to the authenticity of the original, or in 
the circumstances it would be unfair to admit the duplicate in lieu of 
the original.



Sec.  18.1004  Admissibility of other evidence of contents.

    (a) The original is not required, and other evidence of the contents 
of a writing, recording, or photograph is admissible if:
    (1) Originals lost or destroyed. All originals are lost or have been 
destroyed, unless the proponent lost or destroyed them in bad faith; or
    (2) Original not obtainable. No original can be obtained by any 
available judicial process or procedure; or
    (3) Original in possession of opponent. At a time when an original 
was under the control of the party against whom offered, that party was 
put on notice, by the pleading or otherwise, that the contents would be 
a subject of proof at the hearing, and that party does not produce the 
original at the hearing; or
    (4) Collateral matters. The writing, recording, or photograph is not 
closely related to a controlling issue.
    (b) [Reserved]



Sec.  18.1005  Public records.

    The contents of an official record, or of a document authorized to 
be recorded or filed and actually recorded or filed, including data 
compilations in any form, if otherwise admissible, may be proved by 
copy, certified as correct in accordance with Sec.  18.902 or testified 
to be correct by a witness who has compared it with the original. If a 
copy which complies with the foregoing cannot be obtained by the 
exercise of reasonable diligence, then other evidence of the contents 
may be given.



Sec.  18.1006  Summaries.

    The contents of voluminous writings, recordings, or photographs 
which cannot conveniently be examined at the hearing may be presented in 
the form of a chart, summary, or calculation. The originals, or 
duplicates, shall be made available for examination or copying, or both, 
by other parties at reasonable time and place. The judge may order that 
they be produced at the hearing.



Sec.  18.1007  Testimony or written admission of party.

    Contents of writings, recordings, or photographs may be proved by 
the testimony or deposition of the party against whom offered or by that 
party's written admission, without accounting for the nonproduction of 
the original.



Sec.  18.1008  Functions of the judge.

    When the admissibility of other evidence of contents of writings, 
recordings, or photographs under these rules depends upon the 
fulfillment of a condition of fact, the question whether the condition 
has been fulfilled is ordinarily for the judge to determine in 
accordance with the provisions of Sec.  18.104(a). However, when an 
issue is raised whether the asserted writing ever existed; or whether 
another writing, recording, or photograph produced at the hearing is the 
original; or whether other evidence of contents correctly reflects the 
contents, the issue is for the judge as trier of fact to determine as in 
the case of other issues of fact.

                              Applicability



Sec.  18.1101  Applicability of rules.

    (a) General provision. These rules govern formal adversarial 
adjudications conducted by the United States Department of Labor before 
a presiding officer.
    (1) Which are required by Act of Congress to be determined on the 
record after opportunity for an administrative agency hearing in 
accordance with the Administrative Procedure Act, 5 U.S.C. 554, 556 and 
557, or
    (2) Which by United States Department of Labor regulation are 
conducted in conformance with the foregoing provisions. Presiding 
officer, referred to in these rules as the judge, means an 
Administrative Law Judge, an agency head, or other officer who

[[Page 306]]

presides at the reception of evidence at a hearing in such an 
adjudication.
    (b) Rules inapplicable. The rules (other than with respect to 
privileges) do not apply in the following situations:
    (1) Preliminary questions of fact. The determination of questions of 
fact preliminary to admissibility of evidence when the issue is to be 
determined by the judge under Sec.  18.104.
    (2) Longshore, black lung, and related acts. Other than with respect 
to Sec. Sec.  18.403, 18.611(a), 18.614 and without prejudice to current 
practice, hearings held pursuant to the Longshore and Harbor Workers' 
Compensation Act, 33 U.S.C. 901; the Federal Mine Safety and Health Act 
(formerly the Federal Coal Mine Health and Safety Act) as amended by the 
Black Lung Benefits Act, 30 U.S.C. 901; and acts such as the Defense 
Base Act, 42 U.S.C. 1651; the District of Columbia Workmen's 
Compensation Act, 36 DC Code 501; the Outer Continental Shelf Lands Act, 
43 U.S.C. 1331; and the Nonappropriated Fund Instrumentalities Act, 5 
U.S.C. 8171, which incorporate section 23(a) of the Longshore and Harbor 
Workers' Compensation Act by reference.
    (c) Rules inapplicable in part. These rules do not apply to the 
extent inconsistent with, in conflict with, or to the extent a matter is 
otherwise specifically provided by an Act of Congress, or by a rule or 
regulation of specific application prescribed by the United States 
Department of Labor pursuant to statutory authority, or pursuant to 
executive order.



Sec.  18.1102  [Reserved]



Sec.  18.1103  Title.

    These rules may be known as the United States Department of Labor 
Rules of Evidence and cited as 29 CFR 18.__ (1989).



Sec.  18.1104  Effective date.

    These rules are effective thirty days after date of publication with 
respect to formal adversarial adjudications as specified in Sec.  
18.1101 except that with respect to hearings held following an 
investigation conducted by the United States Department of Labor, these 
rules shall be effective only where the investigation commenced thirty 
days after publication.



         Sec. Appendix to Subpart B of Part 18--Reporter's Notes

                      Reporter's Introductory Note

    The Rules of Evidence for the United States Department of Labor 
modify the Federal Rules of Evidence for application in formal 
adversarial adjudications conducted by the United States Department of 
Labor. The civil nonjury nature of the hearings and the broad underlying 
values and goals of the administrative process are given recognition in 
these rules.

                     Reporter's Note to Sec.  18.102

    In all formal adversarial adjudications of the United States 
Department of Labor governed by these rules, and in particular such 
adjudications in which a party appears without the benefit of counsel, 
the judge is required to construe these rules and to exercise discretion 
as provided in the rules, see, e.g., Sec.  18.403, to secure fairness in 
administration and elimination of unjustifiable expense and delay to the 
end that the truth may be ascertained and the proceedings justly 
determined, Sec.  18.102. The judge shall also exercise reasonable 
control over the mode and order of interrogating witnesses and 
presenting evidence so as to (1) make the interrogation and presentation 
effective for the ascertainment of the truth, (2) avoid needless 
consumption of time, and (3) protect witnesses from harassment or undue 
embarrassment, Sec.  18.611(a).

                     Reporter's Note to Sec.  18.103

    Section 18.103(a) provides that error is not harmless, i.e., a 
substantial right is affected, unless on review it is determined that it 
is more probably true than not true that the error did not materially 
contribute to the decision or order of the court. The more probably true 
than not true test is the most liberal harmless error standard. See 
Haddad v. Lockheed California Corp., 720 F.2d 1454, 1458-59 (9th Cir. 
1983):
    The purpose of a harmless error standard is to enable an appellate 
court to gauge the probability that the trier of fact was affected by 
the error. See R. Traynor, [The Riddle of Harmless Error] at 29-30. 
Perhaps the most important factor to consider in fashioning such a 
standard is the nature of the particular fact-finding process to which 
the standard is to be applied. Accordingly, a crucial first step in 
determining how we should gauge the probability that an error was 
harmless is recognizing the distinction between civil and criminal 
trials. See Kotteakos v. United States, 328 U.S. 750, 763, 66 S.Ct. 
1239, 1247, 90 L.Ed. 1557 (1946); Valle-Valdez, 544 F.2d at 914-15. This 
distinction has two facets,

[[Page 307]]

each of which reflects the differing burdens of proof in civil and 
criminal cases. First, the lower burden of proof in civil cases implies 
a larger margin of error. The danger of the harmless error doctrine is 
that an appellate court may usurp the jury's function, by merely 
deleting improper evidence from the record and assessing the sufficiency 
of the evidence to support the verdict below. See Kotteakos, 328 U.S. at 
764-65, 66 S.Ct. at 1247-48; R. Traynor, supra, at 18-22. This danger 
has less practical importance where, as in most civil cases, the jury 
verdict merely rests on a more probable than not standard of proof.
    The second facet of the distinction between errors in civil and 
criminal trials involves the differing degrees of certainty owed to 
civil and criminal litigants. Whereas a criminal defendant must be found 
guilty beyond a reasonable doubt, a civil litigant merely has a right to 
a jury verdict that more probably than not corresponds to the truth.
The term materially contribute was chosen as the most appropriate in 
preference to substantially swayed, Kotteakos v. United States, 328 U.S. 
750, 66 S.Ct. 1239, 90 L.Ed 1557 (1946) or material effect. Holloway v. 
Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). The word 
contribute was employed in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 
1056, 31 L.Ed.2d 340 (1972) and United States v. Hastings, 461 U.S. 499, 
103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).
    Error will not be considered in determining whether a substantial 
right of a party was affected if the evidence was admitted in error 
following a properly made objection, Sec.  18.103(a)(1), and the judge 
explicitly states that he or she does not rely on such evidence in 
support of the decision or order. The judge must explicitly decline to 
rely upon the improperly admitted evidence. The alternative of simply 
assuming nonreliance unless the judge explicitly states reliance, goes 
too far toward emasculating the benefits flowing from rules of evidence.
    The question addressed in Richardson v. Perales, 402 U.S. 389, 91 
S.Ct. 1420, 28 L.Ed.2d 842 (1971) of whether substantial evidence as 
specified in Sec.  556(d) of the Administrative Procedure Act requires 
that there be a residuum of legally admissible evidence to support an 
agency determination is of no concern with respect to these rules; only 
properly admitted evidence is to be considered in determining whether 
the substantial evidence requirement has been satisfied.

                     Reporter's Note to Sec.  18.104

    As to the standard on review with respect to questions of 
admissibility generally, section 18.104(a), see In re Japanese 
Electronic Products Antitrust Litigation, 723 F.2d 238, 265-66 (3d Cir. 
1983) (``The scope of review of the trial court's trustworthiness 
determination depends on the basis for the ruling. When the trial court 
makes Sec.  18.104(a) findings of historical fact about the manner in 
which a report containing findings was compiled we review by the clearly 
erroneous standard of Fed.R.Civ.P. 52. But a determination of 
untrustworthiness, if predicated on factors properly extraneous to such 
a determination, would be an error of law * * * * There is no discretion 
to rely on improper factors. Such an error of law might, of course, in a 
given instance be harmless within the meaning of Fed.R.Civ.P. 61. In 
weighing factors which we consider proper, the trial court exercises 
discretion and we review for abuse of discretion. Giving undue weight to 
trustworthiness factors of slight relevance while disregarding factors 
more significant, for example, might be an abuse of discretion.''). 
Accord, United States v. Wilson, 798 F.2d 509 (lst Cir. 1986).
    As to the standard on review with respect to relevancy, conditional 
relevancy and the exercise of discretion, see, e.g., United States v. 
Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 470, 83 L.Ed.2d 450 (1984) (``A 
district court is accorded a wide discretion in determining the 
admissibility of evidence under the Federal Rules. Assessing the 
probative value of common membership in any particular group, and 
weighing any factors counselling against admissibility is a matter first 
for the district court's sound judgment under Rules 401 and 403 and 
ultimately, if the evidence is admitted, for the trier of fact.''); 
Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed 
624 (1931) (``The extent of cross-examination with respect to an 
appropriate subject of inquiry is within the sound discretion of the 
trial court. It may exercise a reasonable judgment in determining when 
the subject is exhausted.''); Hill v. Bache Halsey Stuart Shields Inc., 
790 F.2d 817, 825 (10th Cir. 1986) (``We recognize that a trial court 
has broad discretion to determine whether evidence is relevant, and its 
decision will not be reversed on appeal absent a showing of clear abuse 
of that discretion. Beacham v. Lee-Norse, 714 F.2d 1010, 1014 (10th Cir. 
1983). The same standard of review applies to a trial court's 
determination, under Fed.R.Evid. 403, that the probative value of the 
evidence is outweighed by its potential to prejudice or confuse the 
jury, or to lead to undue delay. Id.'').

                     Reporter's Note to Sec.  18.201

    A.P.A. section 556(e) provides that ``when an agency decision rests 
on official notice of a material fact not appearing in the evidence in 
the record, a party is entitled, on timely request, to an opportunity to 
show the contrary.'' No definition of ``official notice'' is provided. 
An administrative agency may take official notice of any adjudicative 
fact that could be judicially noticed by a court. In addition ``the rule 
is now clearly emerging

[[Page 308]]

that an administrative agency may take official notice of any generally 
recognized technical or scientific facts within the agency's specialized 
knowledge, subject always to the proviso that the parties must be given 
adequate advance notice of the facts which the agency proposes to note, 
and given adequate opportunity to show the inaccuracy of the facts or 
the fallacy of the conclusions which the agency proposes tentatively to 
accept without proof. To satisfy this requirement, it is necessary that 
a statement of the facts noticed must be incorporated into the record. 
The source material on which the agency relies should, on request, be 
made available to the parties for their examination.'' 1 Cooper, State 
Administrative Law 412-13 (1965). Accord, Uniform Law Commissioners' 
Model State Administrative Procedure Act section 10(4) (1961) (``Notice 
may be taken of judicially cognizable facts. In addition, notice may be 
taken of generally recognized technical or scientific facts within the 
agency's specialized knowledge. Parties shall be notified either before 
or during the hearing, or by reference in preliminary reports or 
otherwise, of the material noticed, including any staff memoranda or 
data, and they shall be afforded an opportunity to contest the material 
so noticed. The agency's experience, technical competence, and 
specialized knowledge may be utilized in the evaluation of the 
evidence.''); Schwartz, Administrative Law Sec.  7.16 at 375 (2d ed. 
1984) (``Clearly an agency may take notice of the same kinds of fact of 
which a court takes judicial notice. It has, however, been recognized 
that the differences between agencies and courts * * * may justify a 
broader approach. Under it, an agency may be permitted to take `official 
notice' not only of facts that are obvious and notorious to the average 
man but also of those that are obvious and notorious to an expert in the 
given field.'' ``A commission that regulates gas companies may take 
notice of the fact that a well-managed gas company loses no more than 7 
percent of its gas through leakage, condensation, expansion, or 
contraction, where its regulation of gas companies, over the years has 
made the amount of `unaccounted for gas' without negligence obvious and 
notorious to it as the expert in gas regulation. A workers' compensation 
commission may similarly reject a claim that an inguinal hernia was 
traumatic in origin where the employee gave no indication of pain and 
continued work for a month after the alleged accident. The agency had 
dealt with numerous hernia cases and was as expert in diagnosing them as 
any doctor would be. Its experience taught it that where a hernia was 
traumatic in origin, there was immediate discomfort, outward evidences 
of pain observable to fellow employees, and at least temporary 
suspension from work. The agency could notice this fact based upon its 
knowledge as an expert and reject uncontradicted opinion testimony that 
its own expertise renders unpersuasive.''). Compare Uniform Law 
Commissioners' Model State Administrative Procedure Act section 4-212(f) 
(1981) (``Official notice may be taken of (i) any fact that could be 
judicially noticed in the courts of this State, (ii) the record of other 
proceedings before the agency, (iii) technical or scientific matters 
within the agency's specialized knowledge, and (iv) codes or standards 
that have been adopted by an agency of the United States, of this State 
or of another state, or by a nationally recognized organization or 
association. Parties must be notified before or during the hearing, or 
before the issuance of any initial or final order that is based in whole 
or in part on facts or materials noticed, of the specific facts or 
material noticed and the source thereof, including any staff memoranda 
and data, and be afforded an opportunity to contest and rebut the facts 
or materials so noticed.''). Contra Davis, Official Notice, 62 Harv. L. 
Rev. 537, 539 (1949) (``To limit official notice to facts which are 
beyond the realm of dispute would virtually emasculate the 
administrative process. The problem of official notice should not be one 
of drawing lines between disputable and indisputable facts. Nor should 
it even be one of weighing the importance of basing decisions upon all 
available information against the importance of providing full and fair 
hearings in the sense of permitting parties to meet all materials that 
influence decision. The problem is the intensely practical one of 
devising a procedure which will provide both informed decisions and fair 
hearings without undue inconvenience or expense.'').
    Section 18.201 adopts the philosophy of Federal Rule of Evidence 
201. The Advisory Committee's Note to Fed.R.Evid. 201 (b) states:
    With respect to judicial notice of adjudicative facts, the tradition 
has been one of caution in requiring that the matter be beyond 
reasonable controversy. This tradition of circumspection appears to be 
soundly based, and no reason to depart from it is apparent. As Professor 
Davis says:
    ``The reason we use trial-type procedure, I think, is that we make 
the practical judgment, on the basis of experience, that taking 
evidence, subject to cross-examination and rebuttal, is the best way to 
resolve controversies involving disputes of adjudicative facts, that is, 
facts pertaining to the parties. The reason we require a determination 
on the record is that we think fair procedure in resolving disputes of 
adjudicative facts calls for giving each party a chance to meet in the 
appropriate fashion the facts that come to the tribunal's attention, and 
the appropriate fashion for meeting disputed adjudicative facts includes 
rebuttal evidence, cross-examination, usually confrontation, and 
argument (either written or oral or both). The

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key to a fair trial is opportunity to use the appropriate weapons 
(rebuttal evidence, cross-examination, and argument) to meet adverse 
materials that come to the tribunal's attention.'' A System of Judicial 
Notice Based on Fairness and Convenience, in Perspectives of Law 69, 93 
(1964).
    The rule proceeds upon the theory that these considerations call for 
dispensing with traditional methods of proof only in clear cases. 
Compare Professor Davis' conclusion that judicial notice should be a 
matter of convenience, subject to requirements of procedural fairness. 
Id., 94. Section 18.201 of the Federal Rules of Evidence incorporated 
the Morgan position on judicial notice. The contrary position, expressed 
by Wigmore and Thayer, and advocated by Davis, was rejected. See 
McNaughton, Judicial Notice-Excerpts Relating to the Morgan-Wigmore 
Controversy, 14 Vand. L. Rev. 779 (1961) (``They do not differ with 
respect to the application of the doctrine to `law'. Nor do they reveal 
a difference with respect to so-called `jury notice.' Their difference 
relates to judicial notice of `facts.' Here Wigmore, following Thayer, 
insists that judicial notice is solely to save time where dispute is 
unlikely and that a matter judicially noticed is therefore only `prima 
facie,' or rebuttable, if the opponent elects to dispute it. It is 
expressed in Thayer and implicit in Wigmore that (perhaps because the 
matter is rebuttable) judicial notice may be applied not only to 
indisputable matters but also to matters of lesser certainty. Morgan on 
the other hand defines judicial notice more narrowly, and his 
consequences follow from his definition. He limits judicial notice of 
fact to matters patently indisputable. And his position is that matters 
judicially noticed are not rebuttable. He asserts that it is wasteful to 
permit patently indisputable matters to be litigated by way of formal 
proof and furthermore that it would be absurd to permit a party to woo a 
jury to an obviously erroneous finding contrary to the noticed fact. 
Also, he objects to the Wigmorean conception on the ground that it is 
really a `presumption' of sorts attempting to pass under a misleading 
name. It is, according to Morgan, a presumption with no recognized rules 
as to how the presumption works, what activates it, and who has the 
burden of doing how much to rebut it.'').
    Accordingly, notice that items (ii) and (iv) of the Uniform Law 
Commissioners' Model State Administrative Procedure Act quoted above are 
not included as separate items in Sec.  18.201. However codes and 
standards, (iv), to the extent not subject to reasonable question fall 
within Sec.  18.201(b)(2). To the extent such codes and standards do not 
so fall, proof should be required. Official notice of records of other 
proceedings before the agency would ``permit an agency to notice facts 
contained in its files, such as the revenue statistics contained in the 
reports submitted to it by a regulated company.'' Schwartz, supra at 
377. Once again, to the extent such information is not capable of 
accurate and ready determination by resort to sources whose accuracy 
cannot reasonably be questioned, Sec.  18.201(b)(2), proof should be 
required.

                     Reporter's Note to Sec.  18.301

    Section 18.301 does not prevent an administrative agency by either 
rule, regulation, or common law development from allocating burdens of 
production and burdens of persuasion in an otherwise permissible manner. 
See N.L.R.B. v. Transportation Management Corp., 462 U.S. 400, 403 n.7, 
103 S.Ct. 2469, 2475 n.7, 76 L.Ed.2d 667 (1983) (``Respondent contends 
that Federal Rule of Evidence 301 requires that the burden of persuasion 
rest on the General Counsel. Rule 301 provides:
    In all civil actions and proceedings not otherwise provided for by 
Act of Congress or by these rules, a presumption imposes on the party 
against whom it is directed the burden of going forward with evidence to 
rebut or meet the presumption, but does not shift to such party the 
burden of proof in the sense of the risk of nonpersuasion, which remains 
throughout the trial upon the party on whom it was originally cast.
    The Rule merely defines the term `presumption.' It in no way 
restricts the authority of a court or an agency to change the customary 
burdens of persuasion in a manner that otherwise would be permissible. 
Indeed, were respondent correct, we could not have assigned to the 
defendant the burden of persuasion on one issue in Mt. Healthy City 
Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 
(1977).'').

                     Reporter's Note to Sec.  18.302

    The Advisory Committee's Note to Federal Rule of Evidence 302, 56 
F.R.D. 118, 211 states:
    A series of Supreme Court decisions in diversity cases leaves no 
doubt of the relevance of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 
S.Ct. 817, 82 L.Ed. 1188 (1938), to questions of burden of proof. These 
decisions are Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 
201, 84 L.Ed. 196 (1939), Palmer v. Hoffman, 318 U.S. 477, 87 L.Ed. 645 
(1943), and Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 
3 L.Ed.2d 935 (1959). They involved burden of proof, respectively, as to 
status as bona fide purchaser, contributory negligence, and 
nonaccidental death (suicide) of an insured. In each instance the state 
rule was held to be applicable. It does not follow, however, that all 
presumptions in diversity cases are governed by state law. In each case 
cited, the burden of proof question had to do with a substantive element 
of the claim or defense. Application of the state law is called for only 
when the presumption operates upon such an element. Accordingly the

[[Page 310]]

rule does not apply state law when the presumption operates upon a 
lesser aspect of the case, i.e. ``tactical'' presumptions.
    The situations in which the state law is applied have been tagged 
for convenience in the preceding discussion as ``diversity cases.'' The 
designation is not a completely accurate one since Erie applies to any 
claim or issue having its source in state law, regardless of the basis 
of federal jurisdiction, and does not apply to a federal claim or issue, 
even though jurisdiction is based on diversity.
    Vestal, Erie R. R. v. Tompkins: A Projection, 48 Iowa L.Rev. 248, 
257 (1963); Hart and Wechsler, The Federal Courts and the Federal 
System, 697 (1953); 1A Moore Federal Practice p. 0.305[3] (2d ed. 1965); 
Wright, Federal Courts, 217-218 (1963). Hence the rule employs, as 
appropriately descriptive, the phrase ``as to which state law supplies 
the rule of decision.'' See A.L.I. Study of the Division of Jurisdiction 
Between State and Federal Courts, 2344(c), p. 40, P.F.D. No. 1 (1965).
    It is anticipated that Sec.  18.302 will very rarely come into play.

                     Reporter's Note to Sec.  18.403

    Rule 403 of the Federal Rules of Evidence provides for the exclusion 
of relevant evidence on the grounds of unfair prejudice. Since all 
effective evidence is prejudicial in the sense of being damaging to the 
party against whom it is offered, prejudice which calls for exclusion is 
given a more specialized meaning: An undue tendency to suggest decision 
on an improper basis, commonly but not necessarily an emotional one, 
such as bias, sympathy, hatred, contempt, retribution or horror. Unfair 
prejudice is not, however, a proper ground for the exclusive of relevant 
evidence under these rules. Judges have shown over the years the ability 
to resist deciding matters on such an improper basis. Accord Gulf States 
Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981). 
(``The exclusion of this evidence under Rule 403's weighing of probative 
value against prejudice was improper. This portion of Rule 403 has no 
logical application to bench trials. Excluding relevant evidence in a 
bench trial because it is cumulative or a waste of time is clearly a 
proper exercise of the judge's power, but excluding relevant evidence on 
the basis of `unfair prejudice' is a useless procedure. Rule 403 assumes 
a trial judge is able to discern and weigh the improper inferences that 
a jury might draw from certain evidence, and then balance those 
improprieties against probative value and necessity. Certainly, in a 
bench trial, the same judge can also exclude those improper inferences 
from his mind in reaching a decision.'')
    While Sec.  18.403, like Rule 403 of the Federal Rules of Evidence, 
does speak in terms of both confusion of the issues and misleading of 
the trier of fact, the distinction between such terms is unclear in the 
literature and in the cases. McCormick, Evidence section 185 at 546 (3d 
ed. 1984), refers to the probability that certain proof and the 
answering evidence that it provokes might unduly distract the trier of 
fact from the main issues. 2 Wigmore, Evidence section 443 at 528-29 
(Chadbourn rev. 1979), describes the concept as follows:
    In attempting to dispute or explain away the evidence thus offered, 
new issues will arise as to the occurrence of the instances and the 
similarity of conditions, new witnesses will be needed whose cross-
examination and impeachment may lead to further issues; and that thus 
the trial will be unduly prolonged, and the multiplicity of minor issues 
will be such that the jury will lose sight of the main issue, and the 
whole evidence will be only a mass of confused data from which it will 
be difficult to extract the kernel of controversy.
    Both commentators are clearly describing the notion of confusion of 
the issues. The notion of confusion of the issues of course applies as 
well to a reviewing body considering a record in such condition. While a 
trier of fact or reviewing body confused in the foregoing manner can 
also be said to have been misled, it is suggested that the concept of 
misleading refers primarily to the possibility of the trier of fact 
overvaluing the probative value of a particular item of evidence for any 
reason other than the emotional reaction associated with unfair 
prejudice. To illustrate, evidence of the results of a lie detector, 
even where an attempt is made to explain fully the significance of the 
results, is likely to be overvalued by the trier of fact. Similarly, the 
test of Frye v. United States, 293 F.1013, 1014 (D.C. Cir. 1923), 
imposing the requirement with respect to the admissibility of scientific 
evidence that the particular technique be shown to have gained ``general 
acceptance in the particular field in which it belongs,'' is an attempt 
to prevent decision makers from being unduly swayed by unreliable 
scientific evidence. Demonstrative evidence in the form of a photograph, 
map, model, drawing or chart which varies substantially from the fact of 
consequence sought to be illustrated similarly may mislead. Finally, any 
trier of fact may be misled by the sheer amount of time spent upon a 
question into believing the issue to be of major importance and 
accordingly into attaching too much significance to it in its 
determination of the factual issues involved. While clearly of less 
import where the judge is the trier of fact and with respect to the 
state of the record on review, the danger of confusion of the issues or 
misleading the judge as trier of fact, together with such

[[Page 311]]

risks on review, are each of sufficient moment especially when 
considered in connection with needless consumption of time to warrant 
inclusion in Sec.  18.403.
    Occasionally evidence is excluded not because distracting side 
issues will be created but rather because an unsuitable amount of time 
would be consumed in clarifying the situation. Concerns associated with 
the proper use of trial time also arise where the evidence being offered 
is relevant to a fact as to which substantial other evidence has already 
been introduced, including evidence bearing on the question of 
credibility, where the evidence itself possesses only minimal probative 
value, such as evidence admitted as background, or where evidence is 
thought by the court to be collateral. In recognition of the legitimate 
concern of the court with expenditures of time, Sec.  18.403 provides 
for exclusion of evidence where its incremental probative value is 
substantially outweighed by considerations of undue delay, waste of 
time, or needless presentation of cumulative evidence. Roughly speaking 
undue delay can be argued to refer to delay caused by the failure of the 
party to be able to produce the given evidence at the appropriate time 
at trial but only at some later time. Waste of time may be taken to 
refer to the fact that the evidence possesses inadequate incremental 
probative value in light of the time its total exploration will consume. 
Cumulative refers to multiple sources of different evidence establishing 
the same fact of consequence as well as multiple same sources, such as 
ten witnesses all testifying to the same speed of the car or the same 
character of a witness.

                     Reporter's Note to Sec.  18.501

    The Conference Report to Federal Rule of Evidence 501, 1975 U.S. 
Code Cong. & Ad. News 7098, 7100 states:
    Rule 501 deals with the privilege of a witness not to testify. Both 
the House and Senate bills provide that federal privilege law applies in 
criminal cases. In civil actions and proceedings, the House bill 
provides that state privilege law applies ``to an element of a claim or 
defense as to which State law supplies the rule of decision.'' The 
Senate bill provides that ``in civil actions and proceedings arising 
under 28 U.S.C. 1332 or 28 U.S.C. 1335, or between citizens of different 
States and removed under 28 U.S.C. 1441(b) the privilege of a witness, 
person, government, State or political subdivision thereof is determined 
in accordance with State law unless with respect to the particular claim 
or defense, Federal law supplies the rule of decision.''
    The wording of the House and Senate bills differs in the treatment 
of civil actions and proceedings. The rule in the House bill applies to 
evidence that relates to ``an element of a claim or defense.'' If an 
item of proof tends to support or defeat a claim or defense, or an 
element of a claim or defense, and if state law supplies the rule of 
decision for that claim or defense, then state privilege law applies to 
that item of proof.
    Under the provision in the House bill, therefore, state privilege 
law will usually apply in diversity cases. There may be diversity cases, 
however, where a claim or defense is based upon federal law. In such 
instances, federal privilege law will apply to evidence relevant to the 
federal claim or defense. See Sola Electric Co. v. Jefferson Electric 
Co., 317 U.S. 173 (1942).
    In nondiversity jurisdiction civil cases, federal privilege law will 
generally apply. In those situations where a federal court adopts or 
incorporates state law to fill interstices or gaps in federal statutory 
phrases, the court generally will apply federal privilege law.
    As Justice Jackson has said:
    A federal court sitting in a nondiversity case such as this does not 
sit as a local tribunal. In some cases it may see fit for special 
reasons to give the law of a particular state highly persuasive or even 
controlling effect, but in the last analysis its decision turns upon the 
law of the United States, not that of any state.
    D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp., 315 U.S. 
447, 471 (1942) (Jackson, J., concurring). When a federal court chooses 
to absorb state law, it is applying the state law as a matter of federal 
common law. Thus, state law does not supply the rule of decision (even 
though the federal court may apply a rule derived from state decisions), 
and state privilege law would not apply. See C.A. Wright, Federal Courts 
251-252 (2d ed. 1970); Holmberg v. Armbrecht, 327 U.S. 392 (1946); 
DeSylva v. Ballentine, 351 U.S. 570, 581 (1956); 9 Wright & Miller, 
Federal Rules and Procedures Sec.  2408.
    In civil actions and proceedings, where the rule of decision as to a 
claim or defense or as to an element of a claim or defense is supplied 
by state law, the House provision requires that state privilege law 
apply.
    The Conference adopts the House provision.
    It is anticipated that the proviso in Sec.  18.501 will very rarely 
come into play.

                     Reporter's Note to Sec.  18.601

    The Conference Report to Federal Rule of Evidence 601, 1975 U.S. 
Code Cong. & Ad. News 7051, 7059 states:
    Rule 601 deals with competency of witnesses. Both the House and 
Senate bills provide that federal competency law applies in criminal 
cases. In civil actions and proceedings, the House bill provides that 
state competency law applies ``to an element of a claim or defense as to 
which State law supplies the rule of decision.'' The Senate bill 
provides that ``in civil actions and proceedings arising under 28 U.S.C. 
1332 or 28

[[Page 312]]

U.S.C. 1335, or between citizens of different States and removed under 
28 U.S.C. 1441(b) the competency of a witness, person, government, State 
or political subdivision thereof is determined in accordance with State 
law, unless with respect to the particular claim or defense, Federal law 
supplies the rule of decision.''
    The wording of the House and Senate bills differs in the treatment 
of civil actions and proceedings. The rule in the House bill applies to 
evidence that relates to ``an element of a claim or defense.'' If an 
item of proof tends to support or defeat a claim or defense, or an 
element of a claim or defense, and if state law supplies the rule of 
decision for that claim or defense, then state competency law applies to 
that item of proof.
    For reasons similar to those underlying its action on Rule 501, the 
Conference adopts the House provision.
    It is anticipated that the proviso to Sec.  18.601 will very rarely 
come into play.

                     Reporter's Note to Sec.  18.609

    Consistent with the position taken in Sec.  18.403, unfair prejudice 
is not felt to be a proper reason of the exclusion of relevant evidence 
in a hearing where the judge is the trier of fact. Sections 18.609 (a) 
and (b) provide for the use of every prior conviction punishable by 
death or imprisonment in excess of one year under the law under which 
the witness was convicted and every prior conviction involving 
dishonesty or false statement, regardless of punishment, provided not 
more than ten years has elapsed since the date of the conviction or the 
release of the witness from the confinement imposed for that conviction, 
whichever is the later date. Convictions more than ten years old are 
felt to be too stale to be admitted to impeach the credibility of a 
witness testifying in any hearing to which these rules apply.

                     Reporter's Note to Sec.  18.801

    Rule 801(d)(1)(A) of the Federal Rules of Evidence has been revised 
in Sec.  18.801(d)(1)(A) to permit the substantive admissibility of all 
prior inconsistent statements. The added protection of certainty of 
making and circumstances conducive to trustworthiness provided by the 
restriction that the prior inconsistent statement be ``given under oath 
subject to the penalty of perjury at a trial, hearing, in other 
proceeding, or in a deposition'' were added by Congress to Federal Rule 
of Evidence 801(d)(1)(A) for the benefit of the criminal defendant. See 
Graham, Employing Inconsistent Statements for Impeachment and as 
Substantive Evidence: A Critical Review and Proposed Amendments of 
Federal Rules of Evidence 801(d)(1)(A), 613 and 607, 75 Mich L. Rev. 565 
(1977).

                     Reporter's Note to Sec.  18.802

    An ``administrative file'' is admissible as such to the extent so 
provided by rule or regulation of the administrative agency prescribed 
pursuant to statutory authority, or pursuant to executive order, or by 
Act of Congress. If a program provides for the creation of an 
``administrative file'' and for the submission of an ``administrative 
file'' to the judge presiding at a formal adversarial adjudication 
governed by these rules, see section 18.1101, the ``administrative 
file'' would fall outside the bar of the hearsay rule. Similarly, such 
``administrative file'' is self-authenticating, section 18.902(10).

                     Reporter's Note to Sec.  18.803

    Section 18.803(24) provides that the ``equivalent circumstantial 
guarantees of trustworthiness'' required to satisfy the ``other 
[reliable] hearsay'' exception is that possessed solely by the 
``aforementioned hearsay exceptions,'' i.e., Sec. Sec.  18.803(1)-
18.803(24). The hearsay exceptions which follow, i.e., Sec. Sec.  
18.803(25)-18.803(30), rely too greatly upon necessity and convenience 
to serve as a basis to judge ``equivalent circumstantial guarantees of 
trustworthiness.''
    Section 18.803(25) provides a hearsay exception for the self-
authenticating aspect of documents and other items as provided in Sec.  
18.902. Out of court statements admitted under Sec.  18.902 for the 
purpose of establishing that the document or other item offered into 
evidence is as purported to be are received in evidence to establish the 
truth of the matter stated, Sec. Sec.  18.801(a)-(c). Section 18.802 
provides that ``hearsay is not admissible except as provided by these 
rules * * *'' Section 18.902 thus operates as a hearsay exception on the 
limited question of authenticity. Section 18.902 does not, however, 
purport to create a hearsay exception for matters asserted to be true in 
the self-authenticated exhibit itself. As a matter of drafting 
consistency, it is preferable to have a specific hearsay exception in 
Sec.  18.803 for statements of self-authentication under Sec.  18.902 
than to have a hearsay exception exist in these rules not bearing an 
18.800 number.
    Sections 18.803(26) and 18.803(27) are derived from Rules 4(e) and 
(f) of the Arizona Uniform Rules of Procedure for Arbitration. Section 
18.803(26)(f) is derived from Illinois Supreme Court Rule 90(c)(4).
    Sections 18.803(27) and 18.803(28) maintain the common law 
distinction between a treating physician, i.e., medical treatment, and 
an examining or nontreating physician, i.e., medical diagnosis. A 
treating physician provides or acts with a view toward providing medical 
treatment. An examining physician is one hired with a view toward 
testifying on behalf of a party and not toward treating a

[[Page 313]]

patient. As such, written reports of the examining physician are not 
felt to be sufficiently trustworthy to be given the preferred treatment 
of Sec.  18.803(27). Thus a report of a physician made for the purpose 
of medical treatment, i.e., treating physician, is admissible if the 
requirements of Sec.  18.803(27) are satisfied. A report of physician 
prepared with a view toward litigation, i.e., examining physician, 
satisfying the requirements of Sec.  18.802(28) is also admissible. The 
reports of a given physician may, of course, fall within either or both 
categories. Reports of any medical surveillance test the purpose of 
which is to detect actual or potential impairment of health or 
functional capacity and autopsy reports fall within Sec.  18.803(28).
    Section 18.803(28) is derived from Rule 1613(b)(1) of the California 
Rules of Court. A summary of litigation experience of the expert is 
required to assist the evaluation of credibility.
    Section 18.803(29) is derived from Rule 1613(b)(2) of the California 
Rules of Court.
    Section 18.803(30) is derived from Rule 1613(b)(3) of the California 
Rules of Court.
    Sections 18.803(26)-18.803(30) each provide that the adverse party 
may call the declarant of the hearsay statement, if available, as a 
witness and examine the witness as if under cross-examination. The 
proviso relating to the calling of witnesses is derived from Rule 
1305(b) of the Pennsylvania Rules of Court Procedure Governing 
Compulsory Arbitration. See also Sec. Sec.  18.902(12)-18.902(16) infra.
    These rules take no position with respect to which party must 
initially bear the cost of lay witness and expert witness fees nor as to 
the ultimate disposition of such fees. Ordinarily, however, it is 
anticipated that the adverse party calling the witness should initially 
pay statutory witness fees, mileage, etc., and reasonable compensation 
to an expert witness in whatever sum and at such time as the judge may 
allow. Such witness fees, mileage, etc., and reasonable expert witness 
compensation should thereafter be charged to the same extent and in like 
manner as other such costs.

                     Reporter's Note to Sec.  18.902

    Section 18.902(11) is modeled upon Uniform Rule of Evidence 902(11). 
The requirement of a final certification with respect to a foreign 
record has been deleted as unnecessary in accordance with the position 
adopted in 18 U.S.C. 3505 which governs the self-authentication of a 
foreign record offered in a federal criminal proceeding. The ``Comment'' 
to Uniform Rule of Evidence 902(11) states:
    Subsection 11 is new and embodies a revised version of the recently 
enacted federal statute dealing with foreign records of regularly 
conducted activity, 18 U.S.C. 3505. Under the federal statute, 
authentication by certification is limited to foreign business records 
and to use in criminal proceedings. This subsection broadens the federal 
provision so that it includes domestic as well as foreign records and is 
applicable in civil as well as criminal cases. Domestic records are 
presumably no less trustworthy and the certification of such records can 
more easily be challenged if the opponent of the evidence chooses to do 
so. As to the federal statute's limitation to criminal matters, 
ordinarily the rules are more strictly applied in such cases, and the 
rationale of trustworthiness is equally applicable in civil matters. 
Moreover, the absence of confrontation concerns in civil actions 
militates in favor of extending the rule to the civil side as well.
    The rule requires that the certified record be made available for 
inspection by the adverse party sufficiently in advance of the offer to 
permit the opponent a fair opportunity to challenge it. A fair 
opportunity to challenge the offer may require that the proponent 
furnish the opponent with a copy of the record in advance of its 
introduction and that the opponent have an opportunity to examine, not 
only the record offered, but any other records or documents from which 
the offered record was procured or to which the offered record relates. 
That is a matter not addressed by the rule but left to the discretion of 
the trial judge.
    Sections 18.902 (12) and (13) are derived from Rule 4 (e) and (f) of 
the Arizona Uniform Rules of Procedure for Arbitration. Section 
18.902(12)(f) is derived from Illinois Supreme Court Rule 90(c)(4).
    Section 18.902(14) is derived from Rule 1613(b)(1) of the California 
Rules of Court. A summary of litigation experience of the expert is 
required to assist the evaluation of credibility.
    With respect to Sec. Sec.  18.902(13) and 18.902(14) as applied to a 
treating or examining physician, see Reporter's Note to Sec. Sec.  
18.803(27) and 18.803(28) supra.
    Section 18.902(15) is derived from Rule 1613(b)(2) of the California 
Rules of Court.
    Section 18.902(16) is derived from Rule 1613(b)(3) of the California 
Rules of Court.
    Sections 18.902 (12)-(16) each provide that the adverse party may 
call the declarant of the hearsay statement, if available, as a witness 
and examine the witness as if under cross-examination. The proviso 
relating to the calling of witnesses is derived from Rule 1305(b) of the 
Pennsylvania Rules of Civil Procedure Governing Compulsory Arbitration.
    These rules take no position with respect to which party must 
initially bear the cost of lay witness and expert witness fees nor as to 
the ultimate disposition of such fees. Ordinarily, however, it is 
anticipated that the adverse party calling the witness should initially 
pay statutory witness fees, mileage, etc., and reasonable compensation 
to an expert witness in whatever sum and at such

[[Page 314]]

time as the judge may allow. Such witness fees, mileage, etc., and 
reasonable expert witness compensation should thereafter be charged to 
the same extent and in like manner as other such costs. See also 
Sec. Sec.  18.803 (25)-(30) supra.

                    Reporter's Note to Sec.  18.1001

    Section 18.1001(3) excludes prints made from X-ray film from the 
definition of an original. A print made from X-ray film is not felt to 
be equivalent to the X-ray film itself when employed for purposes of 
medical treatment or diagnosis.

                    Reporter's Note to Sec.  18.1101

    Section 23(a) of the Longshore and Harbor Workers' Compensation Act, 
33 U.S.C. 922, provides as follows:
    In making an investigation or inquiry or conducting a hearing the 
deputy commissioner or Board shall not be bound by common law or 
statutory rules of evidence or by technical or formal rules of 
procedure, except as provided by this chapter; but may make such 
investigation or inquiry or conduct such hearing in such manner as to 
best ascertain the rights of the parties. Declarations of a deceased 
employee concerning the injury in respect of which the investigation or 
inquiry is being made or the hearing conducted shall be received in 
evidence and shall, if corroborated by other evidence, be sufficient to 
establish the injury.
Other acts such as the Defense Base Act, 42 U.S.C. 1651, adopt section 
23(a) of the Longshore and Harbor Workers' Compensation Act by 
reference. In addition 20 CFR 725.455(b) provides as follows with 
respect to the Black Lung Benefits Act, 30 U.S.C. 901:
    Evidence. The administrative law judge shall at the hearing inquire 
fully into all matters at issue, and shall not be bound by common law or 
statutory rules of evidence, or by technical or formal rules of 
procedure, except as provided by 5 U.S.C. 554 and this subpart. The 
administrative law judge shall receive into evidence the testimony of 
the witnesses and parties, the evidence submitted to the Office of 
Administrative Law Judges by the deputy commissioner under Sec.  
725.421, and such additional evidence as may be submitted in accordance 
with the provisions of this subpart. The administrative law judge may 
entertain the objections of any party to the evidence submitted under 
this section.
    Section 18.1101(c) provides that these rules do not apply to the 
extent inconsistent with, in conflict with, or to the extent a matter is 
otherwise specifically provided for by an Act of Congress or by a rule 
or regulation of specific application prescribed by the United States 
Department of Labor pursuant to statutory authority. Whether section 
23(a) and Sec.  725.455(b) are in fact incompatible with these rules, 
while unlikely for various reasons including their lack of specificity, 
is nevertheless arguable.
    Without regard to section 23(a) and Sec.  725.455(b), various other 
considerations support the conclusion to exclude hearings under 
Longshore, Black Lung, and related acts from coverage of these rules at 
this time. Longshore, Black Lung, and related acts involve entitlements. 
Claimants in such hearings benefit from proceeding pursuant to the most 
liberal evidence rules that are consistent with the orderly 
administration of justice and the ascertainment of truth. Claimants in 
such hearings on occasion appear pro se. While the modifications made by 
these rules are clearly designed to further liberalize the already 
liberal Federal Rules of Evidence, it is nevertheless unclear at this 
time whether even conformity with minimal requirements with respect to 
the introduction of evidence would present a significant barrier to the 
successful prosecution of meritorious claims. Rather than speculate as 
to the impact adoption of these rules would have upon such entitlement 
programs, it was decided to exclude hearings involving such entitlement 
programs from coverage of these rules. It is anticipated that 
application of these rules to hearings involving such entitlement 
programs will be reconsidered in the future following careful study. 
Notice that the inapplicability of these rules in such hearings at this 
time is specifically stated in Sec.  18.1101(b)(2) to be without 
prejudice to the continuation of current practice with respect to 
application of rules of evidence in such hearings.

[55 FR 13229, Apr. 9, 1990; 55 FR 24227, June 15, 1990]



PART 19_RIGHT TO FINANCIAL PRIVACY ACT--Table of Contents



Sec.
19.1 Definitions.
19.2 Purpose.
19.3 Authorization.
19.4 Contents of request.
19.5 Certification.

    Authority: Sec. 1108, Right to Financial Privacy Act of 1978, 92 
Stat. 3697 et seq., 12 U.S.C. 3401 et seq., (5 U.S.C. 301); and 
Reorganization Plan No. 6 of 1950.

    Source: 52 FR 48420, Dec. 22, 1987, unless otherwise noted.



Sec.  19.1  Definitions.

    For purposes of this regulation, the term:
    (a) Financial institution means any office of a bank, savings bank, 
card issuer as defined in section 103 of the

[[Page 315]]

Consumer Credit Protection Act (15 U.S.C. 1602(n)), industrial loan 
company, trust company, savings and loan, building and loan, or 
homestead association (including cooperative banks), credit union, 
consumer financial institution, located in any State or territory of the 
United States, the District of Columbia, Puerto Rico, Guam, American 
Samoa, or the Virgin Islands.
    (b) Financial record means an original of, a copy of, or information 
known to have been derived from, any record held by a financial 
institution pertaining to a customer's relationship with the financial 
institution.
    (c) Person means an individual or a partnership of five or fewer 
individuals.
    (d) Customer means any persons or authorized representative of that 
person who utilized or is utilizing any service of a financial 
institution, or for whom a financial institution is acting or has acted 
as a fiduciary, in relation to an account maintained in the person's 
name.
    (e) Law enforcement inquiry means a lawful investigation or official 
proceeding inquiring into a violation of or failure to comply with any 
criminal or civil statute or any regulation, rule, or order issued 
pursuant thereto.
    (f) Departmental unit means those offices, divisions bureaus, or 
other components of the Department of Labor authorized to conduct law 
enforcement inquiries.
    (g) Act means the Right to Financial Privacy Act of 1978.



Sec.  19.2  Purpose.

    The purpose of these regulations is to authorize Departmental units 
to request financial records from a financial institution pursuant to 
the formal written request procedure authorized by section 1108 of the 
Act, and to set forth the conditions under which such requests may be 
made.



Sec.  19.3  Authorization.

    Departmental units are hereby authorized to request financial 
records of any customer from a financial institution pursuant to a 
formal written request under the Act only if:
    (a) No administrative summons or subpoena authority reasonably 
appears to be available to the Departmental unit to obtain financial 
records for the purpose for which the records are sought;
    (b) There is reason to believe that the records sought are relevant 
to a legitimate law enforcement inquiry and will further that inquiry;
    (c) The request is issued by the Assistant Secretary or Deputy Under 
Secretary heading the Departmental unit requesting the records, or by a 
senior agency official designated by the head of the Departmental unit. 
Officials so designated shall not delegate this authority to others;
    (d) The request adheres to the requirements set forth in Sec.  19.4; 
and
    (e) The notice requirements set forth in section 1108(4) of the Act, 
or the requirements pertaining to delay of notice in section 1109 of the 
Act are satisfied, except in situations where no notice is required 
(e.g., section 1113(g)).



Sec.  19.4  Contents of request.

    The formal written request shall be in the form of a letter or 
memorandum to an appropriate official of the financial institution from 
which financial records are requested. The request shall be signed by an 
issuing official of the requesting Departmental unit, as specified in 
Sec.  19.3(c). It shall set forth that official's name, title, business 
address and business phone number. The request shall also contain the 
following:
    (a) The identity of the customer or customers to whom the records 
pertain;
    (b) A reasonable description of the records sought;
    (c) Any other information that the issuing official deems 
appropriate, e.g., the date on which the requesting Departmental unit 
expects to present a certificate of compliance with the applicable 
provisions of the Act, the name and title of the individual to whom 
disclosure is to be made, etc.
    (d) In cases where customer notice is delayed by a court order, a 
copy of the court order shall be attached to the formal written request.



Sec.  19.5  Certification.

    Prior to obtaining the requested records pursuant to a formal 
written

[[Page 316]]

request, a senior official designated by the head of the requesting 
Departmental unit shall certify in writing to the financial institution 
that the Departmental unit has complied with the applicable provisions 
of the Act.



PART 20_FEDERAL CLAIMS COLLECTION--Table of Contents



    Subpart A_Disclosure of Information to Credit Reporting Agencies

Sec.
20.1 Purpose and scope.
20.2 Definitions.
20.3 Agency responsibilities.
20.4 Determination of delinquency; notice.
20.5 Examination of records relating to the claim; opportunity for full 
          explanation of the claim.
20.6 Opportunity for repayment.
20.7 Review of the obligation.
20.8 Disclosure to credit reporting agencies.
20.9 Waiver of credit reporting.
20.10 Responsibilities of the Chief Financial Officer.

                     Subpart B_Administrative Offset

20.19 Purpose and scope.
20.20 Definitions.
20.21 Agency responsibilities.
20.22 Notifications.
20.23 Examination of records relating to the claim; opportunity for full 
          explanation of the claim.
20.24 Opportunity for repayment.
20.25 Review of the obligation.
20.26 Request for waiver or administrative review.
20.27 Cooperation with other DOL agencies and Federal agencies.
20.28 DOL agency as organization holding funds of the debtor.
20.29 Notice of offset.
20.30 Multiple debts.
20.31 Administrative offset against amounts payable from civil service 
          retirement and disability fund.
20.32 Liquidation of collateral.
20.33 Collection in installments.
20.34 Exclusions.
20.35 Additional administrative collection action.
20.36 Prior provision of rights with request to debt.
20.37 Responsibilities of the Chief Financial Officer.

         Subpart C_Interest, Penalties and Administrative Costs

20.50 Purpose and scope.
20.51 Exemptions.
20.52 Definitions.
20.53 Agency responsibilities.
20.54 Notification of charges.
20.55 Second and subsequent notifications.
20.56 Delivery of notices.
20.57 Accrual of interest.
20.58 Rate of interest.
20.59 Assessment of administrative costs.
20.60 Application of partial payments to amounts owed.
20.61 Waiver.
20.62 Responsibilities of the Chief Financial Officer.

                         Subpart D_Salary Offset

20.74 Purpose.
20.75 Scope.
20.76 Definitions.
20.77 Agency responsibilities.
20.78 Notifications.
20.79 Examination of records relating to the claim; opportunity for full 
          explanation of the claim.
20.80 Opportunity for repayment.
20.81 Review of the obligation.
20.82 Cooperation with other DOL agencies and Federal agencies.
20.83 DOL agency as paying agency of the debtor.
20.84 Collections.
20.85 Notice of offset.
20.86 Non-waiver of rights by payments.
20.87 Refunds.
20.88 Additional administrative collection action.
20.89 Prior provision of rights with respect to debt.
20.90 Responsibilities of the Chief Financial Officer.

               Subpart E_Federal Income Tax Refund Offset

20.101 Purpose and scope.
20.102 Redelegation of authority.
20.103 Definitions.
20.104 Agency responsibilities.
20.105 Minimum referral amount.
20.106 Relation to other collection efforts.
20.107 Debtor notification.
20.108 Agency review of the obligation.
20.109 Prior provision of rights with respect to debt.
20.110 Referral to IRS for tax refund offset.
20.111 Administrative cost charges.

                Subpart F_Administrative Wage Garnishment

20.201 Purpose.
20.202 Scope.
20.203 Definitions.
20.204 General rule.
20.205 Notice requirements.
20.206 Hearing.
20.207 Wage garnishment order.
20.208 Certification by employer.

[[Page 317]]

20.209 Amounts withheld.
20.210 Exclusions from garnishment.
20.211 Financial hardship.
20.212 Ending garnishment.
20.213 Actions prohibited by employer.
20.214 Refunds.
20.215 Right of Action.

    Authority: 31 U.S.C. 3711 et seq.; Subpart D is also issued under 5 
U.S.C. 5514; Subpart E is also issued under 31 U.S.C. 3720A; Subpart F 
is also issued under 31 U.S.C. 3720D.

    Source: 50 FR 5202, Feb. 6, 1985, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 20 appear at 57 FR 
31451, July 16, 1992.



    Subpart A_Disclosure of Information to Credit Reporting Agencies



Sec.  20.1  Purpose and scope.

    The regulations in this subpart establish procedures to implement 
section 3 of the Debt Collection Act of 1982 (Pub. L. 97-365), 31 U.S.C. 
3711(f). This statute, and other applicable authority, authorizes 
Department heads to disclose to credit reporting agencies information 
concerning claims owed the United States under programs administered by 
the Department head. This disclosure is limited to certain information 
and must be in accordance with procedures set forth in the Debt 
Collection Act and other applicable laws. This subpart specifies the 
agency procedures and debtor rights that will be followed in making a 
disclosure to a credit reporting agency.



Sec.  20.2  Definitions.

    For purposes of this subpart--
    (a) The term commercial debt means any non-tax business debt in 
excess of $100, arising from loans, loan guarantees, overpayments, 
fines, penalties or other causes.
    (b) The term consumer debt means any non-tax debt of an individual 
in excess of $100, arising from loans--loan guarantees, overpayments, 
fines, penalties, or other causes.
    (c) A debt is considered delinquent if it has not been paid by the 
date specified in the agency's initial demand letter (Sec.  20.4), 
unless satisfactory payment arrangements have been made by that date, or 
if, at any time thereafter, the debtor fails to satisfy his obligations 
under a payment agreement with the Department of Labor, or any agency 
thereof.
    (d) The term claim and debt are deemed synonymous and 
interchangeable. They refer to an amount of money or property which has 
been determined by an appropriate agency official to be owed to the 
United States from any person, organization, or entity, except another 
federal agency.



Sec.  20.3  Agency responsibilities.

    (a) As authorized by law, each Department of Labor agency may report 
all delinquent consumer debts to consumer credit reporting agencies and 
may also report all commercial debts to appropriate commercial credit 
reporting agencies.
    (b) Information provided to a consumer credit reporting agency on 
delinquent consumer debts from a system of records subject to the 
Privacy Act of 1974, 5 U.S.C. 552a, must be maintained by the Department 
of Labor in accordance with that Act, except as otherwise modified by 
law. Furthermore, no disclosure may be made until the appropriate notice 
of system of records has been amended in accordance with 5 U.S.C. 
552a(e)(11).
    (c) The Chief Financial Officer, or his or her designee, shall have 
the responsibility for obtaining satisfactory assurances from each 
credit reporting agency to which information will be provided, 
concerning compliance by the credit reporting agency with the Fair 
Credit Reporting Act (15 U.S.C. 1681 et seq.) and any other Federal law 
governing the provision of credit information.
    (d) The information disclosed to the credit reporting agency is 
limited to: (1) The name, address, taxpayer identification number, and 
other information necessary to establish the identity of the individual, 
(2) the amount, status, and history of the claim, and (3) the Department 
of Labor agency or program under which the claim arose.
    (e) The agency official providing information to a credit reporting 
agency: (1) Shall promptly disclose to each credit reporting agency to 
which the original disclosure was made, any substantial change in the 
status or

[[Page 318]]

amount of the claim; and (2) shall within 30 days whenever feasible, or 
otherwise promptly verify or correct, as appropriate, information 
concerning the claim upon the request of any such credit reporting 
agency for verification of any or all information so disclosed.
    (f) Each Department of Labor agency is responsible for ensuring the 
continued accuracy of calculations and records relating to its claims, 
and for the prompt notification to the credit reporting agency of any 
substantial change in the status or amount of the claim. The agencies 
shall promptly follow-up on any allegation made by a debtor that the 
records of the agency concerning a claim are in error. Agencies should 
respond promptly to communications from the debtor, within 30 days 
whenever feasible.
    (g) The agency official responsible for providing information to a 
consumer credit reporting agency shall take reasonable action to locate 
the individual owing the debt prior to disclosing any information to a 
consumer credit reporting agency.



Sec.  20.4  Determination of delinquency; notice.

    (a) The agency head (or designee) responsible for carrying out the 
provisions of this subpart with respect to the debt shall send to the 
debtor appropriate written demands for payment in terms which inform the 
debtor of the consequences of failure to cooperate. In accordance with 
guidelines established by the Chief Financial Officer, 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 a further demand would be futile and the debtor's 
response does not require rebuttal. In determining the timing of the 
demand letters, agencies should give due regard to the need to act 
promptly so that, as a general rule, if necessary to refer the debt to 
the Department of Justice for litigation, such referral can be made 
within one year of the final determination of the fact and the amount of 
the debt. When the agency head (or designee) deems it appropriate to 
protect the government's interests (for example, to prevent the statute 
of limitations, 28 U.S.C. 2415, from expiring), written demand may be 
preceded by other appropriate actions, including immediate referral for 
litigation.
    (b) Prior to disclosing information to a consumer credit reporting 
agency in accordance with this subpart, the agency head (or designee) 
responsible for administering the program under which the debt arose 
shall review the claim and determine that the claim is valid and 
overdue. In cases where the debt arises under programs of two or more 
Department of Labor agencies, or in such other instances as the Chief 
Financial Officer or his or her designee may deem appropriate, the Chief 
Financial Officer, or his or her designee, may determine which agency, 
or official, shall have responsibility for carrying out the provisions 
of this subpart.
    (c) In accordance with guidelines established by the Chief Financial 
Officer, the agency official responsible for disclosure of the debt to a 
consumer credit reporting agency shall send written notice to the 
individual debtor informing such debtor:
    (1) Of the basis for the indebtedness;
    (2) That the payment of the claim is overdue;
    (3) That the agency intends to disclose to a consumer credit 
reporting agency, within not less than sixty days after sending such 
notice, that the individual is responsible for such claim;
    (4) Of the specific information intended to be disclosed to the 
credit reporting agency;
    (5) Of the rights of such debtor to a full explanation of the claim, 
to dispute any information in the records of the agency concerning the 
claim, and of the name of an agency employee who can provide a full 
explanation of the claim;
    (6) Of the debtor's right to administrative appeal or review with 
respect to the claim and how such review shall be obtained; and,
    (7) Of the date on which or after which the information will be 
reported to the consumer credit reporting agency.
    (d) Where the disclosure concerns a commercial debt, the responsible 
agency head (or designee) shall send written

[[Page 319]]

notice to the commercial debtor informing such debtor of the information 
discussed in paragraphs (c)(1), (4), (5), and (6) of this section.
    (e) Agencies shall also include in their demand letters the notice 
provisions to debtors required by other regulations of the Labor 
Department, pertaining to waiver, assessment of interest, penalties and 
administrative costs, administrative offset, and salary offset to the 
extent that such inclusion is appropriate and practicable.
    (f) The responsible agency head (or designee) shall exercise due 
care to insure that demand letters are mailed or hand-delivered on the 
same day that they are actually dated. If evidence suggests that the 
debtor is no longer located at the address of record, reasonable action 
shall be taken to obtain a current address.
    (g) To the extent that the requirements under this section have been 
provided to the debtor in relation to the same debt under some other 
statutory or regulatory authority, the agency is not required to 
duplicate such efforts.

[50 FR 5202, Feb. 5, 1985; 50 FR 8608, Mar. 4, 1985]



Sec.  20.5  Examination of records relating to the claim; opportunity 
for full explanation of the claim.

    Following receipt of the notice specified in Sec.  20.4, the debtor 
may request to examine and copy the information to be disclosed to the 
consumer credit reporting agency, in accordance with 5 U.S.C. 552a.



Sec.  20.6  Opportunity for repayment.

    The Department of Labor agency responsible for collecting the claim 
shall afford the debtor the opportunity to repay the debt or enter into 
a repayment plan which is agreeable to the head of the agency and is in 
a written form signed by such debtor. The head of the agency (or 
designee) may deem a repayment plan to be abrogated if the debtor 
should, after the repayment plan is signed, fail to comply with the 
terms of the plan.



Sec.  20.7  Review of the obligation.

    (a) The debtor shall have the opportunity to obtain review by the 
responsible agency of the initial decision concerning the existence or 
amount of the debt.
    (b) The debtor seeking review shall make the request in writing to 
the reviewing official or employee, not more than 15 days from the date 
the initial demand letter was received by the debtor. The request for 
review shall state the basis for challenging the initial determination. 
If the debtor alleges that specific information to be disclosed to a 
credit reporting agency is not accurate, timely, relevant or complete, 
such debtor shall provide information or documentation to support this 
allegation.
    (c) The review shall ordinarily be based on written submissions and 
documentation by the debtor. However a reasonable opportunity for an 
oral hearing shall be provided an individual debtor when the responsible 
agency determines that:
    (1) An applicable statute authorizes or requires the agency to 
consider waiver of the indebtedness involved, the debtor requests waiver 
of the indebtedness, and the waiver determination turns on an issue of 
credibility or veracity; or
    (2) An individual debtor requests reconsideration of the debt and 
the agency determines that the question of the indebtedness cannot be 
resolved by review of the documentary evidence, for example, when the 
validity of the debt turns on an issue of credibility or veracity; or
    (3) In other situations in which the agency deems an oral hearing 
appropriate. Unless otherwise required by law an oral hearing under this 
section is not required to be a formal evidentiary-type hearing, 
although the reviewing official should carefully document all 
significant matters discussed at the hearing.
    (d) Upon receipt of a timely request for review, the agency shall 
suspend its schedule for disclosure of a delinquent consumer debt to a 
consumer credit reporting agency until such time as a final decision is 
made on the request.
    (e) Upon completion of the review, the reviewing official shall 
transmit to the debtor a written notification of the decision. If 
appropriate, this notification shall inform the debtor of the

[[Page 320]]

scheduled date on or after which information concerning the debt will be 
provided to credit reporting agencies. The notification shall, also if 
appropriate, indicate any changes in the information to be disclosed to 
the extent such information differs from that provided in the initial 
notification.
    (f) Nothing in this subpart shall preclude an agency, upon request 
of the debtor alleged by the agency to be responsible for a debt, or on 
its own initiative, from reviewing the obligation of such debtor, 
including an opportunity for reconsideration of the initial decision 
concerning the debt, and including the accuracy, timeliness, relevance, 
and completeness of the information to be disclosed to a credit 
reporting agency.
    (g) To the extent that the requirements under this section have been 
provided to the debtor in relation to the same debt under some other 
statutory or regulatory authority, the agency is not required to 
duplicate such efforts.

(Approved by the Office of Management and Budget under control number 
1225-0030)



Sec.  20.8  Disclosure to credit reporting agencies.

    (a) In accordance with guidelines established by the Chief Financial 
Officer, the responsible Department of Labor agency shall make the 
disclosure of information on the debtor to the credit reporting agency. 
Such disclosure to consumer credit reporting agencies shall be made on 
or after the date specified in the Sec.  20.4 notification to the 
individual owing the claim, and shall be comprised of the information 
set forth in the initial determination, or any modification thereof.
    (b) This section shall not apply to individual debtors when--
    (1) Such debtor has repaid or agreed to repay his or her obligation, 
and such agreement is still valid, as provided in Sec.  20.6; or
    (2) Such debtor has filed for review of the claim under Sec.  
20.7(b), and the reviewing official or employee has not issued a 
decision on the review.
    (c) In addition, the agency may determine not to make a disclosure 
of information to a credit reporting agency when the agency, on its own 
initiative, is reviewing and has not concluded such review of its 
initial determination of the claim under Sec.  20.7(f).



Sec.  20.9  Waiver of credit reporting.

    The agency head (or designee) may waive reporting a commercial debt 
or delinquent consumer debt to a credit reporting agency, if otherwise 
appropriate and if reporting the debt would not be in the best interests 
of the United States.



Sec.  20.10  Responsibilities of the Chief Financial Officer.

    The Chief Financial Officer, or his or her designee, shall provide 
appropriate and binding, written or other guidance to Department of 
Labor agencies and officials in carrying out this subpart, including the 
issuance of guidelines and instructions, which he or she may deem 
appropriate. The Chief Financial Officer shall also take such 
administrative steps as may be appropriate to carry out the purposes and 
ensure the effective implementation of this regulation, including the 
designation of credit reporting agencies authorized to receive and 
disseminate information under this subpart.



                     Subpart B_Administrative Offset



Sec.  20.19  Purpose and scope.

    The regulations in this subpart establish procedures to implement 
section 10 of the Debt Collection Act of 1982 (Pub. L. 97-365), 31 
U.S.C. 3716(d). Among other things, this statute authorizes the head of 
each agency to collect a claim arising under an agency program by means 
of administrative offset, except that no claim may be collected by such 
means if outstanding for more than 10 years after the agency's right to 
collect the debt first accrued, unless facts material to the 
Government's right to collect the debt were not known and could not 
reasonably have been known by the official or officials of the 
government who were charged with the responsibility to discover and 
collect such debts. This subpart specifies the agency procedures that 
will be followed by the Department of Labor for an administrative 
offset.

[[Page 321]]



Sec.  20.20  Definitions.

    For purposes of this subpart--
    (a) The term administrative offset means the withholding of money 
payable by the United States to or held by the United States on behalf 
of a person to satisfy a debt owned the United States by that person; 
and
    (b) The term person does not include any agency of the United 
States, or any state or local government.
    (c) The terms claim and debt are deemed synonymous and 
interchangeable. They refer to an amount of money or property which has 
been determined by an appropriate agency official to be owed to the 
United States from any person, organization, or entity, except another 
federal agency.
    (d) A debt is considered delinquent if it has not been paid by the 
date specified in the agency's initial demand letter (Sec.  20.22), 
unless satisfactory payment arrangements have been made by that date, or 
if, at any time thereafter, the debtor fails to satisfy his obligations 
under a payment agreement with the Department of Labor, or any agency 
thereof.



Sec.  20.21  Agency responsibilities.

    (a) Each Department of Labor agency which has delinquent debts owed 
under its program is responsible for collecting its claims by means of 
administrative offset, in accordance with guidelines established by the 
Chief Financial Officer.
    (b) Before collecting a claim by means of administrative offset, the 
responsible agency must ensure that administrative offset is feasible, 
allowable and appropriate, and must notify the debtor of the 
Department's policies for collecting a claim by means of administrative 
offset.
    (c) Whether collection by administrative offset is feasible is a 
determination to be made by the creditor agency on a case-by-case basis, 
in the exercise of sound discretion. Agencies shall consider not only 
whether administrative offset can be accomplished, both practically and 
legally, but also whether offset is best suited to further and protect 
all of the Government's interests. In appropriate circumstances, 
agencies may give due consideration to the debtor's financial condition, 
and are not required to use offset in every instance in which there is 
an available source of funds. Agencies may also consider whether offset 
would substantially interfere with or defeat the purposes of the program 
authorizing the payments against which offset is contemplated.
    (d) Before advising the debtor that the delinquent debt will be 
subject to administrative offset, the agency head (or designee) 
responsible for administering the program under which the debt arose 
shall review the claim and determine that the debt is valid and overdue. 
In the case where a debt arises under the programs of two or more 
Department of Labor agencies, or in such other instances as the Chief 
Financial Officer, or his or her designee, may deem appropriate, the 
Chief Financial Officer, or his or her designee, may determine which 
agency (or agencies), or official (or officials), shall have 
responsibility for carrying out the provisions of this subpart.
    (e) Administrative offset shall be considered by agencies only after 
attempting to collect a claim under Section 3(a) of the Federal Claims 
Collection Act, except that no claim under this Act that has been 
outstanding for more than 10 years after the Government's right to 
collect the debt first accrued may be collected by means of 
administrative offset, unless facts material to the right to collect the 
debt were not known and could not reasonably have been known by the 
official of the Agency who was charged with the responsibility to 
discover and collect such debts. When the debt first accrued should be 
determined according to existing laws regarding the accrual of debts, 
such as under 28 U.S.C. 2415.



Sec.  20.22  Notifications.

    (a) The agency head (or designee) responsible for carrying out the 
provisions of this subpart with respect to the debt shall send 
appropriate written demands to the debtor in terms which inform the 
debtor of the consequences of failure to cooperate. In accordance with 
guidelines established by the Chief Financial Officer, a total of three

[[Page 322]]

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 a further demand would be futile and the debtor's 
response does not require rebuttal. In determining the timing of the 
demand letters, agencies should give due regard to the need to act 
promptly so that, as a general rule, if necessary to refer the debt to 
the Department of Justice for litigation, such referral can be made 
within one year of the final determination of the fact and the amount of 
the debt. When the agency head (or designee) deems it appropriate to 
protect the government's interests (for example, to prevent the statute 
of limitations, 28 U.S.C. 2415, from expiring), written demand may be 
preceded by other appropriate actions, including immediate referral for 
litigation.
    (b) In accordance with guidelines established by the Chief Financial 
Officer, the agency official responsible for collection of the debt 
shall send written notice to the debtor, informing such debtor as 
appropriate:
    (1) Of the nature and amount of the indebtedness;
    (2) That the agency intends to collect, as appropriate, interest, 
penalties and administrative costs; and, in accordance with guidelines 
of the Chief Financial Officer, of the applicable standards for 
collecting such payments;
    (3) Of the date by which payment is to be made (which normally 
should be not more than 30 days from the date that the initial 
notification was mailed or hand-delivered);
    (4) Of the agency's intention to collect by administrative offset 
and of the debtor's rights in conjunction with such an offset;
    (5) Of the debtor's entitlement to waiver, where applicable, and of 
the debtor's rights in conjunction with waiver;
    (6) Of the debtor's opportunity to enter into a written agreement 
with the agency to repay the debt;
    (7) Of the rights of such debtor to a full explanation of the claim, 
of the opportunity to inspect and copy the agency records with respect 
to the claim and to dispute any information in the records of the agency 
concerning the claim;
    (8) Of the debtor's right to administrative appeal or review with 
respect to the claim and how such review shall be obtained; and
    (9) Of the date on which or after which an administrative offset 
will begin.
    (c) Agencies shall also include in their demand letters the notice 
provisions to debtors required by other regulations of the Labor 
Department, pertaining to disclosures to credit reporting agencies, 
salary offset, and assessment of interest, penalties and administrative 
costs, to the extent inclusion of such is appropriate and practicable.
    (d) The responsible agency head (or designee) shall exercise due 
care to insure that demand letters are mailed or hand-delivered on the 
same day that they are actually dated. If evidence suggests that the 
debtor is no longer located at the address of record, reasonable action 
shall be taken to obtain a current address.
    (e) The agency responsible for collecting the claim shall, in the 
initial demand letter to the debtor, provide the name of an agency 
employee who can provide a full explanation of the claim.



Sec.  20.23  Examination of records relating to the claim; 
opportunity for full explanation of the claim.

    Following receipt of the initial demand letter specified in Sec.  
20.22, the debtor may request to examine and copy agency records 
pertaining to the debt.



Sec.  20.24  Opportunity for repayment.

    (a) The Department of Labor agency responsible for collecting the 
claim shall afford the debtor the opportunity to repay the debt or enter 
into a repayment plan which is agreeable to the agency head (or 
designee) and is in a written form signed by such debtor. The head of 
the agency (or designee) may deem a repayment plan to be abrogated if 
the debtor should, after the repayment plan is signed, fail to comply 
with the terms of the plan.

[[Page 323]]

    (b) Agencies have discretion and should exercise sound judgment in 
determining whether to accept a repayment agreement in lieu of offset. 
The determination should balance the Government's interest in collecting 
the debt against fairness to the debtor. If the debt is delinquent and 
the debtor has not disputed its existence or amount, an agency should 
effect an offset unless the debtor is able to establish that offset 
would result in undue financial hardship or would be against equity and 
good conscience.



Sec.  20.25  Review of the obligation.

    (a) The debtor shall have the opportunity to obtain review by the 
responsible agency of the determination concerning the existence or 
amount of the debt.
    (b) The debtor seeking review shall make the request in writing to 
the reviewing official or employee, not more than 15 days from the date 
the initial demand letter was received by the debtor. The request for 
review shall state the basis for challenging the determination. If the 
debtor alleges that the agency's information relating to the debt is not 
accurate, timely, relevant or complete, such debtor shall provide 
information or documentation to support this allegation.
    (c) The review shall ordinarily be based on written submissions and 
documentation by the debtor. However a reasonable opportunity for an 
oral hearing shall be provided an individual debtor when the responsible 
agency determines that:
    (1) An applicable statute authorizes or requires the agency to 
consider waiver of the indebtedness involved, the debtor requests waiver 
of the indebtedness, and the waiver determination turns on an issue of 
credibility or veracity; or
    (2) An individual debtor requests reconsideration of the debt and 
the agency determines that the question of the indebtedness cannot be 
resolved by review of the documentary evidence, for example, when the 
validity of the debt turns on an issue of credibility or veracity; or
    (3) In other situations in which the agency deems an oral hearing 
appropriate. Unless otherwise required by law, an oral hearing under 
this section is not required to be a formal evidentiary-type hearing, 
although the reviewing official should carefully document all 
significant matters discussed at the hearing.
    (d) Agencies may effect an administrative offset against a payment 
to be made to a debtor prior to the completion of the due process 
procedures required by this subpart, if failure to take the offset would 
substantially prejudice the agency's ability to collect the debt; for 
example, if the time before the payment is to be made would not 
reasonably permit the completion of due process procedures. Offset prior 
to completion of due process procedures must be promptly followed by the 
completion of those procedures. Amounts recovered by offset but later 
found not owed to the agency should be promptly refunded.
    (e) Upon completion of the review, the reviewing official shall 
transmit to the debtor a written notification of the decision. If 
appropriate, this notification shall inform the debtor of the scheduled 
date on or after which administrative offset will begin. The 
notification shall also, if appropriate, indicate any changes in the 
information to the extent such information differs from that provided in 
the initial notification under Sec.  20.22.
    (f) Nothing in this subpart shall preclude an agency, upon request 
of the debtor alleged by the agency to be responsible for a debt, or on 
its own initiative, from reviewing the obligation of such debtor, 
including an opportunity for reconsideration of the determination 
concerning the debt, and including the accuracy, timeliness, relevance, 
and completeness of the information on which the debt is based.

(Approved by the Office of Management and Budget under control number 
1225-0030)



Sec.  20.26  Request for waiver or administrative review.

    (a) If the statute under which waiver or administrative review is 
sought is mandatory, that is, if it prohibits the agency from collecting 
the debt prior to the agency's consideration of the request for waiver 
or review (see Califano v. Yamasaki, 442 U.S. 682 (1979)), then

[[Page 324]]

collection action must be suspended until either
    (1) The agency has considered the request for waiver/review, or
    (2) The applicable time limit for making the waiver/review request, 
as prescribed in the agency's regulations, has expired and the debtor, 
upon proper notice, has not made such a request.
    (b) If the applicable waiver/review statute is permissive, that is, 
if it does not require all requests for waiver/review to be considered, 
and if it does not prohibit collection action pending consideration of a 
waiver/review request (for example, 5 U.S.C. 5584), collection action 
may be suspended pending agency action on a waiver/review request based 
upon appropriate consideration, on a case-by-case basis, as to whether:
    (1) There is a reasonable possibility that waiver will be granted, 
or that the debt (in whole or in part) will be found not owing from the 
debtor;
    (2) The Government's interests would be protected, if suspension 
were granted, by reasonable assurance that the debt could be recovered 
if the debtor does not prevail; and
    (3) Collection of the debt will cause undue hardship.
    (c) If the applicable statutes and regulations would not authorize 
refund by the agency to the debtor of amounts collected prior to agency 
consideration of the debtor's waiver/review request in the event the 
agency acts favorably on it, collection action should ordinarily be 
suspended, without regard to the factors specified in paragraph (b) of 
this section, unless it appears clear, based on the request and the 
surrounding circumstances, that the request is frivolous and was made 
primarily to delay collection.



Sec.  20.27  Cooperation with other DOL agencies and Federal agencies.

    (a) Appropriate use should be made of the cooperative efforts of 
other DOL agencies and Federal agencies in effecting collection by 
administrative offset. Generally, agencies should comply with requests 
from other agencies to initiate administrative offset to collect debts 
owed to the United States, unless the requesting agency has not complied 
with the applicable regulations or the request would otherwise be 
contrary to law or the best interests of the United States.
    (b) Unless otherwise prohibited by law, a DOL agency may request 
that monies due and payable to a debtor by another DOL agency or a 
Federal agency outside the Department be administratively offset in 
order to collect debts owed the creditor DOL agency by the debtor. In 
requesting an administrative offset, the creditor DOL agency must 
provide the DOL agency or other Federal agency holding funds of the 
debtor with written certification stating
    (1) That the debtor owes the creditor agency a debt (including the 
amount of debt); and
    (2) That the creditor agency has complied with the applicable 
Federal Claims Collection Standards, including any hearing or review.



Sec.  20.28  DOL agency as organization holding funds of the debtor.

    (a) Whenever a DOL agency is holding funds of a debtor from which 
administrative offset is sought by another DOL agency or other Federal 
agency, the DOL agency holding funds should not initiate the requested 
offset until it has been provided by the creditor organization with an 
appropriate written certification that the debtor owes a debt (including 
the amount) and that applicable provisions of the Federal Claims 
Collection Standards have been fully complied with.
    (b) Moreover, the DOL agency holding funds of the debtor should 
determine whether collection by offset would be in the best interests of 
the United States; for example, if the debtor is a contractor for the 
DOL agency holding funds, whether administrative offset would impair the 
contractor's ability to perform under the terms of the contract. The 
creditor organization should be notified promptly of the determination.



Sec.  20.29  Notice of offset.

    Prior to effecting an administrative offset, the agency holding 
funds of a debtor should advise the debtor of the impending offset. This 
notice should state that the debtor has been provided his/her rights 
under the Federal Claims

[[Page 325]]

Collection Standards, that a determination has been made that collection 
by administrative offset would be in the best interests of the United 
States, the amount of the offset, and the source of funds from which the 
offset will be made.



Sec.  20.30  Multiple debts.

    When collecting multiple debts by administrative offset, agencies 
should 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 special attention to 
applicable statutes of limitations.



Sec.  20.31  Administrative offset against amounts payable from Civil Service 
Retirement and Disability fund.

    (a) Unless otherwise prohibited by law, agencies may request that 
moneys which 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 debts owed to the United States by the 
debtor. Such requests shall be made to the appropriate officials of 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, an agency shall include a written certification 
that:
    (1) The debtor owes the United States a debt, including the amount 
of the debt;
    (2) The requesting agency has complied with all applicable statutes, 
regulations, and procedures of the Office of Personnel Management; and
    (3) The requesting agency has complied with the requirements of the 
applicable provisions of the Federal Claims Collection Standards, 
including any required hearing or review.
    (c) Once an agency decides to request administrative offset under 
paragraph (a) of this section, it should make the request as soon as 
practical after completion of the applicable due process procedures in 
order that the Office of Personnel Management may identify and ``flag'' 
the debtor's account in anticipation of the time when the debtor becomes 
eligible and requests to receive payments from the Fund. This will 
satisfy any requirement that offset be initiated prior to expiration of 
the applicable statute of limitations. At such time as the debtor makes 
a claim for payments from the Fund, if at least a year has elapsed since 
the offset request was originally made, the debtor should be permitted 
to offer a satisfactory repayment plan in lieu of offset upon 
establishing that changed financial circumstances would render the 
offset unjust.
    (d) In accordance with procedures established by the Office of 
Personnel Management, agencies may request an offset from the Civil 
Service Retirement and Disability Fund prior to completion of due 
process procedures.
    (e) If the requesting agency collects part or all of the debt by 
other means before deductions are made or completed pursuant to 
paragraph (a) of this section, the agency shall act promptly to modify 
or terminate its request for offset under paragraph (a).



Sec.  20.32  Liquidation of collateral.

    An agency holding security or collateral which may be liquidated and 
the proceeds applied on debts due it through the exercise of a power of 
sale in the security instrument or a nonjudicial foreclosure should do 
so by such procedures if the debtor fails to pay the debt within a 
reasonable time after demand, unless the cost of disposing of the 
collateral will be disproportionate to its value or special 
circumstances require judicial foreclosure. The agency should provide 
the debtor with reasonable notice of the sale, an accounting of any 
surplus proceeds, and any other procedures required by contract or law. 
Collection from other sources, including liquidation of security or 
collateral, is not a prerequisite to requiring payment by a surety or 
insurance concern unless such action is expressly required by statute or 
contract.



Sec.  20.33  Collection in installments.

    (a) Whenever feasible, and except as otherwise provided by law, 
debts owed to the United States, together with interest, penalties, and 
administrative

[[Page 326]]

costs should be collected in full in one lump sum. This is true whether 
the debt is being collected by 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. Agencies should obtain and may 
require financial statements from debtors who represent that they are 
unable to pay the debt in one lump sum. Agencies which agree to accept 
payment in regular installments should obtain a legally enforceable 
written agreement from the debtor which 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 installment 
payments should bear a reasonable relation to the size of the debt and 
the debtor's ability to pay. If possible, the installment payments 
should be sufficient in size and frequency to liquidate the Government's 
claim in not more than 3 years. Installment payment of less than $50 per 
month should be accepted only if justifiable on the grounds of financial 
hardship or for some other reasonable cause. An agency holding an 
unsecured claim for administrative collection should attempt to obtain 
an executed confess-judgment note, comparable to the Department of 
Justice Form USA-70a, from a debtor when the total amount of the 
deferred installments will exceed $750. Such notes may be sought when an 
unsecured obligation of a lesser amount is involved. When attempting to 
obtain confess-judgment notes, agencies should provide their debtors 
with written explanation of the consequences of signing the note, and 
should maintain documentation sufficient to demonstrate that the debtor 
has signed the note knowingly and voluntarily. Security for deferred 
payments other than a confess-judgment note may be accepted in 
appropriate cases. An agency may accept installment payments 
notwithstanding the refusal of a debtor to execute a confess-judgment 
note or to give other security, at the agency's option.
    (b) If the debtor owes more than one debt and designates how a 
voluntary installment payment is to be applied as among those debts, 
that designation must be followed. If the debtor does not designate the 
application of the payment, agencies should apply payments to the 
various debts in accordance with the best interests of the United 
States, as determined by the facts and circumstances of the particular 
case, paying special attention to applicable statutes of limitations.



Sec.  20.34  Exclusions.

    (a) Agencies are not authorized by section 10 of the Debt Collection 
Act of 1982 (31 U.S.C. 3716) to use administrative offset with respect 
to: (1) Debts owed by any State or local Government; (2) 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 (3) 
any case in which collection of the type of debt involved by 
administrative offset is explicitly provided for or prohibited by 
another statute. However, 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, pursuant to this 
paragraph or agency regulations established pursuant to such other 
statutory authority.
    (b) This section should not be construed as prohibiting use of these 
authorities or requirements when collecting debts owed by persons 
employed by agencies administering the laws cited in the preceding 
paragraph unless the debt ``arose under'' those laws.
    (c) Collection by offset against a judgment obtained by a debtor 
against the United States shall be accomplished in accordance with 31 
U.S.C. 3728.



Sec.  20.35  Additional administrative collection action.

    Nothing contained in this subpart is intended to preclude the 
utilization of any other administrative remedy which may be available.

[[Page 327]]



Sec.  20.36  Prior provision of rights with respect to debt.

    To the extent that the rights of the debtor in relation to the same 
debt have been previously provided under some other statutory or 
regulatory authority, the agency is not required to duplicate those 
efforts before taking administrative offset.



Sec.  20.37  Responsibilities of the Chief Financial Officer.

    The Chief Financial Officer, or his or her designee, shall provide 
appropriate and binding written or other guidance to Department of Labor 
agencies and officials in carrying out this subpart, including the 
issuance of guidelines and instructions, which he or she may deem 
appropriate. The Chief Financial Officer shall also take such 
administrative steps as may be appropriate to carry out the purposes and 
ensure the effective implementation of this regulation.



         Subpart C_Interest, Penalties and Administrative Costs



Sec.  20.50  Purpose and scope.

    The regulations in this subpart establish the policies and 
procedures to implement section 11 of the Debt Collection Act of 1982 
(Pub. L. 97-365), 31 U.S.C. 3717. Among other things, this statute 
authorizes the head of each agency to assess interest, penalties and 
administrative costs against debtors with respect to delinquent debts 
arising under the agency's program. This subpart establishes the 
standards and procedures that will be followed by the Department of 
Labor in assessing such charges.



Sec.  20.51  Exemptions.

    (a) The provisions of 31 U.S.C. 3717 do not apply:
    (1) To debts owed by any State or local government;
    (2) To debts arising under contracts which were executed prior to, 
and were in effect on (i.e., were not completed as of), October 25, 
1982;
    (3) To debts where an applicable statute, regulation required by 
statute, loan agreement, or contract either prohibits such charges or 
explicitly fixes the charges that apply to the debts involved; or
    (4) To debts arising under the Social Security Act, the Internal 
Revenue Code of 1954, or the tariff laws of the United States.
    (b) Agencies are 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.



Sec.  20.52  Definitions.

    For purposes of this subpart--
    (a) The terms claim and debt are deemed synonymous and 
interchangeable. They refer to an amount of money or property which has 
been determined by an appropriate agency official to be owed to the 
United States from any person, organization or entity, except another 
federal agency.
    (b) A debt is considered delinquent if it has not been paid by the 
date specified in the agency's initial demand letter (Sec.  20.54), 
unless satisfactory payment arrangements have been made by that date, or 
if, at any time thereafter, the debtor fails to satisfy his obligations 
under payment agreement with the Department of Labor, or any agency 
thereof.



Sec.  20.53  Agency responsibilities.

    (a) The Department of Labor agency responsible for administering the 
program under which a delinquent debt arose shall assess interest and 
related charges on the debt, in accordance with guidelines established 
by the Chief Financial Officer. In the case where a debt arises under 
the program of two or more Department of Labor agencies, or in such 
other instances as the Chief Financial Officer, or his or her designee, 
may deem appropriate, the Chief Financial Officer, or his or her 
designee, may determine which agency, or official, shall have 
responsibility for carrying out the provisions of this subpart.
    (b) Before assessing any charges on a delinquent debt, the 
responsible agency must notify the debtor of the Department's policies 
for assessing interest, penalties and administrative costs and must 
ensure that the debt is overdue

[[Page 328]]

for the respective periods specified in these regulations.
    (c) Each Department of Labor agency is responsible for ensuring the 
continued accuracy of calculations and records relating to its 
assessment of charges, and for the prompt notification of the debtor of 
any substantial change in the status or amount of the claim. As 
appropriate, the Agencies should promptly follow up on any allegation 
made by a debtor that principal or charges is in error. Agencies should 
respond promptly to communication from the debtor, within 30 days 
whenever feasible.



Sec.  20.54  Notification of charges.

    The agency head (or designee) responsible for carrying out the 
provisions of this subpart shall mail or hand-deliver an initial demand 
for payment to the debtor. In the initial demand, the debtor shall be 
notified that interest on the debt will start to accrue from the date on 
which the notice is mailed or hand-delivered, but that payment of 
interest will be waived if the debt is paid by the due date, or within 
30 days of the date of notice, if no due date is specified. The initial 
demand shall also state that administrative costs of recovering the 
delinquent debt will be assessed if payment is not received by the due 
date.



Sec.  20.55  Second and subsequent notifications.

    (a) In accordance with guidelines established by the Chief Financial 
Officer, the responsible agency head (or designee) shall send 
progressively stronger second and subsequent demands for payment, if 
payment or other appropriate response is not received within the time 
specified by the initial demand. Unless a response to the first or 
second demand indicates that a further demand would be futile or the 
debtor's response does not require rebuttal, the second and subsequent 
demands shall generally be made at 30 day intervals from the first, and 
shall state that a 6 percent per annum penalty will be assessed after 
the debt has been delinquent 90 days, accruing from the date it became 
delinquent. The second and subsequent demands shall also identify the 
amount of interest then accrued on the debt, as well as administrative 
costs thus far assessed. In determining the timing of the demand 
letters, agencies should give due regard to the need to act promptly so 
that, as a general rule, if necessary to refer the debt to the 
Department of Justice for litigation, such referral can be made within 
one year of the final determination of the fact and the amount of the 
debt. When the agency head (or designee) deems it appropriate to protect 
the government's interests (for example, to prevent the statute of 
limitations 28 U.S.C. 2415, from expiring), written demand may be 
preceded by other appropriate actions, including immediate referral for 
litigation.
    (b) Agencies shall also include in their demand letters the notice 
provisions to debtors required by other regulations of the Labor 
Department, pertaining to waiver of the indebtedness, administrative 
offset, salary offset and disclosure of information to credit reporting 
agencies, to the extent that such inclusion is appropriate and 
practicable.



Sec.  20.56  Delivery of notices.

    The responsible agency head (or designee) shall exercise due care to 
ensure that demand letters are dated and mailed or hand-delivered on the 
same day that they are actually dated. If evidence suggests that the 
debtor is no longer located at the address of record, reasonable action 
shall be taken to obtain a current address.



Sec.  20.57  Accrual of interest.

    Interest shall accrue from the date on which notice of the debt and 
the interest requirements is first mailed or hand-delivered to the 
debtor, using the most current address that is available to the agency.



Sec.  20.58  Rate of interest.

    (a) The rate of interest assessed shall be the rate of the current 
value of funds to the United States Treasury as published in the Federal 
Register (as of the date the notice is sent), unless another rate is 
specified by statute, regulations or preexisting contract condition. The 
Office of the Chief Financial Officer will notify agencies promptly of 
the current Treasury rate.

[[Page 329]]

The responsible agency may assess a higher rate of interest if it 
reasonably determines that a higher rate is necessary to protect the 
interests of the United States, and such rate is agreed to by the Chief 
Financial Officer (or his designee). The rate of interest prescribed in 
section 6621 of the Internal Revenue Code shall be sought for backwages 
recovered in litigation by the Department.
    (b) The rate of interest as initially assessed shall remain fixed 
for the duration of the indebtedness, except that where a debtor has 
defaulted on a repayment agreement and seeks to enter into a new 
agreement, the agency may set a new interest rate which reflects the 
current value of funds to the Treasury at the time the new agreement is 
executed.
    (c) Interest shall not be assessed on interest, penalties or 
administrative costs required by this subpart. However, if the debtor 
defaults on a previous repayment agreement, charges which accrued but 
were not collected under the defaulted agreement shall be added to the 
principal to be paid under a new repayment agreement.



Sec.  20.59  Assessment of administrative costs.

    (a) The Department of Labor agency responsible for collecting the 
claim shall assess against debtors charges to cover administrative costs 
incurred as a result of the delinquent debt; that is, the additional 
costs incurred in processing and handling the debt because it became 
delinquent. Calculation of administrative costs shall be based on cost 
analyses establishing an average of actual additional costs incurred by 
the agency in processing and handling claims against other debtors in 
similar stages of delinquency.
    (b) In addition to assessing the costs listed in the administrative 
cost fee schedule, the responsible agency may include the costs incurred 
in obtaining a credit report or in using a private debt collector, to 
the extent they are attributable to delinquency.
    (c) The Chief Financial Officer shall issue each year a schedule 
providing the costs associated with various common activities required 
to collect delinquent debts.



Sec.  20.60  Application of partial payments to amounts owed.

    When a debt is paid in partial or installment payments, amounts 
received by the responsible agency should be applied first to 
outstanding penalty and administrative cost charges, second to accrued 
interest, and third to outstanding principal.



Sec.  20.61  Waiver.

    (a) The Department of Labor agency responsible for collecting the 
claim shall waive the collection of interest on the debt or any portion 
of the debt which is paid within 30 days after the date on which 
interest began to accrue. This 30-day period may be extended for another 
30 days on a case-by-case basis, if the agency reasonably determines 
that such action is appropriate, and is in accordance with these 
regulations. Also, the responsible agency may waive charges assessed 
under this subpart, based on criteria specified in the Federal Claims 
Collection Standards relating to the compromise of claims (without 
regard to the amount of the debt), or if the agency determines that 
collection of these charges would be against equity and good conscience 
or not be in the best interests of the United States. Waiver under the 
first sentence of this paragraph is mandatory. Under the second and 
third sentences waiver is permissive and may be exercised only in 
accordance with the standards set by these regulations.
    (b) Agencies may waive interest and other charges under appropriate 
circumstances, including, for example:
    (1) Pending consideration of a request for reconsideration, 
administrative review, or waiver under a permissive statute,
    (2) If the agency has accepted an installment plan, there is no 
fault or lack of good faith on the part of the debtor, and the amount of 
interest is large enough in relation to the size of the debt and the 
amount of the installments that the debtor can reasonably afford to pay 
so that the debt can never be repaid, or
    (3) If repayment of the full amount of the debt is made after the 
date upon which interest and other charges became payable and the 
estimated costs

[[Page 330]]

of recovering the residual interest balance exceed the amount owed the 
Agency.
    (c) Where a mandatory waiver or review statute applies, interest and 
related charges may not be assessed for those periods during which 
collection action must be suspended.



Sec.  20.62  Responsibilities of the Chief Financial Officer.

    The Chief Financial Officer, or his or her designee, shall provide 
appropriate and binding written or other guidance to Department of Labor 
agencies and officials in carrying out this subpart, including the 
issuance of guidelines and instructions, which he or she may deem 
appropriate. The Chief Financial Officer shall also take such 
administrative steps as may be appropriate to carry out the purposes and 
ensure the effective implementation of this regulation.



                         Subpart D_Salary Offset

    Source: 52 FR 3772, Feb. 5, 1987, unless otherwise noted.



Sec.  20.74  Purpose.

    (a) The regulations in this subpart establish procedures to 
implement section 5 of the Debt Collection Act of 1982 (Pub. L. 97-365), 
5 U.S.C. 5514. This statute authorizes the head of each agency to deduct 
from the current pay account of an employee (salary offset) when the 
employee owes money to the United States. This subpart specifies the 
agency procedures that will be available in a salary offset by the 
Department of Labor of an employee's current pay account.
    (b) Administrative offset is defined in 31 U.S.C. 3701(a)(1) as 
``withholding money payable by the United States Government, to or held 
by the Government for a person to satisfy a debt the person owes the 
Government.''

A salary offset is a form of administrative offset and is separately 
authorized and governed by 5 U.S.C. 5514. This authority is consistent 
with and supplemented by administrative offset regulations of subpart B 
of 29 CFR part 20.



Sec.  20.75  Scope.

    (a) This subpart applies to debts owed to the United States (arising 
under Labor Department programs) by Labor Department employees, debts 
owed to the United States (arising under Labor Department programs) by 
employees of other Federal agencies, and debts owed the United States 
(arising under programs of other Federal agencies) by Labor Department 
employees. Other agency means:
    (1) An executive agency as defined in section 105 of title 5 U.S.C. 
(but not including the Labor Department), including the U.S. Postal 
Service and the U.S. Postal Rate Commission;
    (2) A military Department as defined in section 102 of title U.S.C.;
    (3) An agency or court in the judicial branch, including a court as 
defined in section 610 of title 28 U.S.C., the District Court for the 
Northern Mariana Islands, and the Judicial Panel on Multidistrict 
Litigation;
    (4) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (5) Other independent establishments that are entities of the 
Federal Government.
    (b) 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 by salary offset is explicitly provided for or prohibited by 
another statute (e.g.) travel advances in 5 U.S.C. 5705 and employee 
training expenses in 5 U.S.C. 4108.
    (c) This subpart does not preclude an employee from requesting 
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 Government Accountability 
Office in accordance with procedures prescribed by the Government 
Accountability Office. Similarly, in the case of other types of debts, 
this subpart does not preclude an employee from requesting waiver, if 
waiver is

[[Page 331]]

available under any statutory provisions pertaining to the particular 
debt being collected.

[52 FR 3772, Feb. 5, 1987, as amended at 72 FR 37098, July 9, 2007]



Sec.  20.76  Definitions.

    (a) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, or in the case of an 
employee not entitled to basic pay, other authorized pay remaining after 
the deduction of any amount required by law to be withheld. Agencies 
must exclude deductions described in 5 CFR 581.105 paragraphs (b) 
through (f) to determine disposal pay subject to salary offset.
    (b) As used in this subpart, the terms claim and debt are deemed 
synonymous and interchangeable. A 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, interest, fines and forfeitures 
(except those arising under the Uniform Code of Military Justice), and 
all other similar sources.
    (c) Employee means a current employee of an agency, including a 
current member of the Armed Forces or a Reserve of the Armed Forces 
(Reserves).
    (d) Paying agency means the agency employing the individual and 
authorizing the payment of his or her current account.
    (e) Credit agency means the agency to which the debt is owed.
    (f) Salary offset means an administrative offset to collect a debt 
under 5 U.S.C. 5514 by deduction(s) at one or more officially 
established pay intervals from the current pay account of an employee 
without his or her consent.
    (g) FCCS means the Federal Claims Collection Standards jointly 
published by the Justice Department and the Government Accountability 
Office at 4 CFR 101.1 et seq.
    (h) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to an agency as 
permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 
716, 5 U.S.C. 8346(b), or any other law.

[52 FR 3772, Feb. 5, 1987, as amended at 72 FR 37098, July 9, 2007]



Sec.  20.77  Agency responsibilities.

    (a) Each Department of Labor agency which has delinquent debts owed 
under its program and administrative activities is responsible for 
collecting its claims by means of salary offset, in accordance with 
guidelines established by the Chief Financial Officer.
    (b) Before collecting a claim by means of salary offset, the 
responsible agency should be satisfied that salary offset is feasible, 
allowable and appropriate, and, as otherwise provided in these 
regulations, must notify the debtor of the Department's policies for 
collecting a claim by means of salary offset.
    (c) Whether collection by salary offset is feasible is a 
determination to be made by the creditor agency on a case-by-case basis, 
in the exercise of sound discretion. Agencies shall consider not only 
whether salary offset can be accomplished, both practically and legally, 
but also whether offset is best suited to further and protect all of the 
Government's interests. In appropriate circumstances, agencies may give 
due consideration to the debtor's financial condition, and are not 
required to use offset of the full or partial amount of the claim in 
every instance in which there is an available source of funds.
    (d) Before advising the debtor that the delinquent debt will be 
subject to salary offset, the agency head (or designee) responsible for 
administering the program under which the debt arose shall review the 
claim and determine that the debt is valid and overdue. In the case 
where a debt arises under the programs of two or more Department of 
Labor agencies, or in such other instances as the Chief Financial 
Officer, or his or her designee, may deem appropriate, the Chief 
Financial Officer, or his or her designee, may determine which agency 
(or agencies), or official (or officials), shall have responsibility for 
carrying out the provisions of this subpart.
    (e) Agencies may not initiate offset to collect a debt more than 10 
years

[[Page 332]]

after the Government's right to collect the debt first accrued, unless 
facts material to the right to collect the debt were not known and could 
not reasonably have been known by the official of the Agency who was 
charged with the responsibility to discover and collect such debts. When 
the debt first accrued should be determined according to existing laws 
regarding the accrual of debts, such as under 28 U.S.C. 2415.



Sec.  20.78  Notifications.

    (a) The agency head (or designee) of the creditor Labor Department 
agency shall send appropriate written demands to the debtor in terms 
which inform the debtor of the consequences of failure to repay claims. 
In accordance with guidelines as may be established by the Chief 
Financial Officer, 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 a further demand 
would be futile and the debtor's response does not require rebuttal. In 
determining the timing of the demand letters, agencies should give due 
regard to the need to act promptly so that a debt to be collected by 
salary offset will be recovered during the employee's anticipated period 
of employment with the Government.
    (b) In accordance with guidelines as may be established by the Chief 
Financial Officer, the creditor Labor Department agency shall send (at 
least 30 days prior to any deduction) written notice to the debtor, 
informing such debtor as appropriate:
    (1) Of the origin, nature and amount of the indebtedness determined 
by the agency to be due;
    (2) Of the intention of the agency to initiate proceedings to 
collect the debt by means of deduction from the employee's current 
disposable pay account;
    (3) Of the amount, frequency, proposed beginning date, and duration 
of the intended deductions;
    (4) Unless such payments are excused in accordance with the FCCS, of 
the creditor agency's policy concerning assessment of interest, 
penalties, and administrative costs;
    (5) Of the employee's right to inspect and copy Government records 
relating to the debt or, if the employee or his or her representative 
cannot personally inspect the records, to request and receive a copy of 
such records;
    (6) If not previously provided, of the opportunity (under terms 
agreeable to the creditor agency) 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, be signed by both the employee and the 
creditor agency, and be documented in the creditor agency's files (4 CFR 
102.2(e));
    (7) Of the employee's right to a hearing conducted by an 
administrative law judge of the Department of Labor, if a petition is 
filed as prescribed by the Department of Labor. In the event the debtor 
is an employee working in the Office of Administrative Law Judges, the 
notification shall inform such debtor of the right to elect to have the 
review of the agency's determination heard and decided by a person who 
is not in the Office of Administrative Law Judges, and not under the 
supervision and control of the Secretary of Labor; in such a case, all 
provisions in this subpart will otherwise apply, unless stated otherwise 
in the notification;
    (8) Of the method and time period for petitioning for hearing;
    (9) That the timely filing of a petition for hearing will stay the 
commencement of collection proceedings, unless the creditor agency 
determines that Sec.  20.81(d) applies and further informs the debtor of 
the basis for its determination;
    (10) That a final decision on the hearing (if one is requested) will 
be issued at the earliest practical date, but not later than 60 days 
after the filing of the petition requesting the hearing unless the 
employee requests and the administrative law judge grants a delay in the 
proceedings;
    (11) That any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under chapter 75 of title 5

[[Page 333]]

U.S.C., part 752 of title 5, Code of Federal Regulations, or any other 
applicable statutes or regulations;
    (ii) Penalties under the False Claims Act, sections 3729-3731 of 
title 31 U.S.C., or any other applicable statutory authority; or
    (iii) Criminal penalties under sections 286, 287, 1001 and 1002 of 
title 18 U.S.C., or any other applicable statutory authority;
    (12) Of any other rights and remedies available to the employee 
under statutes or regulations governing the program for which the 
collection is being made; and
    (13) 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.
    (c) Creditor Labor Department agencies shall also include in their 
demand letters the notice provisions to debtors required by other 
regulations of the Labor Department, pertaining to disclosures to credit 
reporting agencies, administrative offset from other sources of funds, 
and the assessment of interest, penalties and administrative costs, to 
the extent inclusion of such is appropriate and practicable.
    (d) The responsible agency head (or designee) shall exercise due 
care to ensure that demand letters are mailed or hand-delivered on the 
same day that they are actually dated. If evidence suggests that the 
debtor is no longer located at the address of record, reasonable action 
shall be taken to obtain a current address.
    (e) The creditor Labor Department agency shall, in the initial 
demand letter to the debtor, provide the name of an agency employee who 
can provide a full explanation of the claim.
    (f) In any internal Labor Department collection, the provisions of 
Sec.  20.78 paragraphs (a) through (e) need not be applied to any 
adjustment to pay which is not considered to be the result of collection 
of a debt, such as excess pay or allowances caused by:
    (1) An employee's election of coverage or a change of coverage under 
a Federal benefits program requiring periodic deductions from pay, if 
the amount to be recovered was accumulated in four pay periods or less; 
or
    (2) Ministerial adjustments in pay rates or allowances which cannot 
be placed into effect immediately because of normal processing delays, 
if the amount to be recovered was accumulated in four pay periods or 
less.



Sec.  20.79  Examination of records relating to the claim; 
opportunity for full explanation of the claim.

    Following receipt of the notice specified in Sec.  20.78(b), the 
debtor may request to examine and copy agency records pertaining to the 
debt.



Sec.  20.80  Opportunity for repayment.

    (a) The creditor Labor Department agency shall afford the debtor the 
opportunity to (1) repay the debt or (2) enter into a repayment plan 
which is agreeable to the agency head (or designee) and is in a written 
form signed by such debtor and the creditor agency. The head of the 
agency (or designee) may deem a repayment plan to be abrogated if the 
debtor should, after the repayment plan is signed, fail to comply with 
the terms of the plan.
    (b) Agencies have discretion and should exercise sound judgment in 
determining whether to accept a repayment agreement in lieu of offset. 
The determination should balance the Government's interest in collecting 
the debt against fairness to the debtor. If the debt is delinquent and 
the debtor has not disputed its existence or amount, an agency should 
effect an offset unless the debtor is able to establish that offset 
would result in undue financial hardship or would be against equity and 
good conscience, or the agency otherwise determines that offset would be 
contrary to sound judgment.



Sec.  20.81  Review of the obligation.

    (a) The debtor shall have the opportunity to obtain a hearing by an 
administrative law judge of the agency's determination concerning the 
existence or amount of the debt, or the repayment schedule proposed by 
the agency, and except as provided in Sec.  20.75(c), review by an 
administrative

[[Page 334]]

law judge is to be the exclusive administrative review remedy on the 
agency's determination under these regulations.
    (b) The debtor seeking a hearing shall make the request in writing 
to the Chief Administrative Law Judge, pursuant to 29 CFR part 18, not 
more than 15 days from the date the notice of proposed salary offset was 
received by the debtor. The request for hearing shall be signed by the 
employee and state the basis for challenging the determination. If the 
debtor alleges that the agency's information relating to the debt is not 
accurate, timely, relevant or complete, such debtor shall fully identify 
and explain with reasonable specificity all the facts, evidence and 
witnesses, if any, which the employee believes supports his or her 
position.
    (c) The hearing ordinarily shall be based on written submissions and 
documentation by the debtor. However, an opportunity for an oral hearing 
shall be provided an individual debtor when the administrative law judge 
determines that:
    (1) An applicable statute authorizes or requires the agency to 
consider waiver of the indebtedness involved, the debtor requests waiver 
of the indebtedness, and the waiver determination turns on an issue of 
credibility or veracity; or
    (2) An individual debtor requests reconsideration of the debt and 
the administrative law judge determines that the question of the 
indebtedness cannot be resolved by review of the documentary evidence, 
for example, when the validity of the debt turns on an issue of 
credibility or veracity; or
    (3) In other situations in which the administrative law judge deems 
an oral hearing appropriate.

Unless otherwise required by law or these regulations, any oral hearing 
under this section shall be conducted under the procedures in 29 CFR 
part 18. Except as provided under Sec.  20.79, the provisions for 
discovery shall not be applicable unless otherwise ordered by the 
administrative law judge. Procedural and evidentiary rules shall be 
relaxed by the administrative law judge to provide informality and to 
facilitate the hearing.
    (d) Agencies may effect a salary offset against the current pay 
account of a debtor prior to the completion of the hearing procedures 
required by this subpart, if failure to initiate the offset would 
substantially prejudice the agency's ability to collect the debt; for 
example, if the employee's anticipated period of employment with the 
Government would not reasonably permit the completion of the hearing and 
recovery of the debt prior to termination of employment. Offset prior to 
completion of the hearing must be promptly followed by the completion of 
that hearing.
    (e) If the debtor seeking a hearing under this section makes the 
request for review of the obligation after the expiration of the period 
for filing as described in paragraph (b) of this section, the 
administrative law judge may accept the request for hearing if the 
debtor can show that the delay was because of circumstances beyond his 
or her control or because of failure to receive notice of the time limit 
(unless otherwise aware of it).
    (f) Upon completion of the hearing, the administrative law judge 
shall transmit to the debtor a written decision. This decision shall 
state, at a minimum: The facts purported to evidence the nature and 
origin of the alleged debt; the administrative law judge's findings and 
conclusions, as to the employee's and/or creditor agency's grounds; the 
amount and validity of the alleged debt; and, where applicable, the 
repayment schedule. If appropriate, the notification shall also indicate 
any changes in the information to the extent such information differs 
from that provided in the notification under Sec.  20.78(b).

(Approved by the Office of Management and Budget under control number 
1225-0038)

[52 FR 3772, Feb. 5, 1987; 52 FR 13563, Apr. 23, 1987]



Sec.  20.82  Cooperation with other DOL agencies and Federal agencies.

    (a) Appropriate use should be made of the cooperative efforts of 
other DOL and Federal agencies in effecting collection by salary offset. 
Generally, paying agencies should comply with requests from other 
agencies to initiate salary offset to collect debts owed to the United 
States, unless the creditor

[[Page 335]]

agency has not complied with applicable regulations or the request would 
otherwise be contrary to law.
    (b) Unless otherwise prohibited by law, a DOL agency may request 
that the current pay account of a debtor in another DOL or Federal 
agency be administratively offset in order to collect debts owed the 
creditor DOL agency by the debtor. In requesting a salary offset, the 
creditor DOL agency must provide the paying DOL agency or other paying 
Federal agency with written certification stating:
    (1) That the debtor owes the creditor agency a debt (including the 
basis and amount of the debt);
    (2) The date on which payment was due;
    (3) The date on which the Government's right to collect the debt 
first accrued; and
    (4) Where the paying agency is another federal agency, that the 
creditor agency's regulations under 5 U.S.C. 5514 have been approved by 
the Office of Personnel Management, and that the creditor agency has 
followed such regulations to the best of its information and belief.



Sec.  20.83  DOL agency as paying agency of the debtor.

    Whenever a salary offset is sought by another DOL or Federal agency 
from a paying DOL agency, the paying DOL agency should not initiate the 
requested offset until it has been provided by the creditor organization 
with an appropriate written certification as described in Sec.  
20.82(b). Where the creditor agency is not another DOL agency, the 
creditor agency must certify that its regulations under 5 U.S.C. 5514 
have been approved by the Office of Personnel Management and that it, 
the creditor agency, has followed such regulations to the best of its 
information and belief. When the creditor agency is not also the paying 
DOL agency, the creditor agency should also be required to certify that 
if an administrative or judicial order is issued directing the paying 
DOL agency to pay a debtor an amount previously paid to the creditor 
agency, the creditor agency will reimburse the paying DOL agency or pay 
the debtor directly within 15 days of the date of the order.



Sec.  20.84  Collections.

    (a) Whenever feasible, and except as otherwise provided by law, 
debts owed to the United States, together with interest, penalties, and 
administrative costs should be collected in full in one lump sum. This 
is true whether the debt is being collected by salary offset or by 
another method, including voluntary payment. However, if the debtor is 
financially unable to pay the indebtedness in one lump sum, or the 
amount of the debt exceeds 15 percent of disposable pay for an 
officially established pay interval, collection must be made in 
installments. Ordinarily, the size of installment deductions must bear a 
reasonable relationship to the size of the debt and the employee's 
ability to pay. However, the amount deducted for any period must not 
exceed 15 percent of the disposable pay from which the deduction is 
made, unless the employee has agreed in writing to the deduction of a 
greater amount. Installment deductions must be made over a period not 
greater than the anticipated period of active duty or employment, as the 
case may be except as provided in Sec.  20.84 paragraphs (c) and (d). 
Where a DOL agency is the paying agency, salary offset will ordinarily 
begin with the salary payment made to the employee for the first full 
pay period following expiration of the 30 day notice period described in 
Sec.  20.78(b), or if a hearing is pending under Sec.  20.81, the first 
full pay period following the date of the administrative law judge's 
written decision.
    (b) If the debtor owes more than one debt and designates how a 
voluntary installment payment is to be applied as among those debts, 
that designation must be followed. If the debtor does not designate the 
application of the payment, agencies should apply payments to the 
various debts in accordance with the best interests of the United 
States, as determined by the facts and circumstances of the particular 
case, paying special attention to applicable statutes of limitations.
    (c) If the employee retires or resigns or if his or her employment 
or period of active duty ends before collection of the debt is 
completed, under 5 U.S.C. 5514, salary offset shall be from subsequent 
payments of any nature (e.g.,

[[Page 336]]

final salary payment, lump-sum leave, etc.) due the employee from the 
paying agency as of the date of separation to the extent necessary to 
liquidate the debt.
    (d) If the debt cannot be liquidated by salary offset from any final 
payment due the former employee as of the date of separation, under 5 
U.S.C. 5514, administrative offset shall be from later payments of any 
kind due the former employee from the United States.



Sec.  20.85  Notice of offset.

    Prior to effecting a salary offset, the paying DOL agency should 
advise the debtor of the impending offset. This notice should state that 
the debtor has been provided his/her rights under 5 U.S.C. 5514, that a 
determination has been made that collection by salary offset would be in 
the best interests of the United States, the amount of the offset, the 
date the salary offset will begin, and that the source of funds shall be 
from current disposable pay, except as provided by (c) and (d) of Sec.  
20.84. If evidence suggests that the debtor is no longer located at the 
address of record, reasonable action shall be taken to obtain a current 
address.



Sec.  20.86  Non-waiver of rights by payments.

    An employee's involuntary payment, of all or any portion 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. 5514 or any 
other provision of contract or law, unless there are statutory or 
contractual provisions to the contrary.



Sec.  20.87  Refunds.

    (a) Agencies shall promptly refund to the appropriate party amounts 
paid or deducted under this subpart when--
    (1) A debt is waived or is otherwise not owing to the United States 
(unless refund is expressly prohibited by statute or regulation); 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.  20.88  Additional administrative collection action.

    Nothing contained in this subpart is intended to preclude the 
utilization of any other administrative remedy which may be available.



Sec.  20.89  Prior provision of rights with respect to debt.

    To the extent that the rights of the debtor in relation to the same 
debt have been previously provided by the creditor agency under some 
other statutory or regulatory authority, the creditor agency is not 
required to duplicate those efforts before taking salary offset.



Sec.  20.90  Responsibilities of the Chief Financial Officer.

    The Chief Financial Officer, or his or her designee, shall provide 
appropriate and binding written or other guidance to Department of Labor 
agencies and officials in carrying out this subpart, including the 
issuance of guidelines and instructions, which he or she may deem 
appropriate. The Chief Financial Officer shall also take such 
administrative steps as may be appropriate to carry out the purposes and 
ensure the effective implementation of this subpart.



               Subpart E_Federal Income Tax Refund Offset

    Source: 59 FR 47250, Sept. 15, 1994, unless otherwise noted.



Sec.  20.101  Purpose and scope.

    The regulations in this subpart establish procedures to implement 31 
U.S.C. 3720A. This statute together with implementing regulations of the 
Internal Revenue Service (IRS) at 26 CFR 301.6402-6, authorizes the IRS 
to reduce a tax refund by the amount of a past-due legally enforceable 
debt owed to the United States. The regulations apply to past-due 
legally enforceable debts owed to the Department by individuals and 
business entities. The regulations are not intended to limit or restrict 
debtor access to any judicial

[[Page 337]]

remedies to which he/she may otherwise be entitled.



Sec.  20.102  Redelegation of authority.

    Authority delegated by statute or IRS regulation to the Secretary or 
Department is redelegated to the heads of the Department's constituent 
agencies. This authority may be further redelegated as necessary to 
ensure the efficient implementation of these regulations.



Sec.  20.103  Definitions.

    For purposes of this subpart:
    (a) Tax refund offset refers to the IRS income tax refund offset 
program operated under authority of 31 U.S.C. 3720A.
    (b) Past-due legally enforceable debt is a delinquent debt 
administratively determined to be valid, whereon no more than 10 years 
have lapsed since the date of delinquency, and which is not discharged 
under a bankruptcy proceeding or subject to an automatic stay under 11 
U.S.C. 362.
    (c) Agency refers to the constituent offices, administrations and 
bureaus of the Department of Labor.
    (d) Individual refers to a taxpayer identified by a social security 
number (SSN).
    (e) Business entity refers to an entity identified by an employer 
identification number (EIN).
    (f) Taxpayer mailing address refers to the debtor's current mailing 
address as obtained from IRS.
    (g) Memorandum of understanding refers to the agreement between the 
Department and IRS outlining the duties and responsibilities of the 
respective parties for participation in the tax refund offset program.



Sec.  20.104  Agency responsibilities.

    (a) As authorized and required by law, each Department of Labor 
agency may refer past-due legally enforceable debts to IRS for 
collection by offset from any overpayment of income tax that may 
otherwise be due to be refunded to the taxpayer.
    (b) Prior to actual referral of a past-due legally enforceable debt 
for tax refund offset, the DOL agency heads (or their designees) must 
take the actions specified in Sec.  20.107 and, as appropriate, Sec.  
20.106 and Sec.  20.108.
    (c) DOL agency heads must ensure the confidentiality of taxpayer 
information as required by IRS in its Tax Information Security 
Guidelines.



Sec.  20.105  Minimum referral amount.

    The IRS annually establishes the minimum amount for debts otherwise 
eligible for referral. Minimum referral amounts are established 
separately for individual debts and business debts, as set forth in the 
memorandum of understanding. The amount referred may include the 
principal portion of the debt, as well as any accrued interest, 
penalties and/or administrative cost charges.

[60 FR 41017, Aug. 11, 1995]



Sec.  20.106  Relation to other collection efforts.

    (a) Tax refund offset is intended to be an administrative collection 
remedy of last resort, consistent with IRS requirements for 
participation in the program, and the costs and benefits of pursuing 
alternative remedies when the tax refund offset program is readily 
available. To the extent practical, the requirements of the program will 
be met by merging IRS requirements into the Department's overall 
requirements for delinquent debt collection.
    (b) The debts of individuals of $100 or more will be reported to a 
consumer credit reporting agency before referral for tax refund offset.
    (c) Debts owed by individuals will be screened for salary and 
administrative offset potential using the most current information 
reasonably available to the Department, and will not be referred for tax 
refund offset where such other offset potential is found to exist.

[59 FR 47250, Sept. 15, 1994, as amended at 60 FR 41017, Aug. 11, 1995]



Sec.  20.107  Debtor notification.

    (a) The agency head (or designee) of the creditor Labor Department 
agency shall send appropriate written demands to the debtor in terms 
which inform the debtor of the consequences of failure to repay claims. 
In accordance with guidelines as may be established by the Department's 
Chief Financial Officer, a total of three progressively stronger written 
demands at not more than 30-

[[Page 338]]

day intervals will normally be made unless a response to the first or 
second demand indicates that a further demand would be futile and the 
debtor's response does not require rebuttal. In determining the timing 
of demand letters, agencies should give due regard to the need to act 
promptly so the ability to refer a debt for tax refund offset will not 
be unduly delayed.
    (b) Before the Department refers a debt to IRS for tax refund 
offset, it will make a reasonable attempt to notify the debtor that:
    (1) The debt is past-due;
    (2) Unless the debt is repaid or a satisfactory repayment agreement 
established within 60 days thereafter, it will be referred to IRS for 
offset from any overpayment of tax remaining after taxpayer liabilities 
of greater priority have been satisfied; and
    (3) The debtor will have a minimum of 60 days from the date of 
notification to present evidence that all or part of the debt is not 
past-due or legally enforceable, and the Department will consider this 
evidence in a review of its determination that the debt is past-due and 
legally enforceable. The debtor will be advised where and to whom 
evidence is to be submitted.
    (c) The Department will make a reasonable attempt to notify the 
debtor by using the most recent address information obtained from the 
IRS, unless written notification is received from the debtor that 
notices from the Department are to be sent to a different address.
    (d) The notification required by paragraph (b) of this section and 
sent to the address specified in paragraph (c) of this section may, at 
the option of the Department, be incorporated into demand letters 
required by paragraph (a) of this section.



Sec.  20.108  Agency review of the obligation.

    (a) The individual responsible for collection of the debt will 
consider any evidence submitted by the debtor as a result of the 
notification required by Sec.  20.107(b) and notify the debtor of the 
result. If appropriate, the debtor will also be advised where and to 
whom to request a review of any unresolved dispute.
    (b) The debtor will be granted at least 30 days from the date of the 
notification required by paragraph (a) of this section to request a 
review of the determination of the individual responsible for collection 
of the debt on any unresolved dispute. The debtor will be advised of the 
result.
    (c) The review required by paragraph (b) of this section will 
ordinarily be based on written submissions and documentation provided by 
the debtor. However, a reasonable opportunity for an oral hearing will 
be provided the debtor when the reviewing official determines that any 
remaining dispute cannot be resolved by review of the documentary 
evidence alone. Unless otherwise required by law, an oral hearing under 
this section is not required to be a formal evidentiary-type hearing, 
although the reviewing official should carefully document all 
significant matters discussed at the hearing.



Sec.  20.109  Prior provision of rights with respect to debt.

    To the extent that the rights of the debtor in relation to the same 
debt have been previously provided under some other statutory or 
regulatory authority, the Department is not required to duplicate those 
efforts before referring a debt for tax refund offset.



Sec.  20.110  Referral to IRS for tax refund offset.

    (a) By the date and in the manner prescribed by the IRS the 
Department will refer for tax refund offset the following information on 
past-due legally enforceable debts:
    (1) Whether the debtor is an individual or a business entity;
    (2) Name and taxpayer identification number (SSN or EIN) of the 
debtor who is responsible for the debt;
    (3) The amount of the debt;
    (4) The date on which the debt became past-due;
    (5) Department-level, sub-Department-level and (as appropriate) 
account identifiers.
    (b) As necessary to reflect changes in the status of debts/debtors 
referred for tax refund offset, the Department will submit updated 
information at the times and in the manner prescribed by

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IRS. The original submission described in paragraph (a) of this section 
will not be changed to increase the amount of the debt or to refer 
additional debtors.
    (c) Amounts erroneously offset will be refunded by the Department or 
IRS in accordance with the Memorandum of Understanding.



Sec.  20.111  Administrative cost charges.

    Costs incurred by the Department in connection with referral of 
debts for tax refund offset will be added to the debt and thus increase 
the amount of the offset.



                Subpart F_Administrative Wage Garnishment

    Source: 80 FR 60799, Oct. 8, 2015, unless otherwise noted.



Sec.  20.201  Purpose.

    This section provides procedures the U.S. Department of Labor may 
use to collect money from a debtor's disposable pay by means of 
administrative wage garnishment to satisfy delinquent nontax debt owed 
to the Department. In accordance with the procedures set forth in 31 
U.S.C. 3720D and 31 CFR 285.11, the Department may request that a non-
Federal employer garnish the disposable pay of an individual to collect 
delinquent non-tax debt owed to the Department or in connection with any 
program administered by the Department.



Sec.  20.202  Scope.

    (a) This subpart applies to any non-tax debt owed to the U.S. 
Department of Labor or in connection with any program administered by 
the Department and to any entity that pursues recovery of such debt. The 
Department can enter into arrangements with other federal agencies to 
carry out its responsibilities under this part.
    (b) This subpart shall apply notwithstanding any provision of State 
law.
    (c) Nothing in this subpart precludes the compromise of a debt or 
the suspension or termination of a collection action in accordance with 
applicable law. See, for example, the Federal Claims Collection 
Standards (FCCS), 31 CFR parts 900-904.
    (d) The receipt of payments pursuant to this subpart does not 
preclude the Department from pursuing other debt collection remedies 
separately or in conjunction with administrative wage garnishment, 
including the offset of Federal payments, to satisfy delinquent nontax 
debt owed to the Department.
    (e) This subpart does not apply to the collection of delinquent 
nontax debt owed to the United States from the wages of Federal 
employees from their Federal employment. Federal pay is subject to the 
Federal salary offset procedures set forth in 5 U.S.C. 5514 and other 
applicable laws.
    (f) Nothing in this subpart requires the Department to duplicate 
notices or administrative proceedings required by contract, this 
subpart, or other laws, regulations, or procedures.



Sec.  20.203  Definitions.

    As used in this section the following definitions shall apply:
    (a) The term business day means Monday through Friday, not including 
Federal legal holidays. For purposes of computation, the last day of the 
period will be included unless it is a Federal legal holiday.
    (b) The term day means calendar day. For purposes of computation, 
the last day of the period will be included unless it is a Saturday, a 
Sunday, or a Federal legal holiday.
    (c) The term debt or claim means any amount of money, funds or 
property that has been determined by an appropriate official of the 
Federal Government to be owed to the Department by an individual, 
including debt administered by a third party as an agent for the Federal 
Government.
    (d) The term debtor means an individual who owes a delinquent nontax 
debt to the Department.
    (e) The term delinquent nontax debt means any nontax debt that has 
not been paid by the date specified in the initial written demand for 
payment, or applicable agreement, unless other satisfactory payment 
arrangements have been made. For purposes of this section, the terms 
``debt'' and ``claim'' are synonymous and refer to delinquent nontax 
debt.

[[Page 340]]

    (f) The term Department means the United States Department of Labor.
    (g) The term disposable pay means that part of the debtor's 
compensation (including, but not limited to, salary, bonuses, 
commissions, and vacation pay) from an employer remaining after the 
deduction of health insurance premiums and any amounts required by law 
to be withheld. For purposes of this subpart, ``amounts required by law 
to be withheld'' include amounts for deductions such as social security 
taxes and withholding taxes but do not include any amount withheld 
pursuant to a court order.
    (h) The term employer means a person or entity that employs the 
services of others and that pays their wages or salaries. The term 
employer includes, but is not limited to, State and local Governments 
but does not include an agency of the Federal Government.
    (i) The term evidence of service means information retained by the 
Department indicating the nature of the document to which it pertains, 
the date of mailing of the document, and to whom the document is being 
sent. Evidence of service may be retained electronically so long as the 
manner of retention is sufficient for evidentiary purposes.
    (j) The term garnishment means the process of withholding amounts 
from an employee's disposable pay and the paying of those amounts to a 
creditor in satisfaction of a withholding order.
    (k) The term hearing official means any qualified individual, as 
determined by the Department.
    (l) The term withholding order means any order for withholding or 
garnishment of pay issued by the Department. For purposes of this 
section, the terms ``wage garnishment order'' and ``garnishment order'' 
have the same meaning as ``withholding order.''



Sec.  20.204  General rule.

    Whenever the Department determines that a delinquent debt is owed by 
an individual, to the Department or in connection with any program 
administered by the Department, the Department may initiate proceedings 
administratively to garnish the wages of the delinquent debtor.



Sec.  20.205  Notice requirements.

    (a) At least 30 days before the initiation of garnishment 
proceedings, the Department shall mail, by first class mail to the 
debtor's last known address a written notice informing the debtor of:
    (1) The nature and amount of the debt;
    (2) The intention of the Department to initiate proceedings to 
collect the debt through deductions from pay until the debt and all 
accumulated interest, penalties and administrative costs are paid in 
full; and
    (3) An explanation of the debtor's rights, including those set forth 
in paragraph (b) of this section, and the time frame within which the 
debtor may exercise his or her rights.
    (b) The debtor shall be afforded the opportunity:
    (1) To inspect and copy the Department's records related to the 
debt;
    (2) To enter into a written repayment agreement with the Department 
under terms agreeable to the Department; and
    (3) For a hearing in accordance with Sec.  20.206 before a hearing 
official. The debtor is not entitled to a hearing concerning the terms 
of the proposed repayment schedule if these terms have been established 
by written agreement under 20.206(b)(2).
    (c) The Department will retain evidence of service indicating the 
date of mailing of the notice.



Sec.  20.206  Hearing.

    (a) Request for hearing. If the debtor submits a written request for 
a hearing concerning the existence or amount of the debt or the terms of 
the repayment schedule, the Department shall provide a written or oral 
hearing in accordance with 31 CFR 285.11(f) before a hearing official.
    (b) Type of hearing or review. (1) For purposes of this subpart, 
whenever the Department is required to afford a debtor a hearing, the 
Department shall provide the debtor with a reasonable opportunity for an 
oral hearing when the hearing official determines that the issues in 
dispute cannot be resolved by review of the documentary evidence, for 
example, when the validity of the

[[Page 341]]

claim turns on the issue of credibility or veracity.
    (2) If a hearing official determines that an oral hearing is 
appropriate, the time and location of the hearing, including the amount 
of time allotted for the hearing, shall be at the discretion of the 
hearing official. An oral hearing may, at the discretion of the hearing 
official, be conducted either in-person, by telephone conference, or by 
other electronic means. All travel expenses incurred by the debtor in 
connection with an in-person hearing will be borne by the debtor. All 
charges incurred during the hearing as a result of the use of telephone 
conference or other electronic means will be the responsibility of the 
Department.
    (3) In those cases when an oral hearing is not required by this 
section, a hearing official shall nevertheless accord the debtor a 
``paper hearing,'' that is, a hearing official will decide the issues in 
dispute based upon a review of the written record. The hearing official 
will establish a reasonable deadline for the submission of evidence.
    (c) Effect of timely request. Subject to Sec.  20.206(k), if the 
debtor's written request is received by the Department on or before the 
15th business day following the mailing of the notice described in Sec.  
20.205(a), the Department shall not issue a withholding order under 
Sec.  20.207 until the debtor has been provided the requested hearing 
and a decision in accordance with paragraphs (h) and (i) of this section 
has been rendered.
    (d) Failure to timely request a hearing. If the debtor's written 
request is received by the Department after the 15th business day 
following the mailing of the notice described in Sec.  20.205(a), the 
Department shall provide the debtor with a hearing before a hearing 
official. However, the Department will not delay issuance of a 
withholding order unless the Department determines that the delay in 
filing the request was caused by factors beyond the debtor's control or 
the Department receives information that the Department believes 
justifies a delay or cancellation of the withholding order.
    (e) Procedure. After the debtor requests a hearing, the hearing 
official shall notify the debtor of:
    (1) The date and time of a hearing conducted by telephone conference 
or other electronic means;
    (2) The date, time, and location of an in-person oral hearing; or
    (3) The deadline for the submission of evidence for a written 
hearing.
    (f) Burden of proof. (1) The agency will have the burden of going 
forward to prove the existence or amount of the debt. The Department can 
satisfy this burden by submitting a certified copy of the adjudication 
or other document that establishes the existence of the debt and the 
amount of the debt.
    (2) Thereafter, if the debtor disputes the existence or amount of 
the debt, the debtor must show by a preponderance of the evidence that 
no debt exists or that the amount of the debt is incorrect. In addition, 
the debtor may present evidence that:
    (i) The terms of the repayment schedule are unlawful;
    (ii) The terms would cause a financial hardship to the debtor; or
    (iii) The collection of the debt may not be pursued due to operation 
of law.
    (3) Debts that arise under the Federal Employees Compensation Act, 5 
U.S.C. 8101-8193, are subject to preclusion of administrative and 
judicial review, as described at 5 U.S.C. 8128(b). As a result, once the 
Department meets its burden of showing the existence and amount of a 
debt under this statute, the debtor must prove by a preponderance of the 
evidence that:
    (i) The documentation put forward by the agency to establish the 
debt was not authentic; or
    (ii) The debt was incurred by someone other than the debtor as a 
result of identity theft.
    (g) Record. The hearing official must maintain a summary record of 
any hearing provided under this section.
    (h) Hearing procedure. A hearing is an informal process and the 
hearing official is not bound by common law or statutory rules of 
evidence or by technical or formal rules of procedure. However, 
witnesses who testify in oral hearings must do so under affirmation, so 
that 18 U.S.C. 1001 applies.
    (i) Date of decision. The hearing official shall issue a written 
opinion stating his or her decision, as soon as practicable, but not 
later than 60 days after

[[Page 342]]

the date on which the request for such hearing was received. If a 
hearing official is unable to provide the debtor with a hearing and 
render a decision within 60 days after the receipt of the request for 
such hearing:
    (1) The Department may not issue a withholding order until the 
hearing is held and a decision rendered; or
    (2) If the Department had previously issued a withholding order to 
the debtor's employer, the Department must suspend the withholding order 
beginning on the 61st day after the receipt of the hearing request and 
continuing until a hearing is held and a decision is rendered.
    (j) Content of decision. The written decision shall include:
    (1) A summary of the facts presented;
    (2) The hearing official's findings, analysis, and conclusions; and
    (3) The terms of any repayment schedules, if applicable.
    (k) Final agency action. The hearing official's decision will be the 
final agency action for the purposes of judicial review under the 
Administrative Procedure Act, 5 U.S.C. 701-706.
    (l) Failure to appear. In the absence of good cause shown to the 
hearing official, a debtor who fails to appear at a hearing scheduled 
pursuant to this section will be deemed as not having timely filed a 
request for a hearing.



Sec.  20.207  Wage garnishment order.

    (a) Unless the Department receives information that the Department 
believes justifies a delay or cancellation of the withholding order, the 
Department shall send, by first class mail, a withholding order to the 
debtor's employer:
    (1) Within 30 days after the debtor fails to make a timely request 
for a hearing (i.e., within 15 business days after the mailing of the 
notice described in Sec.  20.205(a), or,
    (2) If a timely request for a hearing is made by the debtor, within 
30 days after a final decision is made by the hearing official, or,
    (3) As soon as reasonably possible thereafter.
    (b) The withholding order sent to the employer under paragraph (a) 
of this section shall be in the form prescribed by the Secretary of the 
Treasury. The withholding order shall contain the signature of, or the 
image of the signature of, the Secretary of Labor or his or her 
delegatee. The order shall contain only the information necessary for 
the employer to comply with the withholding order. Such information 
includes the debtor's name, address, and Employee Identification Number, 
as well as instructions for withholding and information as to where 
payments should be sent.
    (c) The Department will retain evidence of service indicating the 
date of mailing of the order.



Sec.  20.208  Certification by employer.

    Along with the withholding order, the agency shall send to the 
employer a certification in the form prescribed by the Secretary of the 
Treasury. The employer shall complete and return the certification to 
the Department within the time frame prescribed in the instructions to 
the form. The certification will address matters such as information 
about the debtor's employment status and disposable pay available for 
withholding.



Sec.  20.209  Amounts withheld.

    (a) After an employer receives a garnishment order, the employer 
must deduct from all disposable pay paid to the applicable debtor during 
each pay period the amount of garnishment described in paragraph (b) of 
this section.
    (b) Subject to the provisions in paragraphs (c) and (d) of this 
section, the amount of garnishment shall be the lesser of:
    (1) The amount indicated on the garnishment order up to 15 percent 
of the debtor's disposable pay; or
    (2) The amount set forth in 15 U.S.C. 1673(a)(2) (Restriction on 
Garnishment). The amount set forth at 15 U.S.C. 1673(a)(2) is the amount 
by which a debtor's disposable pay exceeds an amount equivalent to 
thirty times the minimum wage. See 29 CFR 870.10.
    (c) When a debtor's pay is subject to withholding orders with 
priority the following shall apply:
    (1) Unless otherwise provided by Federal law, withholding orders 
issued under this subpart shall be paid in the amounts set forth under 
paragraph (b) of this section and shall have priority

[[Page 343]]

over other withholding orders which are served later in time. However, 
withholding orders for family support shall have priority over 
withholding orders issued under this subpart.
    (2) If amounts are being withheld from a debtor's pay pursuant to a 
withholding order served on an employer before a withholding order 
issued pursuant to this subpart, or if a withholding order for family 
support is served on an employer at any time, the amounts withheld 
pursuant to the withholding order issued under this subpart shall be the 
lesser of:
    (i) The amount calculated under paragraph (b) of this section, or
    (ii) An amount equal to 25 percent of the debtor's disposable pay 
less the amount(s) withheld under the withholding order(s) with 
priority.
    (3) If a debtor owes more than one debt to the Department, the 
Department may issue multiple withholding orders provided that the total 
amount garnished from the debtor's pay for such orders does not exceed 
the amount set forth in paragraph (b) of this section.
    (d) An amount greater than that set forth in paragraphs (b) and (c) 
of this section may be withheld upon the written consent of the debtor.
    (e) The employer shall promptly pay to the Department all amounts 
withheld in accordance with the withholding order issued pursuant to 
this subpart.
    (f) An employer shall not be required to vary its normal pay and 
disbursement cycles in order to comply with the withholding order.
    (g) Any assignment or allotment by an employee of his earnings shall 
be void to the extent it interferes with or prohibits execution of the 
withholding order issued under this subpart, except for any assignment 
or allotment made pursuant to a family support judgment or earlier 
withholding order.
    (h) The employer shall withhold the appropriate amount from the 
debtor's wages for each pay period until the employer receives 
notification from the Department to discontinue wage withholding. The 
garnishment order shall indicate a reasonable period of time within 
which the employer is required to commence wage withholding.



Sec.  20.210  Exclusions from garnishment.

    The Department may not garnish the wages of a debtor who it knows 
has been involuntarily separated from employment until the debtor has 
been reemployed continuously for at least 12 months. The debtor has the 
burden of informing the Department (or any other federal agency 
exercising the Department's authority under this subpart) of the 
circumstances surrounding an involuntary separation from employment.



Sec.  20.211  Financial hardship.

    (a) A debtor whose wages are subject to a wage withholding order 
under this subpart, may, at any time, request a review by the Department 
of the amount garnished, based on materially changed circumstances such 
as disability, divorce, or catastrophic illness which result in 
financial hardship.
    (b) A debtor requesting a review under paragraph (a) of this section 
shall submit the basis for claiming that the current amount of 
garnishment results in a financial hardship to the debtor, along with 
supporting documentation. The Department shall consider any information 
submitted in accordance with procedures and standards established by the 
agency.
    (c) If a financial hardship is found, the Department shall 
downwardly and temporarily adjust the amount garnished to reflect the 
debtor's financial condition. The Department will notify the employer of 
any adjustments to the amounts to be withheld.



Sec.  20.212  Ending garnishment.

    (a) Once the Department has fully recovered the amounts owed by the 
debtor, including interest, penalties, and administrative costs 
consistent with the FCCS, the Department shall send the debtor's 
employer notification to discontinue wage withholding.
    (b) At least annually, the Department shall review its debtors' 
accounts to ensure that garnishment has been terminated for accounts 
that have been paid in full.



Sec.  20.213  Actions prohibited by employer.

    An employer may not discharge, refuse to employ, or take 
disciplinary

[[Page 344]]

action against the debtor due to the issuance of a withholding order 
under this subpart.



Sec.  20.214  Refunds.

    (a) If a hearing official, at a hearing held pursuant to Sec.  
20.206, determines that a debt is not legally due and owing to the 
Department, the Department shall promptly refund any amount collected by 
means of administrative wage garnishment.
    (b) Unless required by Federal law or contract, refunds under this 
section shall not bear interest.



Sec.  20.215  Right of action.

    The Department may sue any employer for any amount that the employer 
fails to withhold from wages owed and payable to an employee in 
accordance with Sec. Sec.  20.207 and 20.209. However, a suit may not be 
filed before the termination of the collection action involving a 
particular debtor, unless earlier filing is necessary to avoid 
expiration of any applicable statute of limitations period. For purposes 
of this subpart, ``termination of the collection action'' occurs when 
the agency has terminated collection action in accordance with the FCCS 
or other applicable standards. In any event, termination of the 
collection action will have been deemed to occur if the agency has not 
received any payments to satisfy the debt from the particular debtor 
whose wages were subject to garnishment, in whole or in part, for a 
period of 1 year.



PART 21_PROTECTION OF HUMAN SUBJECTS--Table of Contents



Sec.
21.101 To what does this policy apply?
21.102 Definitions for purposes of this policy.
21.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal department or agency.
21.104 Exempt research.
Sec. Sec.  21.105-21.106 [Reserved]
21.107 IRB membership.
21.108 IRB functions and operations.
21.109 IRB review of research.
21.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
21.111 Criteria for IRB approval of research.
21.112 Review by institution.
21.113 Suspension or termination of IRB approval of research.
21.114 Cooperative research.
21.115 IRB records.
21.116 General requirements for informed consent.
21.117 Documentation of informed consent.
21.118 Applications and proposals lacking definite plans for involvement 
          of human subjects.
21.119 Research undertaken without the intention of involving human 
          subjects.
21.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal department 
          or agency.
21.121 [Reserved]
21.122 Use of Federal funds.
21.123 Early termination of research support: Evaluation of applications 
          and proposals.
21.124 Conditions.

    Authority: 5 U.S.C. 301; 29 U.S.C. 551.

    Effective Date Note: At 82 FR 7271, Jan. 19, 2017, Part 21 was 
added, effective Jan. 19, 2018. At 83 FR 2885, Jan. 22, 2018, the 
effective date was delayed to July 19, 2018. At 83 FR 2892, Jan. 22, 
2018, section 21.101, paragraphs (l)(3) and (4) were revised, effective 
July 19, 2018. At 83 FR 28515, June 19, 2018, section 21.101 was amended 
by adding a heading for paragraph (l)(1), revising paragraphs (l)(2), 
(3), and (4), and adding paragraph (l)(5), effective July 19, 2018.



Sec.  21.101  To what does this policy apply?

    (a) Except as detailed in Sec.  21.104, this policy applies to all 
research involving human subjects conducted, supported, or otherwise 
subject to regulation by any Federal department or agency that takes 
appropriate administrative action to make the policy applicable to such 
research. This includes research conducted by Federal civilian employees 
or military personnel, except that each department or agency head may 
adopt such procedural modifications as may be appropriate from an 
administrative standpoint. It also includes research conducted, 
supported, or otherwise subject to regulation by the Federal Government 
outside the United States. Institutions that are engaged in research 
described in this paragraph and institutional review boards (IRBs) 
reviewing research that is subject to this policy must comply with this 
policy.
    (b) [Reserved]

[[Page 345]]

    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy and this judgment shall be 
exercised consistent with the ethical principles of the Belmont 
Report.\62\
---------------------------------------------------------------------------

    \62\ The National Commission for the Protection of Human Subjects of 
Biomedical and Behavioral Research.- Belmont Report. Washington, DC: 
U.S. Department of Health and Human Services. 1979.
---------------------------------------------------------------------------

    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the Federal department or agency but 
not otherwise covered by this policy comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations that provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations (including tribal law passed by the official governing body 
of an American Indian or Alaska Native tribe) that may otherwise be 
applicable and that provide additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations that 
may otherwise be applicable and that provide additional protections to 
human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
In these circumstances, if a department or agency head determines that 
the procedures prescribed by the institution afford protections that are 
at least equivalent to those provided in this policy, the department or 
agency head may approve the substitution of the foreign procedures in 
lieu of the procedural requirements provided in this policy. Except when 
otherwise required by statute, Executive Order, or the department or 
agency head, notices of these actions as they occur will be published in 
the Federal Register or will be otherwise published as provided in 
department or agency procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy, provided the alternative procedures to 
be followed are consistent with the principles of the Belmont 
Report.\63\ Except when otherwise required by statute or Executive 
Order, the department or agency head shall forward advance notices of 
these actions to the Office for Human Research Protections, Department 
of Health and Human Services (HHS), or any successor office, or to the 
equivalent office within the appropriate Federal department or agency, 
and shall also publish them in the Federal Register or in such other 
manner as provided in department or agency procedures. The waiver notice 
must include a statement that identifies the conditions under which the 
waiver will be applied and a justification as to why the waiver is 
appropriate for the research, including how the decision is consistent 
with the principles of the Belmont Report.
---------------------------------------------------------------------------

    \63\ Id.
---------------------------------------------------------------------------

    (j) Federal guidance on the requirements of this policy shall be 
issued only after consultation, for the purpose of harmonization (to the 
extent appropriate), with other Federal departments and agencies that 
have adopted this policy, unless such consultation is not feasible.
    (k) [Reserved]
    (l) Compliance dates and transition provisions:
    (1) Pre-2018 Requirements. For purposes of this section, the pre-
2018 Requirements means this subpart as published in the 2016 edition of 
the Code of Federal Regulations.
    (2) 2018 Requirements. For purposes of this section, the 2018 
Requirements means the Federal Policy for the Protection of Human 
Subjects requirements contained in this part. The general compliance 
date for the 2018 Requirements is January 21, 2019. The

[[Page 346]]

compliance date for Sec.  21.114(b) (cooperative research) of the 2018 
Requirements is January 20, 2020.
    (3) Research subject to pre-2018 requirements. The pre-2018 
Requirements shall apply to the following research, unless the research 
is transitioning to comply with the 2018 Requirements in accordance with 
paragraph (l)(4) of this section:
    (i) Research initially approved by an IRB under the pre-2018 
Requirements before January 21, 2019;
    (ii) Research for which IRB review was waived pursuant to Sec.  
21.101(i) of the pre-2018 Requirements before January 21, 2019; and
    (iii) Research for which a determination was made that the research 
was exempt under Sec.  21.101(b) of the pre-2018 Requirements before 
January 21, 2019.
    (4) Transitioning research. If, on or after July 19, 2018, an 
institution planning or engaged in research otherwise covered by 
paragraph (l)(3) of this section determines that such research instead 
will transition to comply with the 2018 Requirements, the institution or 
an IRB must document and date such determination.
    (i) If the determination to transition is documented between July 
19, 2018, and January 20, 2019, the research shall:
    (A) Beginning on the date of such documentation through January 20, 
2019, comply with the pre-2018 Requirements, except that the research 
shall comply with the following:
    (1) Section 21.102(l) of the 2018 Requirements (definition of 
research) (instead of Sec.  21.102(d) of the pre-2018 Requirements);
    (2) Section 21.103(d) of the 2018 Requirements (revised 
certification requirement that eliminates IRB review of application or 
proposal) (instead of Sec.  21.103(f) of the pre-2018 Requirements); and
    (3) Section 21.109(f)(1)(i) and (iii) of the 2018 Requirements 
(exceptions to mandated continuing review) (instead of Sec.  21.103(b), 
as related to the requirement for continuing review, and in addition to 
Sec.  21.109, of the pre-2018 Requirements); and
    (B) Beginning on January 21, 2019, comply with the 2018 
Requirements.
    (ii) If the determination to transition is documented on or after 
January 21, 2019, the research shall, beginning on the date of such 
documentation, comply with the 2018 Requirements.
    (5) Research subject to 2018 Requirements. The 2018 Requirements 
shall apply to the following research:
    (i) Research initially approved by an IRB on or after January 21, 
2019;
    (ii) Research for which IRB review is waived pursuant to paragraph 
(i) of this section on or after January 21, 2019; and
    (iii) Research for which a determination is made that the research 
is exempt on or after January 21, 2019.
    (m) Severability: Any provision of this part held to be invalid or 
unenforceable by its terms, or as applied to any person or circumstance, 
shall be construed so as to continue to give maximum effect to the 
provision permitted by law, unless such holding shall be one of utter 
invalidity or unenforceability, in which event the provision shall be 
severable from this part and shall not affect the remainder thereof or 
the application of the provision to other persons not similarly situated 
or to other dissimilar circumstances.



Sec.  21.102  Definitions for purposes of this policy.

    (a) Certification means the official notification by the institution 
to the supporting Federal department or agency component, in accordance 
with the requirements of this policy, that a research project or 
activity involving human subjects has been reviewed and approved by an 
IRB in accordance with an approved assurance.
    (b) Clinical trial means a research study in which one or more human 
subjects are prospectively assigned to one or more interventions (which 
may include placebo or other control) to evaluate the effects of the 
interventions on biomedical or behavioral health-related outcomes.
    (c) Department or agency head means the head of any Federal 
department or agency, for example, the Secretary of HHS, and any other 
officer or employee of any Federal department or agency to whom the 
authority provided by

[[Page 347]]

these regulations to the department or agency head has been delegated.
    (d) Federal department or agency refers to a federal department or 
agency (the department or agency itself rather than its bureaus, offices 
or divisions) that takes appropriate administrative action to make this 
policy applicable to the research involving human subjects it conducts, 
supports, or otherwise regulates (e.g., the U.S. Department of Health 
and Human Services, the U.S. Department of Defense, or the Central 
Intelligence Agency).
    (e)(1) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research:
    (i) Obtains information or biospecimens through intervention or 
interaction with the individual, and uses, studies, or analyzes the 
information or biospecimens; or (ii) Obtains, uses, studies, analyzes, 
or generates identifiable private information or identifiable 
biospecimens.
    (2) Intervention includes both physical procedures by which 
information or biospecimens are gathered (e.g., venipuncture) and 
manipulations of the subject or the subject's environment that are 
performed for research purposes.
    (3) Interaction includes communication or interpersonal contact 
between investigator and subject.
    (4) Private information includes information about behavior that 
occurs in a context in which an individual can reasonably expect that no 
observation or recording is taking place, and information that has been 
provided for specific purposes by an individual and that the individual 
can reasonably expect will not be made public (e.g., a medical record).
    (5) Identifiable private information is private information for 
which the identity of the subject is or may readily be ascertained by 
the investigator or associated with the information.
    (6) An identifiable biospecimen is a biospecimen for which the 
identity of the subject is or may readily be ascertained by the 
investigator or associated with the biospecimen.
    (7) Federal departments or agencies implementing this policy shall:
    (i) Upon consultation with appropriate experts (including experts in 
data matching and re-identification), reexamine the meaning of 
``identifiable private information,'' as defined in paragraph (e)(5) of 
this section, and ``identifiable biospecimen,'' as defined in paragraph 
(e)(6) of this section. This reexamination shall take place within 1 
year and regularly thereafter (at least every 4 years). This process 
will be conducted by collaboration among the Federal departments and 
agencies implementing this policy. If appropriate and permitted by law, 
such Federal departments and agencies may alter the interpretation of 
these terms, including through the use of guidance.
    (ii) Upon consultation with appropriate experts, assess whether 
there are analytic technologies or techniques that should be considered 
by investigators to generate ``identifiable private information,'' as 
defined in paragraph (e)(5) of this section, or an ``identifiable 
biospecimen,'' as defined in paragraph (e)(6) of this section. This 
assessment shall take place within 1 year and regularly thereafter (at 
least every 4 years). This process will be conducted by collaboration 
among the Federal departments and agencies implementing this policy. Any 
such technologies or techniques will be included on a list of 
technologies or techniques that produce identifiable private information 
or identifiable biospecimens. This list will be published in the Federal 
Register after notice and an opportunity for public comment. The 
Secretary, HHS, shall maintain the list on a publicly accessible Web 
site.
    (f) Institution means any public or private entity, or department or 
agency (including federal, state, and other agencies).
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Legally authorized representative means an individual or 
judicial or

[[Page 348]]

other body authorized under applicable law to consent on behalf of a 
prospective subject to the subject's participation in the procedure(s) 
involved in the research. If there is no applicable law addressing this 
issue, legally authorized representative means an individual recognized 
by institutional policy as acceptable for providing consent in the 
nonresearch context on behalf of the prospective subject to the 
subject's participation in the procedure(s) involved in the research.
    (j) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (k) Public health authority means an agency or authority of the 
United States, a state, a territory, a political subdivision of a state 
or territory, an Indian tribe, or a foreign government, or a person or 
entity acting under a grant of authority from or contract with such 
public agency, including the employees or agents of such public agency 
or its contractors or persons or entities to whom it has granted 
authority, that is responsible for public health matters as part of its 
official mandate.
    (l) Research means a systematic investigation, including research 
development, testing, and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities that meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program that is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities. For purposes of this part, the following 
activities are deemed not to be research:
    (1) Scholarly and journalistic activities (e.g., oral history, 
journalism, biography, literary criticism, legal research, and 
historical scholarship), including the collection and use of 
information, that focus directly on the specific individuals about whom 
the information is collected.
    (2) Public health surveillance activities, including the collection 
and testing of information or biospecimens, conducted, supported, 
requested, ordered, required, or authorized by a public health 
authority. Such activities are limited to those necessary to allow a 
public health authority to identify, monitor, assess, or investigate 
potential public health signals, onsets of disease outbreaks, or 
conditions of public health importance (including trends, signals, risk 
factors, patterns in diseases, or increases in injuries from using 
consumer products). Such activities include those associated with 
providing timely situational awareness and priority setting during the 
course of an event or crisis that threatens public health (including 
natural or man-made disasters).
    (3) Collection and analysis of information, biospecimens, or records 
by or for a criminal justice agency for activities authorized by law or 
court order solely for criminal justice or criminal investigative 
purposes.
    (4) Authorized operational activities (as determined by each agency) 
in support of intelligence, homeland security, defense, or other 
national security missions.
    (m) Written, or in writing, for purposes of this part, refers to 
writing on a tangible medium (e.g., paper) or in an electronic format.



Sec.  21.103  Assuring compliance with this policy--research conducted 
or supported by any Federal department or agency.

    (a) Each institution engaged in research that is covered by this 
policy, with the exception of research eligible for exemption under 
Sec.  21.104, and that is conducted or supported by a Federal department 
or agency, shall provide written assurance satisfactory to the 
department or agency head that it will comply with the requirements of 
this policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Human Research Protections, HHS, or any successor office, and 
approved for Federal-

[[Page 349]]

wide use by that office. When the existence of an HHS-approved assurance 
is accepted in lieu of requiring submission of an assurance, reports 
(except certification) required by this policy to be made to department 
and agency heads shall also be made to the Office for Human Research 
Protections, HHS, or any successor office. Federal departments and 
agencies will conduct or support research covered by this policy only if 
the institution has provided an assurance that it will comply with the 
requirements of this policy, as provided in this section, and only if 
the institution has certified to the department or agency head that the 
research has been reviewed and approved by an IRB (if such certification 
is required by Sec.  21.103(d)).
    (b) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (c) The department or agency head may limit the period during which 
any assurance shall remain effective or otherwise condition or restrict 
the assurance.
    (d) Certification is required when the research is supported by a 
Federal department or agency and not otherwise waived under Sec.  
21.101(i) or exempted under Sec.  21.104. For such research, 
institutions shall certify that each proposed research study covered by 
the assurance and this section has been reviewed and approved by the 
IRB. Such certification must be submitted as prescribed by the Federal 
department or agency component supporting the research. Under no 
condition shall research covered by this section be initiated prior to 
receipt of the certification that the research has been reviewed and 
approved by the IRB.
    (e) For nonexempt research involving human subjects covered by this 
policy (or exempt research for which limited IRB review takes place 
pursuant to Sec.  21.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or (8)) 
that takes place at an institution in which IRB oversight is conducted 
by an IRB that is not operated by the institution, the institution and 
the organization operating the IRB shall document the institution's 
reliance on the IRB for oversight of the research and the 
responsibilities that each entity will undertake to ensure compliance 
with the requirements of this policy (e.g., in a written agreement 
between the institution and the IRB, by implementation of an 
institution-wide policy directive providing the allocation of 
responsibilities between the institution and an IRB that is not 
affiliated with the institution, or as set forth in a research 
protocol).

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



Sec.  21.104  Exempt research.

    (a) Unless otherwise required by law or by department or agency 
heads, research activities in which the only involvement of human 
subjects will be in one or more of the categories in paragraph (d) of 
this section are exempt from the requirements of this policy, except 
that such activities must comply with the requirements of this section 
and as specified in each category.
    (b) Use of the exemption categories for research subject to the 
requirements of subparts B, C, and D: Application of the exemption 
categories to research subject to the requirements of 45 CFR part 46, 
subparts B, C, and D, is as follows:
    (1) Subpart B. Each of the exemptions at this section may be applied 
to research subject to subpart B if the conditions of the exemption are 
met.
    (2) Subpart C. The exemptions at this section do not apply to 
research subject to subpart C, except for research aimed at involving a 
broader subject population that only incidentally includes prisoners.
    (3) Subpart D. The exemptions at paragraphs (d)(1), (4), (5), (6), 
(7), and (8) of this section may be applied to research subject to 
subpart D if the conditions of the exemption are met. Paragraphs 
(d)(2)(i) and (ii) of this section only may apply to research subject to 
subpart D involving educational tests or the observation of public 
behavior when the investigator(s) do not participate in the activities 
being observed. Paragraph (d)(2)(iii) of this section may not be applied 
to research subject to subpart D.
    (c) [Reserved]

[[Page 350]]

    (d) Except as described in paragraph (a) of this section, the 
following categories of human subjects research are exempt from this 
policy:
    (1) Research, conducted in established or commonly accepted 
educational settings, that specifically involves normal educational 
practices that are not likely to adversely impact students' opportunity 
to learn required educational content or the assessment of educators who 
provide instruction. This includes most research on regular and special 
education instructional strategies, and research on the effectiveness of 
or the comparison among instructional techniques, curricula, or 
classroom management methods.
    (2) Research that only includes interactions involving educational 
tests (cognitive, diagnostic, aptitude, achievement), survey procedures, 
interview procedures, or observation of public behavior (including 
visual or auditory recording) if at least one of the following criteria 
is met:
    (i) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (ii) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or
    (iii) The information obtained is recorded by the investigator in 
such a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec.  21.111(a)(7).
    (3)(i) Research involving benign behavioral interventions in 
conjunction with the collection of information from an adult subject 
through verbal or written responses (including data entry) or 
audiovisual recording if the subject prospectively agrees to the 
intervention and information collection and at least one of the 
following criteria is met:
    (A) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (B) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or
    (C) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec.  21.111(a)(7).
    (ii) For the purpose of this provision, benign behavioral 
interventions are brief in duration, harmless, painless, not physically 
invasive, not likely to have a significant adverse lasting impact on the 
subjects, and the investigator has no reason to think the subjects will 
find the interventions offensive or embarrassing. Provided all such 
criteria are met, examples of such benign behavioral interventions would 
include having the subjects play an online game, having them solve 
puzzles under various noise conditions, or having them decide how to 
allocate a nominal amount of received cash between themselves and 
someone else.
    (iii) If the research involves deceiving the subjects regarding the 
nature or purposes of the research, this exemption is not applicable 
unless the subject authorizes the deception through a prospective 
agreement to participate in research in circumstances in which the 
subject is informed that he or she will be unaware of or misled 
regarding the nature or purposes of the research.
    (4) Secondary research for which consent is not required: Secondary 
research uses of identifiable private information or identifiable 
biospecimens, if at least one of the following criteria is met:
    (i) The identifiable private information or identifiable 
biospecimens are publicly available;

[[Page 351]]

    (ii) Information, which may include information about biospecimens, 
is recorded by the investigator in such a manner that the identity of 
the human subjects cannot readily be ascertained directly or through 
identifiers linked to the subjects, the investigator does not contact 
the subjects, and the investigator will not re-identify subjects;
    (iii) The research involves only information collection and analysis 
involving the investigator's use of identifiable health information when 
that use is regulated under 45 CFR parts 160 and 164, subparts A and E, 
for the purposes of ``health care operations'' or ``research'' as those 
terms are defined at 45 CFR 164.501 or for ``public health activities 
and purposes'' as described under 45 CFR 164.512(b); or
    (iv) The research is conducted by, or on behalf of, a Federal 
department or agency using government-generated or government-collected 
information obtained for nonresearch activities, if the research 
generates identifiable private information that is or will be maintained 
on information technology that is subject to and in compliance with 
section 208(b) of the E-Government Act of 2002, 44 U.S.C. 3501 note, if 
all of the identifiable private information collected, used, or 
generated as part of the activity will be maintained in systems of 
records subject to the Privacy Act of 1974, 5 U.S.C. 552a, and, if 
applicable, the information used in the research was collected subject 
to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
    (5) Research and demonstration projects that are conducted or 
supported by a Federal department or agency, or otherwise subject to the 
approval of department or agency heads (or the approval of the heads of 
bureaus or other subordinate agencies that have been delegated authority 
to conduct the research and demonstration projects), and that are 
designed to study, evaluate, improve, or otherwise examine public 
benefit or service programs, including procedures for obtaining benefits 
or services under those programs, possible changes in or alternatives to 
those programs or procedures, or possible changes in methods or levels 
of payment for benefits or services under those programs. Such projects 
include, but are not limited to, internal studies by Federal employees, 
and studies under contracts or consulting arrangements, cooperative 
agreements, or grants. Exempt projects also include waivers of otherwise 
mandatory requirements using authorities such as sections 1115 and 1115A 
of the Social Security Act, as amended.
    (i) Each Federal department or agency conducting or supporting the 
research and demonstration projects must establish, on a publicly 
accessible Federal Web site or in such other manner as the department or 
agency head may determine, a list of the research and demonstration 
projects that the Federal department or agency conducts or supports 
under this provision. The research or demonstration project must be 
published on this list prior to commencing the research involving human 
subjects.
    (ii) [Reserved]
    (6) Taste and food quality evaluation and consumer acceptance 
studies:
    (i) If wholesome foods without additives are consumed, or
    (ii) If a food is consumed that contains a food ingredient at or 
below the level and for a use found to be safe, or agricultural chemical 
or environmental contaminant at or below the level found to be safe, by 
the Food and Drug Administration or approved by the Environmental 
Protection Agency or the Food Safety and Inspection Service of the U.S. 
Department of Agriculture.
    (7) Storage or maintenance for secondary research for which broad 
consent is required: Storage or maintenance of identifiable private 
information or identifiable biospecimens for potential secondary 
research use if an IRB conducts a limited IRB review and makes the 
determinations required by Sec.  21.111(a)(8).
    (8) Secondary research for which broad consent is required: Research 
involving the use of identifiable private information or identifiable 
biospecimens for secondary research use, if the following criteria are 
met:
    (i) Broad consent for the storage, maintenance, and secondary 
research use of the identifiable private information or identifiable 
biospecimens was

[[Page 352]]

obtained in accordance with Sec.  21.116(a)(1) through (4), (a)(6), and 
(d);
    (ii) Documentation of informed consent or waiver of documentation of 
consent was obtained in accordance with Sec.  21.117;
    (iii) An IRB conducts a limited IRB review and makes the 
determination required by Sec.  21.111(a)(7) and makes the determination 
that the research to be conducted is within the scope of the broad 
consent referenced in paragraph (d)(8)(i) of this section; and (iv) The 
investigator does not include returning individual research results to 
subjects as part of the study plan. This provision does not prevent an 
investigator from abiding by any legal requirements to return individual 
research results.

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



Sec. Sec.  21.105-21.106  [Reserved]



Sec.  21.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members (professional competence), and the diversity of its members, 
including race, gender, and cultural backgrounds and sensitivity to such 
issues as community attitudes, to promote respect for its advice and 
counsel in safeguarding the rights and welfare of human subjects. The 
IRB shall be able to ascertain the acceptability of proposed research in 
terms of institutional commitments (including policies and resources) 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
category of subjects that is vulnerable to coercion or undue influence, 
such as children, prisoners, individuals with impaired decision-making 
capacity, or economically or educationally disadvantaged persons, 
consideration shall be given to the inclusion of one or more individuals 
who are knowledgeable about and experienced in working with these 
categories of subjects.
    (b) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (c) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (d) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (e) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues that 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec.  21.108  IRB functions and operations.

    (a) In order to fulfill the requirements of this policy each IRB 
shall:
    (1) Have access to meeting space and sufficient staff to support the 
IRB's review and recordkeeping duties;
    (2) Prepare and maintain a current list of the IRB members 
identified by name; earned degrees; representative capacity; indications 
of experience such as board certifications or licenses sufficient to 
describe each member's chief anticipated contributions to IRB 
deliberations; and any employment or other relationship between each 
member and the institution, for example, full-time employee, part-time 
employee, member of governing panel or board, stockholder, paid or 
unpaid consultant;
    (3) Establish and follow written procedures for:
    (i) Conducting its initial and continuing review of research and for 
reporting its findings and actions to the investigator and the 
institution;
    (ii) Determining which projects require review more often than 
annually and which projects need verification from sources other than 
the investigators that no material changes have occurred since previous 
IRB review; and

[[Page 353]]

    (iii) Ensuring prompt reporting to the IRB of proposed changes in a 
research activity, and for ensuring that investigators will conduct the 
research activity in accordance with the terms of the IRB approval until 
any proposed changes have been reviewed and approved by the IRB, except 
when necessary to eliminate apparent immediate hazards to the subject.
    (4) Establish and follow written procedures for ensuring prompt 
reporting to the IRB; appropriate institutional officials; the 
department or agency head; and the Office for Human Research 
Protections, HHS, or any successor office, or the equivalent office 
within the appropriate Federal department or agency of
    (i) Any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB; and
    (ii) Any suspension or termination of IRB approval.
    (b) Except when an expedited review procedure is used (as described 
in Sec.  21.110), an IRB must review proposed research at convened 
meetings at which a majority of the members of the IRB are present, 
including at least one member whose primary concerns are in 
nonscientific areas. In order for the research to be approved, it shall 
receive the approval of a majority of those members present at the 
meeting.

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



Sec.  21.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy, including exempt research activities 
under Sec.  21.104 for which limited IRB review is a condition of 
exemption (under Sec.  21.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7), and 
(8)).
    (b) An IRB shall require that information given to subjects (or 
legally authorized representatives, when appropriate) as part of 
informed consent is in accordance with Sec.  21.116. The IRB may require 
that information, in addition to that specifically mentioned in Sec.  
21.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec.  21.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research requiring 
review by the convened IRB at intervals appropriate to the degree of 
risk, not less than once per year, except as described in Sec.  
21.109(f).
    (f)(1) Unless an IRB determines otherwise, continuing review of 
research is not required in the following circumstances:
    (i) Research eligible for expedited review in accordance with Sec.  
21.110;
    (ii) Research reviewed by the IRB in accordance with the limited IRB 
review described in Sec.  21.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or 
(8);
    (iii) Research that has progressed to the point that it involves 
only one or both of the following, which are part of the IRB-approved 
study:
    (A) Data analysis, including analysis of identifiable private 
information or identifiable biospecimens, or
    (B) Accessing follow-up clinical data from procedures that subjects 
would undergo as part of clinical care.
    (2) [Reserved.]
    (g) An IRB shall have authority to observe or have a third party 
observe the consent process and the research.

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

[[Page 354]]



Sec.  21.110  Expedited review procedures for certain kinds of research 
involving no more than minimal risk, and for minor changes 
in approved research.

    (a) The Secretary of HHS has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The Secretary 
will evaluate the list at least every 8 years and amend it, as 
appropriate, after consultation with other federal departments and 
agencies and after publication in the Federal Register for public 
comment. A copy of the list is available from the Office for Human 
Research Protections, HHS, or any successor office.
    (b)(1) An IRB may use the expedited review procedure to review the 
following:
    (i) Some or all of the research appearing on the list described in 
paragraph (a) of this section, unless the reviewer determines that the 
study involves more than minimal risk;
    (ii) Minor changes in previously approved research during the period 
for which approval is authorized; or
    (iii) Research for which limited IRB review is a condition of 
exemption under Sec.  21.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7) and 
(8).
    (2) Under an expedited review procedure, the review may be carried 
out by the IRB chairperson or by one or more experienced reviewers 
designated by the chairperson from among members of the IRB. In 
reviewing the research, the reviewers may exercise all of the 
authorities of the IRB except that the reviewers may not disapprove the 
research. A research activity may be disapproved only after review in 
accordance with the nonexpedited procedure set forth in Sec.  21.108(b).
    (c) Each IRB that uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals that have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.



Sec.  21.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized:
    (i) By using procedures that are consistent with sound research 
design and that do not unnecessarily expose subjects to risk, and
    (ii) Whenever appropriate, by using procedures already being 
performed on the subjects for diagnostic or treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (e.g., the possible effects of the 
research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted. The IRB should be 
particularly cognizant of the special problems of research that involves 
a category of subjects who are vulnerable to coercion or undue 
influence, such as children, prisoners, individuals with impaired 
decision-making capacity, or economically or educationally disadvantaged 
persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by, Sec.  21.116.
    (5) Informed consent will be appropriately documented or 
appropriately waived in accordance with Sec.  21.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.

[[Page 355]]

    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (i) The Secretary of HHS will, after consultation with the Office of 
Management and Budget's privacy office and other Federal departments and 
agencies that have adopted this policy, issue guidance to assist IRBs in 
assessing what provisions are adequate to protect the privacy of 
subjects and to maintain the confidentiality of data.
    (ii) [Reserved]
    (8) For purposes of conducting the limited IRB review required by 
Sec.  21.104(d)(7)), the IRB need not make the determinations at 
paragraphs (a)(1) through (7) of this section, and shall make the 
following determinations:
    (i) Broad consent for storage, maintenance, and secondary research 
use of identifiable private information or identifiable biospecimens is 
obtained in accordance with the requirements of Sec.  21.116(a)(1)-(4), 
(a)(6), and (d);
    (ii) Broad consent is appropriately documented or waiver of 
documentation is appropriate, in accordance with Sec.  21.117; and
    (iii) If there is a change made for research purposes in the way the 
identifiable private information or identifiable biospecimens are stored 
or maintained, there are adequate provisions to protect the privacy of 
subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, individuals 
with impaired decision-making capacity, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec.  21.112  Review by Institution

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



Sec.  21.113  Suspension or Termination of IRB Approval of Research.

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

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



Sec.  21.114  Cooperative Research.

    (a) Cooperative research projects are those projects covered by this 
policy that involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy.
    (b)(1) Any institution located in the United States that is engaged 
in cooperative research must rely upon approval by a single IRB for that 
portion of the research that is conducted in the United States. The 
reviewing IRB will be identified by the Federal department or agency 
supporting or conducting the research or proposed by the lead 
institution subject to the acceptance of the Federal department or 
agency supporting the research.
    (2) The following research is not subject to this provision:
    (i) Cooperative research for which more than single IRB review is 
required by law (including tribal law passed by the official governing 
body of an American Indian or Alaska Native tribe); or
    (ii) Research for which any Federal department or agency supporting 
or conducting the research determines and documents that the use of a 
single IRB is not appropriate for the particular context.
    (c) For research not subject to paragraph (b) of this section, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely on the review of another

[[Page 356]]

IRB, or make similar arrangements for avoiding duplication of effort.



Sec.  21.115  IRB Records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent forms, progress reports submitted by investigators, and reports 
of injuries to subjects.
    (2) Minutes of IRB meetings, which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities, including the rationale 
for conducting continuing review of research that otherwise would not 
require continuing review as described in Sec.  21.109(f)(1).
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described in Sec.  
21.108(a)(2).
    (6) Written procedures for the IRB in the same detail as described 
in Sec.  21.108(a)(3) and (4).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec.  21.116(c)(5).
    (8) The rationale for an expedited reviewer's determination under 
Sec.  21.110(b)(1)(i) that research appearing on the expedited review 
list described in Sec.  21.110(a) is more than minimal risk.
    (9) Documentation specifying the responsibilities that an 
institution and an organization operating an IRB each will undertake to 
ensure compliance with the requirements of this policy, as described in 
Sec.  21.103(e).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research that is conducted shall 
be retained for at least 3 years after completion of the research. The 
institution or IRB may maintain the records in printed form, or 
electronically. All records shall be accessible for inspection and 
copying by authorized representatives of the Federal department or 
agency at reasonable times and in a reasonable manner.

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



Sec.  21.116  General Requirements for Informed Consent.

    (a) General. General requirements for informed consent, whether 
written or oral, are set forth in this paragraph and apply to consent 
obtained in accordance with the requirements set forth in paragraphs (b) 
through (d) of this section. Broad consent may be obtained in lieu of 
informed consent obtained in accordance with paragraphs (b) and (c) of 
this section only with respect to the storage, maintenance, and 
secondary research uses of identifiable private information and 
identifiable biospecimens. Waiver or alteration of consent in research 
involving public benefit and service programs conducted by or subject to 
the approval of state or local officials is described in paragraph (e) 
of this section. General waiver or alteration of informed consent is 
described in paragraph (f) of this section. Except as provided elsewhere 
in this policy:
    (1) Before involving a human subject in research covered by this 
policy, an investigator shall obtain the legally effective informed 
consent of the subject or the subject's legally authorized 
representative.
    (2) An investigator shall seek informed consent only under 
circumstances that provide the prospective subject or the legally 
authorized representative sufficient opportunity to discuss and consider 
whether or not to participate and that minimize the possibility of 
coercion or undue influence.
    (3) The information that is given to the subject or the legally 
authorized representative shall be in language understandable to the 
subject or the legally authorized representative.
    (4) The prospective subject or the legally authorized representative 
must be provided with the information that a reasonable person would 
want to have in order to make an informed decision about whether to 
participate,

[[Page 357]]

and an opportunity to discuss that information.
    (5) Except for broad consent obtained in accordance with paragraph 
(d) of this section:
    (i) Informed consent must begin with a concise and focused 
presentation of the key information that is most likely to assist a 
prospective subject or legally authorized representative in 
understanding the reasons why one might or might not want to participate 
in the research. This part of the informed consent must be organized and 
presented in a way that facilitates comprehension.
    (ii) Informed consent as a whole must present information in 
sufficient detail relating to the research, and must be organized and 
presented in a way that does not merely provide lists of isolated facts, 
but rather facilitates the prospective subject's or legally authorized 
representative's understanding of the reasons why one might or might not 
want to participate.
    (6) No informed consent may include any exculpatory language through 
which the subject or the legally authorized representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution, or 
its agents from liability for negligence.
    (b) Basic elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, in seeking informed consent 
the following information shall be provided to each subject or the 
legally authorized representative:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures that are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others that 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject;
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled; and
    (9) One of the following statements about any research that involves 
the collection of identifiable private information or identifiable 
biospecimens:
    (i) A statement that identifiers might be removed from the 
identifiable private information or identifiable biospecimens and that, 
after such removal, the information or biospecimens could be used for 
future research studies or distributed to another investigator for 
future research studies without additional informed consent from the 
subject or the legally authorized representative, if this might be a 
possibility; or
    (ii) A statement that the subject's information or biospecimens 
collected as part of the research, even if identifiers are removed, will 
not be used or distributed for future research studies.
    (c) Additional elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, one or more of the following 
elements of information, when appropriate, shall also be provided to 
each subject or the legally authorized representative:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo

[[Page 358]]

or fetus, if the subject is or may become pregnant) that are currently 
unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's or the legally authorized representative's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research that may relate to the subject's willingness to 
continue participation will be provided to the subject;
    (6) The approximate number of subjects involved in the study;
    (7) A statement that the subject's biospecimens (even if identifiers 
are removed) may be used for commercial profit and whether the subject 
will or will not share in this commercial profit;
    (8) A statement regarding whether clinically relevant research 
results, including individual research results, will be disclosed to 
subjects, and if so, under what conditions; and
    (9) For research involving biospecimens, whether the research will 
(if known) or might include whole genome sequencing (i.e., sequencing of 
a human germline or somatic specimen with the intent to generate the 
genome or exome sequence of that specimen).
    (d) Elements of broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens. Broad consent for the storage, maintenance, 
and secondary research use of identifiable private information or 
identifiable biospecimens (collected for either research studies other 
than the proposed research or nonresearch purposes) is permitted as an 
alternative to the informed consent requirements in paragraphs (b) and 
(c) of this section. If the subject or the legally authorized 
representative is asked to provide broad consent, the following shall be 
provided to each subject or the subject's legally authorized 
representative:
    (1) The information required in paragraphs (b)(2), (b)(3), (b)(5), 
and (b)(8) and, when appropriate, (c)(7) and (9) of this section;
    (2) A general description of the types of research that may be 
conducted with the identifiable private information or identifiable 
biospecimens. This description must include sufficient information such 
that a reasonable person would expect that the broad consent would 
permit the types of research conducted;
    (3) A description of the identifiable private information or 
identifiable biospecimens that might be used in research, whether 
sharing of identifiable private information or identifiable biospecimens 
might occur, and the types of institutions or researchers that might 
conduct research with the identifiable private information or 
identifiable biospecimens;
    (4) A description of the period of time that the identifiable 
private information or identifiable biospecimens may be stored and 
maintained (which period of time could be indefinite), and a description 
of the period of time that the identifiable private information or 
identifiable biospecimens may be used for research purposes (which 
period of time could be indefinite);
    (5) Unless the subject or legally authorized representative will be 
provided details about specific research studies, a statement that they 
will not be informed of the details of any specific research studies 
that might be conducted using the subject's identifiable private 
information or identifiable biospecimens, including the purposes of the 
research, and that they might have chosen not to consent to some of 
those specific research studies;
    (6) Unless it is known that clinically relevant research results, 
including individual research results, will be disclosed to the subject 
in all circumstances, a statement that such results may not be disclosed 
to the subject; and
    (7) An explanation of whom to contact for answers to questions about 
the subject's rights and about storage and use of the subject's 
identifiable private

[[Page 359]]

information or identifiable biospecimens, and whom to contact in the 
event of a research-related harm.
    (e) Waiver or alteration of consent in research involving public 
benefit and service programs conducted by or subject to the approval of 
state or local officials--(1) Waiver. An IRB may waive the requirement 
to obtain informed consent for research under paragraphs (a) through (c) 
of this section, provided the IRB satisfies the requirements of 
paragraph (e)(3) of this section. If an individual was asked to provide 
broad consent for the storage, maintenance, and secondary research use 
of identifiable private information or identifiable biospecimens in 
accordance with the requirements at paragraph (d) of this section, and 
refused to consent, an IRB cannot waive consent for the storage, 
maintenance, or secondary research use of the identifiable private 
information or identifiable biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (e)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine:
    (A) Public benefit or service programs;
    (B) Procedures for obtaining benefits or services under those 
programs;
    (C) Possible changes in or alternatives to those programs or 
procedures; or
    (D) Possible changes in methods or levels of payment for benefits or 
services under those programs; and
    (ii) The research could not practicably be carried out without the 
waiver or alteration.
    (f) General waiver or alteration of consent--(1) Waiver. An IRB may 
waive the requirement to obtain informed consent for research under 
paragraphs (a) through (c) of this section, provided the IRB satisfies 
the requirements of paragraph (f)(3) of this section. If an individual 
was asked to provide broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens in accordance with the requirements at 
paragraph (d) of this section, and refused to consent, an IRB cannot 
waive consent for the storage, maintenance, or secondary research use of 
the identifiable private information or identifiable biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (f)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research involves no more than minimal risk to the subjects;
    (ii) The research could not practicably be carried out without the 
requested waiver or alteration;
    (iii) If the research involves using identifiable private 
information or identifiable biospecimens, the research could not 
practicably be carried out without using such information or 
biospecimens in an identifiable format;
    (iv) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects; and
    (v) Whenever appropriate, the subjects or legally authorized 
representatives will be provided with additional pertinent information 
after participation.

[[Page 360]]

    (g) Screening, recruiting, or determining eligibility. An IRB may 
approve a research proposal in which an investigator will obtain 
information or biospecimens for the purpose of screening, recruiting, or 
determining the eligibility of prospective subjects without the informed 
consent of the prospective subject or the subject's legally authorized 
representative, if either of the following conditions are met:
    (1) The investigator will obtain information through oral or written 
communication with the prospective subject or legally authorized 
representative, or
    (2) The investigator will obtain identifiable private information or 
identifiable biospecimens by accessing records or stored identifiable 
biospecimens.
    (h) Posting of clinical trial consent form. (1) For each clinical 
trial conducted or supported by a Federal department or agency, one IRB-
approved informed consent form used to enroll subjects must be posted by 
the awardee or the Federal department or agency component conducting the 
trial on a publicly available Federal Web site that will be established 
as a repository for such informed consent forms.
    (2) If the Federal department or agency supporting or conducting the 
clinical trial determines that certain information should not be made 
publicly available on a Federal Web site (e.g. confidential commercial 
information), such Federal department or agency may permit or require 
redactions to the information posted.
    (3) The informed consent form must be posted on the Federal Web site 
after the clinical trial is closed to recruitment, and no later than 60 
days after the last study visit by any subject, as required by the 
protocol.
    (i) Preemption. The informed consent requirements in this policy are 
not intended to preempt any applicable Federal, state, or local laws 
(including tribal laws passed by the official governing body of an 
American Indian or Alaska Native tribe) that require additional 
information to be disclosed in order for informed consent to be legally 
effective.
    (j) Emergency medical care. Nothing in this policy is intended to 
limit the authority of a physician to provide emergency medical care, to 
the extent the physician is permitted to do so under applicable Federal, 
state, or local law (including tribal law passed by the official 
governing body of an American Indian or Alaska Native tribe).

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



Sec.  21.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written informed consent 
form approved by the IRB and signed (including in an electronic format) 
by the subject or the subject's legally authorized representative. A 
written copy shall be given to the person signing the informed consent 
form.
    (b) Except as provided in paragraph (c) of this section, the 
informed consent form may be either of the following:
    (1) A written informed consent form that meets the requirements of 
Sec.  21.116. The investigator shall give either the subject or the 
subject's legally authorized representative adequate opportunity to read 
the informed consent form before it is signed; alternatively, this form 
may be read to the subject or the subject's legally authorized 
representative.
    (2) A short form written informed consent form stating that the 
elements of informed consent required by Sec.  21.116 have been 
presented orally to the subject or the subject's legally authorized 
representative, and that the key information required by Sec.  
21.116(a)(5)(i) was presented first to the subject, before other 
information, if any, was provided. The IRB shall approve a written 
summary of what is to be said to the subject or the legally authorized 
representative. When this method is used, there shall be a witness to 
the oral presentation. Only the short form itself is to be signed by the 
subject or the subject's legally authorized representative. However, the 
witness shall sign both the short form and a copy of the summary, and 
the person actually obtaining consent shall sign a copy of the summary. 
A copy of the summary shall be given to the subject or the subject's

[[Page 361]]

legally authorized representative, in addition to a copy of the short 
form.
    (c)(1) An IRB may waive the requirement for the investigator to 
obtain a signed informed consent form for some or all subjects if it 
finds any of the following:
    (i) That the only record linking the subject and the research would 
be the informed consent form and the principal risk would be potential 
harm resulting from a breach of confidentiality. Each subject (or 
legally authorized representative) will be asked whether the subject 
wants documentation linking the subject with the research, and the 
subject's wishes will govern;
    (ii) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context; or
    (iii) If the subjects or legally authorized representatives are 
members of a distinct cultural group or community in which signing forms 
is not the norm, that the research presents no more than minimal risk of 
harm to subjects and provided there is an appropriate alternative 
mechanism for documenting that informed consent was obtained.
    (2) In cases in which the documentation requirement is waived, the 
IRB may require the investigator to provide subjects or legally 
authorized representatives with a written statement regarding the 
research.

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



Sec.  21.118  Applications and proposals lacking definite plans 
for involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to Federal departments or agencies with the 
knowledge that subjects may be involved within the period of support, 
but definite plans would not normally be set forth in the application or 
proposal. These include activities such as institutional type grants 
when selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. Except for research waived under Sec.  
21.101(i) or exempted under Sec.  21.104, no human subjects may be 
involved in any project supported by these awards until the project has 
been reviewed and approved by the IRB, as provided in this policy, and 
certification submitted, by the institution, to the Federal department 
or agency component supporting the research.



Sec.  21.119  Research undertaken without the intention 
of involving human subjects.

    Except for research waived under Sec.  21.101(i) or exempted under 
Sec.  21.104, in the event research is undertaken without the intention 
of involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted by the institution to the Federal department or agency 
component supporting the research, and final approval given to the 
proposed change by the Federal department or agency component.



Sec.  21.120  Evaluation and disposition of applications and proposals 
for research to be conducted or supported by a Federal department or agency.

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

[[Page 362]]



Sec.  21.121  [Reserved]



Sec.  21.122  Use of Federal funds.

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



Sec.  21.123  Early termination of research support: 
Evaluation of applications and proposals.

    (a) The department or agency head may require that Federal 
department or agency support for any project be terminated or suspended 
in the manner prescribed in applicable program requirements, when the 
department or agency head finds an institution has materially failed to 
comply with the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragraph (a) of this section and 
whether the applicant or the person or persons who would direct or has/
have directed the scientific and technical aspects of an activity has/
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
federal regulation).



Sec.  21.124  Conditions.

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



PART 22_PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986--Table of Contents



Sec.
22.1 Basis and purpose.
22.2 Definitions.
22.3 Basis for civil penalties and assessments.
22.4 Investigation.
22.5 Review by the reviewing official.
22.6 Prerequisites for issuing a complaint.
22.7 Complaint.
22.8 Service of complaint.
22.9 Answer.
22.10 Default upon failure to file an answer.
22.11 Referral of complaint and answer to the ALJ.
22.12 Notice of hearing.
22.13 Parties to the hearing.
22.14 Separation of functions.
22.15 Ex parte contacts.
22.16 Disqualification of reviewing official or ALJ.
22.17 Rights of parties.
22.18 Authority of the ALJ.
22.19 Prehearing conferences.
22.20 Disclosure of documents.
22.21 Discovery.
22.22 Exchange of witness lists, statements, and exhibits.
22.23 Subpoenas for attendance at hearing.
22.24 Protective order.
22.25 Fees.
22.26 Form, filing, and service of papers.
22.27 Computation of time.
22.28 Motions.
22.29 Sanctions.
22.30 The hearing and burden of proof.
22.31 Determining the amount of penalties and assessments.
22.32 Location of hearing.
22.33 Witnesses.
22.34 Evidence.
22.35 The record.
22.36 Post-hearing briefs.
22.37 Initial decision.
22.38 Reconsideration of initial decision.
22.39 Appeal to authority head.
22.40 Stays ordered by the Department of Justice.
22.41 Stay pending appeal.
22.42 Judicial review.
22.43 Collection of civil penalties and assessments.
22.44 Right to administrative offset.
22.45 Deposit in Treasury of United States.
22.46 Compromise or settlement.
22.47 Limitations.

    Authority: Pub. L. 99-509, Sec. Sec.  6101-6104, 100 Stat. 1874, 31 
U.S.C. 3801-3812.

    Source: 52 FR 48492, Dec. 22, 1987, unless otherwise noted.



Sec.  22.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law No. 99-509, sections 6101-6104, 100 Stat. 1874 
(October 21, 1986), to be codified at 31 U.S.C. 3801-

[[Page 363]]

3812. 31 U.S.C. 3809 of the statute requires each authority head to 
promulgate regulations necessary to implement the provisions of the 
statute.
    (b) Purpose. This part (1) establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to authorities or 
to their agents, and (2) specifies the hearing and appeal rights of 
persons subject to allegations of liability for such penalties and 
assessments.



Sec.  22.2  Definitions.

    (a) ALJ means an Administrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    (b) Authority means the United States Department of Labor.
    (c) Authority head means the Secretary of Labor or his or her 
designee.
    (d) 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.
    (e) Claim means, any request, demand, or submission--
    (1) Made to the authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (2) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority--
    (i) For property or services if the United States--
    (A) Provided such property or services;
    (B) Provided any portion of the funds for the purchase of such 
property or services; or
    (C) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (ii) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (A) Provided any portion of the money requested or demanded; or
    (B) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    (f) Complaint means the administrative complaint served by the 
reviewing official on the defendant under Sec.  22.7.
    (g) Defendant means any person alleged in a complaint under Sec.  
22.7 to be liable for a civil penalty or assessment under Sec.  22.3.
    (h) Department means the United States Department of Labor.
    (i) Government means the United States Government.
    (j) Individual means a natural person.
    (k) Initial decision means the written decision of the ALJ required 
by Sec.  22.10 or Sec.  22.37, and includes a revised initial decision 
issued following a remand or a motion for reconsideration.
    (l) Investigating official means the Inspector General of the 
Department of Labor or an officer or employee of the Office of the 
Inspector General designated by the Inspector General and serving in a 
Senior Executive Service position.
    (m) Knows or has reason to know, means that a person, with respect 
to a claim or statement--
    (1) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (2) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (3) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    (n) 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.
    (o) Person means any individual, partnership, corporation, 
association, or private organization, and includes the plural of that 
term.
    (p) Representative means an attorney who is in good standing of the 
bar in any state, territory, or possession of the United States or of 
the District of Columbia or the Commonwealth of Puerto Rico, or other 
representative

[[Page 364]]

meeting the qualifications of a non-attorney representative found at 29 
CFR 18.34 and designated by a party in writing.
    (q) Reviewing official means the Solicitor of the Department of 
Labor or his designee who is--
    (1) Not subject to supervision by, or required to report to, the 
investigating official; and
    (2) Not employed in the organizational unit of the authority in 
which the investigating official is employed;
    (3) Serving in a Senior Executive Service position.
    (r) 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 authority, or any State, political subdivision of a State, or other 
party, if the United States Government provides any portion of the money 
or property under such contractor 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.

[52 FR 48492, Dec. 22, 1987, as amended at 61 FR 19985, May 3, 1996; 72 
FR 37098, July 9, 2007]



Sec.  22.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed,

shall be subject, in addition to any other remedy that may be prescribed 
by law, to a civil penalty of not more than $5,000 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 authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a

[[Page 365]]

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 authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the authority.
    (c) Applications for certain benefits. (1) In the case of any claim 
or statement made by any individual relating to any of the benefits 
listed in paragraph (c)(2) of this section received by such individual, 
such individual may be held liable for penalties and assessments under 
this section only if such claim or statement is made by such individual 
in making application for such benefits with respect to such 
individual's eligibility to receive such benefits.
    (2) For purposes of paragraph (c) of this section, the term benefits 
means benefits under the Black Lung Benefits Act, which are intended for 
the personal use of the individual who receives the benefits or for a 
member of the individual's family.
    (d) No proof of specific intent to defraud is required to establish 
liability under this section.
    (e) 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 
person may be held liable for a civil penalty under this section.
    (f) 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.  22.4  Investigation.

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



Sec.  22.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec.  22.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec.  22.3 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.  22.7.
    (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;

[[Page 366]]

    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of Sec.  
22.3 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.  22.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec.  22.7 
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.  22.3(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.  22.3(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 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.  22.7  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.  22.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in Sec.  
22.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec.  22.8  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 his 
representative.



Sec.  22.9  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 hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;

[[Page 367]]

    (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.  
22.11. 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.  22.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec.  22.9(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.  22.8, a notice that an 
initial decision will be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true, and, if such facts establish liability under Sec.  22.3, 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 a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec.  22.38.
    (h) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the defendant files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to file a 
timely answer based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to file a timely answer, the authority 
head shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (l) If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall reinstate 
the initial decision of the ALJ, which shall become final and binding 
upon the parties 30 days after the authority head issues such decision.

[[Page 368]]



Sec.  22.11  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.  22.12  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.  22.8. 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.  22.13  Parties to the hearing.

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



Sec.  22.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.



Sec.  22.15  Ex parte contacts.

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



Sec.  22.16  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 an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) 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 a reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.

[[Page 369]]

    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the authority head may 
determine the matter only as part of his or her review of the initial 
decision upon appeal, if any.



Sec.  22.17  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.  22.18  Authority of the ALJ.

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



Sec.  22.19  Prehearing conferences.

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

[[Page 370]]



Sec.  22.20  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.  22.4(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.  22.5 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec.  22.9.



Sec.  22.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Sec. Sec.  22.22 and 22.23, 
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 in Sec.  
22.24.
    (3) The ALJ may grant a motion for discovery only if he finds that 
the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec.  22.24.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec.  22.8.
    (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.  22.22  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

[[Page 371]]

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.  22.33(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.  22.23  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.  22.8. 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 the 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.  22.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec.  22.25  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United

[[Page 372]]

States District Court. A check for witness fees and mileage shall 
accompany the subpoena when served, except that when a subpoena is 
issued on behalf of the authority, a check for witness fees and mileage 
need not accompany the subpoena.



Sec.  22.26  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).
    (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.  22.8 shall be made by delivering a copy or 
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.  22.27  Computation of time.

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



Sec.  22.28  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.  22.29  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

[[Page 373]]

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; 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.  22.30  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.  22.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove 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.  22.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, ordinarily double damages 
and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false, fictitious, 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 forseeable 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 or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;

[[Page 374]]

    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
State, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec.  22.32  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 argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec.  22.33  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.  
22.22(a).
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to (1) 
Make the interrogation and presentation effective for the ascertainment 
of the truth, (2) Avoid needless consumption of time, and (3) Protect 
witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party 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.  22.34  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

[[Page 375]]

Evidence where appropriate, e.g., to exclude unreliable evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec.  22.24.



Sec.  22.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec.  22.24.



Sec.  22.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs, not to exceed 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.  22.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec.  22.3;
    (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.  22.31.
    (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 motion 
for reconsideration with the ALJ or a notice of appeal with the 
authority head. If the ALJ fails to meet the deadline contained in this 
paragraph, he or she shall notify the parties of the reason for the 
delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
authority head, or a motion for reconsideration of the initial decision 
is timely filed, the initial decision shall constitute the final 
decision of the authority head and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec.  22.38  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

[[Page 376]]

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 motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the authority head and 
shall be final and binding on the parties 30 days after the ALJ denies 
the motion, unless the initial decision is timely appealed to the 
authority head in accordance with Sec.  22.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the authority head in accordance with Sec.  22.39.



Sec.  22.39  Appeal to authority head.

    (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 authority head by filing a 
notice of appeal with the authority head in accordance with this 
section.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if another party 
files a motion for reconsideration under Sec.  22.38, consideration of 
the appeal shall be stayed automatically pending resolution of the 
motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) The authority head may extend the initial 30 day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30 day period and shows good 
cause.
    (c) If the defendant files a timely notice of appeal with the 
authority head, and the time for filing motions for reconsideration 
under Sec.  22.38 has expired, the ALJ shall forward the record of the 
proceeding to the authority head.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the authority 
head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (j) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment, determined by the ALJ in 
any initial decision.
    (k) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and a statement 
describing the right of any person determined to be liable for a penalty 
or assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the defendant with a copy of the authority head's decision, a 
determination that a defendant is liable under Sec.  22.3 is final and 
is not subject to judicial review.

[[Page 377]]



Sec.  22.40  Stays ordered by the Department of Justice.

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



Sec.  22.41  Stay pending appeal.

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



Sec.  22.42  Judicial review.

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



Sec.  22.43  Collection of civil penalties and assessments.

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



Sec.  22.44  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.  22.42 or Sec.  22.43, 
or any amount agreed upon in a compromise or settlement under Sec.  
22.46, may be collected by administrative offset under 31 U.S.C. 3716, 
except that an administrative offset may not be made under this 
subsection against a refund of an overpayment of Federal taxes, then or 
later owing by the United States to the defendant.



Sec.  22.45  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.  22.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec.  22.42 or during the pendency of any action to collect 
penalties and assessments under Sec.  22.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec.  22.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec.  22.47  Limitations.

    (a) The notice of hearing (under Sec.  22.12) with respect to a 
claim or statement must be served in the manner specified in Sec.  22.8 
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.  22.10(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.

[[Page 378]]



  PART 24_PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
  UNDER THE EMPLOYEE PROTECTION PROVISIONS OF SIX ENVIRONMENTAL STATUTES 
  AND SECTION 211 OF THE ENERGY REORGANIZATION ACT OF 1974, AS AMENDED--
  Table of Contents



       Subpart A_Complaints, Investigations, Issuance of Findings

Sec.
24.100 Purpose and scope.
24.101 Definitions.
24.102 Obligations and prohibited acts.
24.103 Filing of retaliation complaint.
24.104 Investigation.
24.105 Issuance of findings and orders.

                          Subpart B_Litigation

24.106 Objections to the findings and order and request for a hearing.
24.107 Hearings.
24.108 Role of Federal agencies.
24.109 Decision and orders of the administrative law judge.
24.110 Decision and orders of the Administrative Review Board.

                   Subpart C_Miscellaneous Provisions

24.111 Withdrawal of complaints, objections, and findings; settlement.
24.112 Judicial review.
24.113 Judicial enforcement.
24.114 District court jurisdiction of retaliation complaints under the 
          Energy Reorganization Act.
24.115 Special circumstances; waiver of rules.

Appendix A to Part 24--Your Rights Under the Energy Reorganization Act

    Authority: 15 U.S.C. 2622; 33 U.S.C. 1367; 42 U.S.C. 300j-9(i)BVG, 
5851, 6971, 7622, 9610; Secretary of Labor's Order No. 5-2007, 72 FR 
31160 (June 5, 2007); Secretary of Labor's Order No. 1-2010 (Jan. 15, 
2010), 75 FR 3924-01 (Jan. 25, 2010).

    Source: 76 FR 2820, Jan. 18, 2011, unless otherwise noted.



       Subpart A_Complaints, Investigations, Issuance of Findings



Sec.  24.100  Purpose and scope.

    (a) This part implements procedures under the employee protection 
(or ``whistleblower'') provisions for which the Secretary of Labor has 
been given responsibility pursuant to the following Federal statutes: 
Safe Drinking Water Act, 42 U.S.C. 300j-9(i); Federal Water Pollution 
Control Act, 33 U.S.C. 1367; Toxic Substances Control Act, 15 U.S.C. 
2622; Solid Waste Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42 U.S.C. 
7622; Energy Reorganization Act of 1974, 42 U.S.C. 5851; and 
Comprehensive Environmental Response, Compensation and Liability Act of 
1980, 42 U.S.C. 9610.
    (b) This part establishes procedures pursuant to the Federal 
statutory provisions listed in paragraph (a) of this section for the 
expeditious handling of retaliation complaints made by employees, or by 
persons acting on their behalf. These rules, together with those rules 
codified at 29 CFR part 18, set forth the procedures for submission of 
complaints under the Federal statutory provisions listed in paragraph 
(a) of this section, investigations, issuance of findings, objections to 
findings, litigation before administrative law judges (``ALJ''), 
issuance of decisions and orders, post-hearing administrative review, 
and withdrawals and settlements.



Sec.  24.101  Definitions.

    Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under any of the statutes listed in Sec.  
24.100(a).
    Business days means days other than Saturdays, Sundays, and Federal 
holidays.
    Complainant means the employee who filed a complaint under any of 
the statutes listed in Sec.  24.100(a) or on whose behalf a complaint 
was filed.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Respondent means the employer named in the complaint, who is alleged 
to have violated any of the statutes listed in Sec.  24.100(a).
    Secretary means the Secretary of Labor or persons to whom authority 
under any of the statutes listed in Sec.  24.100(a) has been delegated.

[[Page 379]]



Sec.  24.102  Obligations and prohibited acts.

    (a) No employer subject to the provisions of any of the statutes 
listed in Sec.  24.100(a), or to the Atomic Energy Act of 1954 (AEA), 42 
U.S.C. 2011 et seq., may discharge or otherwise retaliate against any 
employee with respect to the employee's compensation, terms, conditions, 
or privileges of employment because the employee, or any person acting 
pursuant to the employee's request, engaged in any of the activities 
specified in this section.
    (b) It is a violation for any employer to intimidate, threaten, 
restrain, coerce, blacklist, discharge, discipline, or in any other 
manner retaliate against any employee because the employee has:
    (1) Commenced or caused to be commenced, or is about to commence or 
cause to be commenced, a proceeding under one of the statutes listed in 
Sec.  24.100(a) or a proceeding for the administration or enforcement of 
any requirement imposed under such statute;
    (2) Testified or is about to testify in any such proceeding; or
    (3) Assisted or participated, or is about to assist or participate, 
in any manner in such a proceeding or in any other action to carry out 
the purposes of such statute.
    (c) Under the Energy Reorganization Act, and by interpretation of 
the Secretary under any of the other statutes listed in Sec.  24.100(a), 
it is a violation for any employer to intimidate, threaten, restrain, 
coerce, blacklist, discharge, or in any other manner retaliate against 
any employee because the employee has:
    (1) Notified the employer of an alleged violation of such statute or 
the AEA of 1954;
    (2) Refused to engage in any practice made unlawful by such statute 
or the AEA of 1954, if the employee has identified the alleged 
illegality to the employer; or
    (3) Testified or is about to testify before Congress or at any 
Federal or State proceeding regarding any provision (or proposed 
provision) of such statute or the AEA of 1954.
    (d)(1) Every employer subject to the Energy Reorganization Act of 
1974, as amended, shall prominently post and keep posted in any place of 
employment to which the whistleblower provisions of the Act apply, a 
fully legible copy of the notice prepared by OSHA, printed as appendix A 
to this part, or a notice approved by the Assistant Secretary that 
contains substantially the same provisions and explains the 
whistleblower provisions of the Act and the regulations in this part. 
Copies of the notice prepared by OSHA may be obtained from the Assistant 
Secretary for Occupational Safety and Health, U.S. Department of Labor, 
Washington, DC 20210, from local OSHA offices, or from OSHA's Web site 
at http://www.osha.gov.
    (2) Where the notice required by paragraph (d)(1) of this section 
has not been posted, the requirement in Sec.  24.103(d)(2) that a 
complaint be filed with the Assistant Secretary within 180 days of an 
alleged violation will be inoperative, unless the respondent establishes 
that the complainant had knowledge of the material provisions of the 
notice. If it is established that the notice was posted at the 
employee's place of employment after the alleged retaliatory action 
occurred or that the complainant later obtained knowledge of the 
provisions of the notice, the 180 days will ordinarily run from 
whichever of those dates is relevant.
    (e) This part shall have no application to any employee who, acting 
without direction from his or her employer (or the employer's agent), 
deliberately causes a violation of any requirement of any of the 
statutes listed in Sec.  24.100(a) or the AEA of 1954.



Sec.  24.103  Filing of retaliation complaint.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against by an employer in violation of any of the statutes 
listed in Sec.  24.100(a) may file, or have filed by any person on the 
employee's behalf, a complaint alleging such retaliation.
    (b) Nature of Filing. No particular form of complaint is required. A 
complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If a complainant is not able to file the 
complaint in English, the complaint may be filed in any language.

[[Page 380]]

    (c) Place of Filing. The complaint should be filed with the OSHA 
Area Director responsible for enforcement activities in the geographical 
area where the employee resides or was employed, but may be filed with 
any OSHA officer or employee. Addresses and telephone numbers for these 
officials are set forth in local directories and at the following 
Internet address: http://www.osha.gov.
    (d) Time for Filing. (1) Except as provided in paragraph (d)(2) of 
this section, within 30 days after an alleged violation of any of the 
statutes listed in Sec.  24.100(a) occurs (i.e., when the retaliatory 
decision has been both made and communicated to the complainant), an 
employee who believes that he or she has been retaliated against in 
violation of any of the statutes listed in Sec.  24.100(a) may file, or 
have filed by any person on the employee's behalf, a complaint alleging 
such retaliation. The date of the postmark, facsimile transmittal, e-
mail communication, telephone call, hand-delivery, delivery to a third-
party commercial carrier, or in-person filing at an OSHA office will be 
considered the date of filing. The time for filing a complaint may be 
tolled for reasons warranted by applicable case law.
    (2) Under the Energy Reorganization Act, within 180 days after an 
alleged violation of the Act occurs (i.e., when the retaliatory decision 
has been both made and communicated to the complainant), an employee who 
believes that he or she has been retaliated against in violation of the 
Act may file, or have filed by any person on the employee's behalf, a 
complaint alleging such retaliation. The date of the postmark, facsimile 
transmittal, e-mail communication, telephone call, hand-delivery, 
delivery to a third-party commercial carrier, or in-person filing at an 
OSHA office will be considered the date of filing. The time for filing a 
complaint may be tolled for reasons warranted by applicable case law.
    (e) Relationship to Section 11(c) complaints. A complaint filed 
under any of the statutes listed in Sec.  24.100(a) alleging facts that 
would also constitute a violation of Section 11(c) of the Occupational 
Safety and Health Act, 29 U.S.C. 660(c), will be deemed to be a 
complaint under both Section 11(c) and the applicable statutes listed in 
Sec.  24.100(a). Similarly, a complaint filed under Section 11(c) that 
alleges facts that would also constitute a violation of any of the 
statutes listed in Sec.  24.100(a) will be deemed to be a complaint 
under both section 11(c) and the applicable statutes listed in Sec.  
24.100(a). Normal procedures and timeliness requirements under the 
respective statutes and regulations will be followed.



Sec.  24.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint by providing the respondent (or the respondent's legal counsel 
if respondent is represented by counsel) with a copy of the complaint, 
redacted, if necessary, in accordance with the Privacy Act of 1974, 5 
U.S.C. 552a, et seq., and other applicable confidentiality laws. The 
Assistant Secretary will provide a copy of the unredacted complaint to 
the complainant (or complainant's legal counsel, if complainant is 
represented) and to the appropriate office of the Federal agency charged 
with the administration of the general provisions of the statute(s) 
under which the complaint is filed.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
may submit to the Assistant Secretary a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent may request a meeting with the Assistant Secretary 
to present its position.
    (c) Throughout the investigation, the agency will provide to the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) a copy of all of respondent's submissions to the 
agency that are responsive to the complainant's whistleblower complaint. 
Before providing such materials to the complainant, the agency will 
redact them, if necessary, in accordance with the Privacy Act of 1974, 5 
U.S.C. 552a, et seq., and other applicable confidentiality laws.

[[Page 381]]

    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a confidential 
basis, other than the complainant, in accordance with part 70 of title 
29 of the Code of Federal Regulations.
    (e) Investigation under the six environmental statutes. In addition 
to the investigative procedures set forth in Sec. Sec.  24.104(a), (b), 
(c), and (d), this paragraph sets forth the procedures applicable to 
investigations under the Safe Drinking Water Act; Federal Water 
Pollution Control Act; Toxic Substances Control Act; Solid Waste 
Disposal Act; Clean Air Act; and Comprehensive Environmental Response, 
Compensation and Liability Act.
    (1) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected activity was a 
motivating factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a motivating factor in the adverse action.
    (3) The complainant will be considered to have met the required 
showing if the complaint on its face, supplemented as appropriate 
through interviews of the complainant, alleges the existence of facts 
and either direct or circumstantial evidence sufficient to give rise to 
an inference that the respondent knew or suspected that the employee 
engaged in protected activity and that the protected activity was a 
motivating factor in the adverse action. The required showing may be 
satisfied, for example, if the complainant shows that the adverse action 
took place shortly after the protected activity, giving rise to the 
inference that it was a motivating factor in the adverse action.
    (4) The complaint will be dismissed if a preponderance of the 
evidence shows that the respondent would have taken the same adverse 
action in the absence of the complainant's protected activity.
    (f) Investigation under the Energy Reorganization Act. In addition 
to the investigative procedures set forth in Sec. Sec.  24.104(a), (b), 
(c), and (d), this paragraph sets forth special procedures applicable 
only to investigations under the Energy Reorganization Act.
    (1) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected activity was a 
contributing factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected, actually or constructively, 
that the employee engaged in the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the adverse action.
    (3) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews of 
the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give rise 
to an inference that the respondent knew or suspected that the employee 
engaged in protected activity and that the protected activity was a 
contributing factor in the adverse action. The burden may be satisfied, 
for example, if the complainant shows that the adverse action took place 
shortly after the protected activity, giving rise to the inference that 
it was a contributing factor in the adverse action. If the required 
showing has not been

[[Page 382]]

made, the complainant (or the complainant's legal counsel if complainant 
is represented by counsel) will be so notified and the investigation 
will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted or will be discontinued if the 
respondent, pursuant to the procedures provided in this paragraph, 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of the complainant's protected 
behavior or conduct.
    (5) If the respondent fails to make a timely response or fails to 
demonstrate by clear and convincing evidence that it would have taken 
the same adverse action in the absence of the behavior protected by the 
Act, the Assistant Secretary will proceed with the investigation. The 
investigation will proceed whenever it is necessary or appropriate to 
confirm or verify the information provided by the respondent.



Sec.  24.105  Issuance of findings and orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 30 days of 
filing of the complaint, written findings as to whether or not there is 
reasonable cause to believe that the respondent has retaliated against 
the complainant in violation of any of the statutes listed in Sec.  
24.100(a).
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, he or she shall 
accompany the findings with an order providing relief to the 
complainant. The order shall include, where appropriate, a requirement 
that the respondent abate the violation; reinstate the complainant to 
his or her former position, together with the compensation (including 
back pay), terms, conditions and privileges of the complainant's 
employment; pay compensatory damages; and, under the Toxic Substances 
Control Act and the Safe Drinking Water Act, pay exemplary damages, 
where appropriate. At the complainant's request the order shall also 
assess against the respondent the complainant's costs and expenses 
(including attorney's fees) reasonably incurred in connection with the 
filing of the complaint.
    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and order will be sent by certified mail, return 
receipt requested, to all parties of record (and each party's legal 
counsel if the party is represented by counsel). The findings and order 
will inform the parties of their right to file objections and to request 
a hearing and provide the address of the Chief Administrative Law Judge. 
The Assistant Secretary will file a copy of the original complaint and a 
copy of the findings and order with the Chief Administrative Law Judge, 
U.S. Department of Labor.
    (c) The findings and order will be effective 30 days after receipt 
by the respondent (or the respondent's legal counsel if the respondent 
is represented by counsel) or on the compliance date set forth in the 
order, whichever is later, unless an objection and/or a request for a 
hearing has been filed as provided at Sec.  24.106.



                          Subpart B_Litigation



Sec.  24.106  Objections to the findings and order and request for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and order must file any objections and/or a request for a 
hearing on the record within 30 days of receipt of the findings and 
order pursuant to paragraph (b) of Sec.  24.105. The objection and/or 
request for a hearing must be in writing and state whether the objection 
is to the findings and/or the order. The date of the postmark, facsimile 
transmittal, or e-mail communication will be considered to be the date 
of filing; if the objection is filed in person, by hand-delivery or 
other means, the objection is filed upon receipt. Objections must be 
filed with the Chief Administrative Law Judge, U.S. Department of Labor, 
800 K Street, NW., Washington, DC 20001, and copies of the objections 
must be mailed at the same time to the

[[Page 383]]

other parties of record, the OSHA official who issued the findings and 
order, the Assistant Secretary, and the Associate Solicitor, Division of 
Fair Labor Standards, U.S. Department of Labor.
    (b) If a timely objection is filed, all provisions of the order will 
be stayed. If no timely objection is filed with respect to either the 
findings or the order, the findings and order will become the final 
decision of the Secretary, not subject to judicial review.



Sec.  24.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure and the rules of 
evidence for administrative hearings before the Office of Administrative 
Law Judges, codified at part 18 of title 29 of the Code of Federal 
Regulations.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to a judge who 
will notify the parties, by certified mail, of the day, time, and place 
of hearing. The hearing is to commence expeditiously, except upon a 
showing of good cause or otherwise agreed to by the parties. Hearings 
will be conducted de novo, on the record.
    (c) If both the complainant and the respondent object to the 
findings and/or order, the objections will be consolidated, and a single 
hearing will be conducted.



Sec.  24.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every 
proceeding. At the Assistant Secretary's discretion, he or she may 
participate as a party or participate as amicus curiae at any time at 
any stage of the proceeding. This right to participate includes, but is 
not limited to, the right to petition for review of a decision of an 
administrative law judge, including a decision approving or rejecting a 
settlement agreement between the complainant and the respondent.
    (2) Copies of documents in all cases, whether or not the Assistant 
Secretary is participating in the proceeding, must be sent to the 
Assistant Secretary, Occupational Safety and Health Administration, and 
to the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor.
    (b) The Environmental Protection Agency, the Nuclear Regulatory 
Commission, and the Department of Energy, if interested in a proceeding, 
may participate as amicus curiae at any time in the proceedings, at the 
respective agency's discretion. At the request of the interested Federal 
agency, copies of all pleadings in a case must be sent to the Federal 
agency, whether or not the agency is participating in the proceeding.



Sec.  24.109  Decision and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (c) of this section, as appropriate.
    (b)(1) In cases arising under the ERA, a determination that a 
violation has occurred may only be made if the complainant has 
demonstrated by a preponderance of the evidence that the protected 
activity was a contributing factor in the adverse action alleged in the 
complaint. If the complainant has demonstrated by a preponderance of the 
evidence that the protected activity was a contributing factor in the 
adverse action alleged in the complaint, relief may not be ordered if 
the respondent demonstrates by clear and convincing evidence that it 
would have taken the same adverse action in the absence of any protected 
activity.
    (2) In cases arising under the six environmental statutes listed in 
Sec.  24.100(a), a determination that a violation has occurred may only 
be made if the complainant has demonstrated by a preponderance of the 
evidence that the protected activity caused or was a motivating factor 
in the adverse action alleged in the complaint. If the complainant has 
demonstrated by a preponderance of the evidence that the protected 
activity caused or was a motivating factor in the adverse action alleged 
in the complaint, relief may not be ordered if the respondent 
demonstrates by a preponderance of the evidence that it would have taken 
the same adverse action in the absence of the protected activity.

[[Page 384]]

    (c) Neither the Assistant Secretary's determination to dismiss a 
complaint without completing an investigation pursuant to Sec.  
24.104(e) nor the Assistant Secretary's determination to proceed with an 
investigation is subject to review by the ALJ, and a complaint may not 
be remanded for the completion of an investigation or for additional 
findings on the basis that a determination to dismiss was made in error. 
Rather, if there otherwise is jurisdiction, the ALJ will hear the case 
on the merits or dispose of the matter without a hearing if the facts 
and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the order shall direct the respondent to take appropriate 
affirmative action to abate the violation, including reinstatement of 
the complainant to that person's former position, together with the 
compensation (including back pay), terms, conditions, and privileges of 
that employment, and compensatory damages. In cases arising under the 
Safe Drinking Water Act or the Toxic Substances Control Act, exemplary 
damages may also be awarded when appropriate. At the request of the 
complainant, the ALJ shall assess against the respondent, all costs and 
expenses (including attorney fees) reasonably incurred.
    (2) In cases brought under the Energy Reorganization Act, when an 
ALJ issues a decision that the complaint has merit and orders the relief 
prescribed in paragraph (d)(1) of this section, the relief ordered, with 
the exception of compensatory damages, shall be effective immediately 
upon receipt, whether or not a petition for review is filed with the 
ARB.
    (3) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor for Fair Labor 
Standards. Any ALJ's decision issued under any of the statutes listed in 
Sec.  24.100(a) will be effective 10 business days after the date of the 
decision unless a timely petition for review has been filed with the 
ARB. An ALJ's order issued under the Energy Reorganization Act will be 
effective immediately upon receipt, except for that portion of the order 
awarding any compensatory damages.



Sec.  24.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, of 
a decision of the ALJ must file a written petition for review with the 
ARB, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, 
DC 20210, which has been delegated the authority to act for the 
Secretary and issue final decisions under this part. The decision of the 
ALJ will become the final order of the Secretary unless, pursuant to 
this section, a timely petition for review is filed with the ARB and the 
ARB accepts the case for review. The parties should identify in their 
petitions for review the legal conclusions or orders to which they 
object, or the objections will ordinarily be deemed waived. A petition 
must be filed within 10 business days of the date of the decision of the 
ALJ. The date of the postmark, facsimile transmittal, or e-mail 
communication will be considered to be the date of filing; if the 
petition is filed in person, by hand-delivery or other means, the 
petition is considered filed upon receipt. The petition must be served 
on all parties and on the Chief Administrative Law Judge at the time it 
is filed with the ARB. Copies of the petition for review and all briefs 
must be served on the Assistant Secretary, Occupational Safety and 
Health Administration, and on the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, and the ARB, within 30 days of the filing of the 
petition, issues an order notifying the parties that the case has been 
accepted for review, the decision of the ALJ will be inoperative unless 
and until the ARB issues an order adopting the decision, except that an 
order by an ALJ issued under the Energy Reorganization Act, other than 
that portion of the order awarding compensatory damages, will be 
effective while review is conducted by the ARB, unless the ARB grants a 
motion by the respondent to stay the

[[Page 385]]

order based on exceptional circumstances. The ARB will specify the terms 
under which any briefs are to be filed. The ARB will review the factual 
findings of the ALJ under the substantial evidence standard. If no 
timely petition for review is filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If no 
timely petition for review is filed, the resulting final order is not 
subject to judicial review.
    (c) The final decision of the ARB will be issued within 90 days of 
the filing of the complaint. The decision will be served upon all 
parties and the Chief Administrative Law Judge by mail. The final 
decision will also be served on the Assistant Secretary, Occupational 
Safety and Health Administration, and on the Associate Solicitor, 
Division of Fair Labor Standards, U.S. Department of Labor, even if the 
Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law, 
the final order will order the respondent to take appropriate 
affirmative action to abate the violation, including reinstatement of 
the complainant to that person's former position, together with the 
compensation (including back pay), terms, conditions, and privileges of 
employment, and compensatory damages. In cases arising under the Safe 
Drinking Water Act or the Toxic Substances Control Act, exemplary 
damages may also be awarded when appropriate. At the request of the 
complainant, the ARB will assess against the respondent all costs and 
expenses (including attorney's fees) reasonably incurred.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint.



                   Subpart C_Miscellaneous Provisions



Sec.  24.111  Withdrawal of complaints, objections, and petitions for review; 
settlement.

    (a) At any time prior to the filing of objections to the findings 
and/or order, a complainant may withdraw his or her complaint under any 
of the statutes listed in Sec.  24.100(a) by filing a written withdrawal 
with the Assistant Secretary. The Assistant Secretary will then 
determine whether to approve the withdrawal. The Assistant Secretary 
will notify the respondent of the approval of any withdrawal. If the 
complaint is withdrawn because of settlement under the Energy 
Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, or 
the Toxic Substances Control Act, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section. Parties to 
settlements under the Federal Water Pollution Control Act, the Solid 
Waste Disposal Act, and the Comprehensive Environmental Response, 
Compensation and Liability Act are encouraged to submit their 
settlements for approval. After the filing of objections to the 
Assistant Secretary's findings and/or order, a complainant may not 
withdraw his or her complaint.
    (b) The Assistant Secretary may withdraw his or her findings and/or 
order, at any time before the expiration of the 30-day objection period 
described in Sec.  24.106, provided that no objection has yet been 
filed, and substitute new findings and/or a new order. The date of the 
receipt of the substituted findings and/or order will begin a new 30-day 
objection period.
    (c) At any time before the Assistant Secretary's findings or order 
become final, a party may withdraw its objections to the Assistant 
Secretary's findings or order by filing a written withdrawal with the 
ALJ. If a case is on review with the ARB, a party may withdraw its 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings or order, and there are no other pending objections, the 
Assistant Secretary's findings and order will become the final order of 
the Secretary. If the ARB approves a request to withdraw a petition for 
review of an ALJ decision, and there are no other pending petitions for 
review of that decision, the ALJ's decision will become the final order 
of the

[[Page 386]]

Secretary. If the objections are withdrawn because of settlement under 
the Energy Reorganization Act, the Clean Air Act, the Safe Drinking 
Water Act, or the Toxic Substances Control Act, the settlement must be 
submitted for approval in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements under the Energy Reorganization 
Act, the Clean Air Act, the Safe Drinking Water Act, and the Toxic 
Substances Control Act. At any time after the filing of a complaint, and 
before the findings and/or order are objected to or become a final order 
by operation of law, the case may be settled if the Assistant Secretary, 
the complainant and the respondent agree to a settlement. The Assistant 
Secretary's approval of a settlement reached by the respondent and the 
complainant demonstrates his or her consent and achieves the consent of 
all three parties.
    (2) Adjudicatory settlements under the Energy Reorganization Act, 
the Clean Air Act, the Safe Drinking Water Act, and the Toxic Substances 
Control Act. At any time after the filing of objections to the Assistant 
Secretary's findings and/or order, the case may be settled if the 
participating parties agree to a settlement and the settlement is 
approved by the ALJ if the case is before the judge, or by the ARB if 
the ARB has accepted the case for review. A copy of the settlement must 
be filed with the administrative law judge or the ARB, as the case may 
be.
    (e) Any settlement approved by the Assistant Secretary, the 
administrative law judge, or the ARB will constitute the final order of 
the Secretary and may be enforced pursuant to Sec.  24.113.



Sec.  24.112  Judicial review.

    (a) Except as provided under subsections (b), (c), and (d) of this 
section, within 60 days after the issuance by the ARB of a final order 
of the Secretary under Sec.  24.110, any person adversely affected or 
aggrieved by the order may file a petition for review of the order in 
the United States Court of Appeals for the circuit in which the 
violation allegedly occurred or the circuit in which the complainant 
resided on the date of the violation. A final order of the ARB is not 
subject to judicial review in any criminal or other civil proceeding.
    (b) Under the Federal Water Pollution Control Act, within 120 days 
after the issuance by the ARB of a final order of the Secretary under 
Sec.  24.110, any person adversely affected or aggrieved by the order 
may file a petition for review of the order in the United States Court 
of Appeals for the circuit in which the violation allegedly occurred or 
the circuit in which the complainant resided on the date of the 
violation.
    (c) Under the Solid Waste Disposal Act, within 90 days after the 
issuance by the ARB of a final order of the Secretary under Sec.  
24.110, any person adversely affected or aggrieved by the order may file 
a petition for review of the order in the United States Court of Appeals 
for the circuit in which the violation allegedly occurred or the circuit 
in which the complainant resided on the date of the violation.
    (d) Under the Comprehensive Environmental Response, Compensation and 
Liability Act, after the issuance by the ARB of a final order of the 
Secretary under Sec.  24.110, any person adversely affected or aggrieved 
by the order may file a petition for review of the order in the United 
States district court in which the violation allegedly occurred. For 
purposes of judicial economy and consistency, when a final order of the 
Secretary issued by the ARB under the Comprehensive Environmental 
Response, Compensation and Liability Act also is issued under any other 
statute listed in Sec.  24.100(a), the adversely affected or aggrieved 
person may file a petition for review of the entire order in the United 
States Court of Appeals for the circuit in which the violation allegedly 
occurred or the circuit in which the complainant resided on the date of 
the violation. The time for filing a petition for review of an order 
issued under the Comprehensive Environmental Response, Compensation and 
Liability Act and any other statute listed in Sec.  24.100(a) is 
determined by the time period applicable under the other statute(s).
    (e) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the administrative law judge, 
will be transmitted

[[Page 387]]

by the ARB to the appropriate court pursuant to the Federal Rules of 
Appellate Procedure and the local rules of the court.



Sec.  24.113  Judicial enforcement.

    Whenever any person has failed to comply with an order by an ALJ 
issued under the Energy Reorganization Act, with the exception of any 
award of compensatory damages, or with a final order of the Secretary, 
including final orders approving settlement agreements as provided under 
Sec.  24.111(d), the Secretary may file a civil action seeking 
enforcement of the order in the United States district court for the 
district in which the violation was found to have occurred. Whenever any 
person has failed to comply with an order by an ALJ issued under the 
Energy Reorganization Act, with the exception of any award of 
compensatory damages, or with a final order of the Secretary under 
either the Energy Reorganization Act or the Clean Air Act, the person on 
whose behalf the order was issued also may file a civil action seeking 
enforcement of the order in the United States district court for the 
district in which the violation was found to have occurred.



Sec.  24.114  District court jurisdiction of retaliation complaints 
under the Energy Reorganization Act.

    (a) If there is no final order of the Secretary, one year has passed 
since the filing of a complaint under the Energy Reorganization Act, and 
there is no showing that there has been delay due to the bad faith of 
the complainant, the complainant may bring an action at law or equity 
for de novo review in the appropriate district court of the United 
States, which will have jurisdiction over such an action without regard 
to the amount in controversy.
    (b) Fifteen days in advance of filing a complaint in Federal court, 
a complainant must file with the Assistant Secretary, the ALJ, or the 
ARB, depending upon where the proceeding is pending, a notice of his or 
her intention to file such complaint. The notice must be served on all 
parties to the proceeding. A copy of the notice must be served on the 
Regional Administrator, the Assistant Secretary, Occupational Safety and 
Health Administration, and on the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. The complainant shall file 
and serve a copy of the district court complaint on the above as soon as 
possible after the district court complaint has been filed with the 
court.



Sec.  24.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of this 
part, or for good cause shown, the ALJ or the ARB on review may, upon 
application, after three days notice to all parties, waive any rule or 
issue any orders that justice or the administration of any of the 
statutes listed in Sec.  24.100(a) requires.



Sec. Appendix A to Part 24--Your Rights Under the Energy Reorganization 
                                   Act

[[Page 388]]

[GRAPHIC] [TIFF OMITTED] TR18JA11.003


[[Page 389]]





PART 25_RULES FOR THE NOMINATION OF ARBITRATORS UNDER SECTION 11 
OF EXECUTIVE ORDER 10988--Table of Contents



Sec.
25.1 Purpose and scope.
25.2 Definitions.
25.3 Requests for nomination of arbitrators: Filing, disputes, parties, 
          time.
25.4 Contents of requests; service on other parties; answer; 
          intervention.
25.5 Action to be taken by the Secretary; nomination and selection.
25.6 Time; additional time after service by mail.
25.7 Fees; cost; expenses; decisions.
25.8 Construction of rules.

    Authority: Sec. 11, E.O. 10988, 3 CFR 1959-1963 Comp. p. 521.

    Source: 25 FR 9441, Sept. 13, 1966, unless otherwise noted.



Sec.  25.1  Purpose and scope.

    These procedures govern the nomination of arbitrators by the 
Secretary to perform the advisory functions specified under section 11 
of Executive Order 10988. Any arbitrators so nominated will be available 
for either or both of the following purposes:
    (a) To investigate the facts and issue an advisory decision with 
respect to the appropriateness of a unit of Federal employees for the 
purpose of exclusive recognition and as to related issues submitted for 
consideration; or
    (b) To determine and advise whether an employee organization 
represents a majority of employees in an appropriate unit by conducting 
or supervising an election (wherein a majority of those voting, provided 
there is a representative vote, cast their ballots for or against 
representation), or by other appropriate means. A request for a 
nomination will be considered as contemplating the performance of 
functions within the above categories if it specifies as a purpose 
obtaining an advisory decision on one or more questions involved in a 
unit determination or determination of majority status, such as an 
advisory decision on the eligibility of voters or the right to appear on 
the ballot, arising in connection with an election to be held, or on a 
question relating to matters affecting the results of an election which 
took place after the agreement to conduct the election had been entered 
into, provided such conduct materially affected the results of the 
election. Subject to compliance with these procedures, the Secretary 
will nominate an arbitrator whenever he is so requested by an agency or 
by an employee organization which is seeking recognition as the 
exclusive representative of Federal employees in a prima facie 
appropriate unit and which meets all the prerequisites for seeking such 
recognition.



Sec.  25.2  Definitions.

    When used in these procedures:
    (a) Order means Executive Order No. 10988;
    (b) Agency, employee organization, and employee have the same 
meaning as in the Order;
    (c) Recognition means recognition which is or may be accorded to an 
employee organization pursuant to the provisions of the Order;
    (d) Secretary means the Secretary of Labor.



Sec.  25.3  Requests for nomination of arbitrators: Filing, disputes, 
parties, time.

    (a) Requests for nominations should be filed only where there exists 
a dispute or problem which cannot more appropriately be resolved through 
regular agency procedures. Parties, therefore, are expected to eliminate 
from their requests matters not necessary to the resolution of such 
dispute or problem and to use their best efforts to secure agreement on 
as many issues as possible before making the request.
    (b) Requests for nominations may be filed either by an agency, or by 
an employee organization as described in Sec.  25.1, or jointly by an 
agency and one or more employee organizations. Joint requests are 
encouraged.
    (c) Subject to the provisions of paragraph (a) of this section, the 
Secretary will entertain on its merits a request by an employee 
organization for nomination of an arbitrator on a question of unit 
determination which is made within 30 days after receipt of an agency's 
final unit determination or 75 days after an appropriate request for 
exclusive recognition and no final unit determination has been received 
from the agency, provided the organization has

[[Page 390]]

observed any reasonable time limits established by the agency for the 
processing of such requests within the agency. The Secretary will 
entertain on its merits a request by an employee organization for 
nomination of an arbitrator on a question of majority representation 
which is made within 15 days after an agency's decision with respect to 
a determination of majority representation. Any request by an employee 
organization for the nomination of an arbitrator will be considered 
untimely if:
    (1) A written request for exclusive recognition was not made prior 
to the grant of such recognition to another organization provided such 
grant was preceded by posted notice to all employees in the unit and 
written notice to all organizations known to represent such employees 
that a request for exclusive recognition was under consideration.
    (2) A written request for exclusive recognition was not made within 
5 days after the agency posted appropriate notice of its intention to 
conduct an election to determine majority status, or more than 10 days 
before the date of the election.
    (3) It was made less than 12 months after an agency's final unit 
determination with respect to such unit or subdivision thereof in a 
proceeding in which the organization sought exclusive recognition but 
failed to file a timely request for arbitration under these rules.
    (4) It was made less than 12 months after a unit determination 
following a section 11 proceeding covering such unit or any subdivision 
thereof.
    (5) The time limits set forth in this paragraph will be applied to 
all requests filed on or after October 15, 1963.
    (d) No request contemplating an advisory determination as to whether 
an employee organization should become or continue to be recognized as 
the exclusive representative of employees in any unit will be 
entertained if the request is filed within 12 months after a prior 
determination of exclusive status has been made pursuant to the Order 
with respect to such unit unless the agency has withdrawn exclusive 
recognition from an employee organization by reason of its failure to 
maintain its compliance with sections 2 and 3(a) of the Order or with 
the Standards of Conduct for Employee Organizations and Code of Fair 
Labor Practices and the agency advises the Secretary that it has no 
objection to a new determination of exclusive representation being made 
within the 12-month period.
    (e) No request contemplating an advisory determination as to whether 
an employee organization should become or continue to be recognized as 
the exclusive representative of employees in any unit will be 
entertained during the period within which a signed agreement between an 
agency and an employee organization is in force or awaiting approval at 
a higher management level, but not to exceed an agreement period of two 
years, unless (1) a request for redetermination is filed with the agency 
between the 90th and 60th day prior to the terminal date of such 
agreement or two years, whichever is earlier, or (2) unusual 
circumstances exist which will substantially affect the unit or the 
majority representation. When an agreement has been extended more than 
60 days before its terminal date, such extension shall not serve as a 
basis for the denial of a request under this section submitted in 
accordance with the time limitations provided above.

[28 FR 9941, Sept. 13, 1963, as amended at 29 FR 11972, Aug. 21, 1964]



Sec.  25.4  Contents of requests; service on other parties; answer; 
intervention.

    (a) Requests for nominations \1\ shall be in triplicate and contain 
the following information:
---------------------------------------------------------------------------

    \1\ Requests should be on forms which will be supplied by the 
Secretary upon request.
---------------------------------------------------------------------------

    (1) The name of the agency and the name and address of any office or 
branch of the agency below the national level that may be involved;
    (2) A description of the unit appropriate for exclusive 
representation or claimed to be appropriate for such representation;
    (3) The number of employees in the appropriate unit or any alleged 
appropriate unit;
    (4) If the request is by an employee organization, the name, 
affiliation, if any, and address of the organization

[[Page 391]]

and the names, if known, of all other employee organizations claiming 
exclusive recognition, or having requested or attained formal or 
informal recognition with respect to any of the employees in the unit 
involved;
    (5) If the request is by an agency, the names, affiliation, if any, 
and addresses of the employee organization or organizations claiming 
exclusive recognition and of any employee organization which has 
requested or attained formal or informal recognition with respect to any 
of the employees in the unit involved;
    (6) A brief statement indicating specifically the matter or matters 
with respect to which an advisory decision or determination is sought;
    (7) A brief statement of procedures followed by and before the 
agency prior to the request, two copies of any appropriate agency 
determination and two copies of all correspondence relating to the 
dispute or problem;
    (8) If the request is made by an employee organization, an 
indication of the interest of such organization, including information 
or data such as membership lists, employee petitions or dues records 
showing prima facie that the organization has sufficient membership to 
qualify for formal recognition, and that it represents no less than 30 
percent of the employees, in the appropriate unit or alleged appropriate 
unit; and
    (9) Any other relevant facts.
    (b) A party making a request shall furnish copies to all other 
parties or organizations listed in the request in compliance with 
paragraph (a) of this section; except that membership lists, employee 
petitions or dues records need not be furnished by the requesting 
employee organization to the other parties or organizations.
    (c) Any employee organization claiming to have an interest in the 
matter or matters to be considered by an arbitrator as to the 
appropriateness of a unit or majority representation must have advised 
the agency of its position, in the manner prescribed by the agency's 
rules, and must have satisfied all of the requirements of section 5 of 
the Order and paragraph (a)(8) of this section; except that, in any 
employee organization which has satisfied all of the requirements of 
section 5 of the Order except for the 10 percent membership requirement 
shall be entitled to receive notice of the proceeding and to participate 
therein if it represents at least two members and/or is designated by at 
least two employees as their representative in the unit alleged to be 
appropriate by the employee organization seeking exclusive recognition 
or the unit alleged to be appropriate by the agency, provided, however, 
that such intervening employee organization may not request a unit 
different than that sought by the employee organization seeking 
exclusive recognition or the unit claimed to be appropriate by the 
agency.
    (d) Within fifteen (15) days following the receipt of a copy of any 
request for a nomination filed with the Secretary, the agency or any 
employee organization may file a response thereto with the Secretary, 
raising any matter which is relevant to the request including the 
adequacy of the showing of interest and the appropriateness of the unit 
under terms of the Order or these procedures. A copy of any response 
shall be furnished to other parties and organizations listed in the 
request, in the manner provided in paragraph (b) of this section.



Sec.  25.5  Action to be taken by the Secretary; nomination and selection.

    (a) Upon receipt of a request and the responses, if any, the 
Secretary shall make such further inquiries as may be necessary to 
determine his authority under the Order and these procedures; whether a 
timely request for nomination has been made; whether a valid question 
concerning representation exists in a prima facie appropriate unit; or 
for the purpose of obtaining a further specification of the issues or 
matters to be submitted for an advisory decision or determination, or 
assisting or advising the persons nominated or considered for nomination 
or otherwise facilitating submission of the matter to such person or 
persons in a manner that will permit an expeditious decision or 
determination.
    (b) The Secretary will determine the adequacy of the showing of 
interest administratively, and such determination

[[Page 392]]

shall not be subject to collateral attack at a hearing before an 
arbitrator.
    (c) The Secretary shall nominate not less than three arbitrators. 
Within 5 days the parties may indicate their order of preference from 
among those nominated. The Secretary will thereafter make a selection 
from among the nominees listed.



Sec.  25.6  Time; additional time after service by mail.

    (a) In computing any period of time prescribed or allowed by the 
rules of this part, the date of the act, event, or default after which 
the designated period of time begins to run, is not to be included. The 
last day of the period so computed is to be included, unless it is a 
Saturday, Sunday or a Federal legal holiday, in which event the period 
runs until the end of the next day which is neither a Saturday, Sunday 
nor a Federal legal holiday. When the period of time prescribed, or 
allowed, is less than 7 days, intermediate Saturdays, Sundays and 
holidays shall be excluded from the computations. Whenever a party has 
the right or is required to do some act or take some other proceedings 
within a prescribed period after service of a notice or other paper upon 
the Secretary or a party and the notice is served upon him by mail, 3 
days shall be added to the prescribed period: Provided, however, That 3 
days shall not be added if any extension of such time may have been 
granted.
    (b) When these rules require the filing of any paper, such document 
must be received by the Secretary or a party before the close of 
business of the last day of the time limit, if any, for such filing or 
extension of time that may have been granted.



Sec.  25.7  Fees; cost; expenses; decisions.

    (a) Arbitrator's fees, per diem and travel expenses, and election 
expenses for notices, ballots, postage, rentals, assistance, etc., shall 
be borne entirely by the agency.
    (b) The standard fee for the services of an arbitrator should be 
$100 per day. Travel and per diem should be paid at the maximum rate 
payable to Government employees under the Standardized Government Travel 
Regulations.
    (c) The agency should provide the arbitrator with a copy of the 
transcript of testimony taken at the hearing, such transcript to be 
returned to the agency upon the issuance of the arbitrator's advisory 
decision.
    (d) Costs involving assistance rendered by the Secretary's Office in 
connection with advisory decisions or determinations under section 11 of 
the order shall be limited to per diem, travel expenses and services on 
a time-worked basis.
    (e) Upon request, the Secretary will make available copies of 
advisory decisions of arbitrators.



Sec.  25.8  Construction of rules.

    The rules shall be liberally construed to effectuate the purposes 
and provisions of the order.



PART 29_LABOR STANDARDS FOR THE REGISTRATION OF APPRENTICESHIP PROGRAMS--
Table of Contents



Sec.
29.1 Purpose and scope.
29.2 Definitions.
29.3 Eligibility and procedure for registration of an apprenticeship 
          program.
29.4 Criteria for apprenticeable occupations.
29.5 Standards of apprenticeship.
29.6 Program performance standards.
29.7 Apprenticeship agreement.
29.8 Deregistration of a registered program.
29.9 Reinstatement of program registration.
29.10 Hearings for deregistration.
29.11 Limitations.
29.12 Complaints.
29.13 Recognition of State Apprenticeship Agencies.
29.14 Derecognition of State Apprenticeship Agencies.

    Authority: Section 1, 50 Stat. 664, as amended (29 U.S.C. 50; 40 
U.S.C. 276c; 5 U.S.C. 301) Reorganization Plan No. 14 of 1950, 64 Stat. 
1267 (5 U.S.C. App. P. 534).

    Source: 73 FR 64425, Oct. 29, 2008, unless otherwise noted.



Sec.  29.1  Purpose and scope.

    (a) The National Apprenticeship Act of 1937, section 1 (29 U.S.C. 
50), authorizes and directs the Secretary of Labor ``to formulate and 
promote the furtherance of labor standards necessary to safeguard the 
welfare of apprentices, to extend the application of such standards by 
encouraging the inclusion

[[Page 393]]

thereof in contracts of apprenticeship, to bring together employers and 
labor for the formulation of programs of apprenticeship, to cooperate 
with State agencies engaged in the formulation and promotion of 
standards of apprenticeship, and to cooperate with the Office of 
Education under the Department of Health, Education, and Welfare * * 
*.'' Section 2 of the Act authorizes the Secretary of Labor to ``publish 
information relating to existing and proposed labor standards of 
apprenticeship,'' and to ``appoint national advisory committees * * *.'' 
(29 U.S.C. 50a).
    (b) The purpose of this part is to set forth labor standards to 
safeguard the welfare of apprentices, promote apprenticeship 
opportunity, and to extend the application of such standards by 
prescribing policies and procedures concerning the registration, for 
certain Federal purposes, of acceptable apprenticeship programs with the 
U.S. Department of Labor, Employment and Training Administration, Office 
of Apprenticeship. These labor standards, policies and procedures cover 
the registration, cancellation and deregistration of apprenticeship 
programs and of apprenticeship agreements; the recognition of a State 
agency as an authorized agency for registering apprenticeship programs 
for certain Federal purposes; and matters relating thereto.



Sec.  29.2  Definitions.

    Administrator means the Administrator of the Office of 
Apprenticeship, or any person specifically designated by the 
Administrator.
    Apprentice means a worker at least 16 years of age, except where a 
higher minimum age standard is otherwise fixed by law, who is employed 
to learn an apprenticeable occupation as provided in Sec.  29.4 under 
standards of apprenticeship fulfilling the requirements of Sec.  29.5.
    Apprenticeship agreement means a written agreement, complying with 
Sec.  29.7, between an apprentice and either the apprentice's program 
sponsor, or an apprenticeship committee acting as agent for the program 
sponsor(s), which contains the terms and conditions of the employment 
and training of the apprentice.
    Apprenticeship committee (Committee) means those persons designated 
by the sponsor to administer the program. A committee may be either 
joint or non-joint, as follows:
    (1) A joint committee is composed of an equal number of 
representatives of the employer(s) and of the employees represented by a 
bona fide collective bargaining agent(s).
    (2) A non-joint committee, which may also be known as a unilateral 
or group non-joint (which may include employees) committee, has employer 
representatives but does not have a bona fide collective bargaining 
agent as a participant.
    Apprenticeship program means a plan containing all terms and 
conditions for the qualification, recruitment, selection, employment and 
training of apprentices, as required under 29 CFR parts 29 and 30, 
including such matters as the requirement for a written apprenticeship 
agreement.
    Cancellation means the termination of the registration or approval 
status of a program at the request of the sponsor, or termination of an 
Apprenticeship Agreement at the request of the apprentice.
    Certification or certificate means documentary evidence that:
    (1) The Office of Apprenticeship has approved a set of National 
Guidelines for Apprenticeship Standards developed by a national 
committee or organization, joint or unilateral, for policy or guideline 
use by local affiliates, as conforming to the standards of 
apprenticeship set forth in Sec.  29.5;
    (2) A Registration Agency has established that an individual is 
eligible for probationary employment as an apprentice under a registered 
apprenticeship program;
    (3) A Registration Agency has registered an apprenticeship program 
as evidenced by a Certificate of Registration or other written indicia;
    (4) A Registration Agency has determined that an apprentice has 
successfully met the requirements to receive an interim credential; or
    (5) A Registration Agency has determined that an individual has 
successfully completed apprenticeship.
    Competency means the attainment of manual, mechanical or technical 
skills

[[Page 394]]

and knowledge, as specified by an occupational standard and demonstrated 
by an appropriate written and hands-on proficiency measurement.
    Completion rate means the percentage of an apprenticeship cohort who 
receive a certificate of apprenticeship completion within 1 year of the 
projected completion date. An apprenticeship cohort is the group of 
individual apprentices registered to a specific program during a 1 year 
time frame, except that a cohort does not include the apprentices whose 
apprenticeship agreement has been cancelled during the probationary 
period.
    Department means the U.S. Department of Labor.
    Electronic media means media that utilize electronics or 
electromechanical energy for the end user (audience) to access the 
content; and includes, but is not limited to, electronic storage media, 
transmission media, the Internet, extranet, lease lines, dial-up lines, 
private networks, and the physical movement of removable/transportable 
electronic media and/or interactive distance learning.
    Employer means any person or organization employing an apprentice 
whether or not such person or organization is a party to an 
Apprenticeship Agreement with the apprentice.
    Federal purposes includes any Federal contract, grant, agreement or 
arrangement dealing with apprenticeship; and any Federal financial or 
other assistance, benefit, privilege, contribution, allowance, 
exemption, preference or right pertaining to apprenticeship.
    Interim credential means a credential issued by the Registration 
Agency, upon request of the appropriate sponsor, as certification of 
competency attainment by an apprentice.
    Journeyworker means a worker who has attained a level of skill, 
abilities and competencies recognized within an industry as having 
mastered the skills and competencies required for the occupation. (Use 
of the term may also refer to a mentor, technician, specialist or other 
skilled worker who has documented sufficient skills and knowledge of an 
occupation, either through formal apprenticeship or through practical 
on-the-job experience and formal training.)
    Office of apprenticeship means the office designated by the 
Employment and Training Administration to administer the National 
Apprenticeship System or its successor organization.
    Provisional registration means the 1-year initial provisional 
approval of newly registered programs that meet the required standards 
for program registration, after which program approval may be made 
permanent, continued as provisional, or rescinded following a review by 
the Registration Agency, as provided for in the criteria described in 
Sec.  29.3(g) and (h).
    Quality assurance assessment means a comprehensive review conducted 
by a Registration Agency regarding all aspects of an apprenticeship 
program's performance, including but not limited to, determining if 
apprentices are receiving: on-the-job training in all phases of the 
apprenticeable occupation; scheduled wage increases consistent with the 
registered standards; related instruction through appropriate curriculum 
and delivery systems; and that the registration agency is receiving 
notification of all new registrations, cancellations, and completions as 
required in this part.
    Registration agency means the Office of Apprenticeship or a 
recognized State Apprenticeship Agency that has responsibility for 
registering apprenticeship programs and apprentices; providing technical 
assistance; conducting reviews for compliance with 29 CFR parts 29 and 
30 and quality assurance assessments.
    Registration of an apprenticeship agreement means the acceptance and 
recording of an apprenticeship agreement by the Office of Apprenticeship 
or a recognized State Apprenticeship Agency as evidence of the 
apprentice's participation in a particular registered apprenticeship 
program.
    Registration of an apprenticeship program means the acceptance and 
recording of such program by the Office of Apprenticeship, or 
registration and/or approval by a recognized State Apprenticeship 
Agency, as meeting the basic standards and requirements of the 
Department for approval of such program for Federal purposes. Approval 
is evidenced by a Certificate of Registration or other written indicia.

[[Page 395]]

    Related instruction means an organized and systematic form of 
instruction designed to provide the apprentice with the knowledge of the 
theoretical and technical subjects related to the apprentice's 
occupation. Such instruction may be given in a classroom, through 
occupational or industrial courses, or by correspondence courses of 
equivalent value, electronic media, or other forms of self-study 
approved by the Registration Agency.
    Secretary means the Secretary of Labor or any person designated by 
the Secretary.
    Sponsor means any person, association, committee, or organization 
operating an apprenticeship program and in whose name the program is (or 
is to be) registered or approved.
    State means any of the 50 States of the United States, District of 
Columbia, or any Territory or possession of the United States.
    State Apprenticeship Agency means an agency of a State government 
that has responsibility and accountability for apprenticeship within the 
State. Only a State Apprenticeship Agency may seek recognition by the 
Office of Apprenticeship as an agency which has been properly 
constituted under an acceptable law or Executive Order, and authorized 
by the Office of Apprenticeship to register and oversee apprenticeship 
programs and agreements for Federal purposes.
    State Apprenticeship Council is an entity established to assist the 
State Apprenticeship Agency. A State Apprenticeship Council is 
ineligible for recognition as the State's Registration Agency. A 
regulatory State Apprenticeship Council may promulgate apprenticeship 
law at the direction of the State Apprenticeship Agency. An advisory 
State Apprenticeship Council provides advice and guidance to the State 
Apprenticeship Agency on the operation of the State's apprenticeship 
system.
    State office means that individual office or division of State 
government designated as the point of contact for the State 
Apprenticeship Agency.
    Technical assistance means guidance provided by Registration Agency 
staff in the development, revision, amendment, or processing of a 
potential or current program sponsor's Standards of Apprenticeship, 
Apprenticeship Agreements, or advice or consultation with a program 
sponsor to further compliance with this part or guidance from the Office 
of Apprenticeship to a State Apprenticeship Agency on how to remedy 
nonconformity with this part.
    Transfer means a shift of apprenticeship registration from one 
program to another or from one employer within a program to another 
employer within that same program, where there is agreement between the 
apprentice and the affected apprenticeship committees or program 
sponsors.



Sec.  29.3  Eligibility and procedure for registration 
of an apprenticeship program.

    (a) Eligibility for registration of an apprenticeship program for 
various Federal purposes is conditioned upon a program's conformity with 
the apprenticeship program standards published in this part. For a 
program to be determined by the Secretary as being in conformity with 
these published standards, the program must apply for registration and 
be registered with the Office of Apprenticeship or with a State 
Apprenticeship Agency recognized by the Office of Apprenticeship. The 
determination by the Secretary that the program meets the apprenticeship 
program standards is effectuated only through such registration.
    (b) Only an apprenticeship program or agreement that meets the 
following criteria is eligible for Office of Apprenticeship or State 
Apprenticeship Agency registration:
    (1) It is in conformity with the requirements of this part and the 
training is in an apprenticeable occupation having the characteristics 
set forth in Sec.  29.4 of this part; and
    (2) It is in conformity with the requirements of the Department's 
regulation on Equal Employment Opportunity in Apprenticeship and 
Training in 29 CFR part 30, as amended.
    (c) Except as provided under paragraph (d) of this section, 
apprentices must be individually registered under a registered program. 
Such individual registration may be affected:

[[Page 396]]

    (1) By filing copies of each individual apprenticeship agreement 
with the Registration Agency; or
    (2) Subject to prior Office of Apprenticeship or recognized State 
Apprenticeship Agency approval, by filing a master copy of such 
agreement followed by a listing of the name, and other required data, of 
each individual when apprenticed.
    (d) The names of persons in probationary employment as an apprentice 
under an apprenticeship program registered by the Office of 
Apprenticeship or a recognized State Apprenticeship Agency, if not 
individually registered under such program, must be submitted within 45 
days of employment to the Office of Apprenticeship or State 
Apprenticeship Agency for certification to establish the apprentice as 
eligible for such probationary employment.
    (e) The appropriate Registration Agency must be notified within 45 
days of persons who have successfully completed apprenticeship programs; 
and of transfers, suspensions, and cancellations of apprenticeship 
agreements and a statement of the reasons therefore.
    (f) Operating apprenticeship programs, when approved by the Office 
of Apprenticeship, are accorded registration evidenced by a Certificate 
of Registration. Programs approved by recognized State Apprenticeship 
Agencies must be accorded registration and/or approval evidenced by a 
similar certificate or other written indicia. When approved by the 
Office of Apprenticeship, National Apprenticeship Guideline Standards 
for policy or guidance will be accorded a certificate.
    (g) Applications for new programs that the Registration Agency 
determines meet the required standards for program registration must be 
given provisional approval for a period of 1 year. The Registration 
Agency must review all new programs for quality and for conformity with 
the requirements of this part at the end of the first year after 
registration. At that time:
    (1) A program that conforms with the requirements of this part:
    (i) May be made permanent; or
    (ii) May continue to be provisionally approved through the first 
full training cycle.
    (2) A program not in operation or not conforming to the regulations 
during the provisional approval period must be recommended for 
deregistration procedures.
    (h) The Registration Agency must review all programs for quality and 
for conformity with the requirements of this part at the end of the 
first full training cycle. A satisfactory review of a provisionally 
approved program will result in conversion of provisional approval to 
permanent registration. Subsequent reviews must be conducted no less 
frequently than every five years. Programs not in operation or not 
conforming to the regulations must be recommended for deregistration 
procedures.
    (i) Any sponsor proposals or applications for modification(s) or 
change(s) to registered programs or certified National Guidelines for 
Apprenticeship Standards must be submitted to the Registration Agency. 
The Registration Agency must make a determination on whether to approve 
such submissions within 90 days from the date of receipt. If approved, 
the modification(s) or change(s) will be recorded and acknowledged 
within 90 days of approval as an amendment to such program. If not 
approved, the sponsor must be notified of the disapproval and the 
reasons therefore and provided the appropriate technical assistance.
    (j) Under a program proposed for registration by an employer or 
employers' association, where the standards, collective bargaining 
agreement or other instrument provides for participation by a union in 
any manner in the operation of the substantive matters of the 
apprenticeship program, and such participation is exercised, written 
acknowledgement of union agreement or no objection to the registration 
is required. Where no such participation is evidenced and practiced, the 
employer or employers' association must simultaneously furnish to an 
existing union, which is the collective bargaining agent of the 
employees to be trained, a copy of its application for registration and 
of the apprenticeship program. The Registration Agency must provide for

[[Page 397]]

receipt of union comments, if any, within 45 days before final action on 
the application for registration and/or approval.
    (k) Where the employees to be trained have no collective bargaining 
agreement, an apprenticeship program may be proposed for registration by 
an employer or group of employers, or an employer association.



Sec.  29.4  Criteria for apprenticeable occupations.

    An apprenticeable occupation is one which is specified by industry 
and which must:
    (a) Involve skills that are customarily learned in a practical way 
through a structured, systematic program of on-the-job supervised 
learning;
    (b) Be clearly identified and commonly recognized throughout an 
industry;
    (c) Involve the progressive attainment of manual, mechanical or 
technical skills and knowledge which, in accordance with the industry 
standard for the occupation, would require the completion of at least 
2,000 hours of on-the-job learning to attain; and
    (d) Require related instruction to supplement the on-the-job 
learning.



Sec.  29.5  Standards of apprenticeship.

    An apprenticeship program, to be eligible for approval and 
registration by a Registration Agency, must conform to the following 
standards:
    (a) The program must have an organized, written plan (program 
standards) embodying the terms and conditions of employment, training, 
and supervision of one or more apprentices in an apprenticeable 
occupation, as defined in this part, and subscribed to by a sponsor who 
has undertaken to carry out the apprentice training program.
    (b) The program standards must contain provisions that address:
    (1) The employment and training of the apprentice in a skilled 
occupation.
    (2) The term of apprenticeship, which for an individual apprentice 
may be measured either through the completion of the industry standard 
for on-the-job learning (at least 2,000 hours) (time-based approach), 
the attainment of competency (competency-based approach), or a blend of 
the time-based and competency-based approaches (hybrid approach).
    (i) The time-based approach measures skill acquisition through the 
individual apprentice's completion of at least 2,000 hours of on-the-job 
learning as described in a work process schedule.
    (ii) The competency-based approach measures skill acquisition 
through the individual apprentice's successful demonstration of acquired 
skills and knowledge, as verified by the program sponsor. Programs 
utilizing this approach must still require apprentices to complete an 
on-the-job learning component of Registered Apprenticeship. The program 
standards must address how on-the-job learning will be integrated into 
the program, describe competencies, and identify an appropriate means of 
testing and evaluation for such competencies.
    (iii) The hybrid approach measures the individual apprentice's skill 
acquisition through a combination of specified minimum number of hours 
of on-the-job learning and the successful demonstration of competency as 
described in a work process schedule.
    (iv) The determination of the appropriate approach for the program 
standards is made by the program sponsor, subject to approval by the 
Registration Agency of the determination as appropriate to the 
apprenticeable occupation for which the program standards are 
registered.
    (3) An outline of the work processes in which the apprentice will 
receive supervised work experience and training on the job, and the 
allocation of the approximate amount of time to be spent in each major 
process.
    (4) Provision for organized, related instruction in technical 
subjects related to the occupation. A minimum of 144 hours for each year 
of apprenticeship is recommended. This instruction in technical subjects 
may be accomplished through media such as classroom, occupational or 
industry courses, electronic media, or other instruction approved by the 
Registration Agency. Every apprenticeship instructor must:
    (i) Meet the State Department of Education's requirements for a 
vocational-technical instructor in the State

[[Page 398]]

of registration, or be a subject matter expert, which is an individual, 
such as a journeyworker, who is recognized within an industry as having 
expertise in a specific occupation; and
    (ii) Have training in teaching techniques and adult learning styles, 
which may occur before or after the apprenticeship instructor has 
started to provide the related technical instruction.
    (5) A progressively increasing schedule of wages to be paid to the 
apprentice consistent with the skill acquired. The entry wage must not 
be less than the minimum wage prescribed by the Fair Labor Standards 
Act, where applicable, unless a higher wage is required by other 
applicable Federal law, State law, respective regulations, or by 
collective bargaining agreement.
    (6) Periodic review and evaluation of the apprentice's performance 
on the job and in related instruction; and the maintenance of 
appropriate progress records.
    (7) A numeric ratio of apprentices to journeyworkers consistent with 
proper supervision, training, safety, and continuity of employment, and 
applicable provisions in collective bargaining agreements, except where 
such ratios are expressly prohibited by the collective bargaining 
agreements. The ratio language must be specific and clearly described as 
to its application to the job site, workforce, department or plant.
    (8) A probationary period reasonable in relation to the full 
apprenticeship term, with full credit given for such period toward 
completion of apprenticeship. The probationary period cannot exceed 25 
percent of the length of the program, or 1 year, whichever is shorter.
    (9) Adequate and safe equipment and facilities for training and 
supervision, and safety training for apprentices on the job and in 
related instruction.
    (10) The minimum qualifications required by a sponsor for persons 
entering the apprenticeship program, with an eligible starting age not 
less than 16 years.
    (11) The placement of an apprentice under a written Apprenticeship 
Agreement that meets the requirements of Sec.  29.7 or the State 
apprenticeship law of a recognized Registration Agency. The agreement 
must directly, or by reference, incorporate the standards of the program 
as part of the agreement.
    (12) The granting of advanced standing or credit for demonstrated 
competency, acquired experience, training, or skills for all applicants 
equally, with commensurate wages for any progression step so granted.
    (13) The transfer of an apprentice between apprenticeship programs 
and within an apprenticeship program must be based on agreement between 
the apprentice and the affected apprenticeship committees or program 
sponsors, and must comply with the following requirements:
    (i) The transferring apprentice must be provided a transcript of 
related instruction and on-the-job learning by the committee or program 
sponsor;
    (ii) Transfer must be to the same occupation; and
    (iii) A new apprenticeship agreement must be executed when the 
transfer occurs between program sponsors.
    (14) Assurance of qualified training personnel and adequate 
supervision on the job.
    (15) Recognition for successful completion of apprenticeship 
evidenced by an appropriate certificate issued by the Registration 
Agency.
    (16) Program standards that utilize the competency-based or hybrid 
approach for progression through an apprenticeship and that choose to 
issue interim credentials must clearly identify the interim credentials, 
demonstrate how these credentials link to the components of the 
apprenticeable occupation, and establish the process for assessing an 
individual apprentice's demonstration of competency associated with the 
particular interim credential. Further, interim credentials must only be 
issued for recognized components of an apprenticeable occupation, 
thereby linking interim credentials specifically to the knowledge, 
skills, and abilities associated with those components of the 
apprenticeable occupation.
    (17) Identification of the Registration Agency.
    (18) Provision for the registration, cancellation and deregistration 
of the

[[Page 399]]

program; and for the prompt submission of any program standard 
modification or amendment to the Registration Agency for approval.
    (19) Provision for registration of apprenticeship agreements, 
modifications, and amendments; notice to the Registration Agency of 
persons who have successfully completed apprenticeship programs; and 
notice of transfers, suspensions, and cancellations of apprenticeship 
agreements and a statement of the reasons therefore.
    (20) Authority for the cancellation of an apprenticeship agreement 
during the probationary period by either party without stated cause; 
cancellation during the probationary period will not have an adverse 
impact on the sponsor's completion rate.
    (21) Compliance with 29 CFR part 30, including the equal opportunity 
pledge prescribed in 29 CFR 30.3(c); an affirmative action program 
complying with 29 CFR 30.4; and a method for the selection of 
apprentices complying with 29 CFR 30.10, or compliance with parallel 
requirements contained in a State plan for equal opportunity in 
apprenticeship adopted under 29 CFR part 30 and approved by the 
Department. The apprenticeship standards must also include a statement 
that the program will be conducted, operated and administered in 
conformity with applicable provisions of 29 CFR part 30, as amended, or 
if applicable, an approved State plan for equal opportunity in 
apprenticeship.
    (22) Contact information (name, address, telephone number, and e-
mail address if appropriate) for the appropriate individual with 
authority under the program to receive, process and make disposition of 
complaints.
    (23) Recording and maintenance of all records concerning 
apprenticeship as may be required by the Office of Apprenticeship or 
recognized State Apprenticeship Agency and other applicable law.

[73 FR 64425, Oct. 29, 2008, as amended at 81 FR 92107, Dec. 19, 2016]



Sec.  29.6  Program performance standards.

    (a) Every registered apprenticeship program must have at least one 
registered apprentice, except for the following specified periods of 
time, which may not exceed 1 year:
    (1) Between the date when a program is registered and the date of 
registration for its first apprentice(s); or
    (2) Between the date that a program graduates an apprentice and the 
date of registration for the next apprentice(s) in the program.
    (b) Registration Agencies must evaluate performance of registered 
apprenticeship programs.
    (1) The tools and factors to be used must include, but are not 
limited to:
    (i) Quality assurance assessments;
    (ii) Equal Employment Opportunity (EEO) Compliance Reviews; and
    (iii) Completion rates.
    (2) Any additional tools and factors used by the Registration Agency 
in evaluating program performance must adhere to the goals and policies 
of the Department articulated in this part and in guidance issued by the 
Office of Apprenticeship.
    (c) In order to evaluate completion rates, the Registration Agency 
must review a program's completion rates in comparison to the national 
average for completion rates. Based on the review, the Registration 
Agency must provide technical assistance to programs with completion 
rates lower than the national average.
    (d) Cancellation of apprenticeship agreements during the 
probationary period will not have an adverse impact on a sponsor's 
completion rate.



Sec.  29.7  Apprenticeship agreement.

    The apprenticeship agreement must contain, explicitly or by 
reference:
    (a) Names and signatures of the contracting parties (apprentice, and 
the program sponsor or employer), and the signature of a parent or 
guardian if the apprentice is a minor.
    (b) The date of birth and, on a voluntary basis, Social Security 
number of the apprentice.
    (c) Contact information of the Program Sponsor and Registration 
Agency.
    (d) A statement of the occupation in which the apprentice is to be 
trained, and the beginning date and term (duration) of apprenticeship.
    (e) A statement showing:

[[Page 400]]

    (1) The number of hours to be spent by the apprentice in work on the 
job in a time-based program; or a description of the skill sets to be 
attained by completion of a competency-based program, including the on-
the-job learning component; or the minimum number of hours to be spent 
by the apprentice and a description of the skill sets to be attained by 
completion of hybrid program; and
    (2) The number of hours to be spent in related instruction in 
technical subjects related to the occupation, which is recommended to be 
not less than 144 hours per year.
    (f) A statement setting forth a schedule of the work processes in 
the occupation or industry divisions in which the apprentice is to be 
trained and the approximate time to be spent at each process.
    (g) A statement of the graduated scale of wages to be paid to the 
apprentice and whether or not the required related instruction is 
compensated.
    (h) Statements providing:
    (1) For a specific period of probation during which the 
apprenticeship agreement may be cancelled by either party to the 
agreement upon written notice to the registration agency, without 
adverse impact on the sponsor.
    (2) That, after the probationary period, the agreement may be:
    (i) Cancelled at the request of the apprentice, or
    (ii) Suspended or cancelled by the sponsor, for good cause, with due 
notice to the apprentice and a reasonable opportunity for corrective 
action, and with written notice to the apprentice and to the 
Registration Agency of the final action taken.
    (i) A reference incorporating as part of the agreement the standards 
of the apprenticeship program as they exist on the date of the agreement 
and as they may be amended during the period of the agreement.
    (j) A statement that the apprentice will be accorded equal 
opportunity in all phases of apprenticeship employment and training, 
without discrimination because of race, color, religion, national 
origin, sex, sexual orientation, age (40 or older), genetic information, 
or disability.
    (k) Contact information (name, address, phone, and e-mail if 
appropriate) of the appropriate authority designated under the program 
to receive, process and make disposition of controversies or differences 
arising out of the apprenticeship agreement when the controversies or 
differences cannot be adjusted locally or resolved in accordance with 
the established procedure or applicable collective bargaining 
provisions.
    (l) A request for demographic data, including the apprentice's race, 
sex, and ethnicity, and disability status.

[73 FR 64425, Oct. 29, 2008, as amended at 81 FR 92107, Dec. 19, 2016]



Sec.  29.8  Deregistration of a registered program.

    Deregistration of a program may be effected upon the voluntary 
action of the sponsor by submitting a request for cancellation of the 
registration in accordance with paragraph (a) of this section, or upon 
reasonable cause, by the Registration Agency instituting formal 
deregistration proceedings in accordance with paragraph (b) of this 
section.
    (a) Deregistration at the request of the sponsor. The Registration 
Agency may cancel the registration of an apprenticeship program by 
written acknowledgment of such request stating the following:
    (1) The registration is cancelled at the sponsor's request, and the 
effective date thereof;
    (2) That, within 15 days of the date of the acknowledgment, the 
sponsor will notify all apprentices of such cancellation and the 
effective date; that such cancellation automatically deprives the 
apprentice of individual registration; that the deregistration of the 
program removes the apprentice from coverage for Federal purposes which 
require the Secretary of Labor's approval of an apprenticeship program, 
and that all apprentices are referred to the Registration Agency for 
information about potential transfer to other registered apprenticeship 
programs.
    (b) Deregistration by the registration agency upon reasonable cause. 
(1)(i)

[[Page 401]]

Deregistration proceedings may be undertaken when the apprenticeship 
program is not conducted, operated, or administered in accordance with 
the program's registered provisions or with the requirements of this 
part, including but not limited to: failure to provide on-the-job 
learning; failure to provide related instruction; failure to pay the 
apprentice a progressively increasing schedule of wages consistent with 
the apprentices skills acquired; or persistent and significant failure 
to perform successfully.
    (ii) For purposes of this section, persistent and significant 
failure to perform successfully occurs when a program sponsor 
consistently fails to register at least one apprentice, shows a pattern 
of poor quality assessment results over a period of several years, 
demonstrates an ongoing pattern of very low completion rates over a 
period of several years, or shows no indication of improvement in the 
areas identified by the Registration Agency during a review process as 
requiring corrective action.
    (2) Where it appears the program is not being operated in accordance 
with the registered standards or with requirements of this part, the 
Registration Agency must notify the program sponsor in writing.
    (3) The notice sent to the program sponsor's contact person must:
    (i) Be sent by registered or certified mail, with return receipt 
requested;
    (ii) State the shortcoming(s) and the remedy required; and
    (iii) State that a determination of reasonable cause for 
deregistration will be made unless corrective action is effected within 
30 days.
    (4) Upon request by the sponsor for good cause, the 30-day term may 
be extended for another 30 days. During the period for corrective 
action, the Registration Agency must assist the sponsor in every 
reasonable way to achieve conformity.
    (5) If the required correction is not effected within the allotted 
time, the Registration Agency must send a notice to the sponsor, by 
registered or certified mail, return receipt requested, stating the 
following:
    (i) The notice is sent under this paragraph;
    (ii) Certain deficiencies were called to the sponsor's attention 
(enumerating them and the remedial measures requested, with the dates of 
such occasions and letters), and that the sponsor has failed or refused 
to effect correction;
    (iii) Based upon the stated deficiencies and failure to remedy them, 
a determination has been made that there is reasonable cause to 
deregister the program and the program may be deregistered unless, 
within 15 days of the receipt of this notice, the sponsor requests a 
hearing with the applicable Registration Agency; and
    (iv) If the sponsor does not request a hearing, the entire matter 
will be submitted to the Administrator, Office of Apprenticeship, for a 
decision on the record with respect to deregistration.
    (6) If the sponsor does not request a hearing, the Registration 
Agency will transmit to the Administrator a report containing all 
pertinent facts and circumstances concerning the nonconformity, 
including the findings and recommendation for deregistration, and copies 
of all relevant documents and records. Statements concerning interviews, 
meetings and conferences will include the time, date, place, and persons 
present. The Administrator will make a final order on the basis of the 
record presented.
    (7) If the sponsor requests a hearing, the Registration Agency will 
transmit to the Administrator a report containing all the data listed in 
paragraph (b)(6) of this section, and the Administrator will refer the 
matter to the Office of Administrative Law Judges. An Administrative Law 
Judge will convene a hearing in accordance with Sec.  29.10, and issue a 
decision as required in Sec.  29.10(c).
    (8) Every order of deregistration must contain a provision that the 
sponsor must, within 15 days of the effective date of the order, notify 
all registered apprentices of the deregistration of the program; the 
effective date thereof; that such cancellation automatically deprives 
the apprentice of individual registration; that the deregistration 
removes the apprentice from coverage for Federal purposes which require 
the Secretary of Labor's approval of an apprenticeship

[[Page 402]]

program; and that all apprentices are referred to the Registration 
Agency for information about potential transfer to other registered 
apprenticeship programs.

[73 FR 64425, Oct. 29, 2008, as amended at 81 FR 92108, Dec. 19, 2016]



Sec.  29.9  Reinstatement of program registration.

    Any apprenticeship program deregistered under Sec.  29.8 may be 
reinstated upon presentation of adequate evidence that the 
apprenticeship program is operating in accordance with this part. Such 
evidence must be presented to the Registration Agency.



Sec.  29.10  Hearings for deregistration.

    (a) Within 10 days of receipt of a request for a hearing, the 
Administrator of the Office of Apprenticeship must contact the 
Department's Office of Administrative Law Judges to request the 
designation of an Administrative Law Judge to preside over the hearing. 
The Administrative Law Judge shall give reasonable notice of such 
hearing by registered mail, return receipt requested, to the appropriate 
sponsor. Such notice will include:
    (1) A reasonable time and place of hearing;
    (2) A statement of the provisions of this part pursuant to which the 
hearing is to be held; and
    (3) A concise statement of the matters pursuant to which the action 
forming the basis of the hearing is proposed to be taken.
    (b) The procedures contained in 29 CFR part 18 will apply to the 
disposition of the request for hearing except that:
    (1) The Administrative Law Judge will receive, and make part of the 
record, documentary evidence offered by any party and accepted at the 
hearing. Copies thereof will be made available by the party submitting 
the documentary evidence to any party to the hearing upon request.
    (2) Technical rules of evidence will not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination will be applied, where reasonably 
necessary, by the Administrative Law Judge conducting the hearing. The 
Administrative Law Judge may exclude irrelevant, immaterial, or unduly 
repetitious evidence.
    (c) The Administrative Law Judge should issue a written decision 
within 90 days of the close of the hearing record. The Administrative 
Law Judge's decision constitutes final agency action unless, within 15 
days from receipt of the decision, a party dissatisfied with the 
decision files a petition for review with the Administrative Review 
Board, specifically identifying the procedure, fact, law or policy to 
which exception is taken. Any exception not specifically urged is deemed 
to have been waived. A copy of the petition for review must be sent to 
the opposing party at the same time. Thereafter, the decision of the 
Administrative Law Judge remains final agency action unless the 
Administrative Review Board, within 30 days of the filing of the 
petition for review, notifies the parties that it has accepted the case 
for review. The Administrative Review Board may set a briefing schedule 
or decide the matter on the record. The Administrative Review Board must 
decide any case it accepts for review within 180 days of the close of 
the record. If not so decided, the Administrative Law Judge's decision 
constitutes final agency action.



Sec.  29.11  Limitations.

    Nothing in this part or in any apprenticeship agreement will operate 
to invalidate:
    (a) Any apprenticeship provision in any collective bargaining 
agreement between employers and employees establishing higher 
apprenticeship standards; or
    (b) Any special provision for veterans, minority persons, or women 
in the standards, apprentice qualifications or operation of the program, 
or in the apprenticeship agreement, which is not otherwise prohibited by 
law, Executive Order, or authorized regulation.

[[Page 403]]



Sec.  29.12  Complaints.

    (a) This section is not applicable to any complaint concerning 
discrimination or other equal opportunity matters; all such complaints 
must be submitted, processed and resolved in accordance with applicable 
provisions in 29 CFR part 30, or applicable provisions of a State Plan 
for Equal Employment Opportunity in Apprenticeship adopted pursuant to 
29 CFR part 30 and approved by the Department.
    (b) Except for matters described in paragraph (a) of this section, 
any controversy or difference arising under an apprenticeship agreement 
which cannot be adjusted locally and which is not covered by a 
collective bargaining agreement, may be submitted by an apprentice, or 
the apprentice's authorized representative, to the appropriate 
Registration Authority, either Federal or State, which has registered 
and/or approved the program in which the apprentice is enrolled, for 
review. Matters covered by a collective bargaining agreement are not 
subject to such review.
    (c) The complaint must be in writing and signed by the complainant, 
or authorized representative, and must be submitted within 60 days of 
the final local decision. It must set forth the specific matter(s) 
complained of, together with relevant facts and circumstances. Copies of 
pertinent documents and correspondence must accompany the complaint.
    (d) The Office of Apprenticeship or recognized State Apprenticeship 
Agency, as appropriate, will render an opinion within 90 days after 
receipt of the complaint, based upon such investigation of the matters 
submitted as may be found necessary, and the record before it. During 
the 90-day period, the Office of Apprenticeship or recognized State 
Apprenticeship Agency will make reasonable efforts to effect a 
satisfactory resolution between the parties involved. If so resolved, 
the parties will be notified that the case is closed. Where an opinion 
is rendered, copies will be sent to all interested parties.
    (e) Nothing in this section precludes an apprentice from pursuing 
any other remedy authorized under another Federal, State, or local law.
    (f) A State Apprenticeship Agency may adopt a complaint review 
procedure differing in detail from that given in this section provided 
it is submitted for review and approval by the Office of Apprenticeship.



Sec.  29.13  Recognition of State Apprenticeship Agencies.

    (a) Recognition. The Department may exercise its authority to grant 
recognition to a State Apprenticeship Agency. Recognition confers non-
exclusive authority to determine whether an apprenticeship program 
conforms to the published standards and whether the program is, 
therefore, eligible for those Federal purposes which require such a 
determination by the Department. Such recognition shall be accorded upon 
the State's submission of, the Department's approval of, and the State's 
compliance with the following:
    (1) The State Apprenticeship Agency must submit a State 
apprenticeship law, whether instituted through statute, Executive Order, 
regulation, or other means, that conforms to the requirements of 29 CFR 
parts 29 and 30;
    (2) The State Apprenticeship Agency must establish and continue to 
use a State Apprenticeship Council, which operates under the direction 
of the State Apprenticeship Agency. The State Apprenticeship Council may 
be either regulatory or advisory and must meet the following 
requirements:
    (i) It must be composed of persons familiar with apprenticeable 
occupations, and
    (ii) It must include an equal number of representatives of employer 
and of employee organizations and include public members who shall not 
number in excess of the number named to represent either employer or 
employee organizations;
    (3) The State Apprenticeship Agency must submit a State Plan for 
Equal Employment Opportunity in Apprenticeship that conforms to the 
requirements published in 29 CFR part 30;
    (4) The State Apprenticeship Agency's submission must include a 
description of the basic standards, criteria, and requirements for 
program registration and/or approval, and demonstrate linkages and 
coordination with the

[[Page 404]]

State's economic development strategies and publicly-funded workforce 
investment system; and
    (5) The State Apprenticeship Agency's submission must include a 
description of policies and operating procedures which depart from or 
impose requirements in addition to those prescribed in this part.
    (b) Basic requirements. In order to obtain and maintain recognition 
as provided under paragraph (a) of this section, the State 
Apprenticeship Agency must conform to the requirements of this part. To 
accomplish this, the State must:
    (1) Establish and maintain an administrative entity (the State 
Apprenticeship Agency) that is capable of performing the functions of a 
Registration Agency under 29 CFR part 29;
    (2) Provide sufficient resources to carry out the functions of a 
Registration Agency, including: Outreach and education; registration of 
programs and apprentices; provision of technical assistance, and 
monitoring as required to fulfill the requirements of this part;
    (3) Clearly delineate the respective powers and duties of the State 
office, the State Apprenticeship Agency, and the State Apprenticeship 
Council;
    (4) Establish policies and procedures to promote equality of 
opportunity in apprenticeship programs pursuant to a State Plan for 
Equal Employment Opportunity in Apprenticeship which adopts and 
implements the requirements of 29 CFR part 30, and to require 
apprenticeship programs to operate in conformity with such State Plan 
and 29 CFR part 30;
    (5) Prescribe the contents of apprenticeship agreements, in 
conformity with Sec.  29.7;
    (6) Ensure that the registration of apprenticeship programs occurs 
only in apprenticeable occupations, as provided in Sec.  29.4, including 
occupations in high growth and high demand industries;
    (7) Accord reciprocal approval for Federal purposes to apprentices, 
apprenticeship programs and standards that are registered in other 
States by the Office of Apprenticeship or a Registration Agency if such 
reciprocity is requested by the apprenticeship program sponsor. Program 
sponsors seeking reciprocal approval must meet the wage and hour 
provisions and apprentice ratio standards of the reciprocal State;
    (8) Provide for the cancellation and/or deregistration of programs, 
and for temporary suspension, cancellation, and/or deregistration of 
apprenticeship agreements; and
    (9) Submit all proposed modifications in legislation, regulations, 
policies and/or operational procedures planned or anticipated by a State 
Apprenticeship Agency, either at the time of application for recognition 
or subsequently, to the Office of Apprenticeship for review and obtain 
the Office of Apprenticeship's concurrence prior to implementation.
    (c) Application for recognition. A State Apprenticeship Agency 
desiring new or continued recognition as a Registration Agency must 
submit to the Administrator of the Office of Apprenticeship the 
documentation specified in paragraph (a) of this section. A currently 
recognized State desiring continued recognition by the Office of 
Apprenticeship must submit to the Administrator of the Office of 
Apprenticeship the documentation specified in paragraph (a) of this 
section within 2 years of the effective date of the final rule. The 
recognition of a currently recognized State shall continue for up to 2 
years from the effective date of this regulation and during any 
extension period granted by the Administrator. An extension of time 
within which to comply with the requirements of this part may be granted 
by the Administrator for good cause upon written request by the State, 
but the Administrator shall not extend the time for submission of the 
documentation required by paragraph (a) of this section. Upon approval 
of the State Apprenticeship Agency's application for recognition and any 
subsequent modifications to this application as required under paragraph 
(b)(9) of this section, the Administrator shall so notify the State 
Apprenticeship Agency in writing.
    (d) Duration of recognition. The recognition of a State 
Apprenticeship Agency shall last for 5 years from the

[[Page 405]]

date recognition is granted under paragraph (c) of this section. The 
Administrator shall notify each State Registration Agency at least 180 
days prior to the expiration of the 5-year period whether the 
Registration Agency is in conformity with this part, based on reviews 
conducted by the Office of Apprenticeship, as required by paragraph (e) 
of this section. If the notification states that the State 
Apprenticeship Agency is in conformity, recognition will be renewed for 
an additional 5-year period. If the notification states that the State 
Apprenticeship Agency is not in conformity, the notification shall 
specify the areas of non-conformity, require corrective action, and 
offer technical assistance. After the Administrator determines that a 
State Apprenticeship Agency has corrected the identified non-
conformities, recognition will be renewed for an additional 5-year 
period.
    (e) Compliance. The Office of Apprenticeship will monitor a State 
Registration Agency for compliance with the recognition requirements of 
this part through:
    (1) On-site reviews conducted by Office of Apprenticeship staff.
    (2) Self-assessment reports, as required by the Office of 
Apprenticeship.
    (3) Review of State Apprenticeship Agency legislation, regulations, 
policies, and/or operating procedures required to be submitted under 
paragraphs (a)(1), (a)(5) and (b)(9) of this section for review and 
approval as required under Sec.  29.13(a).
    (4) Determination whether, based on the review performed under 
paragraphs (e)(1), (2), and (3) of this section, the State Registration 
Agency is in compliance with part 29. Notice to the State Registration 
Agency of the determination will be given within 45 days of receipt of 
proposed modifications to legislation, regulations, policies, and/or 
operational procedures required to be submitted under paragraphs (a)(1), 
(a)(5) and (b)(9) of this section.
    (f) Accountability/Remedies for non-conformity. (1) State 
Registration Agencies that fail to maintain compliance with the 
requirements of this part, as provided under paragraph (e) of this 
section, will:
    (i) Receive technical assistance from the Office of Apprenticeship 
in an effort to remedy the non-conforming activity; and
    (ii) Be placed on ``Conditional Recognition'' for a period of 45 
days during which the State Apprenticeship Agency must submit a 
corrective action plan to remedy the non-conforming activity to the 
Office of Apprenticeship. Upon request from the State Apprenticeship 
Agency, for good cause, the 45-day period may be extended.
    (2) Failure to comply with these requirements will result in 
rescission of recognition, for Federal Purposes as provided under Sec.  
29.14.
    (g) Denial of state apprenticeship agency recognition. A denial by 
the Office of Apprenticeship of a State Apprenticeship Agency's 
application for new or continued recognition must be in writing and must 
set forth the reasons for denial. The notice must be sent by certified 
mail, return receipt requested. In addition to the reasons stated for 
the denial, the notice must specify the remedies which must be 
undertaken prior to consideration of a resubmitted request, and must 
state that a request for administrative review of a denial of 
recognition may be made within 30 calendar days of receipt of the notice 
of denial from the Department. Such request must be made by mail and 
addressed to the Chief Administrative Law Judge for the Department. The 
mailing address is Office of Administrative Law Judges, U.S. Department 
of Labor, Suite 400 North, 800 K Street, NW., Washington, DC 20001-8002. 
Within 30 calendar days of the filing of the request for review, the 
Administrator must prepare an administrative record for submission to 
the Administrative Law Judge designated by the Chief Administrative Law 
Judge.
    (1) The procedures contained in 29 CFR part 18 will apply to the 
disposition of the request for review except that:
    (i) The Administrative Law Judge will receive, and make part of the 
record, documentary evidence offered by any party and accepted at the 
hearing. Copies thereof will be made available by the party submitting 
the documentary evidence to any party to the hearing upon request.

[[Page 406]]

    (ii) Technical rules of evidence will not apply to hearings 
conducted under this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination will be applied, where reasonably 
necessary, by the Administrative Law Judge conducting the hearing. The 
Administrative Law Judge may exclude irrelevant, immaterial, or unduly 
repetitious evidence.
    (2) The Administrative Law Judge should submit proposed findings, a 
recommended decision, and a certified record of the proceedings to the 
Administrative Review Board within 90 calendar days after the close of 
the record.
    (3) Within 20 days of the receipt of the recommended decision, any 
party may file exceptions. Any party may file a response to the 
exceptions filed by another party within 10 days of receipt of the 
exceptions. All exceptions and responses must be filed with the 
Administrative Review Board with copies served on all parties and amici 
curiae.
    (4) After the close of the period for filing exceptions and 
responses, the Administrative Review Board may issue a briefing schedule 
or may decide the matter on the record before it. The Administrative 
Review Board must decide any case it accepts for review within 180 days 
of the close of the record. If not so decided, the Administrative Law 
Judge's decision constitutes final agency action. The decision of the 
Administrative Review Board constitutes final action by the Department.
    (h) Withdrawal from recognition. Where a State Apprenticeship Agency 
voluntarily relinquishes its recognition for Federal purposes, the State 
must:
    (1) Send a formal notice of intent to the Administrator of the 
Office of Apprenticeship;
    (2) Provide all apprenticeship program standards, apprenticeship 
agreements, completion records, cancellation and suspension records, 
Equal Employment Opportunity Compliance Review files and any other 
documents relating to the State's apprenticeship programs, to the 
Department; and
    (3) Cooperate fully during a transition period.
    (i) Retention of authority. Notwithstanding any grant of recognition 
to a State Apprenticeship Agency under this section, the Office of 
Apprenticeship retains the full authority to register apprenticeship 
programs and apprentices in all States and Territories where the Office 
of Apprenticeship determines that such action is necessary to further 
the interests of the National Apprenticeship System.
    (j) State apprenticeship programs. (1) An apprenticeship program 
submitted to a State Registration Agency for registration must, for 
Federal purposes, be in conformity with the State apprenticeship law, 
regulations, and with the State Plan for Equal Employment Opportunity in 
Apprenticeship as submitted to and approved by the Office of 
Apprenticeship pursuant to 29 CFR part 30.
    (2) In the event that a State Apprenticeship Agency is not 
recognized by the Office of Apprenticeship for Federal purposes or that 
such recognition has been withdrawn, or if no State Apprenticeship 
Agency exists, registration with the Office of Apprenticeship may be 
requested. Such registration must be granted if the program is 
conducted, administered and operated in accordance with the requirements 
of this part and the equal opportunity regulation in 29 CFR part 30, as 
amended.



Sec.  29.14  Derecognition of State Apprenticeship Agencies.

    The recognition for Federal purposes of a State Apprenticeship 
Agency may be withdrawn for the failure to fulfill, or operate in 
conformity with, the requirements of parts 29 and 30. Derecognition 
proceedings for reasonable cause will be instituted in accordance with 
the following:
    (a) Derecognition proceedings for failure to adopt or properly 
enforce a State Plan for Equal Employment Opportunity in Apprenticeship 
must be processed in accordance with the procedures prescribed in this 
part.
    (b) For causes other than those under paragraph (a) of this section, 
the Office of Apprenticeship must notify the respondent and appropriate 
State sponsors in writing, by certified mail, with

[[Page 407]]

return receipt requested. The notice must set forth the following:
    (1) That reasonable cause exists to believe that the respondent has 
failed to fulfill or operate in conformity with the requirements of this 
part;
    (2) The specific areas of nonconformity;
    (3) The needed remedial measures; and
    (4) That the Office of Apprenticeship proposes to withdraw 
recognition for Federal purposes unless corrective action is taken, or a 
hearing request mailed, within 30 days of the receipt of the notice.
    (c) If, within the 30-day period, the State Apprenticeship Agency:
    (1) Acknowledges that the State is out of conformity, specifies its 
proposed remedial action and commits itself to remedying the identified 
deficiencies, the Office of Apprenticeship will suspend the 
derecognition process to allow a reasonable period of time for the State 
Apprenticeship Agency to implement its corrective action plan.
    (i) If the Office of Apprenticeship determines that the State's 
corrective action has addressed the identified concerns, the Office of 
Apprenticeship must so notify the State and the derecognition 
proceedings shall be terminated.
    (ii) If the Office of Apprenticeship determines that the State has 
not addressed or failed to remedy the identified concerns, the 
Administrator must notify the State, in writing, of its failure, 
specifying the reasons therefore, and offer the State an opportunity to 
request a hearing within 30 days.
    (2) Fails to comply or to request a hearing, the Office of 
Apprenticeship shall decide whether recognition should be withdrawn. If 
the decision is in the affirmative, the Administrator must begin the 
process of transferring registrations in paragraph (d).
    (3) Requests a hearing. The Administrator shall refer the matter to 
the Office of Administrative Law Judges. An Administrative Law Judge 
will convene a hearing in accordance with Sec.  29.13(g) and submit 
proposed findings and a recommended decision to the Administrative 
Review Board for final agency action. The Administrative Review Board 
must decide any case it accepts for review within 180 days of the close 
of the record. If not so decided, the Administrative Law Judge's 
decision constitutes final agency action.
    (d) If the Administrative Review Board determines to withdraw 
recognition for Federal purposes or if the Office of Apprenticeship has 
decided that recognition should be withdrawn under paragraph (c)(2) of 
this section, the Administrator must:
    (1) Notify the registration agency and the State sponsors of such 
withdrawal and effect public notice of such withdrawal.
    (2) Notify the sponsors that, 30 days after the date of the order 
withdrawing recognition of the State's registration agency, the 
Department shall cease to recognize, for Federal purposes, each 
apprenticeship program registered with the State Apprenticeship Agency, 
unless within that time, the sponsor requests registration with the 
Office of Apprenticeship.
    (e) In the event that a State Apprenticeship Agency is not 
recognized by the Office of Apprenticeship for Federal purposes or that 
such recognition has been withdrawn, or if no State Apprenticeship 
Agency exists, apprenticeship program sponsors may request registration 
with the Office of Apprenticeship in accordance with the following:
    (1) The Office of Apprenticeship may grant the request for 
registration on an interim basis. Continued recognition will be 
contingent upon its finding that the State apprenticeship program is 
operating in accordance with the requirements of this part and of 29 CFR 
part 30.
    (2) The Office of Apprenticeship must make a finding on this issue 
within 30 days of receipt of the request.
    (3) If the finding is in the negative, the State sponsor must be 
notified in writing that the interim registration with the Office of 
Apprenticeship has been revoked and that the program will be 
deregistered unless the sponsor requests a hearing within 15 days of the 
receipt of the notice. If a hearing is requested, the matter will be 
forwarded to the Office of Administrative Law Judges for a hearing in 
accordance with Sec.  29.10.

[[Page 408]]

    (4) If the finding is in the affirmative, the State sponsor must be 
notified in writing that the interim registration with the Office of 
Apprenticeship has been made permanent based upon compliance with the 
requirements of this part.
    (f) If the sponsor fails to request registration with the Office of 
Apprenticeship, the written notice to such State sponsor must further 
advise the recipient that any actions or benefits applicable to 
recognition for Federal purposes are no longer available to the 
participants in its apprenticeship program as of the date 30 days after 
the date of the order withdrawing recognition.
    (g) Such notice must also direct the State sponsor to notify, within 
15 days, all its registered apprentices of the withdrawal of recognition 
for Federal purposes; the effective date thereof; and that such 
withdrawal removes the apprentice from coverage under any Federal 
provision applicable to their individual registration under a program 
recognized or registered by the Secretary of Labor for Federal purposes. 
Such notice must direct that all apprentices are referred to the Office 
of Apprenticeship for information about potential transfer to other 
registered apprenticeship programs.
    (h) Where a State Apprenticeship Agency's recognition for Federal 
purposes has been withdrawn; the State must:
    (1) Provide all apprenticeship program standards, apprenticeship 
agreements, completion records, cancellation and suspension records, 
Equal Employment Opportunity Compliance Review files and any other 
documents relating to the State's apprenticeship programs, to the 
Department; and
    (2) Cooperate fully during a transition period.
    (i) A State Apprenticeship Agency whose recognition has been 
withdrawn under this part may have its recognition reinstated upon 
presentation of adequate evidence that it has fulfilled the requirements 
established in Sec. Sec.  29.13(i) and 29.14(g) and (h) and is operating 
in conformity with the requirements of this part.

[73 FR 64425, Oct. 29, 2008, as amended at 81 FR 92108, Dec. 19, 2016]



PART 30_EQUAL EMPLOYMENT OPPORTUNITY IN APPRENTICESHIP--Table of Contents



Sec.
30.1 Purpose, applicability, and relationship to other laws.
30.2 Definitions.
30.3 Equal opportunity standards applicable to all sponsors.
30.4 Affirmative action programs.
30.5 Utilization analysis for race, sex, and ethnicity.
30.6 Establishment of utilization goals for race, sex, and ethnicity.
30.7 Utilization goals for individuals with disabilities.
30.8 Targeted outreach, recruitment, and retention.
30.9 Review of personnel processes.
30.10 Selection of apprentices.
30.11 Invitation to self-identify as an individual with a disability.
30.12 Recordkeeping.
30.13 Equal employment opportunity compliance reviews.
30.14 Complaints.
30.15 Enforcement actions.
30.16 Reinstatement of program registration.
30.17 Intimidation and retaliation prohibited.
30.18 State apprenticeship agencies.
30.19 Exemptions.

    Authority: Sec. 1, 50 Stat. 664, as amended (29 U.S.C. 50; 40 U.S.C. 
276c; 5 U.S.C. 301); Reorganization Plan No. 14 of 1950, 64 Stat. 1267, 
3 CFR 1949-53 Comp. p. 1007.

    Source: 81 FR 92108, Dec. 19, 2016, unless otherwise noted.



Sec.  30.1  Purpose, applicability, and relationship to other laws.

    (a) Purpose. The purpose of this part is to promote equal 
opportunity for apprentices and applicants for apprenticeship in 
registered apprenticeship programs by prohibiting discrimination based 
on race, color, religion, national origin, sex, sexual orientation, age 
(40 or older), genetic information, and disability. This part also 
prescribes affirmative action efforts sponsors must take to ensure equal 
opportunity for apprentices and applicants for apprenticeship. The 
regulations set forth the equal opportunity obligations of sponsors, the 
contents of affirmative action programs, procedures for the filing and 
processing of complaints, and enforcement procedures. These regulations 
also establish procedures for deregistration of an apprenticeship

[[Page 409]]

program in the event of noncompliance with this part and prescribe the 
equal opportunity requirements for recognition of State Apprenticeship 
Agencies (SAA) under part 29.
    (b) Applicability. This part applies to all sponsors of 
apprenticeship programs registered with either the U.S. Department of 
Labor or a recognized SAA.
    (c) Relationship to other laws. This part does not invalidate or 
limit the remedies, rights, and procedures under any Federal law or the 
law of any State or political subdivision of any State or jurisdiction 
that provides greater or equal protection for individuals based on race, 
color, religion, national origin, sex, sexual orientation, age (40 or 
older), genetic information, or disability than are afforded by this 
part. It may be a defense to a charge of a violation of this part that a 
challenged action is required or necessitated by another Federal law or 
regulation, or that another Federal law or regulation prohibits an 
action that would otherwise be required by this part.



Sec.  30.2  Definitions.

    For the purpose of this part:
    Administrator means the Administrator of the Office of 
Apprenticeship, or any person specifically designated by the 
Administrator.
    Apprentice means a worker at least 16 years of age, except where a 
higher minimum age standard is otherwise fixed by law, who is employed 
to learn an apprenticeable occupation as provided in Sec.  29.4 of this 
chapter under standards of apprenticeship fulfilling the requirements of 
Sec.  29.5 of this chapter.
    Apprenticeship Committee (Committee) means those persons designated 
by the sponsor to administer the program. A committee may be either 
joint or non-joint, as follows:
    (1) A joint committee is composed of an equal number of 
representatives of the employer(s) and of the employees represented by a 
bona fide collective bargaining agent(s).
    (2) A non-joint committee, which may also be known as a unilateral 
or group non-joint (which may include employees) committee, has employer 
representatives but does not have a bona fide collective bargaining 
agent as a participant.
    Apprenticeship program means a plan containing all terms and 
conditions for the qualification, recruitment, selection, employment and 
training of apprentices, as required under 29 CFR parts 29 and 30, 
including such matters as the requirement for a written apprenticeship 
agreement.
    Department means the U.S. Department of Labor.
    Direct threat means a significant risk of substantial harm to the 
health or safety of the individual or others that cannot be eliminated 
or reduced by reasonable accommodation. The determination that an 
individual poses a ``direct threat'' must be based on an individualized 
assessment of the individual's present ability to safely perform the 
essential functions of the job. This assessment must be based on a 
reasonable medical judgment that relies on the most current medical 
knowledge and/or on the best available objective evidence. In 
determining whether an individual would pose a direct threat, the 
factors to be considered include:
    (1) The duration of the risk;
    (2) The nature and severity of the potential harm;
    (3) The likelihood that the potential harm will occur; and
    (4) The imminence of the potential harm.
    Disability \1\ means, with respect to an individual:
---------------------------------------------------------------------------

    \1\ The definitions for the term ``disability'' and other terms 
relevant to defining disability and disability discrimination standards, 
including ``direct threat'', ``major life activities'', ``physical or 
mental impairment'', ``qualified applicant or apprentice'', ``reasonable 
accommodation'', and ``undue hardship, are taken directly from title I 
of the Americans with Disabilities Act (ADA), as amended, and from the 
Equal Employment Opportunity Commission's regulations implementing the 
ADA at 29 CFR part 1630, to the extent that the ADA, as amended, did not 
provide a definition.
---------------------------------------------------------------------------

    (1) A physical or mental impairment that substantially limits one or 
more major life activities of such individual;
    (2) A record of such an impairment; or
    (3) Being regarded as having such an impairment.

[[Page 410]]

    EEO means equal employment opportunity.
    Electronic media means media that utilize electronics or 
electromechanical energy for the end user (audience) to access the 
content; and includes, but is not limited to, electronic storage media, 
transmission media, the Internet, extranet, lease lines, dial-up lines, 
private networks, and the physical movement of removable/transportable 
electronic media and/or interactive distance learning.
    Employer means any person or organization employing an apprentice 
whether or not such person or organization is a party to an 
Apprenticeship Agreement with the apprentice.
    Ethnicity, for purposes of recordkeeping and affirmative action, has 
the same meaning as under the Office of Management and Budget's 
Standards for the Classification of Federal Data on Race and Ethnicity, 
or any successor standards. Ethnicity thus refers to the following 
designations:
    (1) Hispanic or Latino--A person of Cuban, Mexican, Puerto Rican, 
Cuban, South or Central American, or other Spanish culture or origin, 
regardless of race.
    (2) Not Hispanic or Latino
    Genetic information means:
    (1) Information about--
    (i) An individual's genetic tests;
    (ii) The genetic tests of that individual's family members;
    (iii) The manifestation of disease or disorder in family members of 
the individual (family medical history);
    (iv) An individual's request for, or receipt of, genetic services, 
or the participation in clinical research that includes genetic services 
by the individual or a family member of the individual; or
    (v) The genetic information of a fetus carried by an individual or 
by a pregnant woman who is a family member of the individual and the 
genetic information of any embryo legally held by the individual or 
family member using an assisted reproductive technology.
    (2) Genetic information does not include information about the sex 
or age of the individual, the sex or age of family members, or 
information about the race or ethnicity of the individual or family 
members that is not derived from a genetic test.\2\
---------------------------------------------------------------------------

    \2\ The definition of the term ``genetic information'' is taken 
directly from the Genetic Information Nondiscrimination Act of 2008 
(GINA) at 42 U.S.C. 2000ff(4) and the EEOC's implementing regulations at 
29 CFR 1635.3(c).
---------------------------------------------------------------------------

    Journeyworker means a worker who has attained a level of skill, 
abilities and competencies recognized within an industry as having 
mastered the skills and competencies required for the occupation. (Use 
of the term may also refer to a mentor, technician, specialist or other 
skilled worker who has documented sufficient skills and knowledge of an 
occupation, either through formal apprenticeship or through practical 
on-the-job experience and formal training).
    Major life activities include, but are not limited to: Caring for 
oneself, performing manual tasks, seeing, hearing, eating, sleeping, 
walking, standing, sitting, reaching, lifting, bending, speaking, 
breathing, learning, reading, concentrating, thinking, communicating, 
interacting with others, and working. A major life activity also 
includes the operation of a major bodily function, including but not 
limited to, functions of the immune system, special sense organs and 
skin; normal cell growth; and digestive, genitourinary, bowel, bladder, 
neurological, brain, respiratory, circulatory, cardiovascular, 
endocrine, hemic, lymphatic, musculoskeletal, and reproductive 
functions. The operation of a major bodily function includes the 
operation of an individual organ within a body system.
    Office of Apprenticeship (OA) means the office designated by the 
Employment and Training Administration of the U.S. Department of Labor 
to administer the National Registered Apprenticeship System or its 
successor organization.
    Physical or mental impairment means:
    (1) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more body systems, such as 
neurological, musculoskeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, immune, circulatory,

[[Page 411]]

hemic, lymphatic, skin, and endocrine; or
    (2) Any mental or psychological disorder, such as intellectual 
disability (formerly termed ``mental retardation''), organic brain 
syndrome, emotional or mental illness, and specific learning 
disabilities.
    Pre-apprenticeship program means a training model designed to assist 
individuals who do not currently possess the minimum requirements for 
selection into an apprenticeship program to meet the minimum selection 
criteria established in a program sponsor's apprenticeship standards 
required under part 29 of this chapter and which maintains at least one 
documented partnership with a Registered Apprenticeship program. It 
involves a form of structured workplace education and training in which 
an employer, employer group, industry association, labor union, 
community-based organization, or educational institution collaborates to 
provide formal instruction that will introduce participants to the 
competencies, skills, and materials used in one or more apprenticeable 
occupations.
    Qualified applicant or apprentice is an individual who, with or 
without reasonable accommodation, can perform the essential functions of 
the apprenticeship program for which the individual applied or is 
enrolled.
    Race, for purposes of recordkeeping and affirmative action, has the 
same meaning as under the Office of Management and Budget's Standards 
for the Classification of Federal Data on Race and Ethnicity, or any 
successor standards. Race thus refers to the following designations:
    (1) White--A person having origins in any of the original peoples of 
Europe, the Middle East, or North Africa.
    (2) Black or African American--A person having origins in any of the 
black racial groups of Africa.
    (3) Native Hawaiian or Other Pacific Islander--A person having 
origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific 
Islands.
    (4) Asian--A person having origins in any of the original peoples of 
the Far East, Southeast Asia, or the Indian Subcontinent including, for 
example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the 
Philippine Islands, Thailand, and Vietnam.
    (5) American Indian or Alaska Native--A person having origins in any 
of the original peoples of North and South America (including Central 
America), and who maintains tribal affiliation or community attachment.
    Reasonable accommodation--(1) The term reasonable accommodation 
means:
    (i) Modifications or adjustments to a job application process that 
enable a qualified applicant with a disability to be considered for the 
position such qualified applicant desires; or
    (ii) Modifications or adjustments to the work environment, or to the 
manner or circumstances under which the position held or desired is 
customarily performed, that enable a qualified individual with a 
disability to perform the essential functions of that position; or
    (iii) Modifications or adjustments that enable a sponsor's 
apprentice with a disability to enjoy equal benefits and privileges of 
apprenticeship as are enjoyed by its other similarly situated 
apprentices without disabilities.
    (2) Reasonable accommodation may include but is not limited to:
    (i) Making existing facilities used by apprentices readily 
accessible to and usable by individuals with disabilities; and
    (ii) Job restructuring; part-time or modified work schedules; 
reassignment to a vacant position; acquisition or modifications of 
equipment or devices; appropriate adjustment or modifications of 
examinations, training materials, or policies; the provision of 
qualified readers or interpreters; and other similar accommodations for 
individuals with disabilities.
    (3) To determine the appropriate reasonable accommodation it may be 
necessary for the sponsor to initiate an informal, interactive process 
with the qualified individual in need of the accommodation. This process 
should identify the precise limitations resulting from the disability 
and potential reasonable accommodations that could overcome those 
limitations.
    Registration Agency means the Office of Apprenticeship or a 
recognized SAA that has responsibility for registering apprenticeship 
programs and apprentices; providing technical assistance;

[[Page 412]]

conducting quality assurance assessments and reviews of registered 
apprenticeship programs for compliance with the requirements of part 29 
and this part.
    Selection procedure means any measure, combination of measures, or 
procedure used as a basis for any decision in apprenticeship. Selection 
procedures include the full range of assessment techniques from 
traditional paper and pencil tests, performance tests, training 
programs, or probationary periods and physical, educational, and work 
experience requirements through informal or casual interviews and 
unscored application forms.
    Sponsor means any person, association, committee or organization 
operating an apprenticeship program, and in whose name the program is 
(or is to be) registered or approved.
    State Apprenticeship Agency (SAA) means an agency of a State 
government that has responsibility and accountability for apprenticeship 
within the State. Only an SAA may seek recognition from OA as an agency 
which has been properly constituted under an acceptable law or Executive 
Order (E.O.), and authorized by OA to register and oversee 
apprenticeship programs and agreements for Federal purposes.
    Undue hardship--(1) In general. Undue hardship means, with respect 
to the provision of an accommodation, significant difficulty or expense 
incurred by a sponsor, when considered in light of the factors set forth 
in paragraph (b) of this definition.
    (2) Factors to be considered. In determining whether an 
accommodation would impose an undue hardship on a sponsor, factors to be 
considered include:
    (i) The nature and net cost of the accommodation needed under this 
part, taking into consideration the availability of tax credits and 
deductions, and/or outside funding;
    (ii) The overall financial resources of the facility or facilities 
involved in the provision of the reasonable accommodation, the number of 
persons employed at such facility, and the effect on expenses and 
resources;
    (iii) The overall financial resources of the sponsor, the overall 
size of the registered apprenticeship program with respect to the number 
of apprentices, and the number, type and location of its facilities;
    (iv) The type of operation or operations of the sponsor, including 
the composition, structure and functions of the workforce of such 
entity, and the geographic separateness and administrative or fiscal 
relationship of the facility or facilities in question to the sponsor; 
and
    (v) The impact of the accommodation upon the operation of the 
facility, including the impact on the ability of other apprentices to 
perform their duties and the impact on the facility's ability to conduct 
business.



Sec.  30.3  Equal opportunity standards applicable to all sponsors.

    (a)(1) Discrimination prohibited. It is unlawful for a sponsor of a 
registered apprenticeship program to discriminate against an apprentice 
or applicant for apprenticeship on the basis of race, color, religion, 
national origin, sex, sexual orientation, age (40 or older), genetic 
information, or disability with regard to:
    (i) Recruitment, outreach, and selection procedures;
    (ii) Hiring and/or placement, upgrading, periodic advancement, 
promotion, demotion, transfer, layoff, termination, right of return from 
layoff, and rehiring;
    (iii) Rotation among work processes;
    (iv) Imposition of penalties or other disciplinary action;
    (v) Rates of pay or any other form of compensation and changes in 
compensation;
    (vi) Conditions of work;
    (vii) Hours of work and hours of training provided;
    (viii) Job assignments;
    (ix) Leaves of absence, sick leave, or any other leave; and
    (x) Any other benefit, term, condition, or privilege associated with 
apprenticeship.
    (2) Discrimination standards and defenses. (i) Race, color, 
religion, national origin, sex, or sexual orientation. In implementing 
this section, the Registration Agency will look to the legal standards 
and defenses applied under title VII of the Civil Rights Act of 1964,

[[Page 413]]

42 U.S.C. 2000e et seq. and Executive Order 11246, as applicable, in 
determining whether a sponsor has engaged in a practice unlawful under 
paragraph (a)(1) of this section.
    (ii) Disability. With respect to discrimination based on a 
disability, the Registration Agency will apply the same standards, 
defenses, and exceptions to the definition of disability as those set 
forth in title I of the Americans with Disabilities Act (ADA), 42 U.S.C. 
12112 and 12113, as amended, and the implementing regulations 
promulgated by the Equal Employment Opportunity Commission (EEOC) at 29 
CFR part 1630, which include, among other things, the standards 
governing reasonable accommodation, medical examinations and disability-
related inquiries, qualification standards, and direct threat defense. 
The Interpretive Guidance on title I of the ADA set out as an appendix 
to part 1630 issued pursuant to title I may be relied upon for guidance 
in complying with the nondiscrimination requirements of this part with 
respect to the treatment of individuals with disabilities.
    (iii) Age. The Registration Agency will apply the same standards and 
defenses for age discrimination as those set forth in the Age 
Discrimination in Employment Act (ADEA), 29 U.S.C. 623, and the 
implementing regulations promulgated by the EEOC at 29 CFR part 1625.
    (iv) Genetic information. The Registration Agency will apply the 
same standards and defenses for discrimination based on genetic 
information as those set forth in the Genetic Information 
Nondiscrimination Act (GINA), 29 U.S.C. 2000ff et seq., and the 
implementing regulations promulgated by the EEOC at 29 CFR part 1635.
    (b) General duty to engage in affirmative action. For each 
registered apprenticeship program, a sponsor is required to take 
affirmative steps to provide equal opportunity in apprenticeship. These 
steps must include:
    (1) Assignment of responsibility. The sponsor will designate an 
individual or individuals with appropriate authority under the program, 
such as an apprenticeship coordinator, to be responsible and accountable 
for overseeing its commitment to equal opportunity in registered 
apprenticeship, including the development and implementation of an 
affirmative action program as required by Sec.  30.4. The individual(s) 
must have the resources, support of, and access to the sponsor 
leadership to ensure effective implementation. The individual(s) will be 
responsible for:
    (i) Monitoring all registered apprenticeship activity to ensure 
compliance with the nondiscrimination and affirmative action obligations 
required by this part;
    (ii) Maintaining records required under this part; and
    (iii) Generating and submitting reports as may be required by the 
Registration Agency.
    (2) Internal dissemination of equal opportunity policy. The sponsor 
must inform all applicants for apprenticeship, apprentices, and 
individuals connected with the administration or operation of the 
registered apprenticeship program of its commitment to equal opportunity 
and its affirmative action obligations. In addition, the sponsor must 
require that individuals connected with the administration or operation 
of the apprenticeship program take the necessary action to aid the 
sponsor in meeting its nondiscrimination and affirmative action 
obligations under this part. A sponsor, at a minimum, is required to:
    (i) Publish its equal opportunity pledge--set forth in paragraph (c) 
of this section--in the apprenticeship standards required under Sec.  
29.5(c) of this title, and in appropriate publications, such as 
apprentice and employee handbooks, policy manuals, newsletters, or other 
documents disseminated by the sponsor or that otherwise describe the 
nature of the sponsorship;
    (ii) Post its equal opportunity pledge from paragraph (c) of this 
section on bulletin boards, including through electronic media, such 
that it is accessible to all apprentices and applicants for 
apprenticeship;
    (iii) Conduct orientation and periodic information sessions for 
individuals connected with the administration or operation of the 
apprenticeship program, including all apprentices and journeyworkers who 
regularly work with apprentices, to inform and remind such individuals 
of the sponsor's equal

[[Page 414]]

employment opportunity policy with regard to apprenticeship, and to 
provide the training required by paragraph (b)(4)(i) of this section; 
and
    (iv) Maintain records necessary to demonstrate compliance with these 
requirements and make them available to the Registration Agency upon 
request.
    (3) Universal outreach and recruitment. The sponsor will implement 
measures to ensure that its outreach and recruitment efforts for 
apprentices extend to all persons available for apprenticeship within 
the sponsor's relevant recruitment area without regard to race, sex, 
ethnicity, or disability. In furtherance of this requirement, the 
sponsor must:
    (i) Develop and update annually a list of current recruitment 
sources that will generate referrals from all demographic groups within 
the relevant recruitment area. Examples of relevant recruitment sources 
include: The public workforce system's One-Stop Career Centers and local 
workforce investment boards; community-based organizations; community 
colleges; vocational, career and technical schools; pre-apprenticeship 
programs; and Federally-funded, youth job-training programs such as 
YouthBuild and Job Corps or their successors;
    (ii) Identify a contact person, mailing address, telephone number, 
and email address for each recruitment source; and
    (iii) Provide recruitment sources advance notice, preferably 30 
days, of apprenticeship openings so that the recruitment sources can 
notify and refer candidates. Such notification must also include 
documentation of the sponsor's equal opportunity pledge specified in 
paragraph (c) of this section.
    (4) Maintaining apprenticeship programs free from harassment, 
intimidation, and retaliation. The sponsor must develop and implement 
procedures to ensure that its apprentices are not harassed because of 
their race, color, religion, national origin, sex, sexual orientation, 
age (40 or older), genetic information, or disability and to ensure that 
its apprenticeship program is free from intimidation and retaliation as 
prohibited by Sec.  30.17. To promote an environment in which all 
apprentices feel safe, welcomed, and treated fairly, the sponsor must 
ensure the following steps are taken:
    (i) Providing anti-harassment training to all individuals connected 
with the administration or operation of the apprenticeship program, 
including all apprentices and journeyworkers who regularly work with 
apprentices. This training must not be a mere transmittal of 
information, but must include participation by trainees, such as 
attending a training session in person or completing an interactive 
training online. The training content must include, at a minimum, 
communication of the following:
    (A) That harassing conduct will not be tolerated;
    (B) The definition of harassment and the types of conduct that 
constitute unlawful harassment on the basis of race, color, religion, 
national origin, sex, sexual orientation, age (40 or older), genetic 
information, and disability; and
    (C) The right to file a harassment complaint under Sec.  30.14 of 
this part.
    (ii) Making all facilities and apprenticeship activities available 
without regard to race, color, religion, national origin, sex, sexual 
orientation, age (40 or older), genetic information, or disability 
except that if the sponsor provides restrooms or changing facilities, 
the sponsor must provide separate or single-user restrooms and changing 
facilities to assure privacy between the sexes;
    (iii) Establishing and implementing procedures for handling and 
resolving complaints about harassment and intimidation based on race, 
color, religion, national origin, sex, sexual orientation, age (40 or 
older), genetic information, and disability, as well as complaints about 
retaliation for engaging in protected activity described in Sec.  30.17 
of this part.
    (5) Compliance with Federal and State equal employment opportunity 
laws. The sponsor must comply with all other applicable Federal and 
State laws and regulations that require equal employment opportunity 
without regard to race, color, religion, national origin, sex (including 
pregnancy and gender

[[Page 415]]

identity, as applicable), sexual orientation, age (40 or older), genetic 
information, or disability. Failure to comply with such laws if such 
noncompliance is related to the equal employment opportunity of 
apprentices and/or graduates of such an apprenticeship programs under 
this part is grounds for deregistration or the imposition of other 
enforcement actions in accordance with Sec.  30.15.
    (c) Equal opportunity pledge. (1) Each sponsor of an apprenticeship 
program must include in its Standards of Apprenticeship and 
apprenticeship opportunity announcements the following equal opportunity 
pledge:

    [Name of sponsor] will not discriminate against apprenticeship 
applicants or apprentices based on race, color, religion, national 
origin, sex (including pregnancy and gender identity), sexual 
orientation, genetic information, or because they are an individual with 
a disability or a person 40 years old or older. [Name of sponsor] will 
take affirmative action to provide equal opportunity in apprenticeship 
and will operate the apprenticeship program as required under Title 29 
of the Code of Federal Regulations, part 30.

    (2) The nondiscrimination bases listed in this pledge may be 
broadened to conform to consistent State and local requirements. 
Sponsors may include additional protected bases but may not exclude any 
of the bases protected by this part.
    (d)  Compliance. (1) Current sponsors: A sponsor that has a 
registered apprenticeship program as of the effective date of this 
regulation must comply with all obligations of this section within 180 
days of the effective date of this rule.
    (2) New sponsors: A sponsor registering with a Registration Agency 
after the effective date of this regulation shall comply with all 
obligations of this section upon registration or 180 days after the 
effective date of this regulation, whichever is later.



Sec.  30.4  Affirmative action programs.

    (a) Definition and purpose. As used in this part:
    (1) An affirmative action program is designed to ensure equal 
opportunity and prevent discrimination in apprenticeship programs. An 
affirmative action program is more than mere passive nondiscrimination. 
Such a program requires the sponsor to take affirmative steps to 
encourage and promote equal opportunity, to create an environment free 
from discrimination, and to address any barriers to equal opportunity in 
apprenticeship. An affirmative action program is more than a paperwork 
exercise. It includes those policies, practices, and procedures, 
including self-analyses, that the sponsor implements to ensure that all 
qualified applicants and apprentices are receiving an equal opportunity 
for recruitment, selection, advancement, retention and every other term 
and privilege associated with apprenticeship. An affirmative action 
program should be a part of the way the sponsor regularly conducts its 
apprenticeship program.
    (2) A central premise underlying affirmative action is that, absent 
discrimination, over time a sponsor's apprenticeship program, generally, 
will reflect the sex, race, ethnicity, and disability profile of the 
labor pools from which the sponsor recruits and selects. Consistent with 
this premise, affirmative action programs contain a diagnostic component 
which includes quantitative analyses designed to evaluate the 
composition of the sponsor's apprenticeship program and compare it to 
the composition of the relevant labor pools. If women, individuals with 
disabilities, or individuals from a particular minority group, for 
example, are not being admitted into apprenticeship at a rate to be 
expected given their availability in the relevant labor pool, the 
sponsor's affirmative action program must include specific, practical 
steps designed to address any barriers to equal opportunity that may be 
contributing to this underutilization.
    (3) Effective affirmative action programs include internal auditing 
and reporting systems as a means of measuring the sponsor's progress 
toward achieving an apprenticeship program that would be expected absent 
discrimination.
    (4) An affirmative action program also ensures equal opportunity in 
apprenticeship by incorporating the sponsor's commitment to equality in 
every aspect of the apprenticeship program. Therefore, as part of its 
affirmative action program, a sponsor must monitor

[[Page 416]]

and examine its employment practices, policies and decisions and 
evaluate the impact such practices, policies and decisions have on the 
recruitment, selection and advancement of apprentices. It must evaluate 
the impact of its employment and personnel policies on minorities, 
women, and persons with disabilities, and revise such policies 
accordingly where such policies or practices are found to create a 
barrier to equal opportunity.
    (5) The commitments contained in an affirmative action program are 
not intended and must not be used to discriminate against any qualified 
applicant or apprentice on the basis of race, color, religion, national 
origin, sex, sexual orientation, age (40 or older), genetic information, 
or disability.
    (b) Adoption of affirmative action programs. Sponsors other than 
those identified in paragraph (d) of this section must develop and 
maintain an affirmative action program, setting forth that program in a 
written plan. The components of the written plan, as detailed in 
Sec. Sec.  30.5 through 30.9, must be developed in accordance with the 
respective compliance dates and made available to the Registration 
Agency any time thereafter upon request.
    (c) Contents of affirmative action programs. An affirmative action 
program must include the following components in addition to those 
required of all sponsors by Sec.  30.3(a):
    (1) Utilization analysis for race, sex, and ethnicity, as described 
in Sec.  30.5;
    (2) Establishment of utilization goals for race, sex, and ethnicity, 
as described in Sec.  30.6;
    (3) Utilization goals for individuals with disabilities, as 
described in Sec.  30.7;
    (4) Targeted outreach, recruitment, and retention, as described in 
Sec.  30.8;
    (5) Review of personnel processes, as described in Sec.  30.9; and
    (6) Invitations to self-identify, as described in Sec.  30.11
    (d) Exemptions--(1) Programs with fewer than five apprentices. A 
sponsor is exempt from the requirements of paragraphs (b) and (c) of 
this section if the sponsor's apprenticeship program has fewer than five 
apprentices registered, unless such program was adopted to circumvent 
the requirements of this section.
    (2) Programs subject to approved equal employment opportunity 
programs. A sponsor is exempt from the requirements of paragraphs (b) 
and (c) of this section if the sponsor both submits to the Registration 
Agency satisfactory evidence that it is in compliance with an equal 
employment opportunity program providing for affirmative action in 
apprenticeship, including the use of goals for any underrepresented 
group or groups of individuals, which has been approved as meeting the 
requirements of either title VII of the Civil Rights Act of 1964, as 
amended (42 U.S.C. 2000e et seq.) and agrees to extend such program to 
include individuals with disabilities, or if the sponsor submits to the 
Registration Agency satisfactory evidence that it is in compliance with 
an equal employment opportunity program providing for affirmative action 
in apprenticeship, including the use of goals for any underrepresented 
group or groups of individuals, which has been approved as meeting the 
requirements of both Executive Order 11246, as amended, and section 503 
of the Rehabilitation Act, as amended (29 U.S.C. 793), and their 
implementing regulations at title 41 of the Code of Federal Regulations, 
Chapter 60: Provided, That programs approved, modified or renewed 
subsequent to the effective date of this amendment will qualify for this 
exception only if the goals for any underrepresented group for the 
selection of apprentices provided for in such programs are likely to be 
equal to or greater than the goals required under this part.
    (e) Written affirmative action plans. Sponsors required to undertake 
an affirmative action program must create and update a written document 
memorializing and discussing the contents of the program set forth in 
paragraph (c) of this section.
    (1) Compliance--(i) Apprenticeship programs existing as of January 
18, 2017. The initial written affirmative action plan for such programs 
must be completed within two years of January 18, 2017. The written 
affirmative action plan for such programs must be updated every time the 
sponsor completes workforce analyses required by Sec. Sec.  30.5(b) and 
30.7(d)(2).

[[Page 417]]

    (ii) Apprenticeship programs registered after January 18, 2017. The 
initial written affirmative action plan for such programs must be 
completed within two years of registration. The written affirmative 
action plan for such programs must be updated every time the sponsor 
completes workforce analyses required by Sec. Sec.  30.5(b) and 
30.7(d)(2).



Sec.  30.5  Utilization analysis for race, sex, and ethnicity.

    (a) Purpose. The purpose of the utilization analysis is to provide 
sponsors with a method for assessing whether possible barriers to 
apprenticeship exist for particular groups of individuals by determining 
whether the race, sex, and ethnicity of apprentices in a sponsor's 
apprenticeship program is reflective of persons available for 
apprenticeship by race, sex, and ethnicity in the relevant recruitment 
area. Where significant disparity exists between availability and 
representation, the sponsor will be required to establish a utilization 
goal pursuant to Sec.  30.6.
    (b) Analysis of apprenticeship program workforce--(1) Process. 
Sponsors must analyze the race, sex, and ethnic composition of their 
apprentice workforce. This is a two-step process. First, each sponsor 
must group all apprentices in its registered apprenticeship program by 
occupational title. Next, for each occupation represented, the sponsor 
must identify the race, sex, and ethnicity of its apprentices within 
that occupation.
    (2) Schedule of analyses. Each sponsor is required to conduct an 
apprenticeship program workforce analysis at each compliance review, and 
again if and when three years have passed without a compliance review. 
This updated workforce analysis should be compared to the utilization 
goal established at the sponsor's most recent compliance review to 
determine if the sponsor is underutilized, according to the process in 
paragraph (d) of this section.
    (3) Compliance date. (i) Sponsors registered with a Registration 
Agency as of January 18, 2017: A sponsor must conduct its first 
workforce analysis, pursuant to this section, no later than two years 
after January 18, 2017.
    (ii) New sponsors: A sponsor registering with a Registration Agency 
after the effective date of the Final Rule must conduct its initial 
workforce analysis pursuant to this section no later than two years 
after the date of registration.
    (c) Availability analysis--(1) The purpose of the availability 
analysis is to establish a benchmark against which the demographic 
composition of the sponsor's apprenticeship program can be compared in 
order to determine whether barriers to equal opportunity may exist with 
regard to the sponsor's apprenticeship program.
    (2) Availability is an estimate of the number of qualified 
individuals available for apprenticeship by race, sex, and ethnicity 
expressed as a percentage of all qualified persons available for 
apprenticeship in the sponsor's relevant recruitment area.
    (3) In determining availability, the following factors must be 
considered for each major occupation group represented in the sponsor's 
registered apprenticeship program standards:
    (i) The percentage of individuals who are eligible for enrollment in 
the apprenticeship program. within the sponsor's relevant recruitment 
area broken down by race, sex, and ethnicity; and
    (ii) The percentage of the sponsor's employees who are eligible for 
enrollment in the apprenticeship program broken down by race, sex, and 
ethnicity.
    (4) In determining availability, the relevant recruitment area is 
defined as the geographical area from which the sponsor usually seeks or 
reasonably could seek apprentices. The sponsor must identify the 
relevant recruitment area in its written affirmative action plan. The 
sponsor may not draw its relevant recruitment area in such a way as to 
have the effect of excluding individuals based on race, sex, or 
ethnicity from consideration, and must develop a brief rationale for 
selection of that recruitment area.
    (5) Availability will be derived from the most current and discrete 
statistical information available. Examples of such information include 
census data, data from local job service offices, and data from colleges 
or other training institutions.

[[Page 418]]

    (6) Sponsors, working with the Registration Agency, will conduct 
availability analyses at each compliance review.
    (d) Rate of utilization. To determine the rate of utilization, the 
sponsor, working with the Registration Agency, must group each 
occupational title in its apprenticeship workforce by major occupation 
group and compare the racial, sex, and ethnic representation within each 
major occupation group to the racial, sex, and ethnic representation 
available in the relevant recruitment area, as determined in paragraph 
(c) of this section. When the sponsor's utilization of women, Hispanics 
or Latinos, or a particular racial minority group is significantly less 
than would be reasonably expected given the availability of such 
individuals for apprenticeship, the sponsor must establish a utilization 
goal for the affected group in accordance with the procedures set forth 
in Sec.  30.6. Sponsors are not required or expected to establish goals 
where no significant disparity in utilization rates has been found.



Sec.  30.6  Establishment of utilization goals for race, sex, and ethnicity.

    (a) Where, pursuant to Sec.  30.5, a sponsor is required to 
establish a utilization goal for a particular racial, sex, or ethnic 
group in a major occupation group in its apprenticeship program, the 
sponsor, working with the Registration Agency, must establish a 
percentage goal at least equal to the availability figure derived under 
Sec.  30.5(c) for that major occupation group.
    (b) A sponsor's determination under Sec.  30.5 that a utilization 
goal is required constitutes neither a finding nor an admission of 
discrimination.
    (c) Utilization goals serve as objectives or targets reasonably 
attainable by means of applying every good faith effort to make all 
aspects of the entire affirmative action program work. Utilization goals 
are used to measure the effectiveness of the sponsor's outreach, 
recruitment, and retention efforts.
    (d) In establishing utilization goals, the following principles 
apply:
    (1) Utilization goals may not be rigid and inflexible quotas, which 
must be met, nor are they to be considered either a ceiling or a floor 
for the selection of particular groups as apprentices. Quotas are 
expressly forbidden.
    (2) Utilization goals may not provide a sponsor with a justification 
to extend a preference to any individual, select an individual, or 
adversely affect an individual's status as an apprentice, on the basis 
of that person's race, sex, or ethnicity.
    (3) Utilization goals do not create set-asides for specific groups, 
nor are they intended to achieve proportional representation or equal 
results.
    (4) Utilization goals may not be used to supersede eligibility 
requirements for apprenticeship. Affirmative action programs prescribed 
by the regulations of this part do not require sponsors to select a 
person who lacks qualifications to participate in the apprenticeship 
program successfully, or select a less-qualified person in preference to 
a more qualified one.



Sec.  30.7  Utilization goals for individuals with disabilities.

    (a) Utilization goal. The Administrator of OA has established a 
utilization goal of 7 percent for employment of qualified individuals 
with disabilities as apprentices for each major occupation group within 
which the sponsor has an apprenticeship program.
    (b) Purpose. The purpose of the utilization goal established in 
paragraph (a) of this section is to establish a benchmark against which 
the sponsor must measure the representation of individuals with 
disabilities in the sponsor's apprentice workforce by major occupation 
group. The goal serves as an equal opportunity objective that should be 
attainable by complying with all of the affirmative action requirements 
of this part.
    (c) Periodic review of goal. The Administrator of OA will 
periodically review and update, as appropriate, the utilization goal 
established in paragraph (a) of this section.
    (d) Utilization analysis--(1) Purpose. The utilization analysis is 
designed to evaluate the representation of individuals with disabilities 
in the sponsor's apprentice workforce grouped by major occupation group. 
If individuals with disabilities are represented in the sponsor's 
apprentice workforce in any given

[[Page 419]]

major occupation group at a rate less than the utilization goal, the 
sponsor must take specific measures outlined in paragraphs (e) and (f) 
of this section.
    (2) Apprentice workforce analysis--(i) Process. Sponsors are 
required to analyze the representation of individuals with disabilities 
within their apprentice workforce by occupation. This is a two-step 
process. First, as required in Sec.  30.5, each sponsor must group all 
apprentices in its registered apprenticeship program according to the 
occupational titles represented in its registered apprenticeship 
program. Next, for each occupation represented, the sponsor must 
identify the number of apprentices with disabilities.
    (ii) Schedule of evaluation. The sponsor must conduct its apprentice 
workforce analysis at each compliance review, and again if and when 
three years have passed without a compliance review. This updated 
workforce analysis, grouped according to major occupation group, should 
then be compared to the utilization goal established under paragraph (a) 
of this section.
    (iii) Compliance date. (A) Sponsors currently registered with a 
Registration Agency: A sponsor must conduct its first workforce 
analysis, pursuant to this section, no later than two years after 
January 18, 2017.
    (B) New sponsors: A sponsor registering with a Registration Agency 
after January 18, 2017 must conduct its initial workforce analysis 
pursuant to this section no later than two years after the date of 
registration.
    (e) Identification of problem areas. When the sponsor, working with 
the Registration Agency, determines that the percentage of individuals 
with disabilities in one or more major occupation groups within which a 
sponsor has apprentices is less than the utilization goal established in 
paragraph (a) of this section, the sponsor must take steps to determine 
whether and/or where impediments to equal opportunity exist. When making 
this determination, the sponsor must look at the results of its 
assessment of personnel processes required by Sec.  30.9 and the 
effectiveness of its outreach and recruitment efforts required by Sec.  
30.8 of this part, if applicable.
    (f) Action-oriented programs. The sponsor must undertake action-
oriented programs, including targeted outreach, recruitment, and 
retention activities identified in Sec.  30.8, designed to correct any 
problem areas that the sponsor identified pursuant to its review of 
personnel processes and outreach and recruitment efforts.
    (g) Utilization goal relation to discrimination. A determination 
that the sponsor has not attained the utilization goal established in 
paragraph (a) of this section in one or more major occupation groups 
does not constitute either a finding or admission of discrimination in 
violation of this part.
    (h) Utilization goal not a quota or ceiling. The utilization goal 
established in paragraph (a) of this section must not be used as a quota 
or ceiling that limits or restricts the employment of individuals with 
disabilities as apprentices.



Sec.  30.8  Targeted outreach, recruitment, and retention.

    (a) Minimum activities required. Where a sponsor has found 
underutilization and established a utilization goal for a specific group 
or groups pursuant to Sec.  30.6 and/or where a sponsor has determined 
pursuant to Sec.  30.7(f) that there are problem areas resulting in 
impediments to equal employment opportunity, the sponsor must undertake 
targeted outreach, recruitment, and retention activities that are likely 
to generate an increase in applications for apprenticeship and improve 
retention of apprentices from the targeted group or groups and/or from 
individuals with disabilities, as appropriate. In furtherance of this 
requirement, the sponsor must:
    (1) Set forth in its written affirmative action plan the specific 
targeted outreach, recruitment, and retention activities it plans to 
take for the upcoming program year. Such activities must include at a 
minimum:
    (i) Dissemination of information to organizations serving the 
underutilized group regarding the nature of apprenticeship, requirements 
for selection for apprenticeship, availability of apprenticeship 
opportunities, and the equal opportunity pledge of the sponsor. These 
organizations may include: Community-based organizations; local high

[[Page 420]]

schools; local community colleges; local vocational, career and 
technical schools; and local workforce system partners including One 
Stop Career Centers;
    (ii) Advertising openings for apprenticeship opportunities by 
publishing advertisements in appropriate media which have wide 
circulation in the relevant recruitment areas;
    (iii) Cooperation with local school boards and vocational education 
systems to develop and/or establish relationships with pre-
apprenticeship programs targeting students from the underutilized group 
to prepare them to meet the standards and criteria required to qualify 
for entry into apprenticeship programs; and
    (iv) Establishment of linkage agreements or partnerships enlisting 
the assistance and support of pre-apprenticeship programs, community-
based organizations, advocacy organizations, or other appropriate 
organizations, in recruiting qualified individuals for apprenticeship;
    (2) Evaluate and document after every selection cycle for 
registering apprentices the overall effectiveness of such activities;
    (3) Refine its targeted outreach, recruitment, and retention 
activities as needed; and
    (4) Maintain records of its targeted outreach, recruitment, and 
retention activities and records related to its evaluation of these 
activities.
    (b) Other activities. In addition to the activities set forth in 
paragraph (a) of this section, as a matter of best practice, sponsors 
are encouraged but not required to consider other outreach, recruitment, 
and retention activities that may assist sponsors in addressing any 
barriers to equal opportunity in apprenticeship. Such activities include 
but are not limited to:
    (1) Enlisting the use of journeyworkers from the underutilized group 
or groups to assist in the implementation of the sponsor's affirmative 
action program;
    (2) Enlisting the use of journeyworkers from the underutilized group 
or groups to mentor apprentices and to assist with the sponsor's 
targeted outreach and recruitment activities; and
    (3) Conducting exit interviews of each apprentice who leaves the 
sponsor's apprenticeship program prior to receiving a certificate of 
completion to understand better why the apprentice is leaving the 
program and to help shape the sponsor's retention activities.



Sec.  30.9  Review of personnel processes.

    (a) As part of its affirmative action program, the sponsor must, for 
each registered apprenticeship program, engage in an annual review of 
its personnel processes related to the administration of the 
apprenticeship program to ensure that the sponsor is operating an 
apprenticeship program free from discrimination based on race, color, 
religion, national origin, sex, sexual orientation, age (40 or older), 
genetic information, and disability. This annual review is required 
regardless of whether the sponsor is underutilized as described in Sec.  
30.5(d). The review must be a careful, thorough, and systematic one and 
include review of all aspects of the apprenticeship program at the 
program, industry and occupation level, including, but not limited to, 
the qualifications for apprenticeship, application and selection 
procedures, wages, outreach and recruitment activities, advancement 
opportunities, promotions, work assignments, job performance, rotations 
among all work processes of the occupation, disciplinary actions, 
handling of requests for reasonable accommodations, and the program's 
accessibility to individuals with disabilities (including to the use of 
information and communication technology). The sponsor must make any 
necessary modifications to its program to ensure that its obligations 
under this part are met.
    (1) Compliance date. (i) Current sponsors: A sponsor that has a 
registered apprenticeship program as of the effective date of this 
regulation must comply with the obligations of paragraph (a) of this 
section within two years of the effective date of this rule.
    (ii) New sponsors: A sponsor registering with a Registration Agency 
after the effective date of this regulation shall comply with the 
obligations of paragraph (a) of this section within two years after the 
date of registration.

[[Page 421]]

    (2) [Reserved]
    (b) The sponsor must include a description of its review in its 
written affirmative action plan and identify in the written plan any 
modifications made or to be made to the program as a result of its 
review.



Sec.  30.10  Selection of apprentices.

    (a) A sponsor's procedures for selection of apprentices must be 
included in the written plan for Standards of Apprenticeship submitted 
to and approved by the Registration Agency, as required under Sec.  29.5 
of this title.
    (b) Sponsors may utilize any method or combination of methods for 
selection of apprentices, provided that the selection method(s) used 
meets the following requirements:
    (1) The use of the selection procedure(s) must comply with the 
Uniform Guidelines on Employee Selection Procedures (UGESP) (41 CFR part 
60-3), including the requirements to evaluate the impact of the 
selection procedure on race, sex, and ethnic groups (Hispanic or Latino/
non-Hispanic or Latino) and to demonstrate job-relatedness and business 
necessity for those procedures that result in adverse impact in 
accordance with the requirements of UGESP.
    (2) The selection procedure(s) must be uniformly and consistently 
applied to all applicants and apprentices within each selection 
procedure utilized.
    (3) The selection procedure(s) must comply with title I of the ADA 
and EEOC's implementing regulations at part 1630. This procedure(s) must 
not screen out or tend to screen out an individual with a disability or 
a class of individuals with disabilities, on the basis of disability, 
unless the standard, test or other selection criteria, as used by the 
program sponsor, is shown to be job-related for the position in question 
and is consistent with business necessity.
    (4) The selection procedure(s) must be facially neutral in terms of 
race, color, religion, national origin, sex, sexual orientation, age (40 
or older), genetic information, and disability.



Sec.  30.11  Invitation to self-identify as an individual with a disability.

    (a) Pre-offer. (1) A sponsor adopting an affirmative action program 
pursuant to Sec.  30.4 must invite applicants for apprenticeship to 
inform the sponsor whether the applicant believes that that he or she is 
an individual with a disability as defined in Sec.  30.2. This 
invitation must be provided to each applicant when the applicant applies 
or is considered for apprenticeship. The invitation may be included with 
the application materials for apprenticeship, but must be separate from 
the application.
    (2) The sponsor must invite an applicant to self-identify as 
required in paragraph (a) of this section using the language and manner 
prescribed by the Administrator and published on the OA Web site.
    (b) Post offer. (1) At any time after acceptance into the 
apprenticeship program, but before the applicant begins his or her 
apprenticeship, the sponsor must invite the applicant to inform the 
sponsor whether the applicant believes that he or she is an individual 
with a disability as defined in Sec.  30.2.
    (2) The sponsor must invite an applicant to self-identify as 
required in paragraph (b) of this section using the language and manner 
prescribed by the Administrator and published on the OA Web site.
    (c) Apprentices. (1) Within the timeframe specified in paragraph (h) 
below, the sponsor must make a one-time invitation to each current 
apprentice to inform the sponsor whether he or she is an individual with 
a disability as defined in Sec.  30.2. The sponsor must make this 
invitation using the language and manner prescribed by the Administrator 
and published on the OA Web site.
    (2) Thereafter, the sponsor must remind apprentices yearly that they 
may voluntarily update their disability status.
    (d) Voluntary self-identification for apprentices. The sponsor may 
not compel or coerce an individual to self-identify as an individual 
with a disability.
    (e) Confidentiality. The sponsor must keep all information on self-
identification confidential, and must maintain it in a data analysis 
file (rather than the

[[Page 422]]

medical files of individual apprentices) as required under Sec.  
30.12(e). The sponsor must provide self-identification information to 
the Registration Agency upon request. Self-identification information 
may be used only in accordance with this part.
    (f) Affirmative action obligations. Nothing in this section may 
relieve the sponsor of its obligation to take affirmative action with 
respect to those applicants and apprentices of whose disability the 
sponsor has knowledge.
    (g) Nondiscrimination obligations. Nothing in this section may 
relieve the sponsor from liability for discrimination in violation of 
this part.
    (h) Compliance dates. (1) Sponsors currently registered with a 
Registration Agency: A sponsor must begin inviting applicants and 
apprentices to identify as individuals with disabilities, pursuant to 
this section, no later than two years after the January 18, 2017. A 
sponsor must also invite each of its current apprentices to voluntarily 
inform the sponsor whether the apprentice believes that he or she is an 
individual with a disability, as defined in Sec.  30.2, no later than 
two years after January 18, 2017.
    (2) New sponsors: A sponsor registering with a Registration Agency 
after the effective date of this Final Rule must begin inviting 
applicants and apprentices to identify as individuals with disabilities, 
pursuant to this section, no later than two years after the date of 
registration. A sponsor covered by this subparagraph must also invite 
each of its current apprentices to voluntarily inform the sponsor 
whether the apprentice believes that he or she is an individual with a 
disability, as defined in Sec.  30.2, no later than two years after the 
date of registration.



Sec.  30.12  Recordkeeping.

    (a) General obligation. Each sponsor must collect such data and 
maintain such records as the Registration Agency finds necessary to 
determine whether the sponsor has complied or is complying with the 
requirements of this part. Such records must include, but are not 
limited to records relating to:
    (1) Selection for apprenticeship, including applications, tests and 
test results, interview notes, bases for selection or rejection, and any 
other records required to be maintained under UGESP;
    (2) The invitation to self-identify as an individual with a 
disability;
    (3) Information relative to the operation of the apprenticeship 
program, including but not limited to job assignments in all components 
of the occupation as required under Sec.  29.5(b)(3) of this title, 
promotion, demotion, transfer, layoff, termination, rates of pay, other 
forms of compensation, conditions of work, hours of work, hours of 
training provided, and any other personnel records relevant to EEO 
complaints filed with the Registration Agency under Sec.  30.14 or with 
other enforcement agencies;
    (4) Compliance with the requirements of Sec.  30.3;
    (5) Requests for reasonable accommodation; and
    (6) Any other records pertinent to a determination of compliance 
with these regulations, as may be required by the Registration Agency.
    (b) Sponsor identification of record. For any record the sponsor 
maintains pursuant to this part, the sponsor must be able to identify 
the race, sex, ethnicity (Hispanic or Latino/non-Hispanic or Latino), 
and when known, disability status of each apprentice, and where 
possible, the race, sex, ethnicity, and disability status of each 
applicant to apprenticeship and supply this information upon request to 
the Registration Agency.
    (c) Affirmative action programs. Each sponsor required under Sec.  
30.4 to develop and maintain an affirmative action program must retain 
both the written affirmative action plan and documentation of its 
component elements set forth in Sec. Sec.  30.5, 30.6, 30.7, 30.8, 30.9, 
and 30.11.
    (d) Maintenance of records. The records required by this part and 
any other information relevant to compliance with these regulations must 
be maintained for 5 years from the date of the making of the record or 
the personnel action involved, whichever occurs later, and must be made 
available upon request to the Registration Agency or other authorized 
representative

[[Page 423]]

in such form as the Registration Agency may determine is necessary to 
enable it to ascertain whether the sponsor has complied or is complying 
with this part. Failure to preserve complete and accurate records as 
required by paragraphs (a), (b), and (c) of this section constitutes 
noncompliance with this part.
    (e) Confidentiality and use of medical information. (1) Any 
information obtained pursuant to this part regarding the medical 
condition or history of an applicant or apprentice must be collected and 
maintained on separate forms and in separate medical files and treated 
as a confidential medical record, except that:
    (i) Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of the applicant or apprentice and 
necessary accommodations;
    (ii) First aid and safety personnel may be informed, when 
appropriate, if the disability might require emergency treatment; and
    (iii) Government officials engaged in enforcing this part, the laws 
administered by OFCCP, or the ADA, must be provided relevant information 
on request.
    (2) Information obtained under this part regarding the medical 
condition or history of any applicant or apprentice may not be used for 
any purpose inconsistent with this part.
    (f) Access to records. Each sponsor must permit access during normal 
business hours to its places of business for the purpose of conducting 
on-site EEO compliance reviews and complaint investigations and 
inspecting and copying such books, accounts, and records, including 
electronic records, and any other material the Registration Agency deems 
relevant to the matter under investigation and pertinent to compliance 
with this part. The sponsor must also provide the Registration Agency 
access to these materials, including electronic records, off-site for 
purposes of conducting EEO compliance reviews and complaint 
investigations. Upon request, the sponsor must provide the Registration 
Agency information about all format(s), including specific electronic 
formats, in which its records and other information are available. 
Information obtained in this manner will be used only in connection with 
the administration of this part or other applicable EEO laws.



Sec.  30.13  Equal employment opportunity compliance reviews.

    (a) Conduct of compliance reviews. The Registration Agency will 
regularly conduct EEO compliance reviews to determine if the sponsor 
maintains compliance with this part, and will also conduct EEO 
compliance reviews when circumstances so warrant. An EEO compliance 
review may consist of, but is not limited to, comprehensive analyses and 
evaluations of each aspect of the apprenticeship program through off-
site reviews, such as desk audits of records submitted to the 
Registration Agency, and on-site reviews conducted at the sponsor's 
establishment that may involve examination of records required under 
this part; inspection and copying of documents related to recordkeeping 
requirements of this part; and interviews with employees, apprentices, 
journeyworkers, supervisors, managers, and hiring officials.
    (b) Notification of compliance review findings. Within 45 business 
days of completing an EEO compliance review, the Registration Agency 
must present a written Notice of Compliance Review Findings to the 
sponsor's contact person through registered or certified mail, with 
return receipt requested. If the compliance review indicates a failure 
to comply with this part, the registration agency will so inform the 
sponsor in the Notice and will set forth in the Notice the following:
    (1) The deficiency(ies) identified;
    (2) How to remedy the deficiency(ies);
    (3) The timeframe within which the deficiency(ies) must be 
corrected; and
    (4) Enforcement actions may be undertaken if compliance is not 
achieved within the required timeframe.
    (c) Compliance. (1) When a sponsor receives a Notice of Compliance 
Review Findings that indicates a failure to comply with this part, the 
sponsor must, within 30 business days of notification, either implement 
a compliance action plan and notify the Registration Agency of that plan 
or submit a written rebuttal to the Findings. Sponsors may also seek to 
extend this deadline

[[Page 424]]

one time by up to 30 days for good cause shown. If the Registration 
Agency upholds the Notice after receiving a written response, the 
sponsor must implement a compliance action plan within 30 days of 
receiving the notice from the Registration Agency upholding its 
Findings. The compliance action plan must include, but is not limited 
to, the following provisions:
    (i) A specific commitment, in writing, to correct or remediate 
identified deficiency(ies) and area(s) of noncompliance;
    (ii) The precise actions to be taken for each deficiency identified;
    (iii) The time period within which the cited deficiency(ies) will be 
remedied and any corrective program changes implemented; and
    (iv) The name of the individual(s) responsible for correcting each 
deficiency identified.
    (2) Upon the Registration Agency's approval of the compliance action 
plan, the sponsor may be considered in compliance with this part 
provided that the compliance action plan is implemented.
    (d) Enforcement actions. Any sponsor that fails to implement its 
compliance action plan within the specified timeframes may be subject to 
an enforcement action under Sec.  30.15.



Sec.  30.14  Complaints.

    (a) Requirements for individuals filing complaints--(1) Who may 
file. Any individual who believes that he or she has been or is being 
discriminated against on the basis of race, color, religion, national 
origin, sex, sexual orientation, age (40 or older), genetic information, 
or disability with regard to apprenticeship, or who believes he or she 
has been retaliated against as described in Sec.  30.17, may, personally 
or through an authorized representative, file a written complaint with 
the Registration Agency with whom the apprenticeship program is 
registered.
    (2) Time period for filing a complaint. Generally, a complaint must 
be filed within 300 days of the alleged discrimination or specified 
failure to follow the equal opportunity standards. However, for good 
cause shown, the Registration Agency may extend the filing time. The 
time period for filing is for the administrative convenience of the 
Registration Agency and does not create a defense for the respondent.
    (3) Contents of the complaint. Each complaint must be made in 
writing and must contain the following information:
    (i) The complainant's name, address and telephone number, or other 
means for contacting the complainant;
    (ii) The identity of the respondent (the individual or entity that 
the complainant alleges is responsible for the discrimination);
    (iii) A short description of the events that the complainant 
believes were discriminatory, including but not limited to when the 
events took place, what occurred, and why complainant believes the 
actions were discriminatory (for example, because of his or her race, 
color, religion, sex, sexual orientation, national origin, age (40 or 
older), genetic information, or disability).
    (iv) The complainant's signature or the signature of the 
complainant's authorized representative.
    (b) Requirements of sponsors. Sponsors must provide written notice 
to all applicants for apprenticeship and all apprentices of their right 
to file a discrimination complaint and the procedures for doing so. The 
notice must include the address, phone number, and other contact 
information for the Registration Agency that will receive and 
investigate complaints filed under this part. The notice must be 
provided in the application for apprenticeship and must also be 
displayed in a prominent, publicly available location where all 
apprentices will see the notice. The notice must contain the following 
specific wording:

                     Your Right to Equal Opportunity

    It is against the law for a sponsor of an apprenticeship program 
registered for Federal purposes to discriminate against an 
apprenticeship applicant or apprentice based on race, color, religion, 
national origin, sex, sexual orientation, age (40 years or older), 
genetic information, or disability. The sponsor must ensure equal 
opportunity with regard to all terms, conditions, and privileges 
associated with apprenticeship. If you think that you have been 
subjected to discrimination, you may file a complaint within 300 days 
from the date of the alleged discrimination or failure to follow the 
equal opportunity standards with [INSERT NAME OF

[[Page 425]]

REGISTRATION AGENCY, ADDRESS, PHONE NUMBER, EMAIL ADDRESS, AND CONTACT 
NAME OF INDIVIDUAL AT THE REGISTRATION AGENCY WHO IS RESPONSIBLE FOR 
RECEIVING COMPLAINTS]. You may also be able to file complaints directly 
with the EEOC, or State fair employment practices agency. If those 
offices have jurisdiction over the sponsor/employer, their contact 
information is listed below. [INSERT CONTACT INFORMATION FOR EEOC AS 
PROVIDED ON ``EEO IS THE LAW POSTER,'' AND CONTACT INFORMATION FOR STATE 
FEPA AS PROVIDED ON STATE FEPA POSTER, AS APPLICABLE]
    Each complaint filed must be made in writing and include the 
following information:
    1. Complainant's name, address and telephone number, or other means 
for contacting the complainant;
    2. The identity of the respondent (i.e. the name, address, and 
telephone number of the individual or entity that the complainant 
alleges is responsible for the discrimination);
    3. A short description of the events that the complainant believes 
were discriminatory, including but not limited to when the events took 
place, what occurred, and why the complainant believes the actions were 
discriminatory (for example, because of his/her race, color, religion, 
sex, sexual orientation, national origin, age (40 or older), genetic 
information, or disability);
    4. The complainant's signature or the signature of the complainant's 
authorized representative.

    (c) Requirements of the Registration Agency--(1) Conduct 
investigations. The investigation of a complaint filed under this part 
will be undertaken by the Registration Agency, and will proceed as 
expeditiously as possible. In conducting complaint investigations, the 
Registration Agency must:
    (i) Provide written notice to the complainant acknowledging receipt 
of the complaint;
    (ii) Contact the complainant, if the complaint form is incomplete, 
to obtain full information necessary to initiate an investigation;
    (iii) Initiate an investigation upon receiving a complete complaint;
    (iv) Complete a thorough investigation of the allegations of the 
complaint and develop a complete case record that must contain, but is 
not limited to, the name, address, and telephone number of each person 
interviewed, the interview statements, copies, transcripts, or summaries 
(where appropriate) of pertinent documents, and a narrative report of 
the investigation with references to exhibits and other evidence which 
relate to the alleged violations; and
    (v) Provide written notification of the Registration Agency's 
findings to both the respondent and the complainant.
    (2) Seek compliance. Where a report of findings from a complaint 
investigation indicates a violation of the nondiscrimination 
requirements of this part, the Registration Agency should attempt to 
resolve the matter quickly at the Registration Agency level whenever 
appropriate. Where a complaint of discrimination cannot be resolved at 
the Registration Agency level to the satisfaction of the complainant, 
the Registration Agency must refer the complaint to other Federal, State 
or local EEO agencies, as appropriate.
    (3) Referrals to other EEO agencies. The Registration Agency, at its 
discretion, may choose to refer a complaint immediately upon its receipt 
or any time thereafter to:
    (i) The EEOC;
    (ii) The United States Attorney General;
    (iii) The Department's OFCCP; or
    (iv) For an SAA, to its Fair Employment Practices Agency.
    (4) Alternative complaint procedures. An SAA may adopt a complaint 
review procedure differing in detail from that given in this section 
provided it is submitted for review to and receives approval by the 
Administrator.



Sec.  30.15  Enforcement actions.

    Where the Registration Agency, as a result of a compliance review, 
complaint investigation, or other reason, determines that the sponsor is 
not operating its apprenticeship program in accordance with this part, 
the Registration Agency must notify the sponsor in writing of the 
specific violation(s) identified and may:
    (a) Offer the sponsor technical assistance to promote compliance 
with this part.
    (b) Suspend the sponsor's right to register new apprentices if the 
sponsor fails to implement a compliance action plan to correct the 
specific violation(s) identified within 30 business days from the date 
the sponsor is so notified of

[[Page 426]]

the violation(s), or, if the sponsor submits a written response to the 
findings of noncompliance, fails to implement a compliance action plan 
within 30 days of receiving the Registration Agency's notice upholding 
its initial noncompliance findings. If the sponsor has not implemented a 
compliance action plan within 30 business days of notification of 
suspension, the Registration Agency may institute proceedings to 
deregister the program in accordance with the deregistration proceedings 
set forth in part 29 of this chapter, or if the Registration Agency does 
not institute such proceedings within 45 days of the start of the 
suspension, the suspension is lifted.
    (c) Take any other action authorized by law. These other actions may 
include, but are not limited to:
    (1) Referral to the EEOC;
    (2) Referral to an appropriate State fair employment practice 
agency; or
    (3) Referral to the Department's OFCCP.



Sec.  30.16  Reinstatement of program registration.

    An apprenticeship program that has been deregistered pursuant to 
this part may be reinstated by the Registration Agency upon presentation 
of adequate evidence that the apprenticeship program is operating in 
accordance with this part.



Sec.  30.17  Intimidation and retaliation prohibited.

    (a) A participant in an apprenticeship program may not be 
intimidated, threatened, coerced, retaliated against, or discriminated 
against because the individual has:
    (1) Filed a complaint alleging a violation of this part;
    (2) Opposed a practice prohibited by the provisions of this part or 
any other Federal or State equal opportunity law;
    (3) Furnished information to, or assisted or participated in any 
manner, in any investigation, compliance review, proceeding, or hearing 
under this part or any Federal or State equal opportunity law; or
    (4) Otherwise exercised any rights and privileges under the 
provisions of this part.
    (b) Any sponsor that permits such intimidation or retaliation in its 
apprenticeship program, including by participating employers, and fails 
to take appropriate steps to prevent such activity will be subject to 
enforcement action under Sec.  30.15.



Sec.  30.18  State apprenticeship agencies.

    (a) State plan. (1) Within 1 year of January 18, 2017, unless an 
extension for good cause is sought and granted by the Administrator, an 
SAA that seeks to obtain or maintain recognition under Sec.  29.13 of 
this title must submit to OA a State EEO plan that:
    (i) Includes, at a minimum, draft State apprenticeship authorizing 
language corresponding to the requirements of this part; and
    (ii) Requires all apprenticeship programs registered with the State 
for Federal purposes to comply with the requirements of the State's EEO 
plan within 180 days from the date that OA provides written approval of 
the State EEO plan submitted under this paragraph (a)(1).
    (2) Upon receipt of the State's EEO plan, OA will review the plan to 
determine if the plan conforms to this part. OA will:
    (i) Grant the SAA continued recognition during this review period;
    (ii) Provide technical assistance to facilitate conformity, and 
provide written notification of the areas of nonconformity, if any; and
    (iii) Upon successful completion of the review process, notify the 
SAA of OA's determination that the State's EEO plan conforms to this 
part.
    (3) If the State does not submit a revised State EEO plan that 
addresses identified non-conformities within 90 days from the date that 
OA provides the SAA with written notification of the areas of 
nonconformity, OA will begin the process set forth in Sec.  29.14 of 
this title to rescind recognition of the SAA.
    (4) An SAA that seeks to obtain or maintain recognition must obtain 
the Administrator's written concurrence in any proposed State EEO plan, 
as well as any subsequent modification to that plan, as provided in 
Sec.  29.13(b)(9) of this title.

[[Page 427]]

    (b) Recordkeeping requirements. A recognized SAA must keep all 
records pertaining to program compliance reviews, complaint 
investigations, and any other records pertinent to a determination of 
compliance with this part. These records must be maintained for five 
years from the date of their creation.
    (c) Retention of authority. As provided in Sec.  29.13 of this 
chapter, OA retains the full authority to:
    (1) Conduct compliance reviews of all registered apprenticeship 
programs;
    (2) Conduct complaint investigations of any program sponsor to 
determine whether an apprenticeship program registered for Federal 
purposes is operating in accordance with this part;
    (3) Deregister for Federal purposes an apprenticeship program 
registered with a recognized SAA as provided in Sec. Sec.  29.8(b) and 
29.10 of this chapter; and
    (4) Refer any matter pertaining to paragraph (c)(1) or (2) of this 
section to the following:
    (i) The EEOC or the U.S. Attorney General with a recommendation for 
the institution of an enforcement action under title VII of the Civil 
Rights Act of 1964, as amended; the ADEA; GINA, or title I of the ADA;
    (ii) The Department's OFCCP with a recommendation for the 
institution of agency action under Executive Order 11246; or section 503 
of the Rehabilitation Act of 1973, as amended; or
    (iii) The U.S. Attorney General for other action as authorized by 
law.
    (d) Derecognition. A recognized SAA that fails to comply with the 
requirements of this section will be subject to derecognition 
proceedings, as provided in Sec.  29.14 of this chapter.



Sec.  30.19  Exemptions.

    Requests for exemption from these regulations, or any part thereof, 
must be made in writing to the Registration Agency and must contain a 
statement of reasons supporting the request. Exemptions may be granted 
for good cause by the Registration Agency. State Apprenticeship Agencies 
must receive approval to grant an exemption from the Administrator, 
prior to granting an exemption from these regulations.



PART 31_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS 
OF THE DEPARTMENT OF LABOR_EFFECTUATION OF TITLE VI 
OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents



Sec.
31.1 Purpose.
31.2 Definitions.
31.3 General standards.
31.4 [Reserved]
31.5 Compliance information.
31.6 Assurances required.
31.7 Conduct of investigations.
31.8 Procedure for effecting compliance.
31.9 Hearings.
31.10 Decisions and notices.
31.11 Judicial review.
31.12 Effect on other regulations; supervision and coordination.

    Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 501, 29 U.S.C. 49k, 5 
U.S.C. 301.

    Source: 29 FR 16284, Dec. 4, 1964, unless otherwise noted.



Sec.  31.1  Purpose.

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



Sec.  31.2  Definitions.

    For purposes of this part:
    (a) The term Act means the Civil Rights Act of 1964 (78 Stat. 241).
    (b) The term applicant means one who submits an application, 
request, or plan required to be approved by the Secretary, or by a 
primary recipient, as a condition to eligibility for Federal financial 
assistance, and the term application means such application, request, or 
plan.
    (c) The term Department means the Department of Labor and includes 
each of its operating agencies and other organizational units.
    (d) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of

[[Page 428]]

facilities includes the construction, expansion, renovation, remodeling, 
alteration or acquisition of facilities.
    (e) The term Federal financial assistance includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interests in 
property,
    (3) The detail of Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (f) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient.
    (g) The terms program or activity and program mean all of the 
operations of any entity described in paragraphs (g)(1) through (4) of 
this section, any part of which is extended Federal financial 
assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (g)(1), (2), or (3) of this section.
    (h) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or any other 
entity, or any individual in any State, to whom Federal financial 
assistance is extended, directly or through another recipient, including 
any successor, assign, or transferee thereof, but such term does not 
include any ultimate beneficiary.
    (i) The term Secretary means the Secretary of Labor or any person 
specifically designated by him to perform any function provided for 
under this part, except that only the Secretary personally or a hearing 
examiner shall conduct hearings under Sec.  31.10.
    (j) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term State means any one of 
the foregoing.

[29 FR 16284, Dec. 4, 1964, as amended at 68 FR 51366, 51367, Aug. 26, 
2003]



Sec.  31.3  General standards.

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

[[Page 429]]

    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or other benefit 
provided under the program;
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program, or
    (vii) Deny an individual an opportunity to participate in a program 
as an employee where a primary objective of the Federal financial 
assistance is to provide employment.
    (viii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of race, color or national origin, 
or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respects individuals 
of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination under any program to which this regulation 
applies, on the ground of race, color or national origin; or with the 
purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the Act or this regulation.
    (4) As used in this section the services, financial aid, or other 
benefit provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a).
    (6)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program shall take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color or national origin.
    (7) The following will illustrate the application of the provisions 
of the foregoing paragraph to programs for which Federal financial 
assistance is furnished by this Department:
    (i) In some situations even though past discriminatory practices 
have been abandoned, the consequences of such practices continue to 
impede the full availability of a benefit. If the efforts required of 
the applicant or recipient under Sec.  31.5(d) to provide information as 
to the availability of the program or activity, and the rights of 
beneficiaries under this regulation,

[[Page 430]]

have failed to overcome these consequences, it will become necessary for 
such applicant or recipient to take additional steps to make the 
benefits fully available to racial and nationality groups previously 
subjected to discrimination. This action might take the form, for 
example, of special arrangements for obtaining referrals or making 
selections which will insure that groups previously subjected to 
discrimination are adequately served.
    (ii) Even though an applicant or recipient has never used 
discriminatory policies, the services and benefits of the program or 
activity it administers may not in fact be equally available to some 
racial or nationality groups. In some circumstances an applicant or 
recipient may properly give special consideration to race, color, or 
national origin to make the benefits of its program more widely 
available to such groups not then being adequately served. For example, 
where an employment service office is not adequately serving members of 
a particular racial or nationality group, it may establish special 
recruitment policies to make its program better known and more readily 
available to such group, and take other steps to provide that group with 
more adequate service.
    (c) Employment practices. (1) Where a primary objective of the 
Federal financial assistance to a program to which this regulation 
applies is to provide employment, a recipient may not (directly or 
through contractual or other arrangements) subject an individual to 
discrimination on the ground of race, color, or national origin in its 
employment practices under such program including recruitment, 
examination, appointment, training, promotion, retention or any other 
personnel action.
    (2) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the ground of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the ground of race, 
color or national origin, to exclude individuals from participation in, 
to deny them the benefits of, or to subject them to discrimination under 
any program to which this regulation applies, the provision of the 
foregoing paragraph shall apply to the employment practices of the 
recipient to the extent necessary to assure equality of opportunity to, 
and nondiscriminatory treatment of, beneficiaries. Accordingly, the 
employment practices of recipients under programs enumerated in 
Sec. Sec.  31.3(d)(2) and 31.3(d)(3) are subject to the provisions of 
this paragraph (c) to the extent necessary to assure equality of 
opportunity to, and nondiscriminatory treatment of, the beneficiaries of 
the Federal financial assistance. Any action taken by the Department 
pursuant to this provision with respect to a State or local agency 
subject to the Standards for a Merit System of Personnel Administration, 
45 CFR part 70, shall be consistent with those standards and shall be 
coordinated with the United States Civil Service Commission.
    (3) The requirements applicable to construction employment under any 
program for which Federal financial assistance is furnished by this 
Department shall be those specified in or pursuant to part III of 
Executive Order 11246 or any Executive order which supersedes it.
    (d) In order that all parties may have a clear understanding of the 
applicability of the regulations in this part to their activities, there 
are listed in this section types of Federal financial assistance 
together with illustrations by way of example only, of types of activity 
covered by the regulations in this part. These illustrations and 
examples, however, are not intended to be all inclusive. The fact that a 
particular type of Federal financial assistance is not listed does not, 
of course, indicate that it is not covered by the regulations in this 
part. Moreover, the examples set forth with respect to any particular 
listed type of Federal financial assistance are not limited to 
assistance alone and the prohibited actions described may also be 
prohibited in programs or activities receiving other types of Federal 
financial assistance whether or not listed below.
    (1) Employment service. (i) The registration, counseling, testing, 
recruitment, selection and referral of individuals for job openings or 
training opportunities and all other activities performed by or through 
employment

[[Page 431]]

service offices financed in whole or in part from Federal funds, 
including the establishment and maintenance of physical facilities, 
shall be conducted without regard to race, color, or national origin.
    (ii) No selection or referral of any individual for employment or 
training shall be made on the basis of any job order or request 
containing discriminatory specifications with regard to race, color, or 
national origin.
    (2) Manpower Development and Training Act, work-incentive under 
Social Security Act, Area Redevelopment Act, work-training under 
Economic Opportunity Act and other Government-sponsored training. (i) 
The registration, counseling, testing, guidance, selection, referral or 
training of any individual including employment as an enrollee under 
title I-B of the Economic Opportunity Act shall be furnished without 
discrimination because of race, color, or national origin.
    (ii) The recruitment, examination, appointment, training, promotion, 
retention, or any other personnel action with respect to any trainee or 
enrollee under the Manpower Development and Training Act, Area 
Redevelopment Act, or the Economic Opportunity Act while the individual 
is receiving training or employment shall be without regard to race, 
color or national origin.
    (3) State and Federal Unemployment Insurance Programs; allowances 
under Trade Readjustment Assistance Programs, Manpower Development and 
Training Act, and Area Redevelopment Act. (i) The filing for, 
adjudication and payment of benefits, establishment and maintenance of 
physical facilities and other application of the laws shall be without 
regard to race, color or national origin.

[29 FR 16284, Dec. 4, 1964, as amended at 38 FR 17957, July 5, 1973, as 
amended at 68 FR 51366, 51367, Aug. 26, 2003; 68 FR 54268, Sept. 16, 
2003]



Sec.  31.4  [Reserved]



Sec.  31.5  Compliance information.

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

[29 FR 16284, Dec. 4, 1964. Redesignated and amended at 38 FR 17956, 
July 5, 1973; 68 FR 51367, Aug. 26, 2003]

[[Page 432]]



Sec.  31.6  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, and every contract, subcontact, agreement or 
arrangement except an application to which paragraph (b) of this section 
applies, and every application for Federal financial assistance to 
provide a facility, and every contract, subcontract, agreement or 
arrangement to provide such a facility shall as a condition to its 
approval and the extension of any Federal financial assistance pursuant 
to the application, contract, subcontract, agreement or arrangement 
contain or be accompanied by an assurance that the program will be 
conducted or the facility operated in compliance with all requirements 
imposed by or pursuant to this part. Every award of Federal financial 
assistance shall require the submission of such an assurance. In the 
case where the Federal financial assistance is to provide or is in the 
form of personal property, or real property or interest therein or 
structures thereon, the assurance shall obligate the recipient, or, in 
the case of a subsequent transfer, the transferee, for the period during 
which the property is used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits, or for as long as the recipient retains 
ownership or possession of the property, whichever is longer. In all 
cases the assurance shall obligate the recipient for the period during 
which Federal financial assistance is extended to the program. In the 
case where the assistance is sought for the construction of a facility 
or part of a facility, the assurance shall in any event extend to the 
entire facility and to facilities operated in connection therewith. The 
Secretary shall specify the form of the foregoing assurances, and the 
extent to which like assurances will be required of subgrantees, 
contractors and subcontractors, transferees, successors in interest, and 
other participants. Any such assurance shall include provisions which 
give the United States a right to seek its judicial enforcement.
    (2) In the case where Federal assistance is provided in the form of 
a transfer of real property, structures, or improvements thereon, or 
interest therein, from the Federal Government, the instrument effecting 
or recording the transfer shall contain a covenant running with the land 
assuring nondiscrimination for the period during which the real property 
is used for a purpose for which the Federal financial assistance is 
extended or for another purpose involving the provision of similar 
services or benefits. Where no transfer of property or interest therein 
from the Federal Government is involved, but property is acquired with 
Federal financial assistance, the recipient shall agree to include such 
covenant in any subsequent transfer of such property. When the property 
is obtained from the Federal Government, such covenant may also include 
a condition coupled with a right to be reserved by the Department to 
revert title to the property in the event of a breach of the covenant 
where, in the discretion of the Secretary, such a condition and right of 
reverter is appropriate to the statute under which the real property is 
obtained and to the nature of the grant and the grantee. In such event 
if a transferee of real property proposes to mortgage or otherwise 
encumber the real property as security for financing construction of 
new, or improvement of existing facilities on such property for the 
purpose for which the property was transferred, the Secretary may agree, 
upon request of the transferee and if necessary to accomplish such 
financing and upon such conditions as he deems appropriate, to 
subordinate such rights of reversion to the sum of such mortgage or 
other encumbrance.
    (b) Continuing Federal financial assistance. Every application by a 
State or a State agency for continuing federal financial assistance to 
which this part applies shall as a condition to its approval and the 
extension of any Federal financial assistance pursuant to the 
application
    (1) Contain or be accompanied by a statement that the program is 
(or, in the case of a new program, will be) conducted in compliance with 
all requirements imposed by or pursuant to this part, and

[[Page 433]]

    (2) Provide or be accompanied by provision for such methods of 
administration for the program as are found by the Secretary to give 
reasonable guarantee that the applicant and all recipients of Federal 
financial assistance under such program will comply with all 
requirements imposed by or pursuant to this part.

[38 FR 17957, July 5, 1973, as amended at 68 FR 51367, Aug. 26, 2003]



Sec.  31.7  Conduct of investigations.

    (a) Periodic compliance reviews. The Secretary shall from time to 
time review the practices of recipients to determine whether they are 
complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrmination prohibited by this 
part may by himself or by a representative file with the Secretary a 
written complaint. A complaint must be filed not later than 180 days 
from the date of the alleged discrimination, unless the time for filing 
is extended by the Secretary.
    (c) Investigations. The Secretary will make a prompt investigation 
whenever a compliance review, report, complaint, or any other 
information indicates a possible failure to comply with this part. The 
investigation should include, where appropriate, a review of the 
pertinent practices and policies of the recipient, the circumstances 
under which the possible noncompliance with this part occurred, and 
other factors relevant to a determination as to whether the recipient 
has failed to comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) indicates a failure to comply with this part, the 
Secretary will so inform the recipient and the matter will be resolved 
by informal means whenever possible. If it has been determined that the 
matter cannot be resolved by informal means, action will be taken as 
provided for in Sec.  31.8.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) the Secretary will so inform the recipient and the 
complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainant shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.

[29 FR 16284, Dec. 4, 1964. Redesignated and amended at 38 FR 17958, 
July 5, 1973]



Sec.  31.8  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance, or by any other 
means authorized by law. Such other means may include, but are not 
limited to,
    (1) A reference to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States (including other titles 
of the Act), or any assurance or other contractual undertaking, and
    (2) Any applicable proceeding under State or local law.
    (b) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until:
    (1) The Secretary has advised the applicant or recipient of his 
failure to comply and has determined that compliance cannot be secured 
by voluntary means,
    (2) There has been an express finding on the record, after 
opportunity for hearing, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part,

[[Page 434]]

    (3) The action has been approved by the Secretary, and
    (4) The expiration of 30 days after the Secretary has filed with the 
committee of the House and the committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action. Any action 
to suspend or terminate or to refuse to grant or to continue Federal 
financial assistance shall be limited to the particular political 
entity, or part thereof, or other applicant or recipient as to whom such 
a finding has been made and shall be limited in its effect to the 
particular program, or part thereof, in which such noncompliance has 
been so found.
    (c) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until:
    (1) The Secretary has determined that compliance cannot be secured 
by voluntary means,
    (2) The action has been approved by the Secretary,
    (3) The recipient or other person has been notified of its failure 
to comply and of the action to be taken to effect compliance, and
    (4) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person. During this period of at least 
10 days additional efforts shall be made to persuade the recipient or 
other person to comply with this part and to take such corrective action 
as may be appropriate.

[29 FR 16284, Dec. 4, 1964. Redesignated at 38 FR 17958, July 5, 1973]



Sec.  31.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  31.8(b), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either
    (1) Fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the Secretary 
that the matter be scheduled for hearing, or
    (2) Advise the applicant or recipient that the matter in question 
has been set down for hearing at a stated place and time. The time and 
place so fixed shall be reasonable and shall be subject to change for 
cause. The complainant, if any, shall be advised of the time and place 
of the hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this section or to 
appear at a hearing under this section or to appear at a hearing for 
which a date has been set shall be deemed to be a waiver of the right to 
a hearing under section 602 of the Act and Sec.  31.8(b) of this part 
and consent to the making of a decision on the basis of such information 
as is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department in Washington, DC, at a time fixed by the Secretary 
unless he determines that the convenience of the applicant or recipient 
or of the Department requires that another place be selected. Hearings 
shall be held before the Secretary or before a hearing examiner 
designated in accordance with 5 U.S.C. 3105 and 3344 (section 11 of the 
Administrative Procedure Act).
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient, and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act), and 
in accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both the Department 
and the applicant or recipient shall be entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting

[[Page 435]]

the hearing at the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or Joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal statutes, authorities, or other 
means by which Federal financial assistance is extended and to which 
this part applies or noncompliance with this part and the regulations of 
one or more other Federal departments or agencies issued under title VI 
of the Act, the Secretary may, by agreement with such other departments 
or agencies, where applicable, provide for the conduct of consolidated 
or joint hearings, and for the application to such hearings or rules of 
procedure not inconsistent with this part. Final decisions in such 
cases, insofar as this part is concerned, shall be made in accordance 
with Sec.  31.10.

[29 FR 16284, Dec. 4, 1964. Redesignated and amended at 38 FR 17958, 
July 5, 1973; 68 FR 51367, Aug. 26, 2003]



Sec.  31.10  Decisions and notices.

    (a) Decision by a hearing examiner. If the hearing is held by a 
hearing examiner such hearing examiner shall either make an initial 
decision, if so authorized, or certify the entire record including his 
recommended findings and proposed decision to the Secretary for a final 
decision, and a copy of such initial decision or certification shall be 
mailed to the applicant or recipient and the complainant. Where the 
initial decision is made by the hearing examiner the applicant or 
recipient may within 30 days of the mailing of such notice of initial 
decision file with the Secretary his exceptions to the initial decision, 
with his reasons therefor. In the absence of exceptions, the Secretary 
may on his own motion within 45 days after the initial decision serve on 
the applicant or recipient a notice that he will review the decision. 
Upon the filing of such exceptions or of such notice of review the 
Secretary shall review the initial decision and issue his own decision 
thereon including the reasons therefor. The decision of the Secretary 
shall be mailed promptly to the applicant or recipient and the 
complainant, if any. In the absence of either exceptions or a notice of 
review the initial decision shall constitute the final decision of the 
Secretary.
    (b) Decisions on record or review by the Secretary. Whenever a 
record is certified to the Secretary for decision or he reviews the 
decision of a hearing examiner pursuant to paragraph (a), or whenever 
the Secretary conducts the hearing, the applicant or recipient shall be 
given reasonable opportunity to file with him briefs or other written 
statements of its contentions, and a copy of the final decision of the 
Secretary shall be given in writing to the applicant or recipient and 
the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec.  31.9(a) a decision shall be made by 
the Secretary on the record and a copy of such decision shall be given 
in writing to the applicant or recipient and to the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer or the 
Secretary shall set forth his ruling on each finding, conclusion, or 
exception presented, and shall identify the requirement or requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in

[[Page 436]]

whole or in part, to which this regulation applies, and may contain such 
terms, conditions, and other provisions as are consistent with and will 
effectuate the purposes of the Act and this part, including provisions 
designed to assure that no Federal financial assistance to which this 
regulation applies will thereafter be extended to the applicant or 
recipient determined by such decision to be in default in its 
performance of an assurance given by it pursuant to this part, or to 
have otherwise failed to comply with this part, unless and until it 
corrects its noncompliance and satisfies the Secretary that it will 
fully comply with this part.
    (f) Post-termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (c) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this regulation and provides reasonable assurance that it will fully 
comply with this regulation.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (c) of this section may at any time 
request the Secretary to restore fully its eligibility to receive 
Federal financial assistance. Any such request shall be supported by 
information showing that the applicant or recipient has met the 
requirements of paragraph (f)(1) of this section. If the Secretary 
determines that those requirements have been satisfied, he shall restore 
such eligibility.
    (3) If the Secretary denies any such request, the applicant or 
recipient may submit a request for a hearing in writing, specifying why 
it believes the Secretary to have been in error. It shall thereupon be 
given an expeditious hearing, with a decision on the record, in 
accordance with rules of procedure issued by the Secretary. The 
applicant or recipient will be restored to such eligibility if it proves 
at such a hearing that it satisfied the requirements of paragraph (f)(1) 
of this section. While proceedings under this paragraph are pending, the 
sanctions imposed by the order issued under paragraph (e) of this 
section shall remain in effect.

[29 FR 16284, Dec. 4, 1964. Redesignated and amended at 38 FR 17958, 
July 5, 1973; 68 FR 51367, Aug. 26, 2003]



Sec.  31.11  Judicial review.

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

[29 FR 16284, Dec. 4, 1964. Redesignated at 38 FR 17958, July 5, 1973]



Sec.  31.12  Effect on other regulations; supervision and coordination.

    (a) Effect on other regulations. All regulations, orders or like 
directions heretofore issued by any officer of the Department which 
impose requirements designed to prohibit any discrimination against 
individuals on the ground of race, color, or national origin under any 
program to which this part applies, and which authorize the suspension 
or termination of or refusal to grant or to continue Federal financial 
assistance to any applicant for or recipient of such assistance for 
failure to comply with such requirements, are hereby superseded to the 
extent that such discrimination is prohibited by this part, except that 
nothing in this part shall be deemed to relieve any person of any 
obligations assumed or imposed under any such superseded regulation, 
order, instruction, or like direction prior to the effective date of 
this part. Nothing in this part, however, shall be deemed to supersede 
any of the following (including future amendments thereof):
    (1) Executive Orders 10925, 11114 and 11246 and regulations issued 
thereunder,
    (2) The ``Standards for a Merit System of Personnel 
Administration,'' issued jointly by the Secretaries of Defense, of 
Health, Education and Welfare, and of Labor, 23 FR 734, or
    (3) Any other regulation or instruction insofar as it prohibits 
discrimination on the ground of race, color, or national origin in any 
program or situation to which this part is inapplicable, or prohibits 
discrimination on any other ground.
    (b) Supervision and coordination. (1) The Secretary may from time to 
time assign to officials of other departments or agencies of the 
government (with

[[Page 437]]

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

[38 FR 17958, July 5, 1973, as amended at 68 FR 51367, Aug. 26, 2003]



PART 32_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES 
RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                      Subpart A_General Provisions

Sec.
32.1 Purpose.
32.2 Application.
32.3 Definitions.
32.4 Discrimination prohibited.
32.5 Assurances required.
32.6 Remedial action, voluntary action, and self-evaluation.
32.7 Designation of responsible employee.
32.8 Notice.
32.9 Administrative requirements for small recipients.
32.10 Effect of State or local law or other requirements and effect of 
          employment opportunities.

     Subpart B_Employment Practices and Employment Related Training 
                              Participation

32.12 Discrimination prohibited.
32.13 Reasonable accommodation.
32.14 Job qualifications.
32.15 Preemployment inquiries.
32.16 Listing of employment openings.
32.17 Labor unions and recruiting and training agencies.

                         Subpart C_Accessibility

32.26 Discrimination prohibited.
32.27 Accessibility.
32.28 Architectural standards.

                          Subpart D_Procedures

32.44 Compliance information.
32.45 Investigations.
32.46 Procedure for effecting compliance.
32.47 Hearing practice and procedure.

                       Subpart E_Auxiliary Matters

32.48 Post-termination proceedings.
32.49 Recordkeeping.
32.50 Access to records.
32.51 Rulings and interpretations.

Appendix A to Part 32

    Authority: Sec. 504, Rehabilitation Act of 1973, Pub. L. 93-112, 87 
Stat. 394 (29 U.S.C. 794); sec. 111(a), Rehabilitation Act Amendments of 
1974, Pub. L. 93-516, 88 Stat. 1619 (29 U.S.C. 706); secs. 119 and 122 
of the Rehabilitation Comprehensive Services and Developmental 
Disabilities Amendments of 1978, Pub. L. 95-602, 92 Stat. 2955; 
Executive Order 11914, 41 FR 17871.

    Source: 45 FR 66709, Oct. 7, 1980, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  32.1  Purpose.

    Section 504 of the Rehabilitation Act of 1973 prohibits 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance. The purpose of this part is to 
implement section 504 with respect to receiving Federal financial 
assistance from the Department of Labor.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2003]



Sec.  32.2  Application.

    (a) This part applies to each recipient of Federal financial 
assistance from the Department of Labor, and to every program or 
activity that receives such assistance.
    (b) A government contractor covered by the provisions of section 503 
of the Act shall be deemed in compliance with the employment provisions 
of these regulations if it is in compliance with 41 CFR part 60-741 (as 
amended after publication of these regulations) with respect to Federal 
financial assistance from the Department of Labor.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51367, Aug. 26, 2003]

[[Page 438]]



Sec.  32.3  Definitions.

    As used in this part, the term:
    The Act means the Rehabilitation Act of 1973, Public Law 93-112, as 
amended by the Rehabilitation Act Amendments of 1974, Public Law 93-516, 
and by the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978, Public Law 95-602.
    Assistant Secretary means the Assistant Secretary for Employment and 
Training Administration or his or her designee.
    Applicant for assistance means one who submits an application, 
request, or plan required to be approved by a Department official or by 
a recipient as a condition to becoming a recipient.
    Department means the Department of Labor.
    Facility means all or any portion of the buildings, structures, 
equipment, roads, walks, parking lots or other real or personal property 
or interest in such property which are utilized in the execution of the 
program or activity for which Federal financial assistance is received.
    Federal financial assistance means any grant, loan, contract (other 
than a procurement contract or a contract of insurance or guarantee), or 
any other arrangement by which the Department provides or otherwise 
makes available assistance in the form of:
    (a) Funds;
    (b) Services of Federal personnel; or
    (c) Real and personal property or any interest in or use of such 
property, including:
    (1) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (2) Proceeds from a subsequent transfer or lease of such property if 
the Federal share of its fair market value is not returned to the 
Federal Government.
    Government means the Government of the United States of America.
    Handicap means any condition or characteristic that renders a person 
a handicapped individual as defined in this section.
    Handicapped individual
    (a) Handicapped individual means any person who--
    (1) Has a physical or mental impairment which substantially limits 
one or more major life activities;
    (2) Has a record of such an impairment; or
    (3) Is regarded as having such an impairment.
    (b) As used in the proceeding paragraph of this section, the phrase:
    (1) Physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genito-urinary; hemic and lymphatic; skin; and endocrine;
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (iii) The term physical or mental impairment includes but is not 
limited to such diseases and conditions as orthopedic, visual, speech 
and hearing impairments, cerebral palsy, epilepsy, muscular distrophy, 
multiple sclerosis, cancer, heart disease, diabetes, mental retardation, 
emotional illness, and drug addiction and alcoholism.
    (2) Substantially limits means the degree that the impairment 
affects an individual becoming a beneficiary of a program or activity 
receiving Federal financial assistance or affects an individual's 
employability. A handicapped individual who is likely to experience 
difficulty in securing or retaining benefits or in securing, or 
retaining, or advancing in employment would be considered substantially 
limited.
    (3) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, working, and receiving education or vocational 
training.
    (4) Has a record of such an impairment means that the individual has 
a history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more life activity.
    (5) Is regarded as having such an impairment means that the 
individual--

[[Page 439]]

    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a recipient as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (b)(1) of 
this section but is treated by a recipient as having such an impairment.
    Program or activity means all of the operations of any entity 
described in paragraphs (1) through (4) of this definition, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this definition.
    Qualified handicapped individual means:
    (a) With respect to employment, an individual with a handicap who is 
capable of performing the essential functions of the job or jobs for 
which he or she is being considered with reasonable accommodation to his 
or her handicap;
    (b) With respect to services, a handicapped individual who meets 
eligibility requirements relevant to the receipt of services provided in 
the program or activity;
    (c) With respect to employment and to employment related training, a 
handicapped individual who meets both the eligibility requirements for 
participation in the program or activity and valid job or training 
qualifications with reasonable accommodation.
    Reasonable accommodation means the changes and modifications which 
can be made in the structure of a job or employment and training, or in 
the manner in which a job is performed or employment and training is 
conducted, unless it would impose an undue hardship on the operation of 
the recipient's program or activity. Reasonable accommodation may 
include:
    (a) Making the facilities used by the employees or participants in 
the area where the program or activity is conducted, including common 
areas used by all employees or participants such as hallways, restrooms, 
cafeterias and lounges, readily accessible to and usable by handicapped 
persons, and
    (b) Job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, the provision of 
readers or interpreters, and other similar actions.
    Recipient means any state or its political subdivisions, any 
instrumentality of a State or its political subdivisions, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    Secretary means the Secretary of Labor, U.S. Department of Labor, or 
his or her designee.
    Section 504 means section 504 of the Act.

[[Page 440]]

    Small recipient means a recipient who serves fewer than 15 
beneficiaries, and employs fewer than 15 employees at all times during a 
grant year.
    United States means the several states, the District of Columbia, 
the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American 
Samoa and the Trust Territory of the Pacific Islands.

[45 FR 66709, Oct. 7, 1980, as amended at 61 FR 19985, May 3, 1996; 68 
FR 51367, 51368, Aug. 26, 2003]



Sec.  32.4  Discrimination prohibited.

    (a) General. No qualified handicapped individual shall, on the basis 
of handicap, be excluded from participation in, be denied the benefits 
of, or otherwise be subjected to discrimination under any program or 
activity which receives Federal financial assistance.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
any aid, benefit, service or training, may not, directly or through 
contractual, licensing, or other arrangments, on the basis of handicap:
    (i) Deny a qualified handicapped individual the opportunity to 
participate in or benefit from the aid, benefit, service or training;
    (ii) Afford a qualified handicapped individual an opportunity to 
participate in or benefit from the aid, benefit, service or training 
that is not equal to that afforded others;
    (iii) Provide a qualified handicapped individual with any aid, 
benefit, service or training that is not as effective as that provided 
to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped individuals or to any class of handicapped individuals 
unless such action is necessary to provide qualified handicapped 
individuals with aid, benefits, services or training that are as 
effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
individual by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of handicap in 
providing any aid, benefit, service or training to beneficiaries of the 
recipient's program or activity;
    (vi) Deny a qualified handicapped individual the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped individual in 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any aid, benefit, service or training.
    (2) For purposes of this part, aid, benefits, services or training, 
to be equally effective, are not required to produce the identical 
result or level of achievement for handicapped and nonhandicapped 
individuals, but must afford handicapped individuals equal opportunity 
to obtain the same result, to gain the same benefit, or to reach the 
same level of achievement, in the most integrated setting appropriate to 
the person's needs.
    (3) A recipient may not deny a qualified handicapped individual the 
opportunity to participate in its regular aid, benefits, services, or 
training, despite the existence of separate or different aid, benefits, 
services, or training for the handicapped which are established in 
accordance with this part.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified handicapped 
individuals to discrimination on the basis of handicap;
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program or 
activity with respect to handicapped individuals; or
    (iii) That perpetuate the discrimination of another recipient if 
both recipients are subject to common administrative control or are 
agencies of the same state.
    (5) In determining the site or location of a facility, an applicant 
for assistance or a recipient may not make selections.
    (i) That have the effect of excluding handicapped individuals from, 
denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives Federal 
financial assistance; or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives

[[Page 441]]

of the program or activity with respect to handicapped individuals.
    (6) As used in this section, the aid, benefit, service or training 
provided under a program or activity receiving Federal financial 
assistance includes any aid, benefit, service or training provided in or 
through a facility that has been constructed, expanded, altered, leased, 
rented, or otherwise acquired, in whole or in part, with Federal 
financial assistance.
    (7)(i) In providing services receiving Federal financial assistance, 
except for employment-related training, a recipient to which this 
subpart applies, except small recipients, shall ensure that no 
handicapped participant is denied the benefits of, excluded from 
participation in, or otherwise subjected to discrimination under the 
program or activity operated by the recipient because of the absence of 
auxiliary aids for participants with impaired sensory, manual or 
speaking skills. In employment and employment-related training, this 
paragraph shall apply only to the intake, assessment and referral 
services. A recipient shall operate each program or activity to which 
this subpart applies so that, when viewed in its entirety, auxiliary 
aids are readily available.
    (ii) Auxiliary aids may include brailled and taped written 
materials, interpreters or other effective methods of making orally 
delivered information available to persons with hearing impairments, 
readers for persons with visual impairments, equipment adapted for use 
by persons with manual impairments, and other similar services and 
actions. Recipients need not provide attendants, individually prescribed 
devices, readers for personal use or study, or other devices or services 
of a personal nature.
    (c) Aid, benefits, services, or training limited by Federal law. The 
exclusion of nonhandicapped persons from aid, benefits, program 
services, or training limited by Federal statute on Executive order to 
handicapped individuals or the exclusion of a specific class of 
handicapped individuals from aid, benefits, services, or training 
limited by Federal statute or Executive order to a different class of 
handicapped individuals is not prohibited by this part.
    (d) Integrated setting. Recipients shall administer programs or 
activities in the most integrated setting appropriate to the needs of 
qualified handicapped individuals.
    (e) Communications with individuals with impaired vision and 
hearing. Recipients shall take appropriate steps to ensure that 
communications with their applicants, employees, and beneficiaries are 
available to persons with impaired vision and hearing.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51367, 51368, Aug. 26, 
2003]



Sec.  32.5  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance to 
which this part applies shall submit an assurance, on a form specified 
by the Assistant Secretary, that the program or activity will be 
operated in compliance with this part. An applicant may incorporate 
these assurances by reference in subsequent applications to the 
Department.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended in the form of real property or structures on the 
property, the assurance will obligate the recipient or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
real property or structures are used for the purpose involving the 
provision of similar services or benefits.
    (2) In the case of Federal financial assistance extended to provide 
personal property, the assurance will obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases the assurance will obligate the recipient for 
the period during which Federal financial assistance is extended or the 
federally-funded program or activity is operated, whichever is longer.
    (c) Covenants. (1) Where Federal financial assistance is provided in 
the form of real property or interest in the property from the 
Department, the instrument effecting or recording this transfer shall 
contain a covenant running with the land to assure nondiscrimination for 
the period during which the real property is used for a purpose for 
which the Federal financial assistance is extended or for another

[[Page 442]]

purpose involving the provision of similar services or benefits.
    (2) Where no Federal transfer of property is involved but property 
is purchased or improved with Federal financial assistance, the 
recipient shall agree to include the covenant described in paragraph 
(c)(1) of this section in the instrument effecting or recording any 
subsequent transfer of the property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Department, the 
covenant shall also include a condition coupled with a right to be 
reserved by the Department to revert title to the property in the event 
of a breach of the covenant. If a transferee of real property proposes 
to mortgage or otherwise encumber the real property as security to 
finance construction of new, or improvement of existing, facilities on 
the property for the purposes for which the property was transferred, 
the Assistant Secretary may agree to forbear the exercise of such right 
to revert title for so long as the lien of such mortgage or other 
encumbrance remains effective. Such an agreement by the Assistant 
Secretary may be entered into only upon the request of the transferee 
(recipient) if it is necessary to accomplish such financing and upon 
such terms and conditions as the Assistant Secretary deems appropriate.
    (d) Interagency agreements. Where funds are granted by the 
Department to another Federal agency, and where the grant obligates the 
recipient agency to comply with the rules and regulations of the 
Department applicable to that grant the provisions of this part shall 
apply to programs or activities operated with such funds.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51367, 51368, Aug. 26, 
2003]



Sec.  32.6  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Assistant Secretary finds that a 
recipient has discriminated against persons on the basis of handicap in 
violation of section 504 of this part, the recipient shall take such 
remedial action as the Assistant Secretary deems necessary to overcome 
the effects of the discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the basis of handicap in violation of section 504 or this part and 
where another recipient exercises control over the recipient that has 
discriminated, the Assistant Secretary, where appropriate, may require 
either or both recipients to take remedial action.
    (3) The Assistant Secretary may, where necessary to overcome the 
effects of discrimination in violation of section 504 or this part, 
require a recipient to take remedial action:
    (i) With respect to handicapped individuals who would have been 
participants in the program or activity had the discrimination not 
occurred; and
    (ii) With respect to handicapped persons who are no longer 
participants in the recipient's program but who were participants in the 
program or activity when the discrimination occurred; and
    (iii) With respect to employees and applicants for employment.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped individuals.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this part:
    (i) Evaluate, with the assistance of interested persons who are 
selected by the recipient, including handicapped individuals or 
organizations representing handicapped individuals, its current policies 
and practices and the effects thereof that do not or may not meet the 
requirements of this part;
    (ii) Modify, after consultation with interested persons who are 
selected by the recipient, including handicapped individuals or 
organizations representing handicapped individuals, any policies and 
practices that do not meet the requirements of this part; and
    (iii) Take, after consultation with interested persons who are 
selected by the recipient, including handicapped individuals or 
organizations representing handicapped individuals, appropriate remedial 
steps to eliminate the effects of any discrimination that

[[Page 443]]

resulted from adherence to these policies and practices.
    (2) A recipient, other than a small recipient, shall for at least 
three years following completion of the evaluation required under 
paragraph (c)(1) of this section, maintain on file, make available for 
public inspection, and provide to the Assistant Secretary upon request:
    (i) A list of the interested persons consulted;
    (ii) A description of areas examined and any problems identified; 
and
    (iii) A description of any modifications made and of any remedial 
steps taken.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2003]



Sec.  32.7  Designation of responsible employee.

    A recipient, other than a small recipient shall designate at least 
one person to coordinate its efforts to comply with this part.



Sec.  32.8  Notice.

    (a) A recipient, other than a small recipient, shall take 
appropriate initial and continuing steps to notify participants, 
beneficiaries, referral sources, applicants, and employees, including 
those with impaired vision or hearing, and unions or professional 
organizations which have collective bargaining or professional 
agreements with the recipient, that it does not discriminate on the 
basis of handicap in violation of section 504 and of this part. The 
notification shall state, where appropriate, that the recipient does not 
discriminate in the admission or access to, or treatment or employment 
in, its programs or activities. The notification shall also include an 
identification of the responsible employee designated pursuant to Sec.  
32.7. A recipient shall make the initial notifications required by this 
paragraph within 90 days of the effective date of this part. Methods of 
initial and continuing notification may include the posting of notices, 
publication in newspapers and magazines, placement of notices in 
recipient's publications, and distribution of memoranda or other written 
communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2003]



Sec.  32.9  Administrative requirements for small recipients.

    The Assistant Secretary may require any recipient that provides 
services to fewer than 15 beneficiaries or with fewer than 15 employees, 
or any class of such recipients, to comply with Sec. Sec.  32.7 and 
32.8, in whole or in part, when the Assistant Secretary finds a 
violation of this part or finds that such compliance will not 
significantly impair the ability of the recipient or class of recipients 
to provide benefits or services.



Sec.  32.10  Effect of State or local law or other requirements and effect 
of employment opportunities.

    (a) The obligation to comply with this part is not obviated or 
alleviated by the existence of any state or local law or other 
requirement that, on the basis of handicap, imposes prohibitions or 
limits upon the eligibility of qualified handicapped individuals to 
receive services, participate in programs or activities or practice any 
occupation or profession.
    (b) The obligation to comply with this part is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or may be more limited for handicapped individuals than 
for nonhandicapped persons.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2003]

[[Page 444]]



     Subpart B_Employment Practices and Employment Related Training 
                              Participation



Sec.  32.12  Discrimination prohibited.

    (a) General. (1) No qualified handicapped individual shall, on the 
basis of handicap, be subjected to discrimination in employment under 
any program or activity to which this part applies. This subpart is 
applicable to employees and applicants for employment with all 
recipients and to participants in employment and training under programs 
or activities financed in whole or in part by Federal financial 
assistance.
    (2) A recipient shall make all decisions concerning employment or 
training under any program or activity to which this subpart applies in 
a manner which ensures that discrimination on the basis of handicap does 
not occur and may not limit, segregate, or classify applicants or 
employees or participants in any way that adversely affects their 
opportunities or status because of handicap.
    (3) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants, employees or participants to discrimination prohibited by 
this subpart. The relationships referred to in this subparagraph include 
relationships with employment and referral agencies, with labor unions, 
with organizations providing or administering fringe benefits to 
employees of the recipient, and with organizations providing training 
and apprenticeships.
    (b) Specific activities. The provisions of this subpart apply to:
    (1) Recruitment advertising, and the processing of applicants for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff and rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virture of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer-sponsored activities, including those that are social 
or recreational; and
    (9) Any other term, condition, or privilege of employment.
    (c) Collective bargaining agreements. Whenever a recipient's 
obligation to comply with this subpart and to correct discriminatory 
practices impacts on and/or necessitates changes in a term of a 
collective bargaining agreement(s) to which the recipient is a party, 
the recipient shall attempt to achieve compliance consistent with the 
provisions of Sec.  32.17(a). However a recipient's obligation to comply 
with this subpart is not relieved by a term of any such collective 
bargaining agreement(s).
    (d) Compensation. In offering employment or promotions to 
handicapped individuals, the recipient shall not reduce the amount of 
compensation offered because of any disability income, pension or other 
benefit the applicant or employee receives from other source.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2003]



Sec.  32.13  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant, employee or participant unless the recipient can demonstrate 
that the accommodation would impose an undue hardship on the operation 
of its program or activity.
    (b) In determining pursuant to paragraph (a) of this section whether 
an accommodation would impose an undue hardship on the operation of a 
recipient's program or activity, factors to be considered include;
    (1) The overall size of the recipient's program or activity with 
respect to

[[Page 445]]

number of employees, number of participants, number and type of 
facilities, and size of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of the recipient's workforce, and duration and type of 
training; and
    (3) The nature and cost of the accommodation needed.
    (c) A recipient may not deny any employment or training opportunity 
to a qualified handicapped employee, applicant or participant if the 
basis for the denial is the need to make reasonable accommodation to the 
physical or mental limitations of the employee, applicant or 
participant.
    (d) Nothing in this paragraph shall relieve a recipient of its 
obligation to make its program or activity accessible as required in 
subpart C of this part, or to provide auxiliary aids, as required by 
Sec.  32.4(b)(7).

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2003]



Sec.  32.14  Job qualifications.

    (a) The recipient shall provide for, and shall adhere to, a schedule 
for the review of the appropriateness of all job qualifications to 
ensure that to the extent job qualifications tend to exclude handicapped 
individuals because of their handicap, they are related to the 
performance of the job and are consistent with business necessity and 
safe performance.
    (b) Whenever a recipient applies job qualifications in the selection 
of applicants, employees or participants for employment or training or 
other change in employment status such as promotion, demotion or 
training, which would tend to exclude handicapped individuals because of 
their handicap, the qualifications shall be related to the specific job 
or jobs for which the individual is being considered and shall be 
consistent with business necessity and safe performance. The recipient 
shall have the burden to demonstrate that it has complied with the 
requirements of this paragraph.



Sec.  32.15  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct preemployment medical examinations or make 
preemployment inquiry of an applicant for employment or training as to 
whether the applicant is a handicapped person or as to the nature or the 
severity of a handicap. A recipient may, however, make preemployment 
inquiry into an applicant's ability to perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination, when a recipient is taking voluntary 
action to overcome the effects of conditions that resulted in limited 
paticipation in its federally-assisted program or activity, or when a 
recipient is taking affirmative action pursuant to section 503 of the 
Act, the recipient may invite applicants for employment or training to 
indicate whether and to what extent they are handicapped if:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally, if no written questionnaire is 
used, that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary or 
affirmative action efforts.
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant, employee or participant to any adverse 
treatment, and that it will be used only in accordance with this part.
    (c) An employer who routinely requires medical examinations as part 
of the employment selection process must demonstrate that each of the 
requirements of this subsection are met:
    (1) The medical examination shall be performed by a physician 
qualified to make functional assessments of individuals in a form which 
will express residual capacity for work or training. Such an assessment 
does not require clinical determinations of disease or disability, but 
shall provide selecting or referring officials sufficient information 
regarding any functional limitations relevant to proper job placement or 
referral to appropriate training. Factors which may be assessed may 
include, for example, use of limbs and extremities, mobility and 
posture, endurance and energy expenditure,

[[Page 446]]

ability to withstand various working conditions and environments, use of 
senses and mental capacity;
    (2) The results of the medical examination shall be specific and 
objective so as to be susceptible to review by independent medical 
evaluators and shall be transmitted to the applicant or employee at the 
same time as the employing official;
    (3) The results of the medical examination shall not be used to 
screen out qualified applicants and employees but to determine proper 
placement and reasonable accommodation. The employing official using 
physical or mental information obtained pursuant to this section should 
be familiar with physical or mental activities involved in performing 
the job, and the working conditions and environment in which it is 
carried out. If the applicant is being considered for a variety of jobs 
having different requirements or skills, the employing official should 
make a functional assessment of the physical or mental demands of the 
jobs in order to match the applicant with the most suitable vacancy;
    (4) All of potential employees for the jobs are subjected to the 
medical examination;
    (5) The procedures for using medical examinations or the medical 
information shall be constructed in such a manner that:
    (i) A conditional job offer was made or the individual was 
conditionally placed in a job pool or conditionally placed on an 
eligibility list prior to the medical examination being performed; or
    (ii) The results of the medical examination were considered by the 
employing official only after a conditional decision to make a job offer 
or the individual had been placed conditionally in a job pool or 
conditionally placed on an eligibility list; that is the medical results 
were the last factor evaluated by the employing officials before a final 
decision to make an offer of employment was made.
    (6) Unless a conditional job offer is made prior to the medical 
examination, all potential employees for the job shall be informed at 
the time of the medical examination that:
    (i) The results of the medical examination are the last factor 
evaluated by the employing official before a final decision to make an 
offer of employment is made, and
    (ii) The medical examination results shall be transmitted to the 
employing official and the applicant only after a conditional decision 
to make a job offer has been made.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant shall be collected and 
maintained on separate forms that shall be accorded confidentiality as 
medical records, except that:
    (1) Employing officials may obtain the information after making a 
conditional decision to make a job offer to the applicant or the 
applicant was placed conditionally in a job pool or placed conditionally 
on an eligibility list.
    (2) Supervisors and managers may be informed regarding restricions 
on the work or duties of qualified handicapped persons and regarding 
necessary accommodations;
    (3) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (4) Government officials investigating compliance with the Act shall 
be provided information upon request.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2004]



Sec.  32.16  Listing of employment openings.

    Recipients should request State employment security agencies to 
refer qualified handicapped individuals for consideration for 
employment.



Sec.  32.17  Labor unions and recruiting and training agencies.

    (a) The performance of a recipient's obligations under the 
nondiscrimination provisions of these regulations may necessitate a 
revision in a collective bargaining agreement(s). The policy of the 
Department of Labor is to use its best efforts, directly or through

[[Page 447]]

the recipients, subgrantees, local officials, vocational rehabilitation 
facilities, and other available instrumentalities, to cause any labor 
union, recruiting and training agency or other representative or workers 
who are or may be engaged in work under programs or activities receiving 
Federal financial assistance to cooperate with, and to comply in the 
implementation of section 504.
    (b) To effectuate the purposes of paragraph (a) of this section, the 
Assistant Secretary may hold hearings, public or private, with respect 
to the practices and policies of any such labor union or recruiting and 
training agency.
    (c) Whenever compliance with section 504 necessitates a revision of 
a collective bargaining agreement or otherwise significantly affects a 
substantial number of employees represented by the union, the collective 
bargaining representatives shall be given an opportunity to present 
their views to the Assistant Secretary.
    (d) The Assistant Secretary may notify any Federal, State, or local 
agency of his/her conclusions and recommendations with respect to any 
such labor organization or recruiting and training agency which in his/
her judgment has failed to cooperate with the Department of Labor, 
recipients, subgrantees or applicants in carrying out the purposes of 
section 504. The Assistant Secretary also may notify other appropriate 
Federal agencies when there is reason to believe that the practices of 
any such labor organization or agency violates other provisions of 
Federal law.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2003]



                         Subpart C_Accessibility



Sec.  32.26  Discrimination prohibited.

    No qualified handicapped individual shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped individuals, 
be denied the benefits of, be excluded from participation in, or 
otherwise be subjected to discrimination under any program or activity 
to which this part applies.



Sec.  32.27  Accessibility.

    (a) Purpose. A recipient shall operate each program or activity to 
which this part applies so that when each part is viewed in its entirety 
it is readily accessible to qualified handicapped individuals. This 
paragraph does not require a recipient to make each of its existing 
facilities or every part of a facility accessible to and usable by 
qualified handicapped individuals. However, if a particular aid, 
benefit, service, or training is available in only one location, that 
site must be made accessible or the aid, benefit, service, or training 
must be made available at an alternative accessible site or sites. 
Accessibility requires nonpersonal aids to make the program or activity 
accessible to mobility impaired persons. Reasonable accommodations, as 
defined in Sec.  32.3, are required for particular handicapped 
individuals in response to the specific limitations of their handicaps.
    (b) Scope and application. (1) For the purpose of this subpart, 
prime sponsors under the Comprehensive Employment and Training Act and 
any other individual or organization which receives a grant directly 
from the Department to establish or operate any program or activity 
shall assure that the program or activity, including those involving 
Public Service Employment, Work Experience, Classroom Training and On-
the-Job-Training, when each part is viewed in its entirety, is readily 
accessible to qualified handicapped individuals.
    (2) Job Corps. All agencies, grantees, or contractors which screen 
or recruit applicants for the Job Corps shall comply with the 
nondiscrimination provisions of this part. Each regional office of the 
Department of Labor's Employment and Training Administration which makes 
the decision on the assignment of a Job Corps applicant to a particular 
center may, where it finds, after consultation with the qualified 
handicapped person seeking Job Corps services, that there is no method 
of complying with Sec.  32.27(a) at a particular Job Corps Center, other 
than by making a significant alteration in its existing facilities or in 
its training, assign that individual to another Job

[[Page 448]]

Corps Center which is accessible in accordance with this section and 
which is offering comparable training. The Job Corps, and each regional 
office of the Employment and Training Administration, shall assure that 
the Job Corps Program, when viewed in its entirety, is readily 
accessible to qualified handicapped individuals and that all future 
construction, including improvements to existing Centers, be made 
accessible to the handicapped.
    (3) If a small recipient finds, after consultation with a qualified 
handicapped person seeking its services, that there is no method of 
complying with Sec.  32.27(a) other than making a significant alteration 
in its existing facilities or facility the recipient may, as an 
alternative, refer the qualified handicapped person to other providers 
of those services that are accessible.
    (c) Methods. A recipient may comply with the requirement of Sec.  
32.27(a) through such means as redesign of equipment, reassignment of 
classes or other services to accessible buildings, assignment of aides 
to beneficiaries, home visits, delivery of services at alternate 
accessible sites, alteration of existing facilities and construction of 
new facilities in conformance with the requirements of Sec.  32.28, or 
any other method that results in making its program or activity 
accessible to handicapped individuals. A recipient is not required to 
make structural changes in existing facilities where other methods are 
effective in achieving compliance with Sec.  32.27(a). In choosing among 
available methods for meeting the requirement of Sec.  32.27(a), a 
recipient shall give priority to those methods that serve handicapped 
persons in the most integrated setting appropriate.
    (d) Time period. A recipient shall comply with the requirements of 
Sec.  32.27(a) within 60 days of the effective date of this part except 
that where structural changes in facilities are necessary, such changes 
shall be made within three years of the effective date of this part, but 
in any even as expeditiously as possible.
    (e) Transition plan. In the event that structural changes to 
facilities are necessary to meet the requirement of Sec.  32.27(a), a 
recipient shall develop, within six months of the effective date of this 
part, a transition plan setting forth the steps necessary to complete 
such changes. The plan shall be developed with the assistance of 
interested persons, including qualified handicapped individuals. A copy 
of the transition plan shall be made available for public inspection. 
The plan shall, at a minimum:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility of its program or activity to qualified 
handicapped individuals;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
full accessibility under Sec.  32.27(a) and, if the time period of the 
transition plan is longer than one year, identify steps that will be 
taken during each year of the transition period; and
    (4) Indicate the person responsible for implementation of the plan.
    (f) Notice. The recipient shall adopt and implement procedures to 
ensure that interested persons, including persons with impaired vision 
or hearing, can obtain information as to the existence and location of 
services, activities, and facilities that are accessible to and usable 
by qualified handicapped individuals.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2003]



Sec.  32.28  Architectural standards.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient shall be 
designed and constructed in such manner that the facility or part of the 
facility is readily accessible to and usable by qualified handicapped 
individuals, if the construction was commenced after the effective date 
of this part.
    (b) Alteration. Each facility or part of a facility which is altered 
by, on behalf of, or for the use of a recipient after the effective date 
of this part in a manner that affects or could affect the usability of 
the facility or part of the facility shall, to the maximum extent 
feasible, be altered in such manner that the altered portion of the 
facility is readily accessible to and usable by qualified handicapped 
individuals.

[[Page 449]]

    (c) Standards for architectural accessibility. Design, construction, 
or alteration of facilities under this subpart shall meet the most 
current standards for physical accessibility prescribed by the General 
Services Administration under the Architectural Barriers Act at 41 CFR 
101-19.6. Alternative standards may be adopted when it is clearly 
evident that equivalent or greater access to the facility or part of the 
facility is thereby provided.



                          Subpart D_Procedures



Sec.  32.44  Compliance information.

    (a) Cooperation and assistance. The Assistant Secretary shall to the 
fullest extent practicable seek the cooperation of recipients in 
obtaining compliance with this part and shall provide assistance and 
guidance to recipients to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the Assistant Secretary timely, complete and accurate 
compliance reports at such times, and in such form and containing such 
information as the Assistant Secretary may determine to be necessary to 
enable him to ascertain whether the recipient had complied or is 
complying with this part. For example, recipients should have available 
for the Department data showing the extent to which known handicapped 
individuals are beneficiaries and participants in federally assisted 
programs or activities. In the case in which a primary recipient extends 
Federal financial assistance to any other recipient, such other 
recipient shall also submit such compliance reports to the primary 
recipient as may be necessary to enable the primary recipient to carry 
out its obligations under this part.
    (c) Access to sources of information. Each recipient shall permit 
access by the Assistant Secretary during normal business hours to such 
of its books, records, accounts, and other sources of information and 
its facilities as may be pertinent to ascertain compliance with this 
part. Where any information required of a recipient is in the exclusive 
possession of any other agency, institution or person and this agency, 
institution or person shall fail or refuse to furnish this information, 
the recipient shall so certify in its report and shall set forth what 
efforts it has made to obtain the information. Asserted considerations 
of privacy or confidentiality may not operate to bar the Department from 
access to or copying of records or information, or from evaluating or 
seeking to enforce compliance with this part.
    (d) Posters and information. The recipient will post in prominent 
locations (bulletin boards, time clock areas, etc.) posters designed and 
furnished by DOL outlining and summarizing the nondiscrimination 
requirements of section 504. The recipient also will make readily 
available information on section 504 requirements with respect to 
compliance procedures, the rights of beneficiaries and employees through 
handbooks, pamphlets and other materials furnished by DOL.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2003]



Sec.  32.45  Investigations.

    (a) Periodic compliance reviews. The Assistant Secretary shall from 
time-to-time review the practices of recipients to determine whether 
they are complying with this part.
    (b) Adoption of grievance procedures. A recipient shall adopt an 
internal review procedure incorporating appropriate due process 
standards which provides for the prompt and equitable resolution of 
complaints alleging any action prohibited by this part. The complainant 
or his or her representative shall file the complaint with the recipient 
for processing under those procedures. A complaint must be filed not 
later than 180 days from the date of the alleged discrimination, unless 
the time for filing is extended by the Assistant Secretary for good 
cause shown. The recipient shall maintain records on all complaints 
filed alleging violation of the Act and shall make such records 
available to the Assistant Secretary upon request. The complaint and all 
actions take thereunder shall be kept confidential by the recipient. If 
the complaint has not been resolved under those procedures 
satisfactorily to the complainant within 60 days of the filing or 
referral, the complainant or his

[[Page 450]]

or her representative may file a complaint with the Assistant Secretary 
within 30 days of the recipient level decision or 90 days from the date 
of filing the complaint, whichever is earlier. Upon such filing, the 
Assistant Secretary will proceed as provided in this section. Exhaustion 
of recipient level procedures shall be required except where:
    (1) The recipient has not acted within the timeframe specified in 
this section; or
    (2) The recipient's procedures are not in compliance with this 
section; or
    (3) An emergency situation is determined to exist by the Assistant 
Secretary.
    (c) Complaints. Where recipient level procedures have been 
exhausted, any person who believes he or she or any specific class of 
individuals has been subjected to discrimination prohibited by this part 
may (or through an authorized representative) file a written complaint 
with the Assistant Secretary.
    (d) Contents of complaints. Complaints must be signed by the 
complainant or his or her authorized representative and must contain the 
following information:
    (1) Name and address (including telephone or TTY number) of the 
complainant;
    (2) Name and address of the recipient or sub-grantee who committed 
the alleged violation;
    (3) A description of the act or acts considered to be a violation;
    (4) A statement that the individual is handicapped or has a history 
of a handicap or other documentation of impairment or was regard by the 
recipient as having an impairment; and
    (5) Other pertinent information available which will assist in the 
investigation and resolution of the complaint.
    (e) Incomplete information. Where a complaint contains incomplete 
information, the Assistant Secretary shall seek the needed information 
or any other information which indicates a possible failure to comply 
with this part from the complainant and shall be responsible for 
developing a complete record. If such information is not provided within 
60 days, the complaint may be closed upon notice to the parties.
    (f) Resolution of matters. Where an investigation indicates that the 
recipient has not complied with the requirements of the Act or this 
part, efforts shall be made to secure compliance through conciliation 
and persuasion within a reasonable time. Before the recipient or 
subgrantee can be found to be in compliance, it must make a specific 
commitment, in writing, to take corrective action to meet the 
requirements of the Act and this part. The commitment must indicate the 
precise action to be taken and dates for completion. The time period 
allowed should be no longer than the minimum period necessary to effect 
such changes. Upon approval of such commitment by the Assistant 
Secretary, the recipient may be considered in compliance on condition 
that the commitments are kept. Where the investigation indicates a 
violation of the Act or regulations in this part (and the matter has not 
been resolved by informal means), the Assistant Secretary shall afford 
the recipient an opportunity for a hearing in accordance with Sec.  
32.47.
    (g) Intimidatory or retaliatory acts prohibited. The sanctions and 
penalties contained in this regulation may be exercised by the Assistant 
Secretary against any recipient or sub-grantee who fails to take all 
necessary steps to ensure that no person intimidates, threatens, coerces 
or discriminates against any individual for the purpose of interfering 
with the filing of a complaint, furnishing information, or assisting or 
participating in any manner in an investigation, compliance review, 
hearing, or any other activity related to the administration of the Act.



Sec.  32.46  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this regulation and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, the Department may 
suspend, terminate or refuse to grant or to continue Federal financial 
assistance or take any other means authorized by

[[Page 451]]

law. Such other means may include, but are not limited to:
    (1) A referral to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States or any assurance; and
    (2) Any applicable proceeding under state or local law.
    (b) Noncompliance with the requirements of this part. If a recipient 
fails or refuses to comply with a requirement imposed by or pursuant to 
this part, the Department may institute an administrative enforcement 
proceeding to compel compliance with the requirement, to seek 
appropriate relief, and or to terminate Federal financial assistance in 
accordance with the procedures of paragraph (c) of this section. The 
Department shall not be required to provide assistance in such a case 
during the pendency of the administrative proceedings under such 
paragraph if grants have not yet been approved or funds not yet 
committed to the recipient. However, the Department shall continue 
assistance during the pendency of such proceedings where such assistance 
is due and payable pursuant to an application therefor approved prior to 
the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating or refusing to 
grant or continue Federal financial assistance shall become effective 
until:
    (1) The Assistant Secretary has advised the applicant or recipient 
of its failure to comply and compliance has not been secured by 
voluntary means; and
    (2) There has been an express finding on the record, after 
opportunity for hearing, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part. Any 
action to suspend or terminate or to refuse to grant or to continue 
Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program or activity, or part thereof, in which such 
noncompliance has been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until:
    (1) The Assistant Secretary has determined that compliance cannot be 
secured by voluntary means;
    (2) The recipient or other person has been notified of its failure 
to comply and of the action to be taken to effect compliance; and
    (3) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51368, Aug. 26, 2003]



Sec.  32.47  Hearing practice and procedure.

    (a) All hearings conducted under section 504 of the Rehabilitation 
Act of 1973, as amended, and the regulations in this part shall be 
governed by the Department of Labor's rules of practice for 
administrative proceedings to enforce title VI of the Civil Rights Act 
of 1964 contained in 29 CFR part 31.
    (b) For the purposes of hearings pursuant to this part 32, 
references in 29 CFR part 31 to title VI of the Civil Rights Act of 1964 
shall mean section 504 of the Rehabilitation Act of 1973, as amended.
    (c) The Assistant Secretary from time-to-time may assign to 
officials of other departments or agencies of the Government or of the 
Department of Labor (with the consent of such department or agency) 
responsibilities in connection with the effectuation of the purposes of 
section 504 of the Act and this part (other than responsibility for 
final decisions as provided in Sec.  32.46), including the achievement 
of effective coordination and maximum uniformity within the Department 
and within the executive branch of the Government in the application of 
section 504 and this part to similar programs or activities and in 
similar situations.
    (d) Any action taken, determination made, or requirement imposed by 
an official of another Department or agency acting pursuant to an 
assignment of responsibility under this subsection shall have the same 
effect as though

[[Page 452]]

such action had been taken by the Secretary.

[45 FR 66709, Oct. 7, 1980, as amended at 68 FR 51369, Aug. 26, 2003]



                       Subpart E_Auxiliary Matters



Sec.  32.48  Post-termination proceedings.

    (a) An applicant or recipient adversely affected by an order 
suspending, terminating or refusing to grant or continue Federal 
financial assistance shall be restored to full eligibility to receive 
Federal financial assistance if it satisfies the terms and conditions of 
that order for such eligibility, brings itself into compliance with this 
part and satisfies the Assistant Secretary that it will fully comply 
with section 504 and this part.
    (b) Any applicant or recipient adversely affected by an order 
suspending, terminating or refusing to grant or continue Federal 
financial assistance may request the Assistant Secretary to restore 
fully its eligibility to receive Federal financial assistance. Any such 
request shall be supported by information showing that the applicant or 
recipient has met the requirements of subparagraph (a) of this 
paragraph. If the Assistant Secretary determines that those requirements 
have been satisfied, the applicant's or recipient's eligibility shall be 
restored.
    (c) If the Assistant Secretary denies any such request, the 
applicant or recipient may submit a written request for a hearing, 
specifying why it believes the Assistant Secretary to have been in 
error. It shall thereupon be given an expeditious hearing, with a 
decision on the record, in accordance with rules of procedure specified 
in this part. The applicant or recipient will be restored to such 
eligibility if it proves at such hearing that it satisfied the 
requirements of paragraph (a) of this section. While proceedings under 
this paragraph are pending, the sanctions imposed by the order 
suspending, terminating or refusing to grant or continue Federal 
financial assistance shall remain in effect.



Sec.  32.49  Recordkeeping.

    (a) Each recipient shall maintain for a period of not less than 
three years records regarding complaints and actions taken thereunder, 
and such employment or other records as required by the Assistant 
Secretary or by this part and shall furnish such information in the form 
required by the Assistant Secretary or as the Assistant Secretary deems 
necessary for the administration of the Act and regulations in this 
part.
    (b) Failure to maintain and furnish complete and accurate records as 
required under this section is a ground for the imposition of 
appropriate sanctions.



Sec.  32.50  Access to records.

    Each recipient shall permit access and copying during normal 
business hours to its places of business, books, records and accounts 
pertinent to compliance with the Act, and all rules and regulations 
promulgated pursuant thereto for the purposes of investigation.



Sec.  32.51  Rulings and interpretations.

    Ruling under or interpretations of the Act and the regulations 
contained in this part 32 shall be made by the Assistant Secretary.



                       Sec. Appendix A to Part 32

    Accommodations may take many forms based on the type of handicap and 
the needs of the individual. In developing appropriate accommodations, 
the individual should be consulted as to particular needs.
    The following is a list of possible types of accommodations provided 
for guidance and technical assistance. These suggestions are not 
mandatory, and other forms of accommodation not described herein may be 
required if they are appropriate to meet the needs of particular 
handicapped individuals.

              Accommodations for Participants and Employees

    (a) Job restructuring means the procedure which includes:
    (1) Identifying the separate tasks that comprise a job or group of 
jobs;
    (2) Developing new position descriptions which retain some of the 
tasks of the original job; and
    (3) Developing a career ladder which builds upward from the new 
positions which contain the lesser skilled tasks to regular jobs. A 
restructured job can be clearly different from the original one in terms 
of skills, knowledge, abilities, and work experience

[[Page 453]]

needed to perform the work. Job restructuring is intended to maximize 
the abilities of the particular handicapped person and is not intended 
to permit a recipient to underemploy or job-stereotype that person. A 
restructured job, for example, could be one in which the more highly 
skilled but physically less demanding duties are retained, e.g. 
operating controls and switches in a steel mill, and less skilled, 
physically taxing duties, e.g. lifting, pulling, are reassigned to non-
handicapped employees.
    (b) Modify job or program schedules, for example, by allowing for a 
flexible schedule a few days a week so that a participant or employee 
may undergo medical treatment or therapy. Work-times or participation in 
program activities may also be altered to permit handicapped individuals 
to travel to and from work during non-rush hours. For employees or 
participants who become unable to perform the duties of their positions 
because of a physical or mental condition, recipients may be required to 
grant liberal time off or leave without pay when paid sick leave is 
exhausted and when the disability is of a nature that it is likely to 
respond to treatment of hospitalization. See, e.g., 339 Federal 
Personnel Manual-1-3(b)(1).
    (c) Modify program and work procedures and training time.
    (d) Relocate particular offices or jobs or program activities so 
that they are in facilities accessible to and usable by qualified 
handicapped persons. For example, an employee or participant with a 
respiratory ailment can be placed in a ``nonsmoking'' and/or well-
ventilated office.
    (e) Acquire or modify equipment or devices. For hearing-impaired 
participants or employees, this may include placing amplifiers on 
telephone receivers, making telephone equipment compatible with hearing 
aids, providing flashing lights to supplement telephone rings or 
installing telecommunications devices (TDD's or TTY's). For blind 
participants or employees, this may include providing tape recorders or 
dictating machines for those who cannot type. For wheelchair-users, this 
may include raising on blocks a desk that is otherwise too low for the 
employee, rather than purchasing a specially-made desk. A recipient is 
not obligated to acquire or modify equipment that enables a participant 
or employee to perform a particular job or participate in a particular 
program until after an employee with a need for these modifications is 
hired for a particular office or admitted to a program.
    (f) Provide readers, interpreters, and similar assistance as needed 
for deaf, blind and other handicapped participants or employees. In most 
instances, this would not require a full-time assistant.
    (g) Decrease reliance solely on one form of communication. For 
example, for deaf participants or employees this may include 
supplementing program or job orientation sessions with written manuals 
and other visual materials. If appropriate, a visual warning system 
should be installed. It may also include providing flashing lights to 
supplement auditory signals such as sirens and alarm bells. For blind 
employees, this may include making some communications available in 
braille, enlarged print, or on cassette recordings. A recipient should 
tailor the accommodations listed above to the needs of the individual 
participants or employees who have been admitted to a particular program 
or hired for a particular office.
    (h) Provide human relations-sensitivity training on issues 
pertaining to handicapped discrimination to all recipient employees.
    (i) Conduct ongoing training and planning sessions with recipient 
supervisors, managers, personnel, technical experts and disability 
rights advocates to implement and evaluate methods of reasonable 
accommodation.

                      Accommodations for Applicants

    (a) Announce program and job vacancies in a form readily 
understandable by mentally handicapped persons and by persons with 
impaired vision or hearing, for example, by making the announcements 
available in braille or on cassette tapes. Sec.  32.4(e) of DOL's 
proposed section 504 regulations requires recipients to insure that 
communications with applicants are available to persons with impaired 
vision or hearing. Recipients shall undertake to explain, as 
appropriate, program and job announcements to mentally handicapped 
participants or employees or applicants. For example, this might entail 
notifying known mentally handicapped participants or employees of 
openings for positions that they might be able to perform and taking 
specific steps to clearly explain the nature of the program or job and 
its benefits to that individual.

                           Handicapped Persons

    (b) Provide readers, interpreters, and other similar assistance 
during the application, testing, and interview process.
    (c) Appropriately adjust or modify examinations so that the test 
results accurately reflect the applicant's skills, aptitude or whatever 
other factor the test purports to measure, rather than reflecting the 
applicant's impaired sensory, manual, or speaking skills (except where 
those skills are the factors that the test purports to measure). This 
may require the extension of traditional time deadlines or allowing, for 
example, a blind person to answer an examination orally.
    (d) If necessary waive traditional tests and permit the applicant to 
demonstrate his or her skills through alternate techniques and

[[Page 454]]

utilization of adapted tools, aids, and devices.



PART 33_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP 
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF LABOR--
Table of Contents



Sec.
33.1 Purpose.
33.2 Application.
33.3 Definitions.
33.4 Self-evaluation.
33.5 Notice.
33.6 General prohibitions against discrimination.
33.7 Employment.
33.8 Program accessibility: Discrimination prohibited.
33.9 Program accessibility: Existing facilities.
33.10 Program accessibility: New construction and alterations.
33.11 Communications.
33.12 Complaint handling procedures.
33.13 Intimidation and retaliation prohibited.

    Authority: 29 U.S.C. 794, as amended by sec. 103, Pub. L. 99-506, 
100 Stat. 1810.

    Source: 52 FR 11606, Apr. 9, 1987, unless otherwise noted.



Sec.  33.1  Purpose.

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



Sec.  33.2  Application.

    This part applies to all programs or activities conducted by the 
Department of Labor.



Sec.  33.3  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Assistant Secretary for Administration and Management (ASAM) means 
the Assistant Secretary for Administration and Management in the 
Department of Labor.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Department of Labor. 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, 
telecommunications devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices. 
Persons with manual impairments may need other specially adapted 
equipment.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the actions in sufficient 
detail to inform the Department of the nature and date of the alleged 
violation of section 504. It shall be signed by the complainant or by 
someone authorized to do so on his or her behalf. Complaints filed on 
behalf of classes or third parties shall describe or identify (by name, 
if possible) the alleged victims of discrimination.
    Department means the Department of Labor.
    Director means the Director, Directorate of Civil Rights (DCR), 
Office of the Assistant Secretary for Administration and Management, 
U.S. Department of Labor, or his or her designee.
    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.
    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:
    (a) Physical or mental impairment includes--

[[Page 455]]

    (1) 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
    (2) 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.
    (b) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (c) Has a record of such an impairment means that the individual has 
a history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (d) Is regarded as having an impairment means--
    (1) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Department as 
constituting such a limitation;
    (2) Has a physical or mental impairment that substantially limits 
major life activities only as a result or the attitudes or others toward 
such impairment; or
    (3) Has none of the impairments defined in paragraph (a) of this 
definition but is treated by the Department as having such an 
impairment.
    Qualified individuals with handicaps means--
    (a) With respect to any program or activity of the Department under 
which a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
Department can demonstrate would result in a fundamental alteration in 
its nature;
    (b) With respect to any other Department 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
    (c) For purposes of employment, a Qualified handicapped person as 
that term is defined in 29 CFR 1613.702(f) which is made applicable to 
this part by Sec.  33.7.
    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 Act of 1978 (Pub. L. 95-602, 92 Stat. 2955), and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).

[52 FR 11606, Apr. 9, 1987, as amended at 52 FR 23967, June 26, 1987]



Sec.  33.4  Self-evaluation.

    (a) The Department shall, by May 11, 1988, evaluate, with the 
assistance of interested persons, including individuals with handicaps 
or organizations representing individuals with handicaps, 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 Department shall 
proceed to make the necessary modifications.
    (b) The Department shall, for at least three years following 
completion of the evaluation required under paragraph (a) of this 
section, maintain on file and make available for public inspection--
    (1) A list of the interested persons consulted;
    (2) A description of areas examined and any problems identified; and
    (3) A description of any modifications made.

[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]

[[Page 456]]



Sec.  33.5  Notice.

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



Sec.  33.6  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 Department.
    (b)(1) The Department, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangements, on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Deny 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 aids, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Department may not deny a qualified individual with 
handicaps the opportunity to participate in programs or activities 
despite the existence of permissibly separate or different programs or 
activities.
    (3) The Department may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps .
    (4) The Department may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the Department; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The provisions of paragraph (b)(4) of this section do not apply 
to sites or locations at which the Department owns or leases buildings 
on the date the regulations in this part become effective.
    (6) The Department, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (7) The Department may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the Department 
establish requirements for the programs or activities of licensees or 
certified entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. This part does not apply to the 
programs or activities of

[[Page 457]]

non-departmental entities that are licensed or certified by the 
Department of Labor.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to persons with 
handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this part.
    (d) The Department shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with handicaps.

[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]



Sec.  33.7  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 Department. The definitions, requirements 
and procedures of section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791), as established in 29 CFR part 1613 (subpart G), shall apply 
to employment in federally conducted programs or activities.

[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]



Sec.  33.8  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. Sec.  33.9 and 33.10 of this 
part, no qualified individual with handicaps shall, because the 
Department's facilities are inaccessible to or unusable by individuals 
with handicaps, be denied the benefits of, be excluded from 
participation in, or otherwise be subjected to discrimination under any 
program or activity conducted by the Department.

[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]



Sec.  33.9  Program accessibility: Existing facilities.

    (a) General. The Department shall operate such program or activity 
so that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the Department to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) Require the Department to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
program or activity or in undue financial and administrative burdens.
    (b)(1) If a Department official believes that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the official shall prepare a 
report for the Secretary of Labor which objectively considers and 
evaluates these issues based on the nature of the program and all 
departmental resources available for use in the funding and operation of 
the conducted program or activity. In preparing the report, the 
Department official shall make reasonable efforts to ensure that the 
person(s) requesting accommodation in the particular program or activity 
has an opportunity to provide any relevant information. The report shall 
specifically address any such information. Upon completion, the report 
and all information before the program official shall be transmitted to 
the Secretary for a decision to be made in accordance with paragraph 
(b)(2) of this section.
    (2) The Secretary shall decide, after considering the material 
submitted by the program official and all departmental resources 
available for use in the funding and operation of the conducted program 
or activity, whether the proposed action would fundamentally alter the 
program or result in undue financial and administrative burdens. A 
decision that compliance would result in such alteration or burdens must 
be accompanied by a written statement of the reasons for reaching that 
conclusion and shall be transmitted to the person(s) requesting 
accommodation. This decision represents the final administrative action 
of the Department.
    (3) The Department has the burden of proving that compliance with 
paragraph (a) of this section would result in such alteration or undue 
burdens.

[[Page 458]]

    (c) If an action would result in such an alteration or such burdens, 
the Department shall take any other action that would not result in such 
an alteration or such a burden but would nevertheless ensure that 
qualified individuals with handicaps receive the benefits and services 
of the program or activity.
    (d) Methods. The Department may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with handicaps. The Department is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. Alterations to 
existing buildings shall be made in accordance with the provisions of 
Sec.  33.10 of this part. In choosing among available methods for 
meeting the requirements of this section, the Department shall give 
priority to those methods that offer programs and activities to 
qualified individuals with handicaps in the most integrated setting 
appropriate.
    (e) Time period for compliance. The Department shall comply with the 
obligations established under this section within sixty days of the 
effective date of this part except that where structural changes in 
facilities are undertaken, such changes shall be made within three years 
of the effective date of this part, but in any event as expeditiously as 
possible.
    (f) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Department shall develop, within six months of the effective date of 
this part, a transition plan setting forth the steps necessary to 
complete such changes. The plan shall be developed with the assistance 
of interested persons, including individuals with handicaps and 
organizations representing individuals with handicaps. A copy of the 
transition plan shall be made available for public inspection. The plan 
shall, at a minimum--
    (1) Identify physical obstacles in the Department's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period;
    (4) Indicate the official responsible for implementation of the 
plan; and
    (5) Identify the persons or groups with whose assistance the plan 
was prepared.

[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]



Sec.  33.10  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
after the effective date of this part by, on behalf of, or for the use 
of the Department shall be designed, constructed, or altered so as to be 
readily accessible to and usable by individuals with handicaps in 
accordance with the requirements of the Uniform Federal Accessibility 
Standards adopted by the General Services Administration at 41 CFR 
Sec. Sec.  101-19.600 to 101-19.607 (1984).

[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]



Sec.  33.11  Communications.

    (a) The Department shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Department shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the Department.
    (i) In determining what type of auxiliary aid is necessary, the 
Department shall give primary consideration to the

[[Page 459]]

requests of the individual with handicaps.
    (ii) The Department need not provide individually prescribed 
devices, readers for personal use or study, or other devices of a 
personal nature.
    (2) Where the Department communicates with applicants and 
beneficiaries by telephone, telecommunications devices for deaf persons 
(TDDs), or equally effective telecommunications systems shall be used.
    (b) The Department shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Department shall provide signage at a primary entrance to 
each of its accessible 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) The Department shall take appropriate steps to provide 
individuals with handicaps with information regarding their section 504 
rights under the Department's programs or activities. If the Department 
uses recruitment materials, informational publications, or other 
materials which it distributes or makes available to participants, 
beneficiaries, referral sources, applicants, employees, or the public, 
it shall include in those materials or publications a statement of the 
policy described in Sec.  33.6 of this part and information as to 
complaint procedures. The requirements of this paragraph may be met 
either by including applicable inserts in existing materials and 
publications or by revising and reprinting such materials, as 
appropriate.
    (e) This section does not require the Department to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens.
    (1) If a Department official believes that the proposed action would 
fundamentally alter the program or activity or would result in undue 
financial and administrative burdens, the official shall prepare a 
report for the Secretary of Labor which objectively considers and 
evaluates these issues based on the nature of the program and all 
departmental resources available for use in the funding and operation of 
the conducted program or activity. In preparing the report, the 
Department official shall make reasonable efforts to ensure that the 
person(s) requesting accommodation in the particular program or activity 
has an opportunity to provide any relevant information. The report shall 
specifically address any such information. Upon completion, the report 
and all information before the program official shall be transmitted to 
the Secretary for a decision to be made in accordance with paragraph 
(e)(2) of this section.
    (2) The Secretary shall decide, after considering the material 
submitted by the program official and all departmental resources 
available for use in the funding and operation of the conducted program 
or activity, whether the proposed action would fundamentally alter the 
program or result in undue financial and administrative burdens. A 
decision that compliance would result in such alteration or burdens must 
be accompanied by a written statement of the reasons for reaching that 
conclusion and shall be transmitted to the person(s) requesting 
accommodation. This decision represents the final administrative action 
of the Department.
    (3) The Department has the burden of proving that compliance with 
paragraphs (a) through (d) of this section, as applicable, would result 
in such alteration or undue burdens.
    (f) If an action required to comply with this section would result 
in such an alteration or such burdens, the Department shall take any 
other action that would not result in such an alteration or such a 
burden but would nevertheless ensure that, to the maximum extent 
possible, individuals with handicaps receive the benefits and services 
of the program or activity.

[52 FR 11606, Apr. 9, 1987; 52 FR 24367, June 30, 1987]



Sec.  33.12  Complaint handling procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on

[[Page 460]]

the basis of handicap in programs or activities conducted by DOL.
    (b)(1) Complaints alleging violations of section 504 with respect to 
employment shall be processed according to the procedures established in 
29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 
1973 (29 U.S.C. 791).
    (2) Complaints based upon program inaccessibility in violation of 
section 504 will be governed by the procedures at Sec. Sec.  33.9(b) and 
33.11(e) of this part, as applicable.
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Director, Directorate of Civil Rights (DCR). 
Complaints may be delivered or mailed to the Director, Directorate of 
Civil Rights, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Room N-4123, Washington, DC 20210.
    (d) All complaints must be filed within 180 days of the alleged act 
of discrimination. The Director may extend this time period for good 
cause.
    (e) Where a complaint contains insufficient information, the 
Director shall seek the needed information from the complainant. If the 
complainant is unavailable after reasonable means have been utilized to 
locate him or her, or the information is not furnished within 30 days of 
the date of such request, the complaint may be dismissed upon notice 
sent to the complainant's last known address.
    (f) If the Director receives a complaint over which the Department 
does not have jurisdiction, he or she shall promptly notify the 
complainant and shall make reasonable efforts to refer the complaint to 
the appropriate government entity.
    (g) The Director shall accept and investigate all complete 
complaints which are timely filed, are within the Department's 
jurisdiction, and state an allegation(s) which, if true, would violate 
section 504 or its implementing regulations.
    (1) Where the Director determines that the complaint will be 
investigated, he or she will notify the complainant(s) and the 
appropriate Department official(s).
    (2) Such notification will advise the parties that a determination 
on the merits of the complaint will be issued within 180 days of the 
date of notification unless the matter is resolved informally prior to 
that time.
    (3) If, during the course of the investigation, the Department 
official states that he or she believes that resolution of the complaint 
would require a fundamental alteration of the program or undue financial 
and administrative burdens, the complaint will proceed in accordance 
with Sec. Sec.  33.9(b) and 33.11(e) of this part, as applicable.
    (h) At any time prior to the issuance of the determination the 
parties to the complaint may resolve the complaint on an informal basis. 
For this purpose, the Director shall furnish, to the extent permitted by 
law, a copy of the investigative file to the complainant and the 
appropriate Department official. If the complaint is resolved, the terms 
of the agreement shall be reduced to writing and entered as part of the 
official file by the Deputy Assistant Secretary for Administration and 
Management (Deputy ASAM).
    (i) If informal resolution is not achieved, the Deputy ASAM shall 
issue a determination on the merits which notifies the parties to the 
complaint of the results of the investigation and includes--
    (1) The findings of fact and conclusions of law;
    (2) A remedy and/or corrective action, as appropriate, for each 
violation found; and
    (3) A notice of the right to appeal to the Assistant Secretary for 
Administration and Management (ASAM).
    (j)(1) An appeal of the Deputy ASAM's determination may be filed 
with the ASAM by any party to the complaint. Such appeal must be filed 
within 30 days of receipt of the determination. The ASAM may extend this 
time for good cause.
    (2) Timely appeals shall be accepted and processed by the ASAM. The 
ASAM's determination shall be based upon the written record which may 
include, but is not limited to, the determination made by the Deputy 
ASAM, the investigative file, and any other materials submitted by the 
parties pursuant to a request from the ASAM.

[[Page 461]]

    (k) The ASAM shall notify all parties of his or her determination on 
the appeal within 90 days of the receipt of the appeal. The ASAM's 
determination represents the final administrative decision by the 
Department.
    (l) The time limits cited in paragraphs (g)(2) and (k) of this 
section may be extended with the permission of the Assistant Attorney 
General.
    (m) The Department may delegate its authority for conducting 
complaint investigations to other Federal agencies, except that the 
authority for making the final determination may not be delegated.
    (n) The Director shall respond to requests by the Architectural and 
Transportation Barriers Compliance Board for information on the status 
of any complaint alleging that buildings that are 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), are not readily accessible and usable to individuals with 
handicaps.

[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26, 1987]



Sec.  33.13  Intimidation and retaliation prohibited.

    No person may discharge, intimidate, retaliate, threaten, coerce or 
otherwise discriminate against any person because such person has filed 
a complaint, furnished information, assisted or participated in any 
manner in an investigation, review, hearing or any other activity 
related to the administration of, or exercise of authority under, or 
privilege secured by section 504 and the regulations in this part.



PART 34_IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL OPPORTUNITY 
REQUIREMENTS OF THE JOB TRAINING PARTNERSHIP ACT OF 1982, AS AMENDED (JTPA)--
Table of Contents



                      Subpart A_General Provisions

Sec.
34.1 Purpose; application.
34.2 Definitions.
34.3 Discrimination prohibited.
34.4 Specific discriminatory actions prohibited on the ground of race, 
          color, religion, sex, national origin, age, political 
          affiliation or belief, citizenship, or participation in JTPA.
34.5 Specific discriminatory actions prohibited on the ground of 
          disability.
34.6 Communications with individuals with disabilities.
34.7 Employment practices.
34.8 Intimidation and retaliation prohibited.
34.9 Designation of responsible office; rulings and interpretations.
34.10 [Reserved]
34.11 Effect of other obligations or limitations.
34.12 Delegation and coordination.

 Subpart B_Recordkeeping and Other Affirmative Obligations of Recipients

34.20 Assurance required; duration of obligation; covenants.
34.21 Equitable services.
34.22 Designation of Equal Opportunity Officer.
34.23 Dissemination of policy.
34.24 Data and information collection; confidentiality.

Subpart C_Governor's Responsibilities To Implement the Nondiscrimination 
               and Equal Opportunity Requirements of JTPA

34.30 Application.
34.31 Recordkeeping.
34.32 Oversight and liability.
34.33 Methods of Administration.
34.34 Monitoring.

                     Subpart D_Compliance Procedures

34.40 Compliance reviews.
34.41 Notice to Show Cause.
34.42 Adoption of discrimination complaint processing procedures.
34.43 Complaints and investigations.
34.44 Corrective and remedial action.
34.45 Notice of violation; written assurances; Conciliation Agreements.
34.46 Final Determination.
34.47 Notice of finding of noncompliance.
34.48 Notification of Breach of Conciliation Agreement.

          Subpart E_Federal Procedures for Effecting Compliance

34.50 General.
34.51 Hearings.
34.52 Decision and post-termination proceedings.
34.53 Suspension, termination, denial or discontinuance of Federal 
          financial assistance under JTPA; alternate funds disbursal 
          procedure.


[[Page 462]]


    Authority: 20 U.S.C. 1681; 29 U.S.C. 794, 1501, 1551, 1573, 1574, 
1575, 1576, 1577, 1578, 1579; 42 U.S.C. 2000d et seq., 6101.

    Source: 58 FR 4750, Jan. 15, 1993, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  34.1  Purpose; application.

    (a) Purpose. The purpose of this part is to implement the 
nondiscrimination and equal opportunity provisions of the Job Training 
Partnership Act of 1982, as amended (JTPA), which are contained in 
section 167 of JTPA. Section 167 prohibits discrimination on the grounds 
of race, color, religion, sex, national origin, age, disability, 
political affiliation or belief, and for beneficiaries only, citizenship 
or participation in JTPA. This part clarifies the application of the 
nondiscrimination and equal opportunity provisions of JTPA and provides 
uniform procedures for implementing them.
    (b) Application of this part. This part applies to any recipient, as 
defined in Sec.  34.2. This part also applies to the employment 
practices of a recipient, as provided in Sec.  34.7.
    (c) Effect of this part on other obligations. (1) A recipient's 
compliance with this part shall satisfy any obligation of the recipient 
to comply with 29 CFR part 31, implementing title VI of the Civil Rights 
Act of 1964, as amended (title VI), and with subparts A, D and E of 29 
CFR part 32, implementing section 504 of the Rehabilitation Act of 1973, 
as amended (section 504).
    (2) However, compliance with this part shall not affect any 
obligation of the recipient to comply with subparts B and C and appendix 
A of 29 CFR part 32, which pertain to employment practices and 
employment-related training, program accessibility, and accommodations 
under section 504.
    (3) Recipients that are also public entities or public 
accommodations as defined by titles II and III of the Americans with 
Disabilities Act of 1991 (ADA), should be aware of obligations imposed 
pursuant to those titles.
    (4) Compliance with this part does not affect, in any way, any 
obligation that a recipient may have to comply with Executive Order 
11246, as amended, section 503 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 793), the affirmative action provisions of the 
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended 
(38 U.S.C. 4212), the Equal Pay Act of 1963, as amended (29 U.S.C. 
206d), title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000e et seq.), the Age Discrimination in Employment Act of 1967, as 
amended (29 U.S.C. 621), title IX of the Education Amendments of 1972, 
as amended (20 U.S.C. 1681), the Americans with Disabilities Act of 1990 
(ADA) (42 U.S.C. 12101 et seq.) and their respective implementing 
regulations.
    (5) This rule does not preempt consistent State and local 
requirements.
    (6) The rule generally codifies and consolidates already existing 
nondiscrimination and equal opportunity requirements. However, to the 
extent that this rule imposes any new requirements, it is not intended 
to have retroactive effect.
    (d) Limitation of Application. This part does not apply to:
    (1) Programs or activities funded by the Department exclusively 
under laws other than JTPA;
    (2) Contracts of insurance or guaranty;
    (3) Federal financial assistance to a person who is the ultimate 
beneficiary under any program;
    (4) Federal procurement contracts, with the exception of contracts 
to operate or provide services to Job Corps Centers; and
    (5) Federally-operated Job Corps Centers. The operating Department 
is responsible for enforcing the nondiscrimination and equal opportunity 
laws to which such Centers are subject.



Sec.  34.2  Definitions.

    As used in this part, the term:
    Administrative Law Judge means a person appointed as provided in 5 
U.S.C. 3105 and 5 CFR 930.203 and qualified under 5 U.S.C. 557 to 
preside at hearings held under the nondiscrimination and equal 
opportunity provisions of JTPA and this part.
    Applicant means the person or persons seeking JTPA services who have 
filed a completed application and for

[[Page 463]]

whom a formal eligibility determination has been made. For State 
Employment Security Agency (SESA) programs, applicant means the person 
or persons who make(s) application to receive benefits or services from 
the State employment service agency or the State unemployment 
compensation agency. See also the definitions of eligible applicant and 
participant in this section.
    Applicant for employment means the person or persons who make(s) 
application for employment with a recipient of Federal financial 
assistance under JTPA.
    Application for assistance means the process by which required 
documentation is provided to the Governor, recipient, or Department 
prior to and as a condition of receiving Federal financial assistance 
under JTPA (including both new and continuing assistance).
    Application for benefits means the process by which written 
information is provided by applicants or eligible applicants prior to 
and as a condition of receiving benefits or services from a recipient of 
financial assistance from the Department of Labor under JTPA.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Assistant Secretary means the Assistant Secretary for Administration 
and Management, United States Department of Labor.
    Auxiliary aids or services includes--
    (1) Qualified interpreters, notetakers, transcription services, 
written materials, telephone handset amplifiers, assistive listening 
systems, telephones compatible with hearing aids, closed caption 
decoders, open and closed captioning, telecommunications devices for 
deaf persons (TDDs), videotext displays, or other effective means of 
making aurally delivered materials available to individuals with hearing 
impairments;
    (2) Qualified readers, taped texts, audio recordings, brailled 
materials, large print materials, or other effective means of making 
visually delivered materials available to individuals with visual 
impairments;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    Beneficiary means the person or persons intended by Congress to 
receive benefits or services from a recipient of Federal financial 
assistance under JTPA.
    Citizenship: See Discrimination on the ground of citizenship.
    Department means the U.S. Department of Labor (DOL), including its 
agencies and organizational units.
    Director means the Director, Directorate of Civil Rights (DCR), 
Office of the Assistant Secretary for Administration and Management, 
U.S. Department of Labor, or a designee authorized to act for the 
Director.
    Directorate means the Directorate of Civil Rights (DCR), Office of 
the Assistant Secretary for Administration and Management, U.S. 
Department of Labor.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1)(i) The phrase physical or mental impairment means--
    (A) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological, musculoskeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, hemic and lymphatic, skin, and endocrine;
    (B) Any mental or psychological disorder such as mental retardation, 
organic brain syndrome, emotional or mental illness, and specific 
learning disabilities.
    (ii) The phrase physical or mental impairment includes, but is not 
limited to, such contagious and noncontagious diseases and conditions as 
orthopedic, visual, speech and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease (whether symptomatic or asymptomatic), 
tuberculosis, drug addiction, and alcoholism. The term impairment

[[Page 464]]

does not include homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by the recipient as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the recipient as having such an impairment.
    (5) Consistent with amendments to the Rehabilitation Act of 1973 and 
to the JTPA, and with the ADA, this part uses the term disability in 
place of the term handicap. The two terms are intended to have identical 
meanings.
    Discrimination on the ground of citizenship means a denial of 
participation in programs or activities financially assisted in whole or 
in part under JTPA to persons on the basis of their status as citizens 
or nationals of the United States, lawfully admitted permanent resident 
aliens, lawfully admitted refugees and parolees, or other individuals 
authorized by the Attorney General to work in the United States.
    Eligible applicant means an applicant who has been determined 
eligible to participate in one or more titles under JTPA.
    Entity means any corporation, partnership, joint venture, 
unincorporated association, or State or local government, and any 
agency, instrumentality or subdivision of such a government.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock, or other real or 
personal property or interest in such property.
    Federal financial assistance under JTPA means any grant, cooperative 
agreement, loan, contract; any subgrant made with a recipient of a grant 
or subcontract made pursuant to a JTPA contract; or any other 
arrangement by which the Department provides or otherwise makes 
available assistance under JTPA in the form of:
    (1) Funds, including funds made available for the acquisition, 
construction, renovation, restoration or repair of a building or 
facility or any portion thereof;
    (2) Services of Federal personnel; or
    (3) Real or personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration;
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government; or
    (iii) Any other thing of value by way of grant, loan, contract, or 
cooperative agreement (other than a procurement contract or a contract 
of insurance or guaranty).
    Governor means the chief elected official of any State or his or her 
designee.
    Grant applicant means the entity which submits the required 
documentation to the Governor, recipient, or the Department, prior to 
and as a condition of receiving Federal financial assistance under JTPA.
    Guideline means written informational material supplementing an 
agency's regulations and provided to grant applicants and recipients to 
provide program-specific interpretations of their responsibilities under 
the regulations.
    Illegal use of drugs means the use of drugs, the possession or 
distribution of which is unlawful under the Controlled Substances Act. 
Illegal use of drugs does not include the use of a drug taken under 
supervision of a licensed health care professional, or other uses 
authorized by the Controlled Substances Act or other provisions of 
Federal law.
    Individual with a disability means a person who has a disability, as 
defined

[[Page 465]]

in this section. The term impairment does not include homosexuality or 
bisexuality; therefore, the term individual with a disability does not 
include an individual on the basis of homosexuality or bisexuality.
    (1) The term individual with a disability does not include an 
individual on the basis of:
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    (2) The term individual with a disability also does not include an 
individual who is currently engaging in the illegal use of drugs, when a 
recipient acts on the basis of such use. This limitation should not be 
construed to exclude as an individual with a disability an individual 
who:
    (i) Has successfully completed a supervised drug rehabilitation 
program and is no longer engaging in the illegal use of drugs, or has 
otherwise been rehabilitated successfully and is no longer engaging in 
such use;
    (ii) Is participating in a supervised rehabilitation program and is 
no longer engaging in such use; or
    (iii) Is erroneously regarded as engaging in such use, but is not 
engaging in such use, except that it shall not be a violation of the 
nondiscrimination and equal opportunity provisions of JTPA or this part 
for a recipient to adopt or administer reasonable policies or 
procedures, including but not limited to drug testing, designed to 
ensure that an individual described in paragraph (2)(i) or (2)(ii) of 
this definition is no longer engaging in the illegal use of drugs.
    (3) With regard to employment, the term individual with a disability 
does not include any individual who is an alcoholic whose current use of 
alcohol prevents such individual from performing the duties of the job 
in question or whose employment, by reason of such current alcohol 
abuse, would constitute a direct threat to property or the safety of 
others.
    JTPA means the Job Training Partnership Act of 1982, as amended, 
Public Law 97-300, 96 Stat. 1322 (29 U.S.C. 1501 et seq.), including the 
Nontraditional Employment for Women Act of 1991, Public Law 102-235, 105 
Stat. 1806 (29 U.S.C. 1501), and the Job Training Reform Amendments of 
1992, Public Law 102-367, 106 Stat. 1021.
    JTPA-funded program or activity means a program or activity, 
operated by a recipient and funded under JTPA, for the provision of 
services, financial aid, or other benefit to individuals (including but 
not limited to education or training, health, welfare, housing, social 
service, rehabilitation or other services, whether provided through 
employees of the recipient or by others through contract or other 
arrangements with the recipient, and including work opportunities and 
cash, loan or other assistance to individuals), or for the provision of 
facilities for furnishing services, financial aid, or other benefits to 
individuals. It also includes services, financial aid, or other benefits 
provided in facilities constructed with the aid of Federal financial 
assistance under JTPA. It further includes services, financial aid, or 
other benefits provided with the aid of any non-JTPA funds, property, or 
other resources required to be expended or made available for the 
program to meet matching requirements or other conditions which must be 
met in order to receive the Federal financial assistance under JTPA.
    Methods of Administration means the written document and supporting 
documentation developed pursuant to Sec.  34.33.
    National Programs means programs receiving Federal funds under JTPA 
directly from the Department. Such programs include, but are not limited 
to, programs funded under title IV of JTPA, such as the Migrant and 
Seasonal Workers Programs, Native Americans Programs, Job Corps, 
National Activities and such Veterans' Employment programs as are funded 
by the Department. National programs also includes programs funded under 
certain titles of the Nontraditional Employment for Women Act.

[[Page 466]]

    Noncompliance means a failure of a recipient to comply with any of 
the applicable requirements of the nondiscrimination and equal 
opportunity provisions of JTPA or this part.
    Participant means an individual who has been determined to be 
eligible to participate in and who is receiving services (except post-
termination and follow-up services) under a program authorized by JTPA. 
Participation shall be deemed to commence on the first day, following 
determination of eligibility, on which the participant began receiving 
subsidized employment, training, or other services provided under JTPA.
    Parties to a hearing means the Department and the grant applicant(s) 
or recipient(s).
    Prohibited ground means any basis upon which it is illegal to 
discriminate under the nondiscrimination and equal opportunity 
provisions of JTPA or this part, i.e., race, color, religion, sex, 
national origin, age, disability, political affiliation or belief, and, 
for beneficiaries only, citizenship or participation in JTPA.
    Qualified individual with a disability means:
    (1) With respect to employment, an individual with a disability who, 
with or without reasonable accommodation, is capable of performing the 
essential functions of the job in question;
    (2) With respect to services, an individual with a disability who 
meets the essential eligibility requirements for the receipt of such 
services;
    (3) With respect to employment and employment-related training 
programs, an individual with a disability who meets the eligibility 
requirements for participation in JTPA and who, with or without 
reasonable accommodation, is capable of performing the essential 
functions of the job or meets the qualifications of the training 
program, as applicable.
    Recipient means any entity to which Federal financial assistance 
under any title of JTPA is extended, either directly or through the 
Governor or through another recipient (including any successor, 
assignee, or transferee of a recipient), but excluding the ultimate 
beneficiaries of the JTPA-funded program or activity and the Governor. 
Recipient includes, but is not limited to: Job Corps Centers and Center 
operators (excluding federally-operated Job Corps Centers), State 
Employment Security Agencies, State-level agencies that administer JTPA 
funds, SDA grant recipients, Substate grant recipients and service 
providers, as well as National Program recipients.
    Respondent means the grant applicant or recipient against which a 
complaint has been filed pursuant to the nondiscrimination and equal 
opportunity provisions of JTPA or this part.
    SDA grant recipient means the entity that receives JTPA funds for a 
service delivery area (SDA) directly from the Governor.
    Secretary means the Secretary of Labor, U.S. Department of Labor, or 
his or her designee.
    Service provider means the operator of any JTPA-funded program or 
activity that receives funds from or through an SDA grant recipient or a 
Substate grantee.
    Small recipient means a recipient who serves fewer than 15 
beneficiaries, and employs fewer than 15 employees at all times during a 
grant year.
    Solicitor means the Solicitor of Labor, U.S. Department of Labor, or 
his or her designee.
    State means the individual states of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, 
American Samoa, Guam, Wake Island, the Commonwealth of the Northern 
Mariana Islands, the Federated States of Micronesia, the Republic of the 
Marshall Islands, and Palau.
    State Employment Security Agency (SESA) means the State agency 
which, under the State Administrator, contains both the State Employment 
Service agency (State agency) and the State unemployment compensation 
agency.
    State Programs means programs funded in whole or in part under JTPA 
wherein the Governor and/or State receives and disburses the grant to or 
through SDA grant recipients or Substate grantees. Such programs include 
but are not limited to those programs funded in whole or in part under 
titles II or III of JTPA. State programs also

[[Page 467]]

includes State Employment Security Agencies.
    Substate grantee means that agency or organization selected to 
administer programs pursuant to section 312(b) of JTPA. The Substate 
grantee is the entity that receives title III funds for a substate area 
directly from the Governor.
    Terminee means a participant terminating during the applicable 
program year.



Sec.  34.3  Discrimination prohibited.

    No individual in the United States shall, on the ground of race, 
color, religion, sex, national origin, age, disability, political 
affiliation or belief, and for beneficiaries only, citizenship or 
participation in JTPA, be excluded from participation in, denied the 
benefits of, subjected to discrimination under, or denied employment in 
the administration of or in connection with any JTPA-funded program or 
activity.



Sec.  34.4  Specific discriminatory actions prohibited on the ground of race, 
color, religion, sex, national origin, age, political affiliation or belief, 
citizenship, or participation in JTPA.

    (a) For the purposes of this section, prohibited ground means race, 
color, religion, sex, national origin, age, political affiliation or 
belief, and for beneficiaries only, citizenship or participation in 
JTPA. A recipient shall not, directly or through contractual, licensing, 
or other arrangements, on a prohibited ground:
    (1) Deny an individual any service, financial aid, or benefit 
provided under the JTPA-funded program or activity;
    (2) Provide any service, financial aid, or benefit to an individual 
which is different, or is provided in a different manner, from that 
provided to others under the JTPA-funded program or activity;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to his or her receipt of any service, financial aid, 
or benefit under the JTPA-funded program or activity;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or benefit under the JTPA-funded program or activity;
    (5) Treat an individual differently from others in determining 
whether he or she satisfies any admission, enrollment, eligibility, 
membership, or other requirement or condition for any service, financial 
aid, function or benefit provided under the JTPA-funded program or 
activity;
    (6) Deny or limit an individual with respect to any opportunity to 
participate in the JTPA-funded program or activity, or afford him or her 
an opportunity to do so which is different from that afforded others 
under the JTPA-funded program or activity;
    (7) Deny an individual the opportunity to participate as a member of 
a planning or advisory body which is an integral part of the JTPA-funded 
program or activity;
    (8) Aid or perpetuate discrimination by providing significant 
assistance to an agency, organization, or person that discriminates on a 
prohibited ground in providing any service, financial aid, or benefit to 
applicants or participants in the JTPA-funded program or activity;
    (9) Refuse to accommodate a person's religious practices or beliefs, 
unless to do so would result in undue hardship; or
    (10) Otherwise limit on a prohibited ground an individual in 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any aid, benefit, service, or training.
    (b) In determining the types of services, financial aid or other 
benefits or facilities that will be provided under any JTPA-funded 
program or activity, or the class of individuals to whom or the 
situations in which such services, financial aid, or other benefits or 
facilities will be provided, a recipient shall not use, directly or 
through contractual, licensing, or other arrangements, standards, 
procedures or criteria that have the purpose or effect of subjecting 
individuals to discrimination on a prohibited ground or that have the 
purpose or effect of defeating or substantially impairing, on a 
prohibited ground, accomplishment of the objectives of the JTPA-funded 
program or activity. This paragraph applies to the administration of 
JTPA- funded

[[Page 468]]

programs or activities providing services, financial aid, benefits or 
facilities in any manner, including, but not limited to, recruitment, 
registration, counseling, testing, guidance, selection, placement, 
appointment, training, referral, promotion and retention.
    (c) In determining the site or location of facilities, a grant 
applicant or recipient may not make selections with the purpose or 
effect of excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination on a prohibited ground, or with the 
purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the program, or the 
nondiscrimination and equal opportunity provisions of JTPA or this part.
    (d) The exclusion of an individual from programs or activities 
limited by Federal statute or Executive Order to a certain class or 
classes of individuals of which the individual in question is not a 
member is not prohibited by this part.



Sec.  34.5  Specific discriminatory actions prohibited 
on the ground of disability.

    (a) In providing any aid, benefit, service or training under a JTPA-
funded program or activity, a recipient shall not, directly or through 
contractual, licensing, or other arrangements, on the ground of 
disability:
    (1) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, service or training;
    (2) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, service or training 
that is not equal to that afforded others;
    (3) Provide a qualified individual with a disability with an aid, 
benefit, service or training that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (4) Provide different or separate aid, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities unless such action is necessary to provide qualified 
individuals with disabilities with aid, benefits, services or training 
that are as effective as those provided to others;
    (5) Aid or perpetuate discrimination against a qualified individual 
with a disability by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, service or training to participants;
    (6) Deny a qualified individual with a disability the opportunity to 
participate as a member of planning or advisory boards;
    (7) Otherwise limit a qualified individual with a disability in 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any aid, benefit, service or training.
    (b) A recipient may not deny a qualified individual with a 
disability the opportunity to participate in JTPA-funded programs or 
activities despite the existence of permissibly separate or different 
programs or activities.
    (c) A recipient shall administer JTPA-funded programs and activities 
in the most integrated setting appropriate to the needs of qualified 
individuals with disabilities.
    (d) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or administrative methods:
    (1) That have the effect of subjecting qualified individuals with 
disabilities to discrimination on the ground of disability;
    (2) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the JTPA-funded program or 
activity with respect to individuals with disabilities; or
    (3) That perpetuate the discrimination of another entity if both 
entities are subject to common administrative control or are agencies of 
the same state.
    (e) In determining the site or location of facilities, a grant 
applicant or recipient may not make selections with the purpose or 
effect of excluding individuals with disabilities from, denying them the 
benefits of, or otherwise subjecting them to discrimination under any 
JTPA-funded program or activity, or with the purpose or effect of

[[Page 469]]

defeating or substantially impairing the accomplishment of the 
objectives of the JTPA-funded program or activity or this part with 
respect to individuals with disabilities.
    (f) As used in this section, references to the aid, benefit, service 
or training provided under a JTPA-funded program or activity include any 
aid, benefit, service or training provided in or through a facility that 
has been constructed, expanded, altered, leased, rented, or otherwise 
acquired, in whole or in part, with Federal financial assistance under 
JTPA.
    (g) The exclusion of an individual without a disability from the 
benefits of a program limited by Federal statute or Executive Order to 
individuals with disabilities or the exclusion of a specific class of 
individuals with disabilities from a program limited by Federal statute 
or Executive Order to a different class of individuals with disabilities 
is not prohibited by this part.
    (h) This part does not require a recipient to provide to individuals 
with disabilities: personal devices, such as wheelchairs; individually 
prescribed devices, such as prescription eyeglasses or hearing aids; 
readers for personal use or study; or services of a personal nature 
including assistance in eating, toileting, or dressing.



Sec.  34.6  Communications with individuals with disabilities.

    (a) Recipients shall take appropriate steps to ensure that 
communications with beneficiaries, applicants, eligible applicants, 
participants, applicants for employment, employees and members of the 
public who are individuals with disabilities, are as effective as 
communications with others.
    (b) A recipient shall furnish appropriate auxiliary aids or services 
where necessary to afford individuals with disabilities an equal 
opportunity to participate in, and enjoy the benefits of, the JTPA-
funded program or activity. In determining what type of auxiliary aid or 
service is necessary, such recipient shall give primary consideration to 
the requests of the individual with a disability.
    (c) Where a recipient communicates with beneficiaries, applicants, 
eligible applicants, participants, applicants for employment and 
employees by telephone, telecommunications devices for individuals with 
hearing impairments (TDDs), or equally effective communications systems 
shall be used.
    (d) A recipient shall ensure that interested persons, including 
persons with visual or hearing impairments, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (e) A recipient 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.
    (f) This section does not require a recipient to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a service, program, or activity or in undue financial and 
administrative burdens.
    (1) In those circumstances where a recipient believes that the 
proposed action would fundamentally alter the JTPA-funded program, 
activity, or service, or would result in undue financial and 
administrative burdens, such recipient has the burden of proving that 
compliance with this section would result in such alteration or burdens.
    (2) The decision that compliance would result in such alteration or 
burdens must be made by the recipient after considering all resources 
available for use in the funding and operation of the JTPA-funded 
program, activity, or service and must be accompanied by a written 
statement of the reasons for reaching that conclusion.
    (3) If an action required to comply with this section would result 
in such an alteration or such burdens, the recipient shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
individuals with disabilities receive the benefits or services provided 
by the recipient.



Sec.  34.7  Employment practices.

    (a) As used in this part, the term ``employment practices'' 
includes, but

[[Page 470]]

is not limited to, recruitment or recruitment advertising, selection, 
placement, layoff or termination, upgrading, demotion or transfer, 
training, participation in upward mobility programs, rates of pay or 
other forms of compensation, and use of facilities and other terms and 
conditions of employment.
    (b) Discrimination on the ground of race, color, religion, sex, 
national origin, age, disability, or political affiliation or belief is 
prohibited in employment practices in the administration of, or in 
connection with, any JTPA-funded program or activity.
    (c) Employee selection procedures. In implementing this section, a 
recipient shall comply with the Uniform Guidelines on Employee Selection 
Procedures, 41 CFR part 60-3.
    (d) Standards for employment-related investigations and reviews. In 
any investigation or compliance review, the Director shall consider EEOC 
regulations, guidelines and appropriate case law in determining whether 
a recipient has engaged in an unlawful employment practice.
    (e) As provided in Sec.  34.1(c)(2) of this part, this rule does not 
affect in any way the obligation of recipients to comply with subparts B 
and C and appendix A of 29 CFR part 32, implementing the requirements of 
section 504 pertaining to employment practices and employment-related 
training, program accessibility, and accommodations. Therefore, this 
section should not be understood to constitute an exhaustive list of 
employment-related nondiscrimination and equal opportunity obligations 
on the ground of disability.
    (f) Recipients that are also employers covered by titles I and II of 
the ADA should be aware of obligations imposed pursuant to those titles. 
See 29 CFR part 1630 and 28 CFR part 35.
    (g) This rule does not preempt consistent State and local 
requirements.



Sec.  34.8  Intimidation and retaliation prohibited.

    A recipient shall not discharge, intimidate, retaliate, threaten, 
coerce or discriminate against any person because such person has: filed 
a complaint; opposed a prohibited practice; furnished information; 
assisted or participated in any manner in an investigation, review, 
hearing or any other activity related to administration of, or exercise 
of authority under, or privilege secured by, the nondiscrimination and 
equal opportunity provisions of JTPA or this part; or otherwise 
exercised any rights and privileges under the nondiscrimination and 
equal opportunity provisions of JTPA or this part. The sanctions and 
penalties contained in section 167 of JTPA or this part may be imposed 
against any recipient that engages in any such proscribed activity or 
fails to take appropriate steps to prevent such activity.



Sec.  34.9  Designation of responsible office; rulings and interpretations.

    (a) The Directorate of Civil Rights (DCR), in the Office of the 
Assistant Secretary for Administration and Management, is responsible 
for administering and enforcing the nondiscrimination and equal 
opportunity provisions of JTPA and this part and for developing and 
issuing policies, standards, guidelines and procedures for effecting 
compliance.
    (b) The Director shall make any rulings under or interpretations of 
the nondiscrimination and equal opportunity provisions of JTPA or this 
part.



Sec.  34.10  [Reserved]



Sec.  34.11  Effect of other obligations or limitations.

    (a) Effect of State or local law or other requirements. The 
obligation to comply with the nondiscrimination and equal opportunity 
provisions of JTPA or this part shall not be obviated or alleviated by 
any State or local law or other requirement that, on a prohibited 
ground, prohibits or limits an individual's eligibility to receive 
services, compensation or benefits, to participate in any JTPA-funded 
program or activity, or to be employed by any recipient, or to practice 
any occupation or profession.
    (b) Effect of private organization rules. The obligation to comply 
with the nondiscrimination and equal opportunity provisions of JTPA and 
this part shall not be obviated or alleviated by any

[[Page 471]]

rule or regulation of any private organization, club, league or 
association that, on a prohibited ground, prohibits or limits an 
individual's eligibility to participate in any JTPA-funded program or 
activity to which this part applies.
    (c) Effect of the availability of employment opportunities. The 
availability of future employment opportunities, or lack thereof, in any 
occupation or profession for qualified individuals with disabilities or 
persons of a certain race, color, religion, sex, national origin, age, 
political affiliation or belief, or citizenship shall not be considered 
in recruiting, selecting or placing individuals in programs or 
activities.



Sec.  34.12  Delegation and coordination.

    (a) The Secretary may from time to time assign to officials of other 
departments or agencies of the Government (with the consent of such 
department or agency) responsibilities in connection with the 
effectuation of the nondiscrimination and equal opportunity provisions 
of JTPA and this part (other than responsibility for final decisions 
pursuant to Sec.  34.42), including the achievement of effective 
coordination and maximum uniformity within the Department and within the 
executive branch of the Government in the application of the 
nondiscrimination and equal opportunity provisions of JTPA or this part 
to similar programs and similar situations.
    (b) Any action taken, determination made, or requirement imposed by 
an official of another department or agency acting pursuant to an 
assignment of responsibility under this subsection shall have the same 
effect as though such action had been taken by the Director.
    (c) Whenever a compliance review or complaint investigation under 
this part reveals possible violation of Executive Order 11246, as 
amended, section 503 of the Rehabilitation Act of 1973, as amended, the 
affirmative action provisions of the Vietnam Era Veterans' Readjustment 
Assistance Act of 1974, as amended (38 U.S.C. 4212), the Equal Pay Act 
of 1963, as amended, title VII of the Civil Rights Act of 1964, as 
amended, the Age Discrimination in Employment Act of 1967, as amended, 
the Americans With Disabilities Act, or any other Federal civil rights 
law, that is not also a violation of the nondiscrimination and equal 
opportunity provisions of JTPA or this part, the Director shall attempt 
to notify the appropriate agency and provide it with all relevant 
documents and information.



 Subpart B_Recordkeeping and Other Affirmative Obligations of Recipients



Sec.  34.20  Assurance required; duration of obligation; covenants.

    (a) Assurance. (1) Each application for Federal financial assistance 
under JTPA, as defined in Sec.  34.2, shall include an assurance, in the 
following form, with respect to the operation of the JTPA-funded program 
or activity and all agreements or arrangements to carry out the JTPA-
funded program or activity:

As a condition to the award of financial assistance under JTPA from the 
Department of Labor, the grant applicant assures, with respect to 
operation of the JTPA-funded program or activity and all agreements or 
arrangements to carry out the JTPA-funded program or activity, that it 
will comply fully with the nondiscrimination and equal opportunity 
provisions of the Job Training Partnership Act of 1982, as amended 
(JTPA), including the Nontraditional Employment for Women Act of 1991; 
title VI of the Civil Rights Act of 1964, as amended; section 504 of the 
Rehabilitation Act of 1973, as amended; the Age Discrimination Act of 
1975, as amended; title IX of the Education Amendments of 1972, as 
amended; and with all applicable requirements imposed by or pursuant to 
regulations implementing those laws, including but not limited to 29 CFR 
part 34. The United States has the right to seek judicial enforcement of 
this assurance.

    (2) The assurance shall be deemed incorporated by operation of law 
in the grant, cooperative agreement, contract or other arrangement 
whereby Federal financial assistance under JTPA is made available, 
whether or not it is physically incorporated in such document and 
whether or not there is a written agreement between the Department and 
the recipient, between the Department and the Governor, between the 
Governor and the recipient, or between recipients. The assurance may 
also be incorporated by reference in

[[Page 472]]

such grants, cooperative agreements, contracts or other arrangements.
    (b) Continuing State programs. Each application by a State or a 
State agency to carry out a continuing JTPA-funded program or activity 
shall, as a condition to its approval and the extension of any Federal 
financial assistance under JTPA pursuant to the application, provide a 
statement that the JTPA-funded program or activity is (or, in the case 
of a new JTPA-funded program or activity, will be) conducted in 
compliance with the nondiscrimination and equal opportunity provisions 
of JTPA and this part. The State shall certify that it has developed and 
maintains a Methods of Administration pursuant to Sec.  34.33.
    (c) Duration and scope of obligation. (1) Where the Federal 
financial assistance under JTPA is to provide or is in the form of 
personal property or real property or interest therein or structures 
thereon, the assurance shall obligate the recipient, or (in the case of 
a subsequent transfer) the transferee, for the period during which the 
property is used for a purpose for which Federal financial assistance 
under JTPA is extended, or for as long as the recipient retains 
ownership or possession of the property, whichever is longer.
    (2) In all other cases, the assurance shall obligate the recipient 
for the period during which Federal financial assistance under JTPA is 
extended.
    (d) Covenants. (1) Where Federal financial assistance under JTPA is 
provided in the form of a transfer of real property, structures, or 
improvements thereon, or interests therein, the instrument effecting or 
recording the transfer shall contain a covenant assuring 
nondiscrimination and equal opportunity for the period during which the 
real property is used for a purpose for which the Federal financial 
assistance under JTPA is extended.
    (2) Where no Federal transfer of real property or interest therein 
from the Federal Government is involved, but real property or an 
interest therein is acquired or improved under a program of Federal 
financial assistance under JTPA, the recipient shall include such 
covenant described in paragraph (d)(1) of this section in the instrument 
effecting or recording any subsequent transfer of such property.
    (3) When the property is obtained from the Federal Government, such 
covenant described in paragraph (d)(1) of this section may also include 
a condition coupled with a right of reverter to the Department in the 
event of a breach of the covenant.



Sec.  34.21  Equitable services.

    Recipients shall make efforts to provide equitable services among 
substantial segments of the population eligible for participation in 
JTPA. Such efforts shall include but not be limited to outreach efforts 
to broaden the composition of the pool of those considered for 
participation, to include members of both sexes, the various race/
ethnicity and age groups, and individuals with disabilities.



Sec.  34.22  Designation of Equal Opportunity Officer.

    (a) A recipient, other than a small recipient or service provider as 
defined in Sec.  34.2, shall designate an Equal Opportunity Officer to 
coordinate its responsibilities under this part. Such responsibilities 
include, but are not limited to, serving as the recipient's liaison with 
the Directorate and overseeing the development and implementation of the 
Methods of Administration pursuant to Sec.  34.33. The Equal Opportunity 
Officer shall report on equal opportunity matters directly to the State 
JTPA Director, Governor's JTPA Liaison, Job Corps Center Director, SESA 
Administrator, or chief executive officer of the SDA or substate grant 
recipient, as applicable. The Director may require the Equal Opportunity 
Officer and his or her staff to undergo training, the expenses of which 
shall be the responsibility of the recipient. The recipient shall make 
public the name, title of position, address and telephone number of the 
Equal Opportunity Officer.
    (b) Recipients shall assign sufficient staff and resources to the 
Equal Opportunity Officer to ensure compliance with the 
nondiscrimination and equal opportunity provisions of JTPA and this 
part.

[[Page 473]]

    (c) Small recipients shall designate an individual responsible for 
the adoption and publication of complaint procedures and the processing 
of complaints pursuant to Sec.  34.42.
    (d) Service providers as defined by Sec.  34.2 shall not be required 
to designate an Equal Opportunity Officer. The responsibility for 
ensuring service provider compliance with the nondiscrimination and 
equal opportunity provisions of JTPA and this part shall rest with the 
Governor, SDA grant recipient or Substate grantee, as provided in the 
State's Methods of Administration.



Sec.  34.23  Dissemination of policy.

    (a) Initial and Continuing Notice. (l) A recipient shall provide 
initial and continuing notice that it does not discriminate on any 
prohibited ground, to: Applicants, eligible applicants, participants, 
applicants for employment, employees, and members of the public, 
including those with impaired vision or hearing, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient.
    (2) The notice requirement imposed pursuant to paragraph (a)(1) of 
this section requires, at a minimum, that the notice specified in 
paragraph (a)(5) of this section be: posted prominently, in reasonable 
numbers and places; disseminated in internal memoranda and other written 
communications; included in handbooks or manuals; and made available to 
each participant and made a part of the participant's file. The required 
notice to the public applicable to generally-distributed publications is 
contained in paragraph (b) of this section.
    (3) The recipient shall provide that the initial and continuing 
notice required by paragraph (a) of this section be provided in 
appropriate formats to individuals with visual impairments. Where notice 
has been given in an alternate format to a participant with a visual 
impairment, a record that such notice has been given shall be made a 
part of the participant's file.
    (4) The notice required by paragraph (a) of this section must be 
provided within 90 days of the effective date of this part or of the 
date this part first applies to the recipient, whichever comes later.
    (5) The notice required by paragraph (a) of this section shall 
contain the following prescribed language:

                      Equal Opportunity Is the Law

    This recipient is prohibited from discriminating on the ground of 
race, color, religion, sex, national origin, age, disability, political 
affiliation or belief, and for beneficiaries only, citizenship or 
participation in programs funded under the Job Training Partnership Act, 
as amended (JTPA), in admission or access to, opportunity or treatment 
in, or employment in the administration of or in connection with, any 
JTPA-funded program or activity. If you think that you have been 
subjected to discrimination under a JTPA-funded program or activity, you 
may file a complaint within 180 days from the date of the alleged 
violation with the recipient's Equal Opportunity Officer (or the person 
designated for this purpose), or you may file a complaint directly with 
the Director, Directorate of Civil Rights (DCR), U.S. Department of 
Labor, 200 Constitution Avenue NW., room N-4123, Washington, DC 20210. 
If you elect to file your complaint with the recipient, you must wait 
until the recipient issues a decision or until 60 days have passed, 
whichever is sooner, before filing with DCR (see address above). If the 
recipient has not provided you with a written decision within 60 days of 
the filing of the complaint, you need not wait for a decision to be 
issued, but may file a complaint with DCR within 30 days of the 
expiration of the 60-day period. If you are dissatisfied with the 
recipient's resolution of your complaint, you may file a complaint with 
DCR. Such complaint must be filed within 30 days of the date you 
received notice of the recipient's proposed resolution.

    (6) The Governor, the SDA grant recipient or the Substate grantee, 
as determined by the Governor in that State's Methods of Administration, 
shall be responsible for meeting the notice requirement of paragraph (a) 
of this section with respect to its service providers.
    (7) Recipient's responsibility to provide notice. Whenever a 
recipient passes on Federal financial assistance under JTPA to another 
recipient, the recipient passing on such assistance shall provide the 
recipient receiving the assistance with the notice prescribed in 
paragraph (a)(5) of this section.

[[Page 474]]

    (b) Publications. (1) In recruitment brochures and other materials 
which are ordinarily distributed to the public to describe programs 
funded under JTPA or the requirements for participation by recipients 
and participants, recipients shall indicate that the JTPA-funded program 
or activity in question is an ``equal opportunity employer/program'' and 
that ``auxiliary aids and services are available upon request to 
individuals with disabilities.'' Where such materials indicate that the 
recipient may be reached by telephone, the materials shall state the 
telephone number of the TDD or relay service used by the recipient, as 
required by Sec.  34.6.
    (2) Recipients required by law or regulation to publish or broadcast 
program information in the news media shall ensure that such 
publications and broadcasts state that the JTPA-funded program or 
activity in question is an equal opportunity employer/program (or 
otherwise indicate that discrimination in the JTPA-funded program or 
activity is prohibited by Federal law), and indicate that auxiliary aids 
and services are available upon request to individuals with 
disabilities.
    (3) A recipient shall not use or distribute a publication of the 
type described in paragraph (b) of this section which suggests, by text 
or illustration, that such recipient treats beneficiaries, applicants, 
participants, employees or applicants for employment differently on any 
prohibited ground specified in Sec.  34.1(a), except as such treatment 
is otherwise permitted under Federal law or this part.
    (c) Services or information in a language other than English. A 
significant number or proportion of the population eligible to be served 
or likely to be directly affected by a JTPA-funded program or activity 
may need service or information in a language other than English in 
order that they be effectively informed of or able to participate in the 
JTPA-funded program or activity. In such circumstances, the recipient 
shall take reasonable steps, considering the scope of the program and 
the size and concentration of such population, to provide to such 
persons, in appropriate languages, the information needed; the initial 
and continuing notice required pursuant to paragraph (a) of this 
section; and such written materials as are distributed pursuant to 
paragraph (b) of this section.
    (d) Orientation. The recipient shall, during each presentation to 
orient new participants and/or new employees to its JTPA-funded program 
or activity, include a discussion of participants' and/or employees' 
rights under the nondiscrimination and equal opportunity provisions of 
JTPA and this part, including the right to file a complaint of 
discrimination with the recipient or the Director.
    (e) As provided in Sec.  34.6, the recipient shall take appropriate 
steps to ensure that communications with individuals with disabilities 
are as effective as communications with others.



Sec.  34.24  Data and information collection; confidentiality.

    (a) Data and information collection. The Director shall not require 
submission of data that can be obtained from existing reporting 
requirements or sources, including those of other agencies, if the 
source is known and available to the Director.
    (1) Each recipient shall collect such data and maintain such 
records, in accordance with procedures prescribed by the Director, as 
the Director finds necessary to determine whether the recipient has 
complied or is complying with the nondiscrimination and equal 
opportunity provisions of JTPA or this part.
    (2) Such records shall include, but are not limited to, records on 
applicants, eligible applicants, participants, terminees, employees and 
applicants for employment. Each recipient shall record the race/
ethnicity, sex, age, and where known, disability status, of every 
applicant, eligible applicant, participant, terminee, applicant for 
employment and employee. Such information shall be stored in such a 
manner as to ensure confidentiality and shall be used only for the 
purposes of recordkeeping and reporting; determining eligibility, where 
appropriate, for JTPA-funded programs or activities; determining the 
extent to which the recipient is operating its JTPA-funded program or 
activity in a nondiscriminatory manner; or other use authorized by the 
nondiscrimination and

[[Page 475]]

equal opportunity provisions of JTPA or this part.
    (3) In addition to the information which shall be collected, 
maintained, and upon request, submitted to the Directorate pursuant to 
paragraphs (a)(1) and (a)(2) of this section:
    (i) Each grant applicant and recipient shall promptly notify the 
Director of any administrative enforcement actions or lawsuits filed 
against it alleging discrimination on the ground of race, color, 
religion, sex, national origin, age, disability, political affiliation 
or belief, and for beneficiaries only, citizenship or participation in 
JTPA;
    (ii) Each grant applicant (as part of its application) and recipient 
(as part of a compliance review conducted pursuant to Sec.  34.40 (b) or 
(c), or monitoring activity carried out pursuant to Sec.  34.34) shall 
provide: the name of any other Federal agency that conducted a civil 
rights compliance review or complaint investigation during the two 
preceding years in which the grant applicant or recipient was found to 
be in noncompliance; and shall identify the parties to, the forum of, 
and case numbers pertaining to, any administrative enforcement actions 
or lawsuits filed against it during the two years prior to its 
application (or, with respect to recipients, its renewal application) 
which allege discrimination on the ground of race, color, religion, sex, 
national origin, age, disability, political affiliation or belief, 
citizenship or participation in JTPA;
    (iii) Each recipient shall maintain a log of complaints filed with 
it that allege discrimination on the ground of race, color, religion, 
sex, national origin, age, disability, political affiliation or belief, 
citizenship or participation in JTPA. The log shall include: the name 
and address of the complainant; the ground of the complaint, i.e., race, 
color, religion, sex, national origin, age, disability, political 
affiliation or belief, citizenship or participation in JTPA; a 
description of the complaint; the date the complaint was filed; the 
disposition and date of disposition of the complaint; and other 
pertinent information.
    (4) At the discretion of the Director, grant applicants and 
recipients may be required to provide such information and data as are 
necessary to investigate complaints and conduct compliance reviews on 
grounds prohibited under the nondiscrimination and equal opportunity 
provisions of JTPA and this part, other than race/ethnicity, sex, age, 
and disability.
    (5) At the discretion of the Director, recipients may be required to 
provide such particularized information and/or to submit such periodic 
reports as the Director deems necessary to determine compliance with the 
nondiscrimination and equal opportunity provisions of JTPA or this part.
    (6) At the discretion of the Director, grant applicants may be 
required to submit such particularized information as is necessary to 
determine whether or not the grant applicant, if funded, would be able 
to comply with the nondiscrimination and equal opportunity provisions of 
JTPA or this part.
    (7) Service providers. A service provider's responsibility for 
collecting and maintaining the information required pursuant to this 
section may be assumed by the Governor, SDA grant recipient or Substate 
grantee, as provided in the State's Methods of Administration.
    (b) Access to sources of information. (1) Each grant applicant and 
recipient shall permit access by the Director during normal business 
hours to its premises and to its employees and participants, to the 
extent that such individuals are on the premises during the course of 
the investigation, for the purpose of conducting complaint 
investigations, compliance reviews, monitoring activities associated 
with a State's development and implementation of a Methods of 
Administration, and inspecting and copying such books, records, accounts 
and other materials as may be pertinent to ascertain compliance with and 
ensure enforcement of the nondiscrimination and equal opportunity 
provisions of JTPA or this part.
    (2) Asserted considerations of privacy or confidentiality shall not 
be a basis for withholding information from the Directorate and shall 
not bar the Directorate from evaluating or seeking to enforce compliance 
with the nondiscrimination and equal opportunity

[[Page 476]]

provisions of JTPA and this part. Information obtained pursuant to the 
requirements of this part shall be used only in connection with 
compliance and enforcement activities pertinent to the nondiscrimination 
and equal opportunity provisions of JTPA and this part. Whenever any 
information required of a grant applicant or recipient is in the 
exclusive possession of another agency or institution which, or person 
who, fails or refuses to furnish such information, the grant applicant 
or recipient shall provide certification to the Directorate of such 
refusal and the efforts it has made to obtain the information.
    (c) Record retention requirements. (1) Each recipient shall maintain 
for a period of not less than three years from the close of the 
applicable program year, applicant, eligible applicant, participant, 
terminee, employee and applicant for employment records; and such other 
records as are required under this part or by the Director. (2) Records 
regarding complaints and actions taken thereunder shall be maintained 
for a period of not less than three years from the date of resolution of 
the complaint.
    (d) Confidentiality. The identity of any person who furnishes 
information relating to, or assisting in, an investigation or a 
compliance review shall be kept confidential to the extent possible, 
consistent with a fair determination of the issues. A person whose 
identity it is necessary to disclose shall be protected from retaliation 
(see Sec.  34.8).
    (e) Where designation of persons by race or ethnicity is required, 
the guidelines of the Office of Management and Budget shall be used.



Subpart C_Governor's Responsibilities To Implement the Nondiscrimination 
               and Equal Opportunity Requirements of JTPA



Sec.  34.30  Application.

    This subpart applies to State Programs as defined in Sec.  34.2. 
However, the provisions of Sec.  34.32 (b) and (c) do not apply to State 
Employment Security Agencies (SESAs), because the Governor's liability 
for any noncompliance on the part of a SESA cannot be waived.



Sec.  34.31  Recordkeeping.

    The Governor shall ensure that recipients collect and maintain 
records in a manner consistent with the provisions of Sec.  34.24 and 
any procedures prescribed by the Director pursuant to Sec.  34.24(a)(1). 
The Governor shall further ensure that recipients are able to provide 
data and reports in the manner prescribed by the Director.



Sec.  34.32  Oversight and liability.

    (a) The Governor shall be responsible for oversight of all JTPA-
funded State programs. This responsibility includes ensuring compliance 
with the nondiscrimination and equal opportunity provisions of JTPA and 
this part, and negotiating with the recipient to secure voluntary 
compliance when noncompliance is found under Sec.  34.45.
    (b) The Governor and the recipient shall be jointly and severally 
liable for all violations of the nondiscrimination and equal opportunity 
provisions of JTPA and this part by the recipient, unless the Governor 
has:
    (1) Established and adhered to a Methods of Administration, pursuant 
to Sec.  34.33, designed to give reasonable guarantee of the recipient's 
compliance with such provisions;
    (2) Entered into a written contract with the recipient which clearly 
establishes the recipient's obligations regarding nondiscrimination and 
equal opportunity;
    (3) Acted with due diligence to monitor the recipient's compliance 
with these provisions; and
    (4) Taken prompt and appropriate corrective action to effect 
compliance.
    (c) If the Director determines that the Governor has demonstrated 
substantial compliance with the requirements of paragraph (b) of this 
section, he or she may recommend to the Secretary that the imposition of 
sanctions against the Governor be waived and that sanctions be imposed 
only against the noncomplying recipient.



Sec.  34.33  Methods of Administration.

    (a)(1) Each Governor shall establish and adhere to a Methods of 
Administration for State programs as defined

[[Page 477]]

in Sec.  34.2. In those States in which one agency contains both SESA 
and JTPA programs, the Governor may develop a combined Methods of 
Administration.
    (2) Each Methods of Administration shall be designed to give 
reasonable guarantee that all recipients will comply and are complying 
with the nondiscrimination and equal opportunity provisions of JTPA and 
this part.
    (b) The Methods of Administration shall be:
    (1) In writing;
    (2) Updated periodically as required by the Director; and
    (3) Signed by the Governor.
    (c) The Methods of Administration shall, at a minimum:
    (1) Describe how the requirements of Sec. Sec.  34.20, 34.21, 34.22, 
34.23, 34.24, 34.31, and 34.42 have been satisfied; and
    (2) Include the following additional elements:
    (i) A system for periodically monitoring the compliance of 
recipients with this part, including a determination as to whether the 
recipient is conducting its JTPA-funded program or activity in a 
nondiscriminatory way;
    (ii) A system for reviewing the nondiscrimination and equal 
opportunity provisions of job training plans, contracts, assurances, and 
other similar agreements;
    (iii) Procedures for ensuring that recipients provide accessibility 
to individuals with disabilities;
    (iv) A system of policy communication and training to ensure that 
members of the recipients' staffs who have been assigned 
responsibilities pursuant to the nondiscrimination and equal opportunity 
provisions of JTPA or this part are aware of and can effectively carry 
out these responsibilities;
    (v) Procedures for obtaining prompt corrective action or, as 
necessary, applying sanctions when noncompliance is found; and
    (vi) Supporting documentation to show that the commitments made in 
the Methods of Administration have been and/or are being carried out. 
Supporting documentation includes, but is not limited to: policy and 
procedural issuances concerning required elements of the Methods of 
Administration; copies of monitoring instruments and instructions; 
evidence of the extent to which nondiscrimination and equal opportunity 
policies have been developed and communicated pursuant to this part; 
information reflecting the extent to which Equal Opportunity training, 
including training called for by Sec.  34.22, is planned and/or has been 
carried out; as applicable, reports of monitoring reviews and reports of 
follow-up actions taken thereunder where violations have been found, 
including, where appropriate, sanctions; and copies of any notification 
made pursuant to Sec.  34.23.
    (d) The Governor shall, within 180 days of the effective date of 
this part:
    (1) Develop and implement Methods of Administration consistent with 
the requirements of this part, and
    (2) Submit a copy of the Methods of Administration to the Director.



Sec.  34.34  Monitoring.

    (a) The Director may periodically review the adequacy of the Methods 
of Administration established by a Governor, as well as the adequacy of 
the Governor's performance under that Methods of Administration, to 
determine compliance with the requirements of Sec.  34.33. The Director 
may review the Methods of Administration during a compliance review 
under Sec.  34.40, or at another time.
    (b) Nothing in this subpart shall limit or preclude the Director 
from monitoring directly any JTPA recipient or from investigating any 
matter necessary to determine a recipient's compliance with the 
nondiscrimination and equal opportunity provisions of JTPA or this part.
    (c) The procedures contained in subpart D of this part shall apply 
to reviews or investigations undertaken pursuant to paragraphs (a) and 
(b) of this section.



                     Subpart D_Compliance Procedures



Sec.  34.40  Compliance reviews.

    (a) The Director may from time to time conduct pre- and post-
approval compliance reviews of grant applicants for and recipients of 
Federal financial assistance under JTPA to determine compliance with the 
nondiscrimination and equal opportunity provisions of JTPA and this 
part. Techniques used in

[[Page 478]]

such reviews may include desk reviews, on-site reviews, and off-site 
analyses.
    (b) Pre-approval reviews. (1) As appropriate and necessary to ensure 
compliance with the nondiscrimination and equal opportunity provisions 
of JTPA or this part, the Director may review any application, or class 
of applications, for Federal financial assistance under JTPA prior to 
and as a condition of their approval. The basis for such review shall be 
the assurance specified in Sec.  34.20, information and reports 
submitted by the grant applicant pursuant to this part or guidelines 
published by the Director, and any relevant records on file with the 
Department.
    (2) Where the Director determines that the grant applicant for 
Federal financial assistance under JTPA, if funded, would not comply 
with the nondiscrimination and equal opportunity requirements of JTPA or 
this part, the Director shall issue a Letter of Findings. Such Letter of 
Findings shall advise the grant applicant, in writing, of:
    (i) The preliminary findings of the review;
    (ii) The proposed remedial or corrective action pursuant to Sec.  
34.44 and the time within which the remedial or corrective action should 
be completed;
    (iii) Whether it will be necessary for the grant applicant to enter 
into a written Conciliation Agreement as described in Sec.  34.45; and
    (iv) The opportunity to engage in voluntary compliance negotiations.
    (3) If a grant applicant has agreed to certain remedial or 
corrective actions in order to receive Federal financial assistance 
under JTPA, the Department shall ensure that the remedial or corrective 
actions have been taken or that a Conciliation Agreement has been 
entered into, prior to approving the award of further assistance under 
JTPA. If a grant applicant refuses or fails to take remedial or 
corrective actions or to enter into a Conciliation Agreement, as 
applicable, the Director shall follow the procedures outlined in Sec.  
34.46.
    (4) The Director shall notify, in a timely manner, the departmental 
granting agency of the findings of the pre-approval compliance review.
    (c) Post-approval reviews. (1) The Director may initiate a post-
approval review of any recipient to determine compliance with the 
nondiscrimination and equal opportunity provisions of JTPA and this 
part. The initiation of a review may be based on, but need not be 
limited to, the following: The results of routine program monitoring, 
the nature of or incidence of complaints, the date of the last review, 
and Congressional or community concerns.
    (2) Such review shall be initiated by a Notification Letter, 
advising the recipient of:
    (i) The practices to be reviewed;
    (ii) The programs to be reviewed;
    (iii) The data to be submitted by the recipient within 30 days of 
the receipt of the Notification Letter; and
    (iv) The opportunity, at any time prior to receipt of the Final 
Determination described in Sec.  34.46, to make a documentary or other 
submission which explains, validates or otherwise addresses the 
practices under review.
    (3) Except as provided in Sec.  34.41(e), within 210 days of issuing 
a Notification Letter initiating a review, the Director shall:
    (i) Issue a Letter of Findings, which shall advise the recipient, in 
writing, of:
    (A) The preliminary findings of the review;
    (B) Where appropriate, the proposed remedial or corrective action to 
be taken, and the time by which such action should be completed, as 
provided in Sec.  34.44;
    (C) Whether it will be necessary for the recipient to enter into a 
written assurance and/or Conciliation Agreement, as provided in Sec.  
34.45; and
    (D) The opportunity to engage in voluntary compliance negotiations.
    (ii) Where no violation is found, the recipient shall be so informed 
in writing.
    (4) The time limit for submitting data to the Director pursuant to 
paragraph (c)(2)(iii) of this section may be modified by the Director.



Sec.  34.41  Notice to Show Cause.

    (a) The Director may issue a Notice to Show Cause to a recipient 
failing to comply with the requirements of this part, where such failure 
results in the inability of the Director to make a

[[Page 479]]

finding. Such a failure includes, but is not limited to, the failure or 
refusal to:
    (1) Submit requested data within 30 days of the receipt of the 
Notification Letter;
    (2) Submit documentation requested during a compliance review; or
    (3) Provide the Directorate access to a recipient's premises or 
records during a compliance review.
    (b) The Notice to Show Cause shall contain:
    (1) A description of the violation and a citation to the pertinent 
nondiscrimination or equal opportunity provision(s) of JTPA and this 
part;
    (2) The corrective action necessary to achieve compliance or, as may 
be appropriate, the concepts and principles of acceptable corrective or 
remedial action and the results anticipated; and
    (3) A request for a written response to the findings, including 
commitments to corrective action or the presentation of opposing facts 
and evidence.
    (c) Such Notice to Show Cause shall give the recipient 30 days to 
show cause why enforcement proceedings under the nondiscrimination and 
equal opportunity provisions of JTPA or this part should not be 
instituted. A recipient may make such a showing by, among other means:
    (1) Correcting the violation(s) that brought about the Notice to 
Show Cause and entering into a written assurance and/or entering into a 
Conciliation Agreement, as appropriate, pursuant to Sec.  34.45(d);
    (2) Demonstrating that the Directorate does not have jurisdiction; 
or
    (3) Demonstrating that the violation alleged by the Directorate did 
not occur.
    (d) If the recipient fails to show cause why enforcement proceedings 
should not be initiated, the Director shall follow the procedures 
outlined in Sec.  34.46.
    (e) The 210 day requirement provided for in Sec.  34.40(c)(3) shall 
be tolled during the pendency of a Notice to Show Cause.



Sec.  34.42  Adoption of discrimination complaint processing procedures.

    (a) Each recipient shall adopt and publish procedures for processing 
complaints that allege a violation of the nondiscrimination and equal 
opportunity provisions of JTPA or this part. The procedures shall 
provide for the prompt and equitable resolution of such complaints. In 
the case of service providers, the procedures required by this paragraph 
shall be adopted and published on behalf of the service provider by the 
Governor, the SDA grant recipient or the Substate grantee, as provided 
in the State's Methods of Administration.
    (b) The recipient's Equal Opportunity Officer, or in the case of a 
small recipient, the person designated pursuant to Sec.  34.22(c), shall 
be responsible for the adoption and publication of procedures pursuant 
to paragraph (a) of this section, and for ensuring that such procedures 
are followed.
    (c) A recipient who processes a complaint alleging a violation of 
the nondiscrimination and equal opportunity provisions of JTPA or this 
part shall provide the complainant with written notification of the 
resolution within 60 days of the filing of the complaint. Such 
notification shall include a statement of complainant's right to file a 
complaint with the Director.



Sec.  34.43  Complaints and investigations.

    (a) Who may file. Any person who believes that he or she or any 
specific class of individuals has been or is being subjected to 
discrimination prohibited by the nondiscrimination and equal opportunity 
provisions of JTPA or this part may file a written complaint by him or 
herself or by a representative.
    (b) Where to file. The complaint may be filed either with the 
recipient or with the Director.
    (c) Time for filing. A complaint filed pursuant to this part must be 
filed within 180 days of the alleged discrimination. The Director, for 
good cause shown, may extend the filing time. This time period for 
filing is for the administrative convenience of the Directorate and does 
not create a defense for the respondent.
    (d) Contents of complaints. Each complaint shall be filed in writing 
and shall:
    (1) Be signed by the complainant or his or her authorized 
representative;

[[Page 480]]

    (2) Contain the complainant's name and address (or specify another 
means of contacting him or her);
    (3) Identify the respondent; and
    (4) Describe the complainant's allegations in sufficient detail to 
allow the Director or the recipient, as applicable, to determine 
whether:
    (i) The Directorate or the recipient, as applicable, has 
jurisdiction over the complaint;
    (ii) The complaint was timely filed; and
    (iii) The complaint has apparent merit, i.e., whether the 
allegations, if true, would violate any of the nondiscrimination and 
equal opportunity provisions of JTPA or this part. The information 
required by this paragraph may be provided by completing and submitting 
the Directorate's Complaint Information and Privacy Act Consent Forms.
    (e) Right to representation. Each complainant and respondent has the 
right to be represented by an attorney or other individual of his or her 
own choice.
    (f) Election of recipient-level complaint processing. Any person who 
elects to file his or her complaint with the recipient shall allow the 
recipient 60 days to process the complaint.
    (1) If, during the 60-day period, the recipient offers the 
complainant a resolution of the complaint but the resolution offered is 
not satisfactory to the complainant, the complainant or his or her 
representative may file a complaint with the Director within 30 days 
after the recipient notifies the complainant of its proposed resolution.
    (2) Within 60 days, the recipient shall offer a resolution of the 
complaint to the complainant, and shall notify the complainant of his or 
her right to file a complaint with the Director, and inform the 
complainant that this right must be exercised within 30 days.
    (3) If, by the end of 60 days, the recipient has not completed its 
processing of the complaint or has failed to notify the complainant of 
the resolution, the complainant or his or her representative may, within 
30 days of the expiration of the 60-day period, file a complaint with 
the Director.
    (4) The Director may extend the 30-day time limit if the complainant 
is not notified as provided in paragraph (f)(2) of this section, or for 
other good cause shown.
    (5) Notification of no jurisdiction. The recipient shall notify the 
complainant in writing immediately upon determining that it does not 
have jurisdiction over a complaint that alleges a violation of the 
nondiscrimination and equal opportunity provisions of JTPA or this part. 
The notification shall also include the basis for such determination, as 
well as a statement of the complainant's right to file a written 
complaint with the Director within 30 days of receipt of the 
notification.
    (g) Complaints filed with the Director. (1) Notification of 
acceptance of complaint. The Director shall determine whether the 
Directorate will accept a complaint filed pursuant to this section. 
Where the Directorate accepts a complaint for investigation, he or she 
shall:
    (i) Acknowledge acceptance of the complaint for investigation to the 
complainant and the respondent, and
    (ii) Advise the complainant and respondent of the issues over which 
the Directorate has accepted jurisdiction.
    (2) Any complainant, respondent, or the authorized representative of 
any complainant or respondent, may contact the Directorate for 
information regarding the complaint filed pursuant to this section.
    (3) Where a complaint contains insufficient information, the 
Director shall seek the needed information from the complainant. If the 
complainant is unavailable after reasonable means have been used to 
locate him or her, or the information is not furnished within 15 days of 
the receipt of such request, the complaint file may be closed without 
prejudice upon notice sent to the complainant's last known address.
    (4) The Director may issue a subpoena, as authorized by Section 
163(c) of JTPA, directing the person named therein to appear and give 
testimony and/or produce documentary evidence, before a designated 
representative, relating to the complaint being investigated. Such 
attendance of witnesses, and the production of such documentary 
evidence, may be required from any place in the United States, at any 
designated time and place.

[[Page 481]]

    (5) Where the Directorate lacks jurisdiction over a complaint, he or 
she shall:
    (i) So advise the complainant, indicating why the complaint falls 
outside the coverage of the nondiscrimination and equal opportunity 
provisions of JTPA or this part; and
    (ii) Where possible, refer the complaint to an appropriate Federal, 
State or local authority.
    (6) Where a complaint lacks apparent merit or has not been timely 
filed, it need not be investigated. Where a complaint will not be 
investigated, the Director shall so inform the complainant and indicate 
the basis for that determination.
    (7) Where a complaint alleging discrimination based on age falls 
within the jurisdiction of the Age Discrimination Act of 1975, as 
amended, the Director shall refer the complaint in accordance with the 
provisions of 45 CFR 90.43(c)(3), and shall so advise the complainant 
and the respondent.
    (8) Where a complaint solely alleges a charge of individual 
employment discrimination covered by the nondiscrimination and equal 
opportunity provisions of JTPA or this part and by title VII of the 
Civil Rights Act of 1964, as amended (42 U.S.C. 2000e to 2000e-17), the 
Equal Pay Act of 1963, as amended (29 U.S.C. 206(d)), or the Age 
Discrimination in Employment Act of 1976, as amended (29 U.S.C. 621, et 
seq.), the Director shall refer such ``joint complaint'' to the Equal 
Employment Opportunity Commission for investigation and conciliation 
under procedures for handling joint complaints at 29 CFR part 1691, and 
shall advise the complainant and the respondent of the referral.
    (9) Determinations. The Director shall determine at the conclusion 
of the investigation of a complaint whether there is reasonable cause to 
believe that a violation of the nondiscrimination and equal opportunity 
provisions of JTPA or this part has occurred.
    (i) Upon making such a cause finding, the Director shall issue an 
Initial Determination. The Initial Determination shall notify the 
complainant and the respondent, in writing, of:
    (A) The specific findings of the investigation;
    (B) The proposed corrective or remedial action and the time by which 
the corrective or remedial action must be completed, as provided in 
Sec.  34.44;
    (C) Whether it will be necessary for the respondent to enter into a 
written agreement, as provided in Sec.  34.45; and
    (D) The opportunity to engage in voluntary compliance negotiations.
    (ii) Where a no cause determination is made, the complainant and the 
respondent shall be so notified in writing. Such determination 
represents final agency action of the Department.



Sec.  34.44  Corrective and remedial action.

    (a) A Letter of Findings, Notice to Show Cause, or Initial 
Determination, issued pursuant to Sec. Sec.  34.40, 34.41 or 34.43 
respectively, shall include the specific steps the grant applicant or 
recipient, as applicable, must take within a stated period of time in 
order to achieve voluntary compliance.
    (b) Such steps shall include, but are not limited to:
    (1) Actions to end and/or redress the violation of the 
nondiscrimination and equal opportunity provisions of JTPA or this part;
    (2) Make whole relief where discrimination has been identified, 
including, as appropriate, back pay (which shall not accrue from a date 
more than 2 years prior to the filing of the complaint or the initiation 
of a compliance review) or other monetary relief; hire or reinstatement; 
retroactive seniority; promotion; benefits or other services 
discriminatorily denied; and
    (3) Such other remedial or affirmative relief as the Director deems 
necessary, including but not limited to outreach, recruitment and 
training designed to ensure equal opportunity.
    (c) Monetary relief may not be paid from Federal funds.



Sec.  34.45  Notice of violation; written assurances; Conciliation Agreements.

    (a) State programs--(1) Violations at State-office level. Where the 
Director has determined that a violation of the nondiscrimination and 
equal opportunity provisions of JTPA or this part has occurred at the 
State-office level, he or she shall notify the Governor through the 
issuance of a Letter of

[[Page 482]]

Findings, Notice to Show Cause or Initial Determination, as appropriate, 
pursuant to Sec.  34.40, Sec.  34.41 or Sec.  34.43 respectively. The 
Director may secure compliance with the nondiscrimination and equal 
opportunity provisions of JTPA and this part through, among other means, 
the execution of a written assurance and/or Conciliation Agreement, 
pursuant to paragraph (d) of this section.
    (2) Violations below State-office level. Where the Director has 
determined that a violation of the nondiscrimination and equal 
opportunity provisions of JTPA or this part has occurred below the 
State-office level, the Director shall so notify the Governor and the 
violating recipient(s) through the issuance of a Letter of Findings, 
Notice to Show Cause or Initial Determination, as appropriate, pursuant 
to Sec.  34.40, Sec.  34.41 or Sec.  34.43 respectively.
    (i) Such issuance shall:
    (A) Direct the Governor to initiate negotiations immediately with 
the violating recipient(s) to secure compliance by voluntary means;
    (B) Direct the Governor to complete such negotiations within 30 days 
of the Governor's receipt of the Notice to Show Cause or within 45 days 
of the Governor's receipt of the Letter of Findings or Initial 
Determination, as applicable. The Director reserves the right to enter 
into negotiations with the recipient at any time during the period. For 
good cause shown, the Director may approve an extension of time to 
secure voluntary compliance. The total time allotted to secure voluntary 
compliance shall not exceed 60 days.
    (C) Include a determination as to whether compliance should be 
achieved by: Immediate correction of the violation(s) and written 
assurance that such violations have been corrected, pursuant to 
paragraph (d)(1) of this section; entering into a written Conciliation 
Agreement pursuant to paragraph (d)(2) of this section; or both.
    (ii) If the Governor determines, at any time during the period 
described in paragraph (a)(2)(i)(B), that a recipient's compliance 
cannot be achieved by voluntary means, the Governor shall so notify the 
Director.
    (iii) If the Governor is able to secure voluntary compliance 
pursuant to paragraph (a)(2)(i) of this section, he or she shall submit 
to the Director for approval, as applicable: written assurance that the 
required action has been taken, as described in paragraph (d)(1) of this 
section; and/or a copy of the Conciliation Agreement, as described in 
paragraph (d)(2) of this section.
    (iv) The Director may disapprove any written assurance or 
Conciliation Agreement submitted for approval pursuant to paragraph 
(a)(2)(iii) of this section that fails to satisfy each of the applicable 
requirements provided in paragraph (d) of this section.
    (b) National programs. Where the Director has determined that a 
violation of the nondiscrimination and equal opportunity provisions of 
JTPA or this part has occurred in a National Program, he or she shall 
notify the National Program recipient by issuing a Letter of Findings, 
Notice to Show Cause or Initial Determination, as appropriate, pursuant 
to Sec.  34.40, Sec.  34.41 or Sec.  34.43 respectively. The Director 
may secure compliance with the nondiscrimination and equal opportunity 
provisions of JTPA and this part through, among other means, the 
execution of a written assurance and/or Conciliation Agreement pursuant 
to paragraph (d) of this section, as applicable.
    (c) Written assurance; conciliation agreement--(1) Written 
assurance. A written assurance developed pursuant to this section must 
provide documentation that the violations listed in the Letter of 
Findings, Notice to Show Cause or Initial Determination, as applicable, 
have been corrected.
    (2) Conciliation agreement. A Conciliation Agreement developed 
pursuant to this section must:
    (i) Be in writing;
    (ii) Address each cited violation;
    (iii) Specify the corrective or remedial action to be taken within a 
stated period of time to come into compliance;
    (iv) Provide for periodic reporting, as determined by the Director, 
on the status of the corrective and remedial action;
    (v) Provide that the violation(s) will not recur; and

[[Page 483]]

    (vi) Provide for enforcement for a breach of the agreement.



Sec.  34.46  Final Determination.

    (a) The Director shall conclude that compliance cannot be secured 
through informal means when:
    (1) The grant applicant or recipient fails or refuses to correct the 
violation(s) within the applicable time period established by the Letter 
of Findings, Notice to Show Cause or Initial Determination; or
    (2) The Director has not approved an extension of time in which to 
secure voluntary compliance, pursuant to Sec.  34.45(a)(2)(i)(B), and:
    (i) Has not received notification pursuant to Sec.  34.45(a)(2)(iii) 
that voluntary compliance has been achieved; or
    (ii) Has disapproved a written assurance or Conciliation Agreement, 
pursuant to Sec.  34.45(a)(2)(iv); or
    (iii) Has received notice from the Governor, pursuant to Sec.  
34.44(a)(2)(ii), that voluntary compliance cannot be achieved.
    (b) Upon so concluding, the Director may:
    (1) Issue a Final Determination which shall:
    (i) Specify the efforts made to achieve voluntary compliance and 
indicate that those efforts have been unsuccessful;
    (ii) Identify those matters upon which the Directorate and the grant 
applicant or recipient continue to disagree;
    (iii) List any modifications to the findings of fact or conclusions 
set forth in the Initial Determination, Notice to Show Cause or Letter 
of Findings;
    (iv) Determine the liability of the grant applicant or recipient, as 
applicable, and establish the extent of the liability, as appropriate;
    (v) Describe the corrective or remedial action that must be taken 
for the grant applicant or recipient to come into compliance;
    (vi) Indicate that the failure of the grant applicant or recipient 
to come into compliance within 10 days of the receipt of the Final 
Determination may result, after opportunity for a hearing, in the 
termination or denial of the grant, or discontinuation of assistance, as 
appropriate, or in referral to the Department of Justice with a request 
to file suit;
    (vii) Advise the grant applicant or recipient of the right to 
request a hearing, and reference the applicable procedures at Sec.  
34.51; and
    (viii) Determine the Governor's liability, if any, in accordance 
with the provisions of Sec.  34.32; or
    (2) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted; or
    (3) Take such other action as may be provided by law.



Sec.  34.47  Notice of finding of noncompliance.

    Where a compliance review or complaint investigation results in a 
finding of noncompliance, the Director shall so notify: (a) the 
Departmental granting agency; and (b) the Assistant Attorney General.



Sec.  34.48  Notification of Breach of Conciliation Agreement.

    (a) Where a Governor is a party to a Conciliation Agreement, the 
Governor shall immediately notify the Director of a recipient's breach 
of any such Conciliation Agreement.
    (b) When it becomes known to the Director, through the Governor or 
by other means, that a Conciliation Agreement has been breached, the 
Director may issue a Notification of Breach of Conciliation Agreement.
    (c) A Notification of Breach of Conciliation Agreement issued 
pursuant to this section shall be directed, as applicable, to the 
Governor and/or other party(ies) to the Conciliation Agreement.
    (d) A Notification of Breach of Conciliation Agreement issued 
pursuant to paragraph (a) of this section shall:
    (1) Specify the efforts made to achieve voluntary compliance and 
indicate that those efforts have been unsuccessful;
    (2) Identify the specific provisions of the Conciliation Agreement 
violated;
    (3) Determine liability for the violation and the extent of the 
liability, as appropriate;
    (4) Indicate that failure of the violating party to come into 
compliance

[[Page 484]]

within 10 days of the receipt of the Notification of Breach of 
Conciliation Agreement may result, after opportunity for a hearing, in 
the termination or denial of the grant, or discontinuation of 
assistance, as appropriate, or in referral to the Department of Justice 
with a request from the Department to file suit;
    (5) Advise the violating party of the right to request a hearing, 
and reference the applicable procedures at Sec.  34.51(b); and
    (6) Include a determination as to the Governor's liability, if any, 
in accordance with the provisions of Sec.  34.32.
    (e) Where enforcement action pursuant to a Notification of Breach of 
Conciliation Agreement is commenced, the Director shall so notify: the 
Departmental granting agency; and the Governor, recipient or grant 
applicant, as applicable.



          Subpart E_Federal Procedures For Effecting Compliance



Sec.  34.50  General.

    (a) Sanctions; judicial enforcement. If, following issuance of a 
Final Determination pursuant to Sec.  34.46, or a Notification of Breach 
of Conciliation Agreement pursuant to Sec.  34.48, compliance has not 
been achieved, the Secretary may:
    (1) After opportunity for a hearing, suspend, terminate, deny or 
discontinue the Federal financial assistance under JTPA, in whole or in 
part;
    (2) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted; or
    (3) Take such action as may be provided by law.
    (b) Deferral of new grants. When termination proceedings under Sec.  
34.51 have been initiated, the Department may defer action on 
applications for new financial assistance under JTPA until a Final 
Decision under Sec.  34.52 has been rendered. Deferral is not 
appropriate when financial assistance under JTPA is due and payable 
under a previously approved application.
    (1) New Federal financial assistance under JTPA includes all 
assistance for which an application or approval, including renewal or 
continuation of existing activities, or authorization of new activities, 
is required during the deferral period.
    (2) New Federal financial assistance under JTPA does not include 
assistance approved prior to the beginning of termination proceedings or 
increases in funding as a result of changed computations of formula 
awards.



Sec.  34.51  Hearings.

    (a) Notice of opportunity for hearing. As part of a Final 
Determination, or a Notification of Breach of a Conciliation Agreement, 
the Director shall include, and serve on the grant applicant or 
recipient (by certified mail, return receipt requested), a notice of 
opportunity for hearing.
    (b) Complaint; request for hearing; answer. (1) In the case of 
noncompliance which cannot be voluntarily resolved, the Final 
Determination or Notification of Breach of Conciliation Agreement shall 
be deemed the Department's formal complaint.
    (2) To request a hearing, the grant applicant or recipient must file 
a written answer to the Final Determination or Notification of Breach of 
Conciliation Agreement, and a copy of the Final Determination or 
Notification of Breach of Conciliation Agreement, with the Office of the 
Administrative Law Judges.
    (i) The answer must be filed within 30 days of the date of receipt 
of the Final Determination or Notification of Breach of Conciliation 
Agreement.
    (ii) A request for hearing must be set forth in a separate paragraph 
of the answer.
    (iii) The answer shall specifically admit or deny each finding of 
fact in the Final Determination or Notification of Breach of 
Conciliation Agreement. Where the grant applicant or recipient does not 
have knowledge or information sufficient to form a belief, the answer 
may so state and the statement shall have the effect of a denial. 
Findings of fact not denied shall be deemed admitted. The answer shall 
separately state and identify matters alleged as affirmative defenses 
and shall also set forth the matters of fact and law relied on by the 
grant applicant or recipient.

[[Page 485]]

    (3) The grant applicant or recipient must simultaneously serve a 
copy of its filing on the Office of the Solicitor, Civil Rights 
Division, Room N-2464, U.S. Department of Labor, 200 Constitution Avenue 
NW., Washington DC 20210.
    (4)(i) The failure of a grant applicant or recipient to request a 
hearing under this paragraph, or to appear at a hearing for which a date 
has been set, is deemed to be a waiver of the right to a hearing; and
    (ii) Whenever a hearing is waived, all allegations of fact contained 
in the Final Determination or Notification of Breach of Conciliation 
Agreement shall be deemed admitted and the Final Determination or 
Notification of Breach of Conciliation Agreement shall be deemed the 
Final Decision of the Secretary as of the day following the last date by 
which the grant applicant or recipient was required to request a hearing 
or was to appear at a hearing. See Sec.  34.52(b)(3).
    (c) Time and place of hearing. Hearings shall be held at a time and 
place ordered by the Administrative Law Judge upon reasonable notice to 
all parties and, as appropriate, the complainant. In selecting a place 
for the hearing, due regard shall be given to the convenience of the 
parties, their counsel, if any, and witnesses.
    (d) Judicial process; evidence. (1) The Administrative Law Judge may 
use judicial process to secure the attendance of witnesses and the 
production of documents pursuant to Section 9 of the Federal Trade 
Commission Act (15 U.S.C. 49).
    (2) Evidence. In any hearing or administrative review conducted 
pursuant to this part, evidentiary matters shall be governed by the 
standards and principles set forth in the Uniform Rules of Evidence 
issued by the Department of Labor's Office of Administrative Law Judges, 
29 CFR part 18.



Sec.  34.52  Decision and post-termination proceedings.

    (a) Initial decision. After the hearing, the Administrative Law 
Judge shall issue an initial decision and order, containing findings and 
conclusions. The initial decision and order shall be served on all 
parties by certified mail, return receipt requested.
    (b) Exceptions; final decision--(1) Final decision after a hearing. 
The initial decision and order shall become the final decision and Order 
of the Secretary unless exceptions are filed by a party or, in the 
absence of exceptions, the Secretary serves notice that the Secretary 
shall review the decision.
    (i) A party dissatisfied with the initial decision and order may, 
within 45 days of receipt, file with the Secretary and serve on the 
other parties to the proceedings and on the Administrative Law Judge, 
exceptions to the initial decision and order or any part thereof.
    (ii) Upon receipt of exceptions, the Administrative Law Judge shall 
index and forward the record and the initial decision and order to the 
Secretary within three days of such receipt.
    (iii) A party filing exceptions must specifically identify the 
finding or conclusion to which exception is taken. Any exception not 
specifically urged shall be deemed to have been waived.
    (iv) Within 45 days of the date of filing such exceptions, a reply, 
which shall be limited to the scope of the exceptions, may be filed and 
served by any other party to the proceeding.
    (v) Requests for extensions for the filing of exceptions or replies 
thereto must be received by the Secretary no later than 3 days before 
the exceptions or replies are due.
    (vi) If no exceptions are filed, the Secretary may, within 30 days 
of the expiration of the time for filing exceptions, on his or her own 
motion serve notice on the parties that the Secretary will review the 
decision.
    (vii) Final Decision and Order. (A) Where exceptions have been 
filed, the initial decision and order of the Administrative Law Judge 
shall become the Final Decision and Order of the Secretary unless the 
Secretary, within 30 days of the expiration of the time for filing 
exceptions and any replies thereto, has notified the parties that the 
case is accepted for review. (B) Where exceptions have not been filed, 
the initial decision and order of the Administrative Law Judge shall 
become the Final Decision and Order of the Secretary unless the 
Secretary has served

[[Page 486]]

notice on the parties that the Secretary will review the decision, as 
provided in paragraph (b)(1)(vi) of this section.
    (viii) Any case reviewed by the Secretary pursuant to this paragraph 
shall be decided within 180 days of the notification of such review. If 
the Secretary fails to issue a Final Decision and Order within the 180-
day period, the initial decision and order of the Administrative Law 
Judge shall become the Final Decision and Order of the Secretary.
    (2) Final Decision where a hearing is waived. (i) If, after issuance 
of a Final Determination pursuant to Sec.  34.46(a) or Notification of 
Breach of Conciliation Agreement pursuant to Sec.  34.48, voluntary 
compliance has not been achieved within the time set by this part and 
the opportunity for a hearing has been waived as provided for in Sec.  
34.51(b)(3), the Final Determination or Notification of Breach of 
Conciliation Agreement shall be deemed the Final Decision of the 
Secretary.
    (ii) When a Final Determination or Notification of Breach of 
Conciliation Agreement is deemed the Final Decision of the Secretary, 
the Secretary may, within 45 days, issue an order terminating or denying 
the grant or continuation of assistance or imposing other appropriate 
sanctions for the grant applicant or recipient's failure to comply with 
the required corrective and/or remedial actions, or referring the matter 
to the Attorney General for further enforcement action.
    (3) Final agency action. A Final Decision and Order issued pursuant 
to Sec.  34.52(b) constitutes final agency action.
    (c) Post-termination proceedings. (1) A grant applicant or recipient 
adversely affected by a Final Decision and Order issued pursuant to 
paragraph (b) of this section shall be restored, where appropriate, to 
full eligibility to receive Federal financial assistance under JTPA if 
it satisfies the terms and conditions of such Final Decision and Order 
and brings itself into compliance with the nondiscrimination and equal 
opportunity provisions of JTPA and this part.
    (2) A grant applicant or recipient adversely affected by a Final 
Decision and Order issued pursuant to paragraph (b) of this section may 
at any time petition the Director to restore its eligibility to receive 
Federal financial assistance under JTPA. A copy of the petition shall be 
served on the parties to the original proceeding which led to the Final 
Decision and Order issued pursuant to paragraph (b) of this section. 
Such petition shall be supported by information showing the actions 
taken by the grant applicant or recipient to comply with the 
requirements of paragraph (c)(1) of this section. The grant applicant or 
recipient shall have the burden of demonstrating that it has satisfied 
the requirements of paragraph (c)(1) of this section. Restoration to 
eligibility may be conditioned upon the grant applicant or recipient 
entering into a consent decree. While proceedings under this section are 
pending, sanctions imposed by the Final Decision and Order under 
paragraphs (b) (1) and (2) of this section shall remain in effect.
    (3) The Director shall issue a written decision on the petition for 
restoration.
    (i) If the Director determines that the requirements of paragraph 
(c)(1) of this section have not been satisfied, he or she shall issue a 
decision denying the petition.
    (ii) Within 30 days of its receipt of the Director's decision, the 
recipient or grant applicant may file a petition for review of the 
decision by the Secretary, setting forth the grounds for its objection 
to the Director's decision.
    (iii) The petition shall be served on the Director and on the Office 
of the Solicitor, Civil Rights Division.
    (iv) The Director may file a response to the petition within 14 
days.
    (v) The Secretary shall issue the final agency decision denying or 
granting the recipient's or grant applicant's request for restoration to 
eligibility.



Sec.  34.53  Suspension, termination, denial or discontinuance of Federal 
financial assistance under JTPA; alternate funds disbursal procedure.

    (a) Any action to suspend, terminate, deny or discontinue Federal 
financial assistance under JTPA shall be limited to the particular 
political entity, or part thereof or other recipient (or

[[Page 487]]

grant applicant) as to which the finding has been made and shall be 
limited in its effect to the particular program, or part thereof, in 
which the noncompliance has been found. No order suspending, 
terminating, denying or discontinuing Federal financial assistance under 
JTPA shall become effective until:
    (1) The Director has issued a Final Determination pursuant to Sec.  
34.46 or Notification of Breach of Conciliation Agreement pursuant to 
Sec.  34.48;
    (2) There has been an express finding on the record, after 
opportunity for a hearing, of failure by the grant applicant or 
recipient to comply with a requirement imposed by or pursuant to the 
nondiscrimination and equal opportunity provisions of JTPA or this part;
    (3) A Final Decision has been issued by the Secretary, the 
Administrative Law Judge's decision and order has become the Final 
Decision of the Secretary, or the Final Determination or Notification of 
Conciliation Agreement has been deemed the Final Decision of the 
Secretary, pursuant to Sec.  34.52(b); and
    (4) The expiration of 30 days after the Secretary has filed, with 
the committees of Congress having legislative jurisdiction over the 
program involved, a full written report of the circumstances and grounds 
for such action.
    (b) When the Department withholds funds from a recipient or grant 
applicant under these regulations, the Secretary may disburse the 
withheld funds directly to an alternate recipient. In such case, the 
Secretary will require any alternate recipient to demonstrate:
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the nondiscrimination and 
equal opportunity provisions of JTPA.



PART 35_NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR ACTIVITIES 
RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE DEPARTMENT OF LABOR--
Table of Contents



                            Subpart A_General

Sec.
35.1 What is the purpose of the Department of Labor (DOL) age 
          discrimination regulations?
35.2 To what programs or activities do these regulations apply?
35.3 What definitions apply to these regulations?

         Subpart B_Standards for Determining Age Discrimination

35.10 Rules against age discrimination.
35.11 Definitions of the terms ``normal operation'' and ``statutory 
          objective.''
35.12 Exceptions to the rules against age discrimination: normal 
          operation or statutory objective of any program or activity.
35.13 Exceptions to the rules against age discrimination: reasonable 
          factors other than age.
35.14 Burden of proof.
35.15 Remedial action.
35.16 Special benefits for children and the elderly.
35.17 Age distinctions in DOL regulations.

                   Subpart C_Duties of DOL Recipients

35.20 General responsibilities.
35.21 Recipient responsibility to provide notice.
35.22 Information requirements.
35.23 Assurances required.
35.24 Designation of responsible employee.
35.25 Complaint procedures.
35.26 Recipient assessment of age distinctions.

    Subpart D_Investigation, Conciliation, and Enforcement Procedures

35.30 Compliance reviews.
35.31 Complaints.
35.32 Mediation.
35.33 Investigations.
35.34 Effect of agreements on enforcement effort.
35.35 Prohibition against intimidation or retaliation.
35.36 Enforcement.
35.37 Hearings, decisions, and post-termination proceedings.
35.38 Procedure for disbursal of funds to an alternate recipient.
35.39 Remedial action by recipient.

[[Page 488]]

35.40 Exhaustion of administrative remedies.

Appendix A to Part 35--Age Distinctions in Statutes Affecting Federal 
          Financial Assistance Administered by DOL

    Authority: 42 U.S.C. 6101 et seq.; 45 CFR Part 90.

    Source: 69 FR 17571, Apr. 2, 2004, unless otherwise noted.



                            Subpart A_General



Sec.  35.1  What is the purpose of the Department of Labor (DOL) 
age discrimination regulations?

    The purpose of this part is to set out the DOL rules for 
implementing the Age Discrimination Act of 1975, as amended. The Act 
prohibits discrimination on the basis of age by recipients of Federal 
financial assistance and in federally assisted programs or activities, 
but permits the use of certain age distinctions and factors other than 
age that meet the requirements of the Act and this part.



Sec.  35.2  To what programs or activities do these regulations apply?

    (a) Application. This part applies to any program or activity that 
receives Federal financial assistance, directly or indirectly, from DOL.
    (b) Limitation of application. This part does not apply to:
    (1) An age distinction contained in that part of a Federal, State, 
or local statute or ordinance adopted by an elected, general purpose 
legislative body that:
    (i) Provides persons with any benefits or assistance based on age; 
or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprentice training 
program.



Sec.  35.3  What definitions apply to these regulations?

    As used in this part:
    Act means the Age Discrimination Act of 1975, as amended (42 U.S.C. 
6101 et seq.).
    Action means any act, activity, policy, rule, standard, or method of 
administration, or the use of any policy, rule, standard, or method of 
administration.
    Age means how old a person is, or the number of years from the date 
of a person's birth.
    Age distinction means any action using age or an age-related term.
    Age-related term means a word or words that necessarily imply a 
particular age or range of ages (e.g., ``child,'' ``adults,'' ``older 
persons,'' but not ``student'').
    Applicant for Federal financial assistance means the individual or 
entity submitting an application, request, or plan required to be 
approved by a DOL official or recipient as a condition to becoming a 
recipient or subrecipient.
    Beneficiary means the person(s) intended by Congress to receive 
benefits or services from a recipient of Federal financial assistance 
from DOL.
    CRC means the Civil Rights Center, Office of the Assistant Secretary 
for Administration and Management, United States Department of Labor.
    Director means the Director of CRC.
    Department means the United States Department of Labor.
    DOL means the United States Department of Labor.
    Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
DOL provides or otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its fair market value is not returned to the Federal 
Government. Program or activity means all of the operations of any 
entity described in paragraphs (1) through

[[Page 489]]

    (4) of this definition, any part of which is extended Federal 
financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this definition.
    Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance from DOL is extended, 
directly or through another recipient, but excludes the ultimate 
beneficiary of the assistance. Recipient includes any subrecipient to 
which a recipient extends or passes on Federal financial assistance, and 
any successor, assignee, or transferee of a recipient.
    Secretary means the Secretary of Labor, or his or her designee.
    State means the individual States of the United States, the 
Commonwealth of Puerto Rico, the District of Columbia, Guam, the Virgin 
Islands, American Samoa, Wake Island and the Commonwealth of the 
Northern Mariana Islands.



         Subpart B_Standards for Determining Age Discrimination



Sec.  35.10  Rules against age discrimination.

    The rules stated in this section are subject to the exceptions 
contained in Sec. Sec.  35.12 and 35.13.
    (a) General rule. No person in the United States shall be, on the 
basis of age, excluded from participation in, denied the benefits of or 
subjected to discrimination under, any program or activity receiving 
Federal financial assistance from DOL.
    (b) Specific rules. A recipient may not, directly or through 
contractual, licensing, or other arrangements, use age distinctions or 
take any other actions that have the effect of, on the basis of age:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance from DOL; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance from DOL.
    (c) Other forms of age discrimination. The listing of specific forms 
of age discrimination in paragraph (b) of this section is not exhaustive 
and does not imply that any other form of age discrimination is 
permitted.



Sec.  35.11  Definitions of the terms ``normal operation'' and 
``statutory objective.''

    As used in this part, the term:
    (a) Normal operation means the operation of a program or activity 
without significant changes that would impair the ability of the program 
or activity to meet its objectives.
    (b) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute, or local statute 
or ordinance

[[Page 490]]

adopted by an elected, general purpose legislative body.



Sec.  35.12  Exceptions to the rules against age discrimination: 
normal operation or statutory objective of any program or activity.

    A recipient is permitted to take an action otherwise prohibited by 
Sec.  35.10 if the action reasonably takes age into account as a factor 
necessary to the normal operation or the achievement of any statutory 
objective of a program or activity. An action reasonably takes age into 
account as a factor necessary to the normal operation or the achievement 
of any statutory objective of a program or activity if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics;
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity;
    (c) The other characteristic(s) can reasonably be measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.



Sec.  35.13  Exceptions to the rules against age discrimination: 
reasonable factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec.  35.10, if that action is based on a factor other than age, even 
though the action may have a disproportionate effect on persons of 
different ages. An action is based on a factor other than age only if 
the factor bears a direct and substantial relationship to the normal 
operation of the program or activity or to the achievement of a 
statutory objective.



Sec.  35.14  Burden of proof.

    The recipient has the burden of proving that an age distinction or 
other action falls within the exceptions outlined in Sec. Sec.  35.12 
and 35.13.



Sec.  35.15  Remedial action.

    Even in the absence of a finding of discrimination, a recipient, in 
administering a program, may take steps to overcome the effects of 
conditions that resulted in a limited participation on the basis of age. 
Nothing in this section will permit any otherwise prohibited use of age 
distinctions that have the effect of excluding individuals from, denying 
them benefits of, subjecting them to discrimination under, or limiting 
them in their opportunity to participate in any program or activity 
receiving Federal financial assistance from DOL.



Sec.  35.16  Special benefits for children and the elderly.

    If a recipient is operating a program or activity that provides 
special benefits to the elderly or to children, the use of such age 
distinctions is presumed to be necessary to the normal operation of the 
program or activity, notwithstanding the provisions of Sec.  35.12.



Sec.  35.17  Age distinctions in DOL regulations.

    Any age distinction in regulations issued by DOL is presumed to be 
necessary to the achievement of a statutory objective of the program or 
activity to which the regulations apply, notwithstanding the provisions 
of Sec.  35.12.



                   Subpart C_Duties of DOL Recipients



Sec.  35.20  General responsibilities.

    Each DOL recipient has primary responsibility for ensuring that its 
programs or activities are in compliance with the Act and this part and 
for taking appropriate steps to correct any violations of the Act or 
this part.



Sec.  35.21  Recipient responsibility to provide notice.

    (a) Notice to other recipients. Where a recipient of Federal 
financial assistance from DOL passes on funds to other recipients, that 
recipient shall notify such other recipients of their obligations under 
the Act and this part.
    (b) Notice to beneficiaries. A recipient shall notify its 
beneficiaries about the provisions of the Act and this part and their 
applicability to specific programs or activities. The notification must 
also identify the responsible employee

[[Page 491]]

designated under Sec.  35.24 by name or title, address, and telephone 
number.



Sec.  35.22  Information requirements.

    Each recipient shall:
    (a) Keep such records as CRC determines are necessary to ascertain 
whether the recipient is complying with the Act and this part;
    (b) Upon request, provide CRC with such information and reports as 
the Director determines are necessary to ascertain whether the recipient 
is complying with the Act and this part; and
    (c) Permit reasonable access by CRC to books, records, accounts, 
reports, other recipient facilities and other sources of information to 
the extent CRC determines is necessary to ascertain whether the 
recipient is complying with the Act and this part.



Sec.  35.23  Assurances required.

    A recipient or applicant for Federal financial assistance from DOL 
shall sign a written assurance, in a form specified by DOL, that the 
program or activity will be operated in compliance with the Act and this 
part. In subsequent applications to DOL, an applicant may incorporate 
this assurance by reference.



Sec.  35.24  Designation of responsible employee.

    Each recipient shall designate at least one employee to coordinate 
its compliance activities under the Act and this part, including 
investigation of any complaints that the recipient receives alleging any 
actions that are prohibited by the Act or this part.



Sec.  35.25  Complaint procedures.

    Each recipient shall adopt and publish complaint procedures 
providing for prompt and equitable resolution of complaints alleging any 
action that would be prohibited by the Act or this part.



Sec.  35.26  Recipient assessment of age distinctions.

    (a) In order to assess a recipient's compliance with the Act and 
this part, as part of a compliance or monitoring review, or a complaint 
investigation, CRC may require a recipient employing the equivalent of 
15 or more full-time employees to complete a written self-evaluation, in 
a manner specified by CRC, of any age distinction imposed in its program 
or activity receiving Federal financial assistance from DOL.
    (b) Whenever such an assessment indicates a violation of the Act or 
this part, the recipient shall take prompt and appropriate corrective 
action.



    Subpart D_Investigation, Conciliation, and Enforcement Procedures



Sec.  35.30  Compliance reviews.

    (a) CRC may conduct such compliance reviews, pre-award reviews, and 
other similar procedures as permit CRC to investigate and correct 
violations of the Act and this part, irrespective of whether a complaint 
has been filed against a recipient. Such reviews may be as comprehensive 
as necessary to determine whether a violation of the Act or this part 
has occurred.
    (b) Where a review conducted pursuant to paragraph (a) of this 
section indicates a violation of the Act or this part, CRC will attempt 
to achieve voluntary compliance. If voluntary compliance cannot be 
achieved, CRC will begin enforcement proceedings, as described in Sec.  
35.36.



Sec.  35.31  Complaints.

    (a) Who may file. Any person, whether individually, as a member of a 
class, or on behalf of others, may file a complaint with CRC alleging 
discrimination in violation of the Act or these regulations, based on an 
action occurring on or after July 1, 1979.
    (b) When to file. A complainant must file a complaint within 180 
days from the date the complainant first had knowledge of the alleged 
act of discrimination. The Director may extend this time limit for good 
cause shown.
    (c) Complaint procedure. A complaint is considered to be complete on 
the date CRC receives all the information necessary to process it, as 
provided in paragraph (c)(1) of this section. CRC will:
    (1) Accept as a complete complaint any written statement that 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes generally

[[Page 492]]

the action or practice complained of, and is signed by the complainant;
    (2) Freely permit a complainant to add information to the complaint 
to meet the requirements of a complete complaint;
    (3) Notify the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedure; and
    (4) Notify the complainant and the recipient (or their 
representatives) of their right to contact CRC for information and 
assistance regarding the complaint resolution process.
    (d) No jurisdiction. CRC will return to the complainant any 
complaint outside the jurisdiction of this part, with a statement 
indicating why there is no jurisdiction.



Sec.  35.32  Mediation.

    (a) Referral to mediation. CRC will promptly refer to the Federal 
Mediation and Conciliation Service or the mediation agency designated by 
the Secretary of Health and Human Services under 45 CFR part 90, all 
complaints that:
    (1) Fall within the jurisdiction of the Act or this part, unless the 
age distinction complained of is clearly within an exception; and
    (2) Contain all information necessary for further processing, as 
provided in Sec.  35.31(c)(1).
    (b) Participation in mediation process. Both the complainant and the 
recipient shall participate in the mediation process to the extent 
necessary to reach an agreement or to make an informed judgment that an 
agreement is not possible. The recipient and the complainant do not need 
to meet with the mediator at the same time, and a meeting may be 
conducted by telephone or other means of effective dialogue if a 
personal meeting between the party and the mediator is impractical.
    (c) When agreement is reached. If the complainant and the recipient 
reach an agreement, the mediator shall prepare a written statement of 
the agreement, have the complainant and recipient sign it, and send a 
copy of the agreement to CRC.
    (d) Confidentiality. The mediator shall protect the confidentiality 
of all information obtained in the course of the mediation process. No 
mediator may testify in any adjudicative proceeding, produce any 
document, or otherwise disclose any information obtained in the course 
of the mediation process, unless the mediator has obtained prior 
approval of the head of the mediation agency.
    (e) Maximum time period for mediation. The mediation shall proceed 
for a maximum of 60 days after a complaint is filed with CRC. This 60-
day period may be extended by the mediator, with the concurrence of the 
Director, for not more than 30 days, if the mediator determines that 
agreement is likely to be reached during the extended period. In the 
absence of such an extension, mediation ends if:
    (1) Sixty days elapse from the time the complaint is filed; or
    (2) Prior to the end of the 60-day period, either
    (i) An agreement is reached; or
    (ii) The mediator determines that agreement cannot be reached.
    (f) Unresolved complaints. The mediator shall return unresolved 
complaints to CRC.



Sec.  35.33  Investigations.

    (a) Initial investigation. CRC will investigate complaints that are 
unresolved after mediation or reopened because the mediation agreement 
has been violated.
    (1) As part of the initial investigation, CRC will use informal 
fact-finding methods, including joint or separate discussions with the 
complainant and recipient to establish the facts and, if possible, 
resolve the complaint to the mutual satisfaction of the parties. CRC may 
seek the assistance of any involved State, local, or other Federal 
agency.
    (2) Where agreement between the parties has been reached pursuant to 
paragraph (a)(1) of this section, the agreement shall be put in writing 
by DOL, and signed by the parties and an authorized official of DOL.

[[Page 493]]

    (b) Formal findings, conciliation, and hearing. If CRC cannot 
resolve the complaint during the early stages of the investigation, CRC 
will complete the investigation of the complaint and make formal 
findings. If the investigation indicates a violation of the Act or this 
part, CRC will attempt to achieve voluntary compliance. If CRC cannot 
obtain voluntary compliance, CRC will begin appropriate enforcement 
action, as provided in Sec.  35.36.



Sec.  35.34  Effect of agreements on enforcement effort.

    An agreement reached pursuant to either Sec.  35.32(c) or Sec.  
35.33(a) shall have no effect on the operation of any other enforcement 
effort of DOL, such as compliance reviews and investigations of other 
complaints, including those against the recipient.



Sec.  35.35  Prohibition against intimidation or retaliation.

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



Sec.  35.36  Enforcement.

    (a) DOL may enforce the Act and this part through:
    (1) Termination of, or refusal to grant or continue, a recipient's 
Federal financial assistance from DOL under the program or activity in 
which the recipient has violated the Act or this part. Such enforcement 
action may be taken only after a recipient has had an opportunity for a 
hearing on the record before an administrative law judge.
    (2) Any other means authorized by law, including, but not limited 
to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligation of the recipient created 
by the Act or this part; or
    (ii) Use of any requirement of, or referral to, any Federal, State, 
or local government agency that will have the effect of correcting a 
violation of the Act or this part.
    (b) Any termination or refusal under paragraph (a)(1) of this 
section will be limited to the particular recipient and to the 
particular program or activity found to be in violation of the Act or 
this part. A finding with respect to a program or activity that does not 
receive Federal financial assistance from DOL will not form any part of 
the basis for termination or refusal.
    (c) No action may be taken under paragraph (a) of this section 
until:
    (1) DOL has advised the recipient of its failure to comply with the 
Act or with this part and has determined that voluntary compliance 
cannot be obtained; and
    (2) Thirty days have elapsed since DOL sent a written report of the 
circumstances and grounds of the action to the committees of Congress 
having jurisdiction over the program or activity involved.
    (d) Deferral. DOL may defer granting new Federal financial 
assistance to a recipient when termination proceedings under paragraph 
(a)(1) of this section are initiated.
    (1) New Federal financial assistance from DOL includes all 
assistance for which DOL requires an application or approval, including 
renewal or continuation of existing activities, or authorization of new 
activities, during the deferral period. New Federal financial assistance 
from DOL does not include increases in funding as a result of changed 
computation of formula awards or assistance approved prior to the 
initiation of a hearing under paragraph (a)(1) of this section.
    (2) DOL may not defer a grant until the recipient has received 
notice of an opportunity for a hearing under paragraph (a)(1) of this 
section. A deferral may not continue for more than 60 days unless a 
hearing has begun within the 60-day period or the recipient and DOL have 
mutually agreed to extend the time for beginning the hearing. If the 
hearing does not result in a finding against the recipient, the deferral 
may not continue for more than 30 days after the close of the hearing.



Sec.  35.37  Hearings, decisions, and post-termination proceedings.

    Certain DOL procedural provisions applicable to Title VI of the 
Civil

[[Page 494]]

Rights Act of 1964 apply to DOL enforcement of these regulations. They 
are found at 29 CFR 31.9 through 31.11.



Sec.  35.38  Procedure for disbursal of funds to an alternate recipient.

    (a) If funds are withheld from a recipient under this part, the 
Secretary may disburse the funds withheld directly to an alternate 
recipient.
    (b) The Secretary will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with the Act and this part; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.



Sec.  35.39  Remedial action by recipient.

    Where CRC finds discrimination on the basis of age in violation of 
this Act or this part, the recipient shall take any remedial action that 
CRC deems necessary to overcome the effects of the discrimination. In 
addition, if a recipient funds or otherwise exercises control over 
another recipient that has discriminated, both recipients may be 
required to take remedial action.



Sec.  35.40  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action under the Act following 
the exhaustion of administrative remedies. Administrative remedies are 
exhausted if:
    (1) One hundred eighty days have elapsed since the complainant filed 
the complaint with CRC, and CRC has made no finding with regard to the 
complaint; or
    (2) CRC issues any finding in favor of the recipient.
    (b) If CRC fails to make a finding within 180 days, or issues a 
finding in favor of the recipient, CRC will promptly:
    (1) Notify the complainant;
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant that:
    (i) The complainant may bring a civil action only in a United States 
district court for the district in which the recipient is found or 
transacts business;
    (ii) A complainant who prevails in a civil action has the right to 
be awarded the costs of the action, including reasonable attorney's 
fees, but that the complainant must demand these costs in the complaint 
filed with the court;
    (iii) Before commencing the action, the complainant must give 30 
days notice by registered mail to the Secretary, the Secretary of Health 
and Human Services, the Attorney General of the United States, and the 
recipient;
    (iv) The notice required by paragraph (b)(3)(iii) of this section 
must state the alleged violation of the Act, the relief requested, the 
court in which the complainant is bringing the action, and whether or 
not attorney's fees are demanded in the event that the complainant 
prevails; and
    (v) The complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court of the United States.



   Sec. Appendix A to Part 35--Age Distinctions in Statutes Affecting 
                Financial Assistance Administered by DOL

----------------------------------------------------------------------------------------------------------------
                                                                    Section and age
               Program                         Statute                distinction               Regulation
----------------------------------------------------------------------------------------------------------------
                                     Employment and Training Administration
----------------------------------------------------------------------------------------------------------------
1. Senior Community Service            Title V, Older           Sec. 516(2) defines the  20 CFR part 641.
 Employment Program (SCSEP).            Americans Act            term ``eligible
                                        Amendments of 2000,      individuals'' to mean
                                        Pub. L. 106-501, 42      ``an individual who is
                                        U.S.C.3056, 3056N.       55 years old or older,
                                                                 who has a low income *
                                                                 * *, except that, * *
                                                                 *, any such individual
                                                                 who is 60 years of
                                                                 older shall have
                                                                 priority * * *.

[[Page 495]]

 
2. Job Corps.........................  Title I, Subtitle C,     Sec. 144 of WIA (29      20 CFR 670.400.
                                        Workforce Investment     U.S.C. 2884)
                                        Act of 1998 (WIA),       establishes
                                        Pub. L. 105-220, 29      eligibility criteria
                                        U.S.C. 2881-2901.        for the Job Corps
                                                                 program. These
                                                                 criteria require an
                                                                 enrollee to ``be--(1)
                                                                 not less than age 16
                                                                 and not more than age
                                                                 21 on the date of
                                                                 enrollment, except
                                                                 that--(A) not more
                                                                 than 20 percent of the
                                                                 individuals enrolled
                                                                 in the Job Corps may
                                                                 be not less than age
                                                                 22 and not more than
                                                                 age 24 on the date of
                                                                 enrollment; and (B)
                                                                 either such maximum
                                                                 age limitation may be
                                                                 waived by the
                                                                 Secretary, * * * in
                                                                 the case of an
                                                                 individual with a
                                                                 disability.''
3. Indian and Native American          Title I, Workforce       Sec. 166(d)(2)(A)(ii)    20 CFR 668.430.
 Supplemental Youth Services.           Investment Act of 1998   of WIA (29 U.S.C.
                                        (WIA), Pub. L. 105-      2911(d)(2)(A)(ii))
                                        220, 29 U.S.C. 2911.     states that funds made
                                                                 available under the
                                                                 program shall be used
                                                                 for ``supplemental
                                                                 services for Indian or
                                                                 Native Hawaiian youth
                                                                 on or near Indian
                                                                 reservations and in
                                                                 Oklahoma, Alaska, or
                                                                 Hawaii.'' Sec. 101(13)
                                                                 of WIA (29 U.S.C.
                                                                 2801(13)) defines an
                                                                 eligible youth as an
                                                                 individual who ``is
                                                                 not less than age 14
                                                                 and not more than age
                                                                 21 * * *''.
4. Migrant and Seasonal Farmworker     Title I, Workforce       Sec. 167 of WIA (29      20 CFR 669.670.
 (MSFW) Youth Program.                  Investment Act of 1998   U.S.C. 2912) outlines
                                        (WIA), Pub. L. 105-      the MSFW program. WIA
                                        220, 29 U.S.C. 2912.     Sec. 127(b)(1)(A)(iii)
                                                                 authorizes the MSFW
                                                                 Youth Program. That
                                                                 provision states that,
                                                                 ``the Secretary shall
                                                                 make available 4
                                                                 percent of such
                                                                 portion to provide
                                                                 youth activities under
                                                                 sec. 167.'' Sec.
                                                                 101(13) of WIA (29
                                                                 U.S.C. 2801(13))
                                                                 defines an eligible
                                                                 youth as an individual
                                                                 who ``is not less than
                                                                 age 14 and not more
                                                                 than age 21; * * *''.
5. Responsible Reintegration of Young  Title I, Workforce       (a) Sec. 171(b)(1) of    20 CFR 667.220.
 Offenders (Youth Offender              Investment Act of 1998   WIA (29 U.S.C.
 Demonstration Project).                (WIA), Pub. L. 105-      2916(b)(1)) states
                                        220, 29 U.S.C. 2916;     that the ``Secretary
                                        Departments Of Labor,    shall, through grants
                                        Health And Human         or contracts, carry
                                        Services, And            out demonstration and
                                        Education, And Related   pilot projects for the
                                        Agencies Appropriation   purpose of developing
                                        Bill, 2003.              and implementing
                                                                 techniques and
                                                                 approaches, and
                                                                 demonstrating the
                                                                 effectiveness of
                                                                 specialized methods,
                                                                 in addressing
                                                                 employment and
                                                                 training needs. Such
                                                                 projects shall include
                                                                 the provision of
                                                                 direct services to
                                                                 individuals to enhance
                                                                 employment
                                                                 opportunities and an
                                                                 evaluation component *
                                                                 * *.'' The Responsible
                                                                 Reintegration of Young
                                                                 Offenders program was
                                                                 established in FY 2001
                                                                 by DOL, in
                                                                 collaboration with the
                                                                 Departments of Health
                                                                 and Human Services and
                                                                 Justice, pursuant to
                                                                 this authority.
                                                                (b) Senate Report 107-
                                                                 84 on bill S. 1536
                                                                 (Departments of Labor,
                                                                 Health and Human
                                                                 Services, and
                                                                 Education, and Related
                                                                 Agencies Appropriation
                                                                 for FY 2002) noted
                                                                 that the Responsible
                                                                 Reintegration of Young
                                                                 Offenders initiative
                                                                 would ``link offenders
                                                                 under age 35 with
                                                                 essential services
                                                                 that can help make the
                                                                 difference in their
                                                                 choices in the future
                                                                 * * *'' (p. 25). DOL
                                                                 has determined, based
                                                                 upon the reentry needs
                                                                 of states and local
                                                                 communities, to
                                                                 provide services to a
                                                                 14-24 year-old subset
                                                                 within this age limit.
                                                                 See 66 FR 30754, 30755
                                                                 (June 7, 2001).

[[Page 496]]

 
6. WIA Youth Activities..............  Title I, Workforce       WIA Sec. 129 (29 U.S.C.  20 CFR 664.200.
                                        Investment Act of 1998   2854) provides the
                                        (WIA), Pub. L. 105-      standards for WIA-
                                        220, 29 U.S.C. Sec.      financially assisted
                                        2854.                    services to eligible
                                                                 youth. Eligible youth
                                                                 is defined in Sec.
                                                                 101(13) as an
                                                                 individual who ``is
                                                                 not less than age 14
                                                                 and not more than age
                                                                 21; * * *''.
7. Work Opportunity Tax Credits        Small Business Job       WOTC is intended to      None.
 (WOTCs).                               Protection Act of        assist individuals
                                        1996, Pub. L. 104-188,   from groups with
                                        26 U.S.C. 51.            consistently high
                                                                 unemployment rates by
                                                                 providing tax credits
                                                                 to their employers.
                                                                 Sec. 1201(b) of the
                                                                 Act (26 U.S.C. 51(d))
                                                                 defines the targeted
                                                                 groups, including high-
                                                                 risk youth (26 U.S.C.
                                                                 51(d)(1)(D)),
                                                                 qualified summer youth
                                                                 employee (26 U.S.C.
                                                                 51(d)(1)(F)), and
                                                                 qualified food stamp
                                                                 recipient (26 U.S.C.
                                                                 51(d)(1)(G)). The
                                                                 definitions of ``high-
                                                                 risk youth'' and
                                                                 ``qualified food stamp
                                                                 recipient'' include a
                                                                 requirement that the
                                                                 individual have
                                                                 ``attained age 18 but
                                                                 not age 25 on the
                                                                 hiring date.'' 26
                                                                 U.S.C. 51(d)(5)(A)(i),
                                                                 51(d)(8)(A)(i). The
                                                                 definition of
                                                                 ``qualified summer
                                                                 youth employee''
                                                                 includes a requirement
                                                                 that the individual
                                                                 have ``attained age 16
                                                                 but not 18 on the
                                                                 hiring date (or if
                                                                 later, on May 1 of the
                                                                 calendar year
                                                                 involved).'' 26 U.S.C.
                                                                 51(d)(2)(7)(A)(ii).
8. Youth Opportunity Grants..........  Title I, Workforce       Sec. 169 provides that   20 CFR 664.820.
                                        Investment Act of 1998   ``the Secretary shall
                                        (WIA), Pub. L. 105-      make grants to
                                        220, 29 U.S.C. 2914.     eligible local boards
                                                                 and eligible entities
                                                                 * * * to provide
                                                                 activities * * * for
                                                                 youth to increase the
                                                                 long-term employment
                                                                 of youth who live in
                                                                 empowerment zones,
                                                                 enterprise
                                                                 communities, and high
                                                                 poverty areas and who
                                                                 seek assistance.'' It
                                                                 defines ``youth'' as
                                                                 ``an individual who is
                                                                 not less than age 14
                                                                 and not more than age
                                                                 21.''
9. Youth Apprenticeship Program......  29 U.S.C. 50...........  Sec. 1 of the National   29 CFR 29.2,
                                                                 Apprenticeship Act of    29.5(b)(10).
                                                                 1937 authorizes and
                                                                 directs the Secretary
                                                                 of Labor to promote
                                                                 the labor standards
                                                                 necessary to safeguard
                                                                 the welfare of
                                                                 apprentices, encourage
                                                                 contracts of
                                                                 apprenticeship, and
                                                                 bring employers and
                                                                 labor together to form
                                                                 apprenticeships. An
                                                                 apprentice is defined
                                                                 in 29 CFR 29.2 of the
                                                                 Act's implementing
                                                                 regulations as ``a
                                                                 worker at least 16
                                                                 years of age, * * *,
                                                                 who is employed to
                                                                 learn a skilled trade
                                                                 * * * under standards
                                                                 of apprenticeship * *
                                                                 *''. The regulations
                                                                 also require that the
                                                                 ``eligible starting
                                                                 age'' of an
                                                                 apprenticeship program
                                                                 be ``not less than 16
                                                                 years.''

[[Page 497]]

 
10. Trade Adjustment Assistance......  Trade Adjustment         Sec. 246 of the Act      20 CFR part 617; see
                                        Assistance Reform Act    requires the Secretary   also TAA Training and
                                        of 2002 (Pub. L. 107-    of Labor to establish    Employment Guidance
                                        210), 19 U.S.C. 2318.    a demonstration          Letter, 67 FR 69029
                                                                 project for              (Nov. 14, 2002).
                                                                 alternative trade
                                                                 adjustment assistance
                                                                 (ATAA) for workers age
                                                                 50 or older. Under
                                                                 this demonstration
                                                                 project, workers
                                                                 petitioning for
                                                                 certification under
                                                                 the Trade Adjustment
                                                                 Assistance (TAA)
                                                                 program may request
                                                                 certification under
                                                                 the ATAA program as
                                                                 well. Certification
                                                                 will be granted if a
                                                                 number of conditions
                                                                 are met, including
                                                                 that a significant
                                                                 number of workers in
                                                                 the affected firm are
                                                                 50 or over. Once the
                                                                 worker group is
                                                                 certified, individual
                                                                 workers may choose the
                                                                 program they prefer.
                                                                 Additional
                                                                 qualifications for
                                                                 individual workers
                                                                 include an age at
                                                                 least 50.
----------------------------------------------------------------------------------------------------------------
                                       Employment Standards Administration
----------------------------------------------------------------------------------------------------------------
11. Defense Base.....................  Defense Base Act, Pub.   The Defense Base Act     20 CFR part 702.
                                        L. 77-208, Act of Aug.   (DBA) extends the
                                        16, 1941, ch. 357, 55    provisions of the
                                        Stat. 623, 42 U.S.C.     Longshore and Harbor
                                        1651-1654.               Workers' Compensation
                                                                 Act, 33 U.S.C. 901-
                                                                 950, ``except as
                                                                 modified'' in the DBA
                                                                 to certain persons
                                                                 employed at military
                                                                 bases outside the
                                                                 continental United
                                                                 States. DBA sec. 2(b),
                                                                 42 U.S.C. 1652(b),
                                                                 provides that
                                                                 compensation for
                                                                 disability or death to
                                                                 aliens and non-
                                                                 nationals of the
                                                                 United States who are
                                                                 not residents of the
                                                                 United States or
                                                                 Canada under the
                                                                 Defense Base Act is in
                                                                 the same amount as
                                                                 residents, ``except
                                                                 that dependents in any
                                                                 foreign country shall
                                                                 be limited to
                                                                 surviving wife and
                                                                 child or children.''
                                                                 The DBA does not
                                                                 modify the LHWCA's
                                                                 definition of a child
                                                                 and the latter is
                                                                 defined as a person
                                                                 who is under 18 years
                                                                 of age, or who though
                                                                 18 years of age or
                                                                 over, is wholly
                                                                 dependent upon the
                                                                 employee and incapable
                                                                 of self-support by
                                                                 reason of mental or
                                                                 physical disability,
                                                                 or is a student.

[[Page 498]]

 
12. Energy Employees Occupational      Energy Employees         (a) The Energy           20 CFR 30.5(ee).
 Illness Compensation Program.          Occupational Illness     Employees Occupational
                                        Compensation Program     Illness Compensation
                                        Act, Pub. L. 106-398,    Program Act (EEOICPA)
                                        Title XXXVI, October     provides compensation
                                        30, 2000, 114 Stat.      and medical benefits
                                        1654 42 U.S.C. 7384 et   to nuclear weapons
                                        seq.                     industry employees or
                                                                 their eligible
                                                                 survivors who have
                                                                 covered illnesses
                                                                 related to exposure to
                                                                 beryllium, cancers
                                                                 related to exposure to
                                                                 radiation, and chronic
                                                                 silicosis. Some
                                                                 uranium employees or
                                                                 their eligible
                                                                 survivors are also
                                                                 eligible for
                                                                 compensation under the
                                                                 Act. Sec. 3628(e) of
                                                                 EEOICPA, 42 U.S.C.
                                                                 7384s(e)(1)(F)(ii), as
                                                                 amended by Sec. 3151
                                                                 of Pub. L. 107-107,
                                                                 the National Defense
                                                                 Authorization Act for
                                                                 Fiscal Year 2002,
                                                                 relating to claims for
                                                                 radiogenic cancer,
                                                                 beryllium illnesses,
                                                                 or silicosis, provides
                                                                 that notwithstanding
                                                                 other provisions
                                                                 pertaining to payments
                                                                 in the case of
                                                                 deceased persons, if
                                                                 there is a surviving
                                                                 spouse and ``at least
                                                                 one child of the
                                                                 covered employee who
                                                                 is living and a minor
                                                                 at the time of payment
                                                                 and who is not a
                                                                 recognized natural
                                                                 child or adopted child
                                                                 of such surviving
                                                                 spouse, then half of
                                                                 such payment shall be
                                                                 made to such surviving
                                                                 spouse, and the other
                                                                 half of such payment
                                                                 shall be made in equal
                                                                 shares to each child
                                                                 of the covered
                                                                 employee who is living
                                                                 and a minor at the
                                                                 time of payment.''
                                                                (b) Sec. 3630(e) of
                                                                 EEOICPA, 42 U.S.C.
                                                                 7384u(e)(1)(F)(ii), as
                                                                 amended by Sec. 3151
                                                                 of Pub. L. 107-107,
                                                                 the National Defense
                                                                 Authorization Act for
                                                                 Fiscal Year 2002,
                                                                 relating to claims by
                                                                 uranium employees
                                                                 contains a provision
                                                                 identical to that
                                                                 described above in
                                                                 Sec. 3628(e).
13. Federal Employees' Compensation..  Federal Employees'       (a) Sec. 8101(8), 5      20 CFR 10.405, 10.410,
                                        Compensation Act, Act    U.S.C. 8108(8),          10.413-.417, 10.535-
                                        of Sept. 7, 1916, ch.    defines ``brother''      .537, 25.101 and
                                        458, 39 Stat. 742 5      and ``sister'' as        25.202.
                                        U.S.C. 8101-8151.        meaning ``one who at
                                                                 the time of the death
                                                                 of the employee is
                                                                 under 18 years of age
                                                                 or over that age and
                                                                 incapable of self-
                                                                 support.''
                                                                (b) Sec. 8101(9), 5      .......................
                                                                 U.S.C. 8108(9),
                                                                 defines ``child'' as
                                                                 ``one who at the time
                                                                 of the death of the
                                                                 employee is under 18
                                                                 years of age or over
                                                                 that age and incapable
                                                                 of self-support, and
                                                                 includes stepchildren,
                                                                 adopted children, and
                                                                 posthumous children,
                                                                 but does not include
                                                                 married children.''
                                                                (c) Sec. 8101(10), 5     .......................
                                                                 U.S.C. 8108(10),
                                                                 defines ``grandchild''
                                                                 as ``one who at the
                                                                 time of the death of
                                                                 the employee is under
                                                                 18 years of age or
                                                                 over that age and
                                                                 incapable of self-
                                                                 support.''
                                                                (d) Sec. 8101(17), 5     .......................
                                                                 U.S.C. 8108(17),
                                                                 defines ``student'' as
                                                                 ``an individual under
                                                                 23 years of age who
                                                                 has not completed 4
                                                                 years of education
                                                                 beyond the high school
                                                                 level and who is
                                                                 regularly pursuing a
                                                                 full-time course of
                                                                 study or training''.

[[Page 499]]

 
                                                                (e) Sec. 8109, 5 U.S.C.  .......................
                                                                 8109, sets forth the
                                                                 order of precedence
                                                                 for payments of
                                                                 scheduled awards
                                                                 unpaid at the time of
                                                                 the employee's death
                                                                 from a cause other
                                                                 than the employment-
                                                                 related injury. It
                                                                 establishes the order
                                                                 as, ``if no child, to
                                                                 the widow or widower,
                                                                 if there are both a
                                                                 widow or widower and a
                                                                 child or children, one-
                                                                 half to the widow or
                                                                 widower and one-half
                                                                 to the child or
                                                                 children, [and] if
                                                                 there is no widow or
                                                                 widower, to the child
                                                                 or children.''
                                                                (f) Sec. 8110(a), 5      .......................
                                                                 U.S.C. 8110(a)(3),
                                                                 defines ``dependent''
                                                                 for purposes of
                                                                 determining
                                                                 eligibility for
                                                                 augmented compensation
                                                                 for dependents as
                                                                 including ``an
                                                                 unmarried child, while
                                                                 living with the
                                                                 employee or receiving
                                                                 regular contributions
                                                                 from the employee
                                                                 toward his support,
                                                                 and who is (A) under
                                                                 18 years of age; or
                                                                 (B) over 18 years of
                                                                 age and incapable of
                                                                 self-support because
                                                                 of physical or mental
                                                                 disability.''
                                                                 Notwithstanding
                                                                 paragraph (3),
                                                                 compensation payable
                                                                 for a child that would
                                                                 otherwise end because
                                                                 the child has reached
                                                                 18 years of age shall
                                                                 continue if he is a
                                                                 student as defined by
                                                                 section 8101 * * * at
                                                                 the time he reaches 18
                                                                 years of age for so
                                                                 long as he continues
                                                                 to be a student or
                                                                 until he marries.''
                                                                (g) Sec. 8113(a), 5      .......................
                                                                 U.S.C. 8113(a),
                                                                 permits the Secretary,
                                                                 after the time the
                                                                 wage-earning capacity
                                                                 of the individual
                                                                 would probably have
                                                                 increased but for the
                                                                 injury, to recompute
                                                                 prospectively the
                                                                 monetary compensation
                                                                 payable for disability
                                                                 on the basis of an
                                                                 assumed monthly pay
                                                                 corresponding to the
                                                                 probable increased
                                                                 wage-earning capacity,
                                                                 ``if an individual (a)
                                                                 was a minor or
                                                                 employed in a
                                                                 learner's capacity at
                                                                 the time of injury and
                                                                 (b) was not physically
                                                                 or mentally
                                                                 handicapped before the
                                                                 injury.''
                                                                (h) Sec. 8115(a)(4), 5
                                                                 U.S.C. 8115(a)(4),
                                                                 states that the age of
                                                                 an employee is one
                                                                 factor that shall be
                                                                 used in determining
                                                                 his wage-earning
                                                                 capacity for purposes
                                                                 of eligibility for
                                                                 partial disability
                                                                 compensation when the
                                                                 actual earnings of the
                                                                 employee do not fairly
                                                                 and reasonably
                                                                 represent his wage-
                                                                 earning capacity or
                                                                 the employee has no
                                                                 actual earnings.
                                                                (i) Sec. 8122(d)(1), 5
                                                                 U.S.C. 8122(d)(1),
                                                                 provides that the time
                                                                 limitations for making
                                                                 a claim under FECA do
                                                                 not begin to run
                                                                 against a minor until
                                                                 he reaches 21 years of
                                                                 age or has had a legal
                                                                 representative
                                                                 appointed.
                                                                (j) Sec. 8133(a), 5      .......................
                                                                 U.S.C. 8133(a),
                                                                 provides for
                                                                 compensation if death
                                                                 results from an injury
                                                                 sustained in the
                                                                 performance of duty
                                                                 and makes such
                                                                 compensation payable
                                                                 in accordance with a
                                                                 schedule that makes
                                                                 numerous references to
                                                                 children and
                                                                 grandchildren.

[[Page 500]]

 
                                                                (k) Sec. 8133(b)(1), 5   .......................
                                                                 U.S.C. 8133(b)(1),
                                                                 provides that the
                                                                 compensation payable
                                                                 for death under
                                                                 subsection (a)
                                                                 terminates for a widow
                                                                 or widower if they die
                                                                 or remarry before
                                                                 reaching age 55.
                                                                (l) Sec. 8133(b)(2), 5
                                                                 U.S.C. 8133(b)(2),
                                                                 provides that the
                                                                 compensation payable
                                                                 for death under
                                                                 subsection (a)
                                                                 terminates for a
                                                                 child, a brother, a
                                                                 sister, or a
                                                                 grandchild when they
                                                                 die, marry, or become
                                                                 18 years of age, or if
                                                                 over age 18 and
                                                                 incapable of self-
                                                                 support becomes
                                                                 capable of self-
                                                                 support but such
                                                                 compensation that
                                                                 would otherwise end
                                                                 because they reached
                                                                 18 years of age shall
                                                                 continue if they are a
                                                                 student at the time
                                                                 they reach 18 years of
                                                                 age for as long as
                                                                 they continue to be a
                                                                 student or until they
                                                                 marry.
                                                                (m) Sec. 8135(b), 5
                                                                 U.S.C. 8135(b),
                                                                 provides that if a
                                                                 widow or widower
                                                                 entitled to death
                                                                 benefits remarries
                                                                 before reaching age
                                                                 55, they shall be paid
                                                                 a lump sum equal to
                                                                 twenty-four times the
                                                                 monthly compensation
                                                                 to which they were
                                                                 entitled immediately
                                                                 before the remarriage.
                                                                (n) Sec. 8141(a), 5
                                                                 U.S.C. 8141(a), Civil
                                                                 Air Patrol Cadets
                                                                 under 18 years of age
                                                                 are not covered by
                                                                 FECA.
                                                                (o) Sec. 8141(b)(2), 5
                                                                 U.S.C. 8141(b)(2),
                                                                 volunteer civilian
                                                                 members of the Civil
                                                                 Air Patrol, other than
                                                                 Civil Air Patrol
                                                                 Cadets under 18 years
                                                                 of age, are entitled
                                                                 to death benefits
                                                                 under sec. 8133 but
                                                                 only receive certain
                                                                 specified percentages
                                                                 of those benefits with
                                                                 no additional payments
                                                                 for a child or
                                                                 children in certain
                                                                 circumstances.
14. Longshore and Harbor Workers'      Longshore and Harbor     (a) The Longshore and    20 CFR 702.142(a) and
 Compensation.                          Workers' Compensation    Harbor Workers'          702.222(a).
                                        Act, Act of March 4,     Compensation Act
                                        1927, ch. 509, 44        (LHWCA) provides
                                        Stat. 1424 33 U.S.C.     workers' compensation
                                        901-950.                 for maritime
                                                                 employees. Sec. 2(14),
                                                                 33 U.S.C. 902(14),
                                                                 defines a child and
                                                                 provides that a child,
                                                                 grandchild, brother or
                                                                 sister to include only
                                                                 a person who is under
                                                                 18 years of age, or
                                                                 who though 18 years of
                                                                 age or over, is wholly
                                                                 dependent upon the
                                                                 employee and incapable
                                                                 of self-support by
                                                                 reason of mental or
                                                                 physical disability,
                                                                 or is a student.

[[Page 501]]

 
                                                                (b) Sec. 2(18), 33
                                                                 U.S.C. 902(18),
                                                                 defines a student as a
                                                                 person regularly
                                                                 pursuing a full-time
                                                                 course of study or
                                                                 training at certain
                                                                 specified institutions
                                                                 but not after he
                                                                 reaches the age of 23
                                                                 or has completed 4
                                                                 years of education
                                                                 beyond the high school
                                                                 level, except that,
                                                                 where his 23rd
                                                                 birthday occurs during
                                                                 a semester or other
                                                                 enrollment period, he
                                                                 shall continue to be
                                                                 considered a student
                                                                 until the end of such
                                                                 semester or other
                                                                 enrollment period. A
                                                                 child is deemed not a
                                                                 student during a
                                                                 period of service in
                                                                 the Armed Forces of
                                                                 the United States. A
                                                                 child is not deemed to
                                                                 have ceased to be a
                                                                 student during any
                                                                 interim between school
                                                                 years if certain
                                                                 conditions are met.
                                                                (c) Sec. 8(d)(1), 33
                                                                 U.S.C. 908(d)(1),
                                                                 provides a scheme of
                                                                 distribution for
                                                                 payment of unpaid
                                                                 scheduled permanent
                                                                 partial disability
                                                                 benefits when an
                                                                 employee who is
                                                                 receiving such
                                                                 benefits dies from
                                                                 causes other than the
                                                                 injury. The
                                                                 distribution contains
                                                                 numerous references to
                                                                 child or children.
                                                                (d) Sec. 9(b)-(d), 33
                                                                 U.S.C. 909(b)-(d),
                                                                 provide for the
                                                                 payment of death
                                                                 benefits and the
                                                                 amount of such
                                                                 payments varies in
                                                                 part according to
                                                                 whether the deceased
                                                                 employee has a child
                                                                 or children.
                                                                (e) Sec. 9(g), 33
                                                                 U.S.C. 909(g),
                                                                 provides that
                                                                 compensation for
                                                                 aliens who are not
                                                                 residents (or about to
                                                                 become residents) of
                                                                 the United States or
                                                                 Canada is the same as
                                                                 for residents, except
                                                                 that dependents in any
                                                                 foreign country shall
                                                                 be limited to
                                                                 surviving wife and
                                                                 child or children, or
                                                                 if there be no
                                                                 surviving wife or
                                                                 child or children, to
                                                                 surviving father or
                                                                 mother whom the
                                                                 employee has supported.
                                                                (f) Sec. 10(e), 33
                                                                 U.S.C. 910(e),
                                                                 provides that in
                                                                 determining the
                                                                 average weekly wages
                                                                 of an employee who is
                                                                 injured when a minor,
                                                                 the fact can be
                                                                 considered that under
                                                                 normal conditions his
                                                                 wages should be
                                                                 expected to increase
                                                                 during the period of
                                                                 disability.
                                                                (g) Sec. 11, 33 U.S.C.
                                                                 911, permits the
                                                                 district director to
                                                                 require the
                                                                 appointment of a
                                                                 guardian or other
                                                                 representative for a
                                                                 minor or any person
                                                                 who is mentally
                                                                 incompetent to receive
                                                                 compensation payable
                                                                 to the minor or
                                                                 incompetent and to
                                                                 exercise the powers
                                                                 granted to or to
                                                                 perform the duties
                                                                 required of them under
                                                                 the LHWCA.
                                                                (h) Sec. 13(c), 33
                                                                 U.S.C. 913(c),
                                                                 establishes the time
                                                                 requirement for filing
                                                                 a claim. The usual one
                                                                 year time limit is not
                                                                 applicable if the
                                                                 person entitled to
                                                                 compensation is
                                                                 mentally incompetent
                                                                 or a minor and such
                                                                 person has no guardian
                                                                 or other authorized
                                                                 representative. This
                                                                 freeze ends for a
                                                                 minor when a guardian
                                                                 is appointed or when
                                                                 he becomes of age.

[[Page 502]]

 
15. War Hazards Compensation.........  War Hazards              The War Hazards          20 CFR 61.203.
                                        Compensation Act, Act    Compensation Act
                                        of Dec. 2, 1942, ch.     provides that certain
                                        668, Title I, 56 Stat.   provisions of the FECA
                                        1028 42 U.S.C. 1701-     and the LHWCA apply to
                                        1717.                    certain persons
                                                                 employed by government
                                                                 contractors outside
                                                                 the continental United
                                                                 States who sustain an
                                                                 injury proximately
                                                                 caused by a war risk
                                                                 hazard. Sec. 101(c),
                                                                 42 U.S.C. 1701(c),
                                                                 provides that
                                                                 compensation for
                                                                 disability or death to
                                                                 aliens and non-
                                                                 nationals of the
                                                                 United States who are
                                                                 not residents of the
                                                                 United States or
                                                                 Canada under the Act
                                                                 is in the same amount
                                                                 as residents, ``except
                                                                 that dependents in any
                                                                 foreign country shall
                                                                 be limited to
                                                                 surviving wife or
                                                                 husband and child or
                                                                 children.''
16. Child Labor Restrictions.........  Walsh-Healey Public      The Act contains child   41 CFR part 50-201.
                                        Contracts Act, 41        labor restrictions for
                                        U.S.C. 35 et seq.,       government
                                                                 manufacturing and
                                                                 supply contracts.
17. Child Labor Restrictions.........  Fair Labor Standards     The Act contains child   29 CFR part 570.
                                        Act, 29 U.S.C. 201 et    labor restrictions
                                        seq.,                    applicable to almost
                                                                 all employers
                                                                 receiving Federal
                                                                 financial assistance.
18. Black Lung Benefits..............  Black Lung Benefits      (a) 30 U.S.C. 902(a),    20 CFR part 725,
                                        Act, 30 U.S.C. 901-945.  BLBA definition of       subpart B.
                                                                 ``dependent'': refers
                                                                 to sec. 902(g),
                                                                 definition of
                                                                 ``child''.
                                                                (b) 30 U.S.C. 902(g),
                                                                 BLBA definition of
                                                                 ``child'': defines a
                                                                 child or step-child as
                                                                 an individual who is
                                                                 under 18 years of age;
                                                                 defines a child who is
                                                                 a ``student'' by cross-
                                                                 reference to 42 U.S.C.
                                                                 402(d)(7) (age 19) and
                                                                 5 U.S.C. 8101(17) (age
                                                                 23); and defines a
                                                                 disabled child as one
                                                                 whose disability began
                                                                 before the age
                                                                 specified in 42 U.S.C.
                                                                 402(d) (age 22). 30
                                                                 U.S.C.
                                                                 922(a)(5)(1)(A), BLBA
                                                                 criteria for
                                                                 entitlement for a
                                                                 minor's ``brother''
                                                                 using same criteria
                                                                 applicable to
                                                                 ``child''.
19. Black Lung Benefits..............  Black Lung Benefits      This sec. defines who    20 CFR 725.301.
                                        Act, 30 U.S.C. 901-945.  may file a benefits
                                                                 claim. Persons aged 18
                                                                 or older may file
                                                                 claims on their own
                                                                 behalf, while persons
                                                                 under age 18 generally
                                                                 must rely on an
                                                                 authorized individual
                                                                 to file the claim
                                                                 (with a limited
                                                                 exception for certain
                                                                 persons between 16 and
                                                                 18 years of age).
----------------------------------------------------------------------------------------------------------------



PART 36_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                         Subpart A_Introduction

Sec.
36.100 Purpose and effective date.
36.105 Definitions.
36.110 Remedial and affirmative action and self-evaluation.
36.115 Assurance required.
36.120 Transfers of property.
36.125 Effect of other requirements.
36.130 Effect of employment opportunities.
36.135 Designation of responsible employee and adoption of grievance 
          procedures.
36.140 Dissemination of policy.

                           Subpart B_Coverage

36.200 Application.
36.205 Educational institutions and other entities controlled by 
          religious organizations.
36.210 Military and merchant marine educational institutions.
36.215 Membership practices of certain organizations.
36.220 Admissions.
36.225 Educational institutions eligible to submit transition plans.
36.230 Transition plans.

[[Page 503]]

36.235 Statutory amendments.

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

36.300 Admission.
36.305 Preference in admission.
36.310 Recruitment.

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

36.400 Education programs or activities.
36.405 Housing.
36.410 Comparable facilities.
36.415 Access to course offerings.
36.420 Access to schools operated by LEAs.
36.425 Counseling and use of appraisal and counseling materials.
36.430 Financial assistance.
36.435 Employment assistance to students.
36.440 Health and insurance benefits and services.
36.445 Marital or parental status.
36.450 Athletics.
36.455 Textbooks and curricular material.

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

36.500 Employment.
36.505 Employment criteria.
36.510 Recruitment.
36.515 Compensation.
36.520 Job classification and structure.
36.525 Fringe benefits.
36.530 Marital or parental status.
36.535 Effect of state or local law or other requirements.
36.540 Advertising.
36.545 Pre-employment inquiries.
36.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

36.600 Notice of covered programs.
36.605 Enforcement procedures.
36.610 [Reserved]

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

    Source: 65 FR 52865, 52881, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec.  36.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec.  36.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Director, Civil Rights Center.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and

[[Page 504]]

    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec.  
36.100 through 36.610.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2)

[[Page 505]]

of the Education Amendments of 1972, 20 U.S.C. 1681(a)(2), under which 
an educational institution operates in making the transition from being 
an educational institution that admits only students of one sex to being 
one that admits students of both sexes without discrimination.



Sec.  36.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec.  36.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec.  36.110(a) 
to eliminate existing discrimination on the basis of sex or to eliminate 
the effects of past discrimination whether occurring prior to or 
subsequent to the submission to the designated agency official of such 
assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.

[[Page 506]]

    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec.  36.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec.  36.205 through 36.235(a).



Sec.  36.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec.  36.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec.  36.135  Designation of responsible employee and adoption 
of grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.

[[Page 507]]



Sec.  36.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec.  36.300 through 36.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec.  36.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B_Coverage



Sec.  36.200  Application.

    Except as provided in Sec. Sec.  36.205 through 36.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec.  36.205  Educational institutions and other entities controlled 
by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.

[[Page 508]]



Sec.  36.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec.  36.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec.  36.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec.  36.225 and 36.230, and Sec. Sec.  36.300 through 
36.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec.  36.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  36.300 
through 36.310 apply to each recipient. A recipient to which Sec. Sec.  
36.300 through 36.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec.  36.300 through 
36.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec.  36.300 through 36.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec.  36.300 through 36.310 do not apply to any public institution 
of undergraduate higher education that traditionally and continually 
from its establishment has had a policy of admitting students of only 
one sex.



Sec.  36.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  36.300 through 36.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec.  36.300 through 
36.310.



Sec.  36.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  36.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the

[[Page 509]]

plan may be addressed. The person who submits the plan shall be the 
chief administrator or president of the institution, or another 
individual legally authorized to bind the institution to all actions set 
forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec.  36.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec.  36.300 through 
36.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec.  36.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec.  36.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or

[[Page 510]]

    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



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



Sec.  36.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Sec. Sec.  36.300 through 36.310 apply, except as 
provided in Sec. Sec.  36.225 and 36.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec.  36.300 through 36.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any

[[Page 511]]

offer of admission, a recipient to which Sec. Sec.  36.300 through 
36.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec.  36.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec.  36.305  Preference in admission.

    A recipient to which Sec. Sec.  36.300 through 36.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec.  36.300 through 36.310.



Sec.  36.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
36.300 through 36.310 apply shall not discriminate on the basis of sex 
in the recruitment and admission of students. A recipient may be 
required to undertake additional recruitment efforts for one sex as 
remedial action pursuant to Sec.  36.110(a), and may choose to undertake 
such efforts as affirmative action pursuant to Sec.  36.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  36.300 through 36.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec.  36.300 through 36.310.



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



Sec.  36.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
36.400 through 36.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Sec. Sec.  36.300 through 36.310 do not 
apply, or an entity, not a recipient, to which Sec. Sec.  36.300 through 
36.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec.  36.400 
through 36.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;

[[Page 512]]

    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec.  36.405  Housing.

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



Sec.  36.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.

[[Page 513]]



Sec.  36.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec.  36.420  Access to schools operated by LEAs.

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



Sec.  36.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.

[[Page 514]]



Sec.  36.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec.  36.450.



Sec.  36.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec.  
36.500 through 36.550.



Sec.  36.440  Health and insurance benefits and services.

    Subject to Sec.  36.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec.  36.500 through 36.550 if it were provided to 
employees of the recipient. This section shall not prohibit a recipient 
from providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.

[[Page 515]]



Sec.  36.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec.  36.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec.  36.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;

[[Page 516]]

    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec.  36.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



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



Sec.  36.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec.  36.500 
through 36.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec.  36.500 through 36.550 
apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship,

[[Page 517]]

professional meetings, conferences, and other related activities, 
selection for tuition assistance, selection for sabbaticals and leaves 
of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec.  36.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec.  36.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec.  36.500 through 36.550.



Sec.  36.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec.  36.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec.  36.550.



Sec.  36.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec.  36.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec.  36.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:

[[Page 518]]

    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec.  36235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec.  36.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec.  36.500 through 36.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec.  36.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec.  36.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec.  36.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec.  
36.500 through 36.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action is essential to successful operation of 
the employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.

[[Page 519]]



                          Subpart F_Procedures



Sec.  36.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec.  36.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 29 CFR 31.5, 31.7 through 31.11.

[65 FR 52881, Aug. 30, 2000]



Sec.  36.610  [Reserved]



PART 37_IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL OPPORTUNITY 
PROVISIONS OF THE WORKFORCE INVESTMENT ACT OF 1998 (WIA)--Table of Contents



                      Subpart A_General Provisions

Sec.
37.1 What is the purpose of this part?
37.2 To whom does this part apply, and what is the scope of this part?
37.3 How does this part affect a recipient's other obligations?
37.4 What definitions apply to this part?
37.5 What forms of discrimination are prohibited by this part?
37.6 What specific discriminatory actions, based on prohibited grounds 
          other than disability, are prohibited by this part, and what 
          limitations are there related to religious activities?
37.7 What specific discriminatory actions based on disability are 
          prohibited by this part?
37.8 What are a recipient's responsibilities regarding reasonable 
          accommodation and reasonable modification for individuals with 
          disabilities?
37.9 What are a recipient's responsibilities to communicate with 
          individuals with disabilities?
37.10 To what extent are a recipient's employment practices covered by 
          this part?
37.11 To what extent are intimidation and retaliation prohibited by this 
          part?
37.12 What Department of Labor office is responsible for administering 
          this part?
37.13 Who is responsible for providing interpretations of this part?
37.14 Under what circumstances may the Secretary delegate the 
          responsibilities of this part?
37.15 What are the Director's responsibilities to coordinate with other 
          civil rights agencies?
37.16 What is this part's effect on a recipient's obligations under 
          other laws, and what limitations apply?

 Subpart B_Recordkeeping and Other Affirmative Obligations of Recipients

                               Assurances

37.20 What is a grant applicant's obligation to provide a written 
          assurance?
37.21 How long will the recipient's obligation under the assurance last, 
          and how broad is the obligation?
37.22 How must covenants be used in connection with this part?

                       Equal Opportunity Officers

37.23 Who must designate an Equal Opportunity Officer?
37.24 Who is eligible to serve as an Equal Opportunity Officer?
37.25 What are the responsibilities of an Equal Opportunity Officer?
37.26 What are a recipient's obligations relating to the Equal 
          Opportunity Officer?
37.27 What are the obligations of small recipients regarding Equal 
          Opportunity Officers?
37.28 What are the obligations of service providers regarding Equal 
          Opportunity Officers?

                        Notice and Communication

37.29 What are a recipient's obligations to disseminate its equal 
          opportunity policy?
37.30 What specific wording must the notice contain?
37.31 Where must the notice required by Sec. Sec.  37.29 and 37.30 be 
          published?
37.32 When must the notice be provided?
37.33 Who is responsible for meeting the notice requirement with respect 
          to service providers?
37.34 What type of notice must a recipient include in publications, 
          broadcasts, and other communications?
37.35 What are a recipient's responsibilities to provide services and 
          information in languages other than English?
37.36 What responsibilities does a recipient have to communicate 
          information during orientations?

[[Page 520]]

             Data and Information Collection and Maintenance

37.37 What are a recipient's responsibilities to collect and maintain 
          data and other information?
37.38 What information must grant applicants and recipients provide to 
          CRC?
37.39 How long must grant applicants and recipients maintain the records 
          required under this part?
37.40 What access to sources of information must grant applicants and 
          recipients provide the Director?
37.41 What responsibilities do grant applicants, recipients, and the 
          Department have to maintain the confidentiality of the 
          information collected?
37.42 What are a recipient's responsibilities under this part to provide 
          universal access to WIA Title I-financially assisted programs 
          and activities?

Subpart C_Governor's Responsibilities To Implement the Nondiscrimination 
                and Equal Opportunity Requirements of WIA

37.50 To whom does this subpart apply?
37.51 What are a Governor's oversight responsibilities?
37.52 To what extent may a Governor be liable for the actions of a 
          recipient he or she has financially assisted under WIA Title 
          I?
37.53 What are a Governor's oversight responsibilities regarding 
          recipients' recordkeeping?
37.54 That are a Governor's obligations to develop and maintain a 
          Methods of Administration?
37.55 When must the Governor carry out his or her obligations with 
          regard to the Methods of Administration?

                     Subpart D_Compliance Procedures

37.60 How does the Director evaluate compliance with the 
          nondiscrimination and equal opportunity provisions of WIA and 
          this part?
37.61 Is there authority to issue subpoenas?

                           Compliance Reviews

37.62 What are the authority and procedures for conducting pre-approval 
          compliance reviews?
37.63 What are the authority and procedures for conducting post-approval 
          compliance reviews?
37.64 What procedures must the Director follow when CRC has completed a 
          post-approval compliance review?
37.65 What is the Director's authority to monitor the activities of a 
          Governor?
37.66 What happens if a recipient fails to submit requested data, 
          records, and/or information, or fails to provide CRC with the 
          required access?
37.67 What information must a Notice to Show Cause contain?
37.68 How may a recipient show cause why enforcement proceedings should 
          not be instituted?
37.69 What happens if a recipient fails to show cause?

                     Complaint Processing Procedures

37.70 Who may file a complaint concerning discrimination connected with 
          WIA Title I?
37.71 Where may a complaint be filed?
37.72 When must a complaint be filed?
37.73 What information must a complaint contain?
37.74 Are there any forms that a complainant may use to file a 
          complaint?
37.75 Is there a right of representation in the complaint process?
37.76 What are the required elements of a recipient's discrimination 
          complaint processing procedures?
37.77 Who is responsible for developing and publishing complaint 
          processing procedures for service providers?
37.78 Does a recipient have any special obligations in cases in which 
          the recipient determines that it has no jurisdiction over a 
          complaint?
37.79 If, before the 90-day period has expired, a recipient issues a 
          Notice of Final Action with which the complainant is 
          dissatisfied, how long does the complainant have to file a 
          complaint with the Director?
37.80 What happens if a recipient fails to issue a Notice of Final 
          Action within 90 days of the date on which a complaint was 
          filed?
37.81 Are there any circumstances under which the Director may extend 
          the time limit for filing a complaint with him or her?
37.82 Does the Director accept every complaint for resolution?
37.83 What happens if a complaint does not contain enough information?
37.84 What happens if CRC does not have jurisdiction over a complaint?
37.85 Are there any other circumstances in which the Director will send 
          a complaint to another authority?
37.86 What must the Director do if he or she determines that a complaint 
          will not be accepted?
37.87 What must the Director do if he or she determines that a complaint 
          will be accepted?
37.88 Who may contact CRC about a complaint?
37.89 May the Director offer the parties to a complaint the option of 
          mediation?

[[Page 521]]

                             Determinations

37.90 If a complaint is investigated, what must the Director do when the 
          investigation is completed?
37.91 What notice must the Director issue if he or she finds reasonable 
          cause to believe that a violation has taken place?
37.92 What notice must the Director issue if he or she finds no 
          reasonable cause to believe that a violation has taken place?
37.93 What happens if the Director finds that a violation has taken 
          place, and the recipient fails or refuses to take the 
          corrective action listed in the Initial Determination?
37.94 What corrective or remedial actions may be imposed where, after a 
          compliance review or complaint investigation, the Director 
          finds a violation of the nondiscrimination and equal 
          opportunity provisions of WIA or this part?
37.95 What procedures apply if the Director finds that a recipient has 
          violated the nondiscrimination and equal opportunity 
          provisions of WIA or this part?
37.96 What are the required elements of a written assurance?
37.97 What are the required elements of a Conciliation Agreement?
37.98 What are the circumstances under which the Director will conclude 
          that compliance cannot be secured by voluntary means?
37.99 If the Director concludes that compliance cannot be secured by 
          voluntary means, what actions must he or she take?
37.100 What information must a Final Determination contain?
37.101 Whom must the Director notify of a finding of noncompliance?

                   Breaches of Conciliation Agreements

37.102 What happens if a grant applicant or recipient breaches a 
          Conciliation Agreement?
37.103 Whom must the Director notify about a breach of a Conciliation 
          Agreement?
37.104 What information must a Notification of Breach of Conciliation 
          Agreement contain?
37.105 Whom must the Director notify if enforcement action under a 
          Notification of Breach of Conciliation Agreement is commenced?

          Subpart E_Federal Procedures For Effecting Compliance

37.110 What enforcement procedures does the Department follow to effect 
          compliance with the nondiscrimination and equal opportunity 
          provisions of WIA and this part?
37.111 What hearing procedures does the Department follow?
37.112 What procedures for initial and final decisions does the 
          Department follow?
37.113 What procedure does the Department follow to suspend, terminate, 
          withhold, deny or discontinue WIA Title I financial 
          assistance?
37.114 What procedure does the Department follow to distribute WIA Title 
          I financial assistance to an alternate recipient?
37.115 What procedures does the Department follow for post-termination 
          proceedings?

    Authority: Sections 134(b), 136(d)(2)(F), 136(e), 172(a), 183(c), 
185(d)(1)(E), 186, 187 and 188 of the Workforce Investment Act of 1998, 
29 U.S.C. 2801, et seq.; Title VI of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. 2000d, et seq.; Section 504 of the Rehabilitation Act 
of 1973, as amended, 29 U.S.C. 794; the Age Discrimination Act of 1975, 
as amended, 42 U.S.C. 6101; Title IX of the Education Amendments of 
1972, as amended, 29 U.S.C. 1681; Executive Order 13198, 66 FR 8497, 3 
CFR 2001 Comp., p. 750; and Executive Order 13279, 67 FR 77141, 3 CFR 
2002 Comp., p. 258.

    Source: 64 FR 61715, Nov. 12, 1999, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  37.1  What is the purpose of this part?

    The purpose of this part is to implement the nondiscrimination and 
equal opportunity provisions of the Workforce Investment Act of 1998 
(WIA), which are contained in section 188 of WIA. Section 188 prohibits 
discrimination on the grounds of race, color, religion, sex, national 
origin, age, disability, political affiliation or belief, and for 
beneficiaries only, citizenship or participation in a WIA Title I-
financially assisted program or activity. This part clarifies the 
application of the nondiscrimination and equal opportunity provisions of 
WIA and provides uniform procedures for implementing them.



Sec.  37.2  To whom does this part apply, and what is the scope of this part?

    (a) This part applies to:
    (1) Any recipient, as defined in Sec.  37.4;
    (2) Programs and activities that are part of the One-Stop delivery 
system and that are operated by One-Stop partners listed in section 
121(b) of WIA, to the extent that the programs and activities are being 
conducted as part of the One-Stop delivery system; and

[[Page 522]]

    (3) The employment practices of a recipient and/or One-Stop partner, 
as provided in Sec.  37.10.
    (b) Limitation of application. This part does not apply to:
    (1) Programs or activities that are financially assisted by the 
Department exclusively under laws other than Title I of WIA, and that 
are not part of the One-Stop delivery system (including programs or 
activities implemented under, authorized by, and/or financially assisted 
by the Department under, JTPA);
    (2) Contracts of insurance or guaranty;
    (3) The ultimate beneficiary to this program of Federal financial 
assistance;
    (4) Federal procurement contracts, with the exception of contracts 
to operate or provide services to Job Corps Centers; and
    (5) Federally-operated Job Corps Centers. The operating Department 
is responsible for enforcing the nondiscrimination and equal opportunity 
laws to which such Centers are subject.



Sec.  37.3  How does this part affect a recipient's other obligations?

    (a) A recipient's compliance with this part will satisfy any 
obligation of the recipient to comply with 29 CFR part 31, the 
Department of Labor's regulations implementing Title VI of the Civil 
Rights Act of 1964, as amended (Title VI), and with Subparts A, D and E 
of 29 CFR part 32, the Department's regulations implementing Section 504 
of the Rehabilitation Act of 1973, as amended (Section 504).
    (b) 29 CFR part 32, Subparts B and C and Appendix A, the 
Department's regulations which implement the requirements of Section 504 
pertaining to employment practices and employment-related training, 
program accessibility, and reasonable accommodation, are hereby 
incorporated into this part by reference. Therefore, recipients must 
comply with the requirements set forth in those regulatory sections as 
well as the requirements listed in this part.
    (c) Recipients that are also public entities or public 
accommodations, as defined by Titles II and III of the Americans with 
Disabilities Act of 1990 (ADA), should be aware of obligations imposed 
by those titles.
    (d) Similarly, recipients that are also employers, employment 
agencies, or other entities covered by Title I of the ADA should be 
aware of obligations imposed by that title.
    (e) Compliance with this part does not affect, in any way, any 
additional obligation that a recipient may have to comply with the 
following laws and their implementing regulations:
    (1) Executive Order 11246, as amended;
    (2) Sections 503 and 504 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 793 and 794);
    (3) The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
    (4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
    (5) Titles VI and VII of the Civil Rights Act of 1964, as amended 
(42 U.S.C. 2000d et seq. and 2000e et seq.);
    (6) The Age Discrimination Act of 1975, as amended (42 U.S.C. 6101);
    (7) The Age Discrimination in Employment Act of 1967, as amended (29 
U.S.C. 621);
    (8) Title IX of the Education Amendments of 1972, as amended (Title 
IX) (20 U.S.C. 1681);
    (9) The Americans with Disabilities Act of 1990, as amended (42 
U.S.C. 12101 et seq.); and
    (10) The anti-discrimination provision of the Immigration and 
Nationality Act, as amended (8 U.S.C. 1324b).
    (f) This rule does not preempt consistent State and local 
requirements.



Sec.  37.4  What definitions apply to this part?

    As used in this part, the term:
    Administrative Law Judge means a person appointed as provided in 5 
U.S.C. 3105 and 5 CFR 930.203, and qualified under 5 U.S.C. 557, to 
preside at hearings held under the nondiscrimination and equal 
opportunity provisions of WIA and this part.
    Aid, benefits, services, or training means WIA Title I--financially 
assisted services, financial or other aid, or benefits provided by or 
through a recipient or its employees, or by others

[[Page 523]]

through contract or other arrangements with the recipient. ``Aid, 
benefits, services, or training'' includes, but is not limited to:
    (1) Core and intensive services;
    (2) Education or training;
    (3) Health, welfare, housing, social service, rehabilitation, or 
other supportive services;
    (4) Work opportunities; and
    (5) Cash, loans, or other financial assistance to individuals.
    As used in this part, the term includes any aid, benefits, services, 
or training provided in or through a facility that has been constructed, 
expanded, altered, leased, rented, or otherwise obtained, in whole or in 
part, with Federal financial assistance under Title I of WIA.
    Applicant means an individual who is interested in being considered 
for WIA Title I--financially assisted aid, benefits, services, or 
training by a recipient, and who has signified that interest by 
submitting personal information in response to a request by the 
recipient. See also the definitions of ``application for benefits,'' 
``eligible applicant/registrant,'' ``participant,'' ``participation,'' 
and ``recipient'' in this section.
    Applicant for employment means a person or persons who make(s) 
application for employment with a recipient of Federal financial 
assistance under WIA Title I.
    Application for assistance means the process by which required 
documentation is provided to the Governor, recipient, or Department 
before and as a condition of receiving WIA Title I financial assistance 
(including both new and continuing assistance).
    Application for benefits means the process by which information, 
including but not limited to a completed application form, is provided 
by applicants or eligible applicants before and as a condition of 
receiving WIA Title I--financially assisted aid, benefits, services, or 
training from a recipient.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Assistant Secretary means the Assistant Secretary for Administration 
and Management, United States Department of Labor.
    Auxiliary aids or services includes--
    (1) Qualified interpreters, notetakers, transcription services, 
written materials, telephone handset amplifiers, assistive listening 
systems, telephones compatible with hearing aids, closed caption 
decoders, open and closed captioning, telecommunications devices for 
deaf persons (TDDs/TTYs), videotext displays, or other effective means 
of making aurally delivered materials available to individuals with 
hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, brailled 
materials, large print materials, or other effective means of making 
visually delivered materials available to individuals with visual 
impairments;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    Beneficiary means the individual or individuals intended by Congress 
to receive aid, benefits, services, or training from a recipient.
    Citizenship See ``Discrimination on the ground of citizenship'' in 
this section.
    CRC means the Civil Rights Center, Office of the Assistant Secretary 
for Administration and Management, U.S. Department of Labor.
    Department means the U.S. Department of Labor (DOL), including its 
agencies and organizational units.
    Departmental grantmaking agency means a grantmaking agency within 
the U.S. Department of Labor.
    Director means the Director, Civil Rights Center (CRC), Office of 
the Assistant Secretary for Administration and Management, U.S. 
Department of Labor, or a designee authorized to act for the Director.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1)(i) The phrase physical or mental impairment means--
    (A) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more

[[Page 524]]

of the following body systems: neurological, musculoskeletal, special 
sense organs, respiratory (including speech organs), cardiovascular, 
reproductive, digestive, genitourinary, hemic and lymphatic, skin, and 
endocrine;
    (B) Any mental or psychological disorder such as mental retardation, 
organic brain syndrome, emotional or mental illness, and specific 
learning disabilities.
    (ii) The phrase physical or mental impairment includes, but is not 
limited to, such contagious and noncontagious diseases and conditions as 
orthopedic, visual, speech and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease (whether symptomatic or asymptomatic), 
tuberculosis, drug addiction, and alcoholism. The phrase ``physical or 
mental impairment'' does not include homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by the recipient as 
being 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 recipient as having such an impairment.
    Discrimination on the ground of citizenship means a denial of 
participation in programs or activities financially assisted in whole or 
in part under Title I of WIA to individuals on the basis of their status 
as citizens or nationals of the United States, lawfully admitted 
permanent resident aliens, refugees, asylees, and parolees, or other 
immigrants authorized by the Attorney General to work in the United 
States.
    Eligible applicant/registrant means an individual who has been 
determined eligible to participate in one or more WIA Title I--
financially assisted programs or activities.
    Employment practices means a recipient's practices related to 
employment, including but not limited to:
    (1) Recruitment or recruitment advertising;
    (2) Selection, placement, layoff or termination of employees;
    (3) Upgrading, promotion, demotion or transfer of employees;
    (4) Training, including employment-related training;
    (5) Participation in upward mobility programs;
    (6) Deciding rates of pay or other forms of compensation;
    (7) Use of facilities; or
    (8) Deciding other terms, conditions, benefits and/or privileges of 
employment.
    Employment-related training means training that allows or enables an 
individual to obtain employment.
    Entity means any person, corporation, partnership, joint venture, 
sole proprietorship, unincorporated association, consortium, Indian 
tribe or tribal organization, Native Hawaiian organization, and/or 
entity authorized by State or local law; any State or local government; 
and/or any agency, instrumentality or subdivision of such a government.
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, roads, walks, passageways, parking lots, rolling 
stock or other conveyances, or other real or personal property or 
interest in such property, including the site where the building, 
property, structure, or equipment is located. The phrase ``real or 
personal property'' in the preceding sentence includes indoor constructs 
that may or may not be permanently attached to a building or structure. 
Such constructs include, but are not limited to, office cubicles, 
computer kiosks, and similar constructs.

[[Page 525]]

    Federal grantmaking agency means a Federal agency that provides 
financial assistance under any Federal statute.
    Financial assistance means any of the following:
    (1) Any grant, subgrant, loan, or advance of funds, including funds 
extended to any entity for payment to or on behalf of participants 
admitted to that entity for training, or extended directly to such 
participants for payment to that entity;
    (2) Provision of the services of grantmaking agency personnel, or of 
other personnel at the grantmaking agency's expense;
    (3) A grant or donation of real or personal property or any interest 
in or use of such property, including:
    (a) Transfers or leases of property for less than fair market value 
or for reduced consideration;
    (b) Proceeds from a subsequent sale, transfer, or lease of such 
property, if the grantmaking agency's share of the fair market value of 
the property is not returned to the grantmaking agency; and
    (c) The sale, lease, or license of, and/or the permission to use 
(other than on a casual or transient basis), such property or any 
interest in such property, either:
    (i) Without consideration,
    (ii) At a nominal consideration, or
    (iii) At a consideration that is reduced or waived either for the 
purpose of assisting the recipient, or in recognition of the public 
interest to be served by such sale or lease to or use by the recipient;
    (4) Waiver of charges that would normally be made for the furnishing 
of services by the grantmaking agency; and
    (5) Any other agreement, arrangement, contract or subcontract (other 
than a procurement contract or a contract of insurance or guaranty), or 
other instrument that has as one of its purposes the provision of 
assistance or benefits under the statute or policy that authorizes 
assistance by the grantmaking agency.
    Financial assistance under Title I of WIA means any of the 
following, when authorized or extended under WIA Title I:
    (1) Any grant, subgrant, loan, or advance of Federal funds, 
including funds extended to any entity for payment to or on behalf of 
participants admitted to that entity for training, or extended directly 
to such participants for payment to that entity;
    (2) Provision of the services of Federal personnel, or of other 
personnel at Federal expense;
    (3) A grant or donation of Federal real or personal property or any 
interest in or use of such property, including:
    (a) Transfers or leases of property for less than fair market value 
or for reduced consideration;
    (b) Proceeds from a subsequent sale, transfer, or lease of such 
property, if the Federal share of the fair market value of the property 
is not returned to the Federal Government; and
    (c) The sale, lease, or license of, and/or the permission to use 
(other than on a casual or transient basis), such property or any 
interest in such property, either:
    (i) Without consideration,
    (ii) At a nominal consideration, or
    (iii) At a consideration that is reduced or waived either for the 
purpose of assisting the recipient, or in recognition of the public 
interest to be served by such sale or lease to or use by the recipient;
    (4) Waiver of charges that would normally be made for the furnishing 
of Government services; and
    (5) Any other agreement, arrangement, contract or subcontract (other 
than a Federal procurement contract or a contract of insurance or 
guaranty), or other instrument that has as one of its purposes the 
provision of assistance or benefits under WIA Title I.
    Fundamental alteration means:
    (1) A change in the essential nature of a program or activity as 
defined in this part, including but not limited to an aid, service, 
benefit, or training; or
    (2) A cost that a recipient can demonstrate would result in an undue 
burden. Factors to be considered in making the determination whether the 
cost of a modification would result in such a burden include:

[[Page 526]]

    (a) The nature and net cost of the modification needed, taking into 
consideration the availability of tax credits and deductions, and/or 
outside financial assistance, for the modification;
    (b) The overall financial resources of the facility or facilities 
involved in the provision of the modification, including:
    (i) The number of persons aided, benefited, served, or trained by, 
or employed at, the facility or facilities; and
    (ii) The effect the modification would have on the expenses and 
resources of the facility or facilities;
    (c) The overall financial resources of the recipient, including:
    (i) The overall size of the recipient;
    (ii) The number of persons aided, benefited, served, trained, or 
employed by the recipient; and
    (iii) The number, type and location of the recipient's facilities;
    (d) The type of operation or operations of the recipient, including:
    (i) The geographic separateness and administrative or fiscal 
relationship of the facility or facilities in question to the recipient; 
and
    (ii) Where the modification sought is employment-related, the 
composition, structure and functions of the recipient's workforce; and
    (e) The impact of the modification upon the operation of the 
facility or facilities, including:
    (i) The impact on the ability of other participants to receive aid, 
benefits, services, or training, or of other employees to perform their 
duties; and
    (ii) The impact on the facility's ability to carry out its mission.
    Governor means the chief elected official of any State or his or her 
designee.
    Grant applicant means an entity that submits the required 
documentation to the Governor, recipient, or Department, before and as a 
condition of receiving financial assistance under Title I of WIA.
    Grantmaking agency means an entity that provides Federal financial 
assistance.
    Guideline means written informational material supplementing an 
agency's regulations and provided to grant applicants and recipients to 
provide program-specific interpretations of their responsibilities under 
the regulations.
    Illegal use of drugs means the use of drugs, the possession or 
distribution of which is unlawful under the Controlled Substances Act, 
as amended (21 U.S.C. 812). ``Illegal use of drugs'' does not include 
the use of a drug taken under supervision of a licensed health care 
professional, or other uses authorized by the Controlled Substances Act 
or other provisions of Federal law.
    Individual with a disability means a person who has a disability, as 
defined in this section.
    (1) The term ``individual with a disability'' does not include an 
individual on the basis of:
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    (2) The term ``individual with a disability'' also does not include 
an individual who is currently engaging in the illegal use of drugs, 
when a recipient acts on the basis of such use. This limitation does not 
exclude as an individual with a disability an individual who:
    (i) Has successfully completed a supervised drug rehabilitation 
program and is no longer engaging in the illegal use of drugs, or has 
otherwise been rehabilitated successfully and is no longer engaging in 
such use;
    (ii) Is participating in a supervised rehabilitation program and is 
no longer engaging in such use; or
    (iii) Is erroneously regarded as engaging in such use, but is not 
engaging in such use, except that it is not a violation of the 
nondiscrimination and equal opportunity provisions of WIA or this part 
for a recipient to adopt or administer reasonable policies or 
procedures, including but not limited to drug testing, designed to 
ensure that an individual described in paragraph (1)(i) or (1)(ii) of 
this definition is no longer engaging in the illegal use of drugs.

[[Page 527]]

    (2) With regard to employment, the term ``individual with a 
disability'' does not include any individual who:
    (i) Is an alcoholic:
    (A) Whose current use of alcohol prevents such individual from 
performing the duties of the job in question, or
    (B) Whose employment, by reason of such current alcohol abuse, would 
constitute a direct threat to property or the safety of others; or
    (ii) Has a currently contagious disease or infection, if:
    (A) That disease or infection prevents him or her from performing 
the duties of the job in question, or
    (B) His or her employment, because of that disease or infection, 
would constitute a direct threat to the health and safety of others.
    Labor market area means an economically integrated geographic area 
within which individuals can reside and find employment within a 
reasonable distance or can readily change employment without changing 
their place of residence. Such an area must be identified in accordance 
with either criteria used by the Bureau of Labor Statistics of the 
Department of Labor in defining such areas, or similar criteria 
established by a Governor.
    LWIA (Local Workforce Investment Area) grant recipient means the 
entity that receives WIA Title I financial assistance for a Local 
Workforce Investment Area directly from the Governor and disburses those 
funds for workforce investment activities.
    Methods of Administration means the written document and supporting 
documentation developed under Sec.  37.54.
    National Programs means:
    (1) Job Corps; and
    (2) Programs receiving Federal funds under Title I, Subtitle D of 
WIA directly from the Department. Such programs include, but are not 
limited to, the Migrant and Seasonal Workers Programs, Native American 
Programs, and Veterans' Workforce Investment programs.
    Noncompliance means a failure of a grant applicant or recipient to 
comply with any of the applicable requirements of the nondiscrimination 
and equal opportunity provisions of WIA or this part.
    On-the-Job Training (OJT) means training by an employer that is 
provided to a paid participant while the participant is engaged in 
productive work that:
    (1) Provides knowledge or skills essential to the full and adequate 
performance of the job;
    (2) Provides reimbursement to the employer of up to 50 percent of 
the wage rate of the participant, for the extraordinary costs of 
providing the training and additional supervision related to the 
training; and
    (3) Is limited in duration as appropriate to the occupation for 
which the participant is being trained, taking into account the content 
of the training, the prior work experience of the participant, and the 
service strategy of the participant, as appropriate.
    Participant means an individual who has been determined to be 
eligible to participate in, and who is receiving aid, benefits, services 
or training under, a program or activity funded in whole or in part 
under Title I of WIA. ``Participant'' includes, but is not limited to, 
applicants receiving any service(s) under state Employment Service 
programs, and claimants receiving any service(s) under state 
Unemployment Insurance programs.
    Participation is considered to commence on the first day, following 
determination of eligibility, on which the participant began receiving 
subsidized aid, benefits, services, or training provided under Title I 
of WIA.
    Parties to a hearing means the Department and the grant 
applicant(s), recipient(s), or Governor.
    Population eligible to be served means the total population of 
adults and eligible youth who reside within the labor market area that 
is served by a particular recipient, and who are eligible to seek WIA 
Title I-financially assisted aid, benefits, services or training from 
that recipient. See the definition of ``labor market area'' in this 
section.
    Program or activity: See ``WIA Title I-financially assisted program 
or activity'' in this section.
    Prohibited ground means any basis upon which it is illegal to 
discriminate under the nondiscrimination and equal opportunity 
provisions of WIA or this

[[Page 528]]

part, i.e., race, color, religion, sex, national origin, age, 
disability, political affiliation or belief, and, for beneficiaries 
only, citizenship or participation in a WIA Title I-financially assisted 
program or activity.
    Public entity means:
    (1) Any State or local government; and
    (2) Any department, agency, special purpose district, workforce 
investment board, or other instrumentality of a State or States or local 
government.
    Qualified individual with a disability means:
    (1) With respect to employment, an individual with a disability who, 
with or without reasonable accommodation, is capable of performing the 
essential functions of the job in question;
    (2) With respect to aid, benefits, services, or training, an 
individual with a disability who, with or without reasonable 
accommodation and/or reasonable modification, meets the essential 
eligibility requirements for the receipt of such aid, benefits, 
services, or training.
    Qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially, either for individuals with 
disabilities or for individuals with limited English skills. The 
interpreter must be able to interpret both receptively and expressively, 
using any necessary specialized vocabulary.
    Reasonable accommodation. (1) The term ``reasonable accommodation'' 
means:
    (i) Modifications or adjustments to an application/registration 
process that enables a qualified applicant/registrant with a disability 
to be considered for the aid, benefits, services, training, or 
employment that the qualified applicant/registrant desires; or
    (ii) Modifications or adjustments that enable a qualified individual 
with a disability to perform the essential functions of a job, or to 
receive aid, benefits, services, or training equal to that provided to 
qualified individuals without disabilities. These modifications or 
adjustments may be made to:
    (A) The environment where work is performed or aid, benefits, 
services, or training are given; or
    (B) The customary manner in which, or circumstances under which, a 
job is performed or aid, benefits, services, or training are given; or
    (iii) Modifications or adjustments that enable a qualified 
individual with a disability to enjoy the same benefits and privileges 
of the aid, benefits, services, training, or employment as are enjoyed 
by other similarly situated individuals without disabilities.
    (2) Reasonable accommodation includes, but is not limited to:
    (i) Making existing facilities used by applicants, registrants, 
eligible applicants/registrants, participants, applicants for 
employment, and employees readily accessible to and usable by 
individuals with disabilities; and
    (ii) Restructuring of a job or a service, or of the way in which 
aid, benefits, or training is/are provided; part-time or modified work 
or training schedules; acquisition or modification of equipment or 
devices; appropriate adjustment or modifications of examinations, 
training materials, or policies; the provision of readers or 
interpreters; and other similar accommodations for individuals with 
disabilities.
    (3) To determine the appropriate reasonable accommodation, it may be 
necessary for the recipient to initiate an informal, interactive process 
with the qualified individual with a disability in need of the 
accommodation. This process should identify the precise limitations 
resulting from the disability and potential reasonable accommodations 
that could overcome those limitations.
    Recipient means any entity to which financial assistance under WIA 
Title I is extended, either directly from the Department or through the 
Governor or another recipient (including any successor, assignee, or 
transferee of a recipient), but excluding the ultimate beneficiaries of 
the WIA Title I-funded program or activity. In instances in which a 
Governor operates a program or activity, either directly or through a 
State agency, using discretionary funds apportioned to him or her under 
WIA Title I (rather than disbursing the funds to another recipient), the 
Governor is also a recipient. ``Recipient'' includes, but is not limited 
to:

[[Page 529]]

    (1) State-level agencies that administer, or are financed in whole 
or in part with, WIA Title I funds;
    (2) State Employment Security Agencies;
    (3) State and local Workforce Investment Boards;
    (4) LWIA grant recipients;
    (5) One-Stop operators;
    (6) Service providers, including eligible training providers;
    (7) On-the-Job Training (OJT) employers;
    (8) Job Corps contractors and center operators, excluding the 
operators of federally-operated Job Corps centers;
    (9) Job Corps national training contractors;
    (10) Outreach and admissions agencies, including Job Corps 
contractors that perform these functions;
    (11) Placement agencies, including Job Corps contractors that 
perform these functions; and
    (12) Other National Program recipients.
    In addition, for purposes of this part, One-Stop partners, as 
defined in section 121(b) of WIA, are treated as ``recipients,'' and are 
subject to the nondiscrimination and equal opportunity requirements of 
this part, to the extent that they participate in the One-Stop delivery 
system.
    Registrant means the same as ``applicant'' for purposes of this 
part. See also the definitions of ``application for benefits,'' 
``eligible applicant/registrant,'' ``participant,'' ``participation,'' 
and ``recipient'' in this section.
    Respondent means a grant applicant or recipient (including a 
Governor) against which a complaint has been filed under the 
nondiscrimination and equal opportunity provisions of WIA or this part.
    Secretary means the Secretary of Labor, U.S. Department of Labor, or 
his or her designee.
    Sectarian activities means religious worship or ceremony, or 
sectarian instruction.
    Section 504 means Section 504 of the Rehabilitation Act of 1973, 29 
U.S.C. 794, as amended, which forbids discrimination against qualified 
individuals with disabilities in federally-financed and conducted 
programs and activities.
    Service provider means:
    (1) Any operator of, or provider of aid, benefits, services, or 
training to:
    (a) Any WIA Title I--funded program or activity that receives 
financial assistance from or through any State or LWIA grant recipient; 
or
    (b) Any participant through that participant's Individual Training 
Account (ITA); or
    (2) Any entity that is selected and/or certified as an eligible 
provider of training services to participants.
    Small recipient means a recipient who:
    (a) Serves a total of fewer than 15 beneficiaries during the entire 
grant year, and
    (b) Employs fewer than 15 employees on any given day during the 
grant year.
    Solicitor means the Solicitor of Labor, U.S. Department of Labor, or 
his or her designee.
    State means the individual states of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, 
American Samoa, Guam, Wake Island, the Commonwealth of the Northern 
Mariana Islands, the Federated States of Micronesia, the Republic of the 
Marshall Islands, and Palau.
    State Employment Security Agency (SESA) means the State agency that, 
under the State Administrator, contains both State agencies with 
responsibility for administering programs authorized under the Wagner-
Peyser Act, and unemployment insurance programs authorized under Title 
III of the Social Security Act.
    State Programs means programs financially assisted in whole or in 
part under Title I of WIA in which either:
    (1) The Governor and/or State receives and disburses the grant to or 
through LWIA grant recipients; or
    (2) The Governor retains the grant funds and operates the programs, 
either directly or through a State agency.
    ``State programs'' also includes State Employment Security Agencies, 
State Employment Service agencies, and/or State unemployment 
compensation agencies.

[[Page 530]]

    Supportive services means services, such as transportation, child 
care, dependent care, housing, and needs-related payments, that are 
necessary to enable an individual to participate in WIA Title I-
financially assisted programs and activities, as consistent with the 
provisions of WIA.
    Terminee means a participant whose participation in the program 
terminates, voluntarily or involuntarily, during the applicable program 
year.
    Title VI means Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d, et seq., as amended, which forbids recipients of Federal 
financial assistance from discriminating on the basis of race, color, or 
national origin.
    Transferee means a person or entity to whom real or personal 
property, or an interest in such property, is transferred.
    Ultimate beneficiary See the definition of ``beneficiary'' in this 
section.
    Undue hardship This term has different meanings, depending upon 
whether it is used with regard to reasonable accommodation of 
individuals with disabilities, or with regard to religious 
accommodation.
    (1) Reasonable accommodation of individuals with disabilities: (i) 
In general, ``undue hardship'' means significant difficulty or expense 
incurred by a recipient, when considered in light of the factors set 
forth in paragraph (ii).
    (ii) Factors to be considered in determining whether an 
accommodation would impose an undue hardship on a recipient include:
    (A) The nature and net cost of the accommodation needed, taking into 
consideration the availability of tax credits and deductions, and/or 
outside funding, for the accommodation;
    (B) The overall financial resources of the facility or facilities 
involved in the provision of the reasonable accommodation, including:
    (1) The number of persons aided, benefited, served, or trained by, 
or employed at, the facility or facilities, and
    (2) The effect the accommodation would have on the expenses and 
resources of the facility or facilities;
    (C) The overall financial resources of the recipient, including:
    (1) The overall size of the recipient,
    (2) The number of persons aided, benefited, served, trained, or 
employed by the recipient, and
    (3) The number, type and location of the recipient's facilities;
    (D) The type of operation or operations of the recipient, including:
    (1) The geographic separateness and administrative or fiscal 
relationship of the facility or facilities in question to the recipient, 
and
    (2) Where the individual is seeking an employment-related 
accommodation, the composition, structure and functions of the 
recipient's workforce; and
    (E) The impact of the accommodation upon the operation of the 
facility or facilities, including:
    (1) The impact on the ability of other participants to receive aid, 
benefits, services, or training, or of other employees to perform their 
duties, and
    (2) The impact on the facility's ability to carry out its mission.
    (2) Religious accommodation For purposes of religious accommodation 
only, ``undue hardship'' means any additional, unusual costs, other than 
de minimis costs, that a particular accommodation would impose upon a 
recipient. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 
84 (1977).
    WIA means the Workforce Investment Act of 1998, Pub. L. 105-220.
    WIA Title I financial assistance See the definition of ``Federal 
financial assistance under Title I of WIA'' in this section.
    WIA Title I-funded program or activity means:
    (1) A program or activity, operated by a recipient and funded, in 
whole or in part, under Title I of WIA, that provides either:
    (i) Any aid, benefits, services, or training to individuals; or
    (ii) Facilities for furnishing any aid, benefits, services, or 
training to individuals;
    (2) Aid, benefits, services, or training provided in facilities that 
are being or were constructed with the aid of Federal financial 
assistance under WIA Title I; or
    (3) Aid, benefits, services, or training provided with the aid of 
any non-WIA Title I funds, property, or other resources that are 
required to be expended or made available in order for

[[Page 531]]

the program to meet matching requirements or other conditions which must 
be met in order to receive the WIA Title I financial assistance.
    See the definition of ``aid, benefits, services, or training'' in 
this section.



Sec.  37.5  What forms of discrimination are prohibited by this part?

    No individual in the United States may, on the ground of race, 
color, religion, sex, national origin, age, disability, political 
affiliation or belief, and for beneficiaries only, citizenship or 
participation in any WIA Title I--financially assisted program or 
activity, be excluded from participation in, denied the benefits of, 
subjected to discrimination under, or denied employment in the 
administration of or in connection with any WIA Title I--funded program 
or activity.



Sec.  37.6  What specific discriminatory actions, based on prohibited grounds 
other than disability, are prohibited by this part, and what limitations 
are there related to religious activities?

    (a) For the purposes of this section, ``prohibited ground'' means 
race, color, religion, sex, national origin, age, political affiliation 
or belief, and for beneficiaries only, citizenship or participation in 
any WIA Title I--financially assisted program or activity.
    (b) A recipient must not, directly or through contractual, 
licensing, or other arrangements, on a prohibited ground:
    (1) Deny an individual any aid, benefits, services, or training 
provided under a WIA Title I--funded program or activity;
    (2) Provide to an individual any aid, benefits, services, or 
training that is different, or is provided in a different manner, from 
that provided to others under a WIA Title I--funded program or activity;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to his or her receipt of any aid, benefits, services, 
or training under a WIA Title I--funded program or activity;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any aid, benefits, 
services, or training under a WIA Title I--funded program or activity;
    (5) Treat an individual differently from others in determining 
whether he or she satisfies any admission, enrollment, eligibility, 
membership, or other requirement or condition for any aid, benefits, 
services, or training provided under a WIA Title I--funded program or 
activity;
    (6) Deny or limit an individual with respect to any opportunity to 
participate in a WIA Title I--funded program or activity, or afford him 
or her an opportunity to do so that is different from the opportunity 
afforded others under a WIA Title I--funded program or activity;
    (7) Deny an individual the opportunity to participate as a member of 
a planning or advisory body that is an integral part of the WIA Title 
I--funded program or activity; or
    (8) Otherwise limit on a prohibited ground an individual in 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any WIA Title I--financially assisted aid, benefits, 
services, or training.
    (c) A recipient must not, directly or through contractual, 
licensing, or other arrangements:
    (1) Aid or perpetuate discrimination by providing significant 
assistance to an agency, organization, or person that discriminates on a 
prohibited ground in providing any aid, benefits, services, or training 
to registrants, applicants or participants in a WIA Title I--funded 
program or activity; or
    (2) Refuse to accommodate an individual's religious practices or 
beliefs, unless to do so would result in undue hardship, as defined in 
section 37.4.
    (d) (1) In making any of the determinations listed in paragraph 
(d)(2) of this section, either directly or through contractual, 
licensing, or other arrangements, a recipient must not use standards, 
procedures, criteria, or administrative methods that have any of the 
following purposes or effects:
    (i) Subjecting individuals to discrimination on a prohibited ground; 
or
    (ii) Defeating or substantially impairing, on a prohibited ground, 
accomplishment of the objectives of either:
    (A) The WIA Title I--funded program or activity; or

[[Page 532]]

    (B) the nondiscrimination and equal opportunity provisions of WIA or 
this part.
    (2) The determinations to which this paragraph applies include, but 
are not limited to:
    (i) The types of aid, benefits, services, training, or facilities 
that will be provided under any WIA Title I--funded program or activity;
    (ii) The class of individuals to whom such aid, benefits, services, 
training, or facilities will be provided; or
    (iii) The situations in which such aid, benefits, services, 
training, or facilities will be provided.
    (3) Paragraph (d) of this section applies to the administration of 
WIA Title I--funded programs or activities providing aid, benefits, 
services, training, or facilities in any manner, including, but not 
limited to:
    (i) Outreach and recruitment;
    (ii) Registration;
    (iii) Counseling and guidance;
    (iv) Testing;
    (v) Selection, placement, appointment, and referral;
    (vi) Training; and
    (vii) Promotion and retention.
    (4) A recipient must not take any of the prohibited actions listed 
in paragraph (d) of this section either directly or through contractual, 
licensing, or other arrangements.
    (e) In determining the site or location of facilities, a grant 
applicant or recipient must not make selections that have any of the 
following purposes or effects:
    (1) On a prohibited ground:
    (i) Excluding individuals from a WIA Title I--financially assisted 
program or activity;
    (ii) Denying them the benefits of such a program or activity; or
    (iii) Subjecting them to discrimination; or
    (2) Defeating or substantially impairing the accomplishment of the 
objectives of either:
    (i) The WIA Title I--financially assisted program or activity; or
    (ii) The nondiscrimination and equal opportunity provisions of WIA 
or this part.
    (f)(1) 29 CFR part 2, subpart D governs the circumstances under 
which DOL support, including WIA Title I financial assistance, may be 
used to employ or train participants in religious activities. Under that 
subpart, such assistance may be used for such employment or training 
only when the assistance is provided indirectly within the meaning of 
the Establishment Clause of the U.S. Constitution, and not when the 
assistance is provided directly. As explained in that subpart, 
assistance provided through an Individual Training Account is generally 
considered indirect, and other mechanisms may also be considered 
indirect. See also Sec. Sec.  667.266 and 667.275 of 20 CFR. 29 CFR part 
2, subpart D also contains requirements related to equal treatment of 
religious organizations in Department of Labor programs, and to 
protection of religious liberty for Department of Labor social service 
providers and beneficiaries.
    (f)(2) Except under the circumstances described in paragraph (f)(3) 
below, a recipient must not employ participants to carry out the 
construction, operation, or maintenance of any part of any facility that 
is used, or to be used, for religious instruction or as a place for 
religious worship.
    (3) A recipient may employ participants to carry out the maintenance 
of a facility that is not primarily or inherently devoted to religious 
instruction or religious worship if the organization operating the 
facility is part of a program or activity providing services to 
participants.
    (g) The exclusion of an individual from programs or activities 
limited by Federal statute or Executive Order to a certain class or 
classes of individuals of which the individual in question is not a 
member is not prohibited by this part.

[64 FR 61715, Nov. 12, 1999, as amended at 69 FR 41893, 41900, July 12, 
2004]



Sec.  37.7  What specific discriminatory actions based on disability 
are prohibited by this part?

    (a) In providing any aid, benefits, services, or training under a 
WIA Title I--financially assisted program or activity, a recipient must 
not, directly or through contractual, licensing, or other arrangements, 
on the ground of disability:

[[Page 533]]

    (1) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefits, services, or training;
    (2) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefits, services, or 
training that is not equal to that afforded others;
    (3) Provide a qualified individual with a disability with an aid, 
benefit, service or training that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (4) Provide different, segregated, or separate aid, benefits, 
services, or training to individuals with disabilities, or to any class 
of individuals with disabilities, unless such action is necessary to 
provide qualified individuals with disabilities with aid, benefits, 
services or training that are as effective as those provided to others;
    (5) Deny a qualified individual with a disability the opportunity to 
participate as a member of planning or advisory boards; or
    (6) Otherwise limit a qualified individual with a disability in 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any aid, benefit, service or training.
    (b) A recipient must not, directly or through contractual, 
licensing, or other arrangements, aid or perpetuate discrimination 
against qualified individuals with disabilities by providing significant 
assistance to an agency, organization, or person that discriminates on 
the basis of disability in providing any aid, benefits, services or 
training to registrants, applicants, or participants.
    (c) A recipient must not deny a qualified individual with a 
disability the opportunity to participate in WIA Title I--financially 
assisted programs or activities despite the existence of permissibly 
separate or different programs or activities.
    (d) A recipient must administer WIA Title I--financially assisted 
programs and activities in the most integrated setting appropriate to 
the needs of qualified individuals with disabilities.
    (e) A recipient must not, directly or through contractual, 
licensing, or other arrangements, use standards, procedures, criteria, 
or administrative methods:
    (1) That have the purpose or effect of subjecting qualified 
individuals with disabilities to discrimination on the ground of 
disability;
    (2) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the WIA Title I--
financially assisted program or activity with respect to individuals 
with disabilities; or
    (3) That perpetuate the discrimination of another entity if both 
entities are subject to common administrative control or are agencies of 
the same state.
    (f) In determining the site or location of facilities, a grant 
applicant or recipient must not make selections that have any of the 
following purposes or effects:
    (1) On the basis of disability:
    (i) Excluding qualified individuals from a WIA Title I-financially 
assisted program or activity;
    (ii) Denying them the benefits of such a program or activity; or
    (iii) Subjecting them to discrimination; or
    (2) Defeating or substantially impairing the accomplishment of the 
disability-related objectives of either:
    (i) The WIA Title I-financially assisted program or activity; or
    (ii) The nondiscrimination and equal opportunity provisions of WIA 
or this part.
    (g) A recipient, in the selection of contractors, must not use 
criteria that subject qualified individuals with disabilities to 
discrimination on the basis of disability.
    (h) A recipient must not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may a 
recipient establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. The programs 
or activities of entities

[[Page 534]]

that are licensed or certified by a recipient are not, themselves, 
covered by this part.
    (i) A recipient must not impose or apply eligibility criteria that 
screen out or tend to screen out an individual with a disability or any 
class of individuals with disabilities from fully and equally enjoying 
any aid, benefit, service, training, program, or activity, unless such 
criteria can be shown to be necessary for the provision of the aid, 
benefit, service, training, program, or activity being offered.
    (j) Nothing in this part prohibits a recipient from providing aid, 
benefits, services, training, or advantages to individuals with 
disabilities, or to a particular class of individuals with disabilities, 
beyond those required by this part.
    (k) A recipient must not place a surcharge on a particular 
individual with a disability, or any group of individuals with 
disabilities, to cover the costs of measures, such as the provision of 
auxiliary aids or program accessibility, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by WIA Title I or this part.
    (l) A recipient must not exclude, or otherwise deny equal aid, 
benefits, services, training, programs, or activities to, an individual 
or entity because of the known disability of an individual with whom the 
individual or entity is known to have a relationship or association.
    (m) The exclusion of an individual without a disability from the 
benefits of a program limited by Federal statute or Executive Order to 
individuals with disabilities, or the exclusion of a specific class of 
individuals with disabilities from a program limited by Federal statute 
or Executive Order to a different class of individuals with 
disabilities, is not prohibited by this part.
    (n) This part does not require a recipient to provide any of the 
following to individuals with disabilities:
    (1) Personal devices, such as wheelchairs;
    (2) Individually prescribed devices, such as prescription eyeglasses 
or hearing aids;
    (3) Readers for personal use or study; or
    (4) Services of a personal nature, including assistance in eating, 
toileting, or dressing.
    (o)(1) Nothing in this part requires an individual with a disability 
to accept an accommodation, aid, benefit, service, training, or 
opportunity provided under WIA Title I or this part that such individual 
chooses not to accept.
    (2) Nothing in this part authorizes the representative or guardian 
of an individual with a disability to decline food, water, medical 
treatment, or medical services for that individual.



Sec.  37.8  What are a recipient's responsibilities regarding reasonable 
accommodation and reasonable modification for individuals with disabilities?

    (a) With regard to aid, benefits, services, training, and 
employment, a recipient must provide reasonable accommodation to 
qualified individuals with disabilities who are applicants, registrants, 
eligible applicants/registrants, participants, employees, or applicants 
for employment, unless providing the accommodation would cause undue 
hardship. See the definitions of ``reasonable accommodation'' and 
``undue hardship'' in Sec.  37.4 of this part.
    (1) In those circumstances where a recipient believes that the 
proposed accommodation would cause undue hardship, the recipient has the 
burden of proving that the accommodation would result in such hardship.
    (2) The recipient must make the decision that the accommodation 
would cause such hardship only after considering all factors listed in 
the definition of ``undue hardship'' in Sec.  37.4. The decision must be 
accompanied by a written statement of the recipient's reasons for 
reaching that conclusion. The recipient must provide a copy of the 
statement of reasons to the individual or individuals who requested the 
accommodation.
    (3) If a requested accommodation would result in undue hardship, the 
recipient must take any other action that would not result in such 
hardship, but would nevertheless ensure that, to the maximum extent 
possible, individuals with disabilities receive the aid, benefits, 
services, training, or employment provided by the recipient.

[[Page 535]]

    (b) A recipient must also make reasonable modifications in policies, 
practices, or procedures when the modifications are necessary to avoid 
discrimination on the basis of disability, unless making the 
modifications would fundamentally alter the nature of the service, 
program, or activity. See the definition of ``fundamental alteration'' 
in Sec.  37.4 of this part.
    (1) In those circumstances where a recipient believes that the 
proposed modification would fundamentally alter the program, activity, 
or service, the recipient has the burden of proving that the 
modification would result in such an alteration.
    (2) The recipient must make the decision that the modification would 
result in such an alteration only after considering all factors listed 
in the definition of ``fundamental alteration'' in Sec.  37.4. The 
decision must be accompanied by a written statement of the recipient's 
reasons for reaching that conclusion. The recipient must provide a copy 
of the statement of reasons to the individual or individuals who 
requested the modification.
    (3) If a modification would result in a fundamental alteration, the 
recipient must take any other action that would not result in such an 
alteration, but would nevertheless ensure that, to the maximum extent 
possible, individuals with disabilities receive the aid, benefits, 
services, training, or employment provided by the recipient.



Sec.  37.9  What are a recipient's responsibilities to communicate 
with individuals with disabilities?

    (a) Recipients must take appropriate steps to ensure that 
communications with beneficiaries, registrants, applicants, eligible 
applicants/registrants, participants, applicants for employment, 
employees, and members of the public who are individuals with 
disabilities, are as effective as communications with others.
    (b) A recipient must furnish appropriate auxiliary aids or services 
where necessary to afford individuals with disabilities an equal 
opportunity to participate in, and enjoy the benefits of, the WIA Title 
I--financially assisted program or activity. In determining what type of 
auxiliary aid or service is appropriate and necessary, such recipient 
must give primary consideration to the requests of the individual with a 
disability.
    (c) Where a recipient communicates by telephone with beneficiaries, 
registrants, applicants, eligible applicants/registrants, participants, 
applicants for employment, and/or employees, the recipient must use 
telecommunications devices for individuals with hearing impairments 
(TDDs/TTYs), or equally effective communications systems, such as 
telephone relay services.
    (d) A recipient must ensure that interested individuals, including 
individuals with visual or hearing impairments, can obtain information 
as to the existence and location of accessible services, activities, and 
facilities.
    (e)(1) A recipient must 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 
signage provided must meet the most current standards prescribed by the 
General Services Administration under the Architectural Barriers Act at 
41 CFR 101-19.6. Alternative standards for the signage may be adopted 
when it is clearly evident that such alternative standards provide 
equivalent or greater access to the information.
    (2) The international symbol for accessibility must be used at each 
primary entrance of an accessible facility.
    (f) This section does not require a recipient to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a service, program, or activity.
    (1) In those circumstances where a recipient believes that the 
proposed action would fundamentally alter the WIA Title I--financially 
assisted program, activity, or service, the recipient has the burden of 
proving that compliance with this section would result in such an 
alteration.
    (2) The decision that compliance would result in such an alteration 
must be made by the recipient after considering all resources available 
for use in the funding and operation of the WIA Title I--financially 
assisted program, activity, or service, and must be

[[Page 536]]

accompanied by a written statement of the reasons for reaching that 
conclusion.
    (3) If an action required to comply with this section would result 
in the fundamental alteration described in paragraph (f)(1) of this 
section, the recipient must take any other action that would not result 
in such an alteration, but would nevertheless ensure that, to the 
maximum extent possible, individuals with disabilities receive the 
benefits or services provided by the recipient.



Sec.  37.10  To what extent are employment practices covered by this part?

    (a) Discrimination on the ground of race, color, religion, sex, 
national origin, age, disability, or political affiliation or belief is 
prohibited in employment practices in the administration of, or in 
connection with:
    (1) Any WIA Title I-financially assisted program or activity; and
    (2) Any program or activity that is part of the One-Stop delivery 
system and is operated by a One-Stop partner listed in Section 121(b) of 
WIA, to the extent that the program or activity is being conducted as 
part of the One-Stop delivery system.
    (b) Employee selection procedures. In implementing this section, a 
recipient must comply with the Uniform Guidelines on Employee Selection 
Procedures, 41 CFR part 60-3.
    (c) Standards for employment-related investigations and reviews. In 
any investigation or compliance review, the Director must consider Equal 
Employment Opportunity Commission (EEOC) regulations, guidance and 
appropriate case law in determining whether a recipient has engaged in 
an unlawful employment practice.
    (d) As provided in Sec.  37.3(b) of this part, 29 CFR part 32, 
subparts B and C and Appendix A, which implement the requirements of 
Section 504 pertaining to employment practices and employment-related 
training, program accessibility, and reasonable accommodation, have been 
incorporated into this part by reference. Therefore, recipients must 
comply with the requirements set forth in those regulatory sections as 
well as the requirements listed in this part.
    (e) Recipients that are also employers, employment agencies, or 
other entities covered by Titles I and II of the ADA should be aware of 
obligations imposed by those titles. See 29 CFR part 1630 and 28 CFR 
part 35.
    (f) Similarly, recipients that are also employers covered by the 
anti-discrimination provision of the Immigration and Nationality Act 
should be aware of the obligations imposed by that provision. See 8 
U.S.C. 1324b, as amended.
    (g) This rule does not preempt consistent State and local 
requirements.



Sec.  37.11  To what extent are intimidation and retaliation prohibited 
by this part?

    (a) A recipient must not discharge, intimidate, retaliate, threaten, 
coerce or discriminate against any individual because the individual 
has:
    (1) Filed a complaint alleging a violation of Section 188 of WIA or 
this part;
    (2) Opposed a practice prohibited by the nondiscrimination and equal 
opportunity provisions of WIA or this part;
    (3) Furnished information to, or assisted or participated in any 
manner in, an investigation, review, hearing, or any other activity 
related to any of the following:
    (i) Administration of the nondiscrimination and equal opportunity 
provisions of WIA or this part;
    (ii) Exercise of authority under those provisions; or
    (iii) Exercise of privilege secured by those provisions; or
    (4) Otherwise exercised any rights and privileges under the 
nondiscrimination and equal opportunity provisions of WIA or this part.
    (b) The sanctions and penalties contained in Section 188(b) of WIA 
or this part may be imposed against any recipient that engages in any 
such retaliation or intimidation, or fails to take appropriate steps to 
prevent such activity.



Sec.  37.12  What Department of Labor office is responsible 
for administering this part?

    The Civil Rights Center (CRC), in the Office of the Assistant 
Secretary for Administration and Management, is responsible for 
administering and enforcing the nondiscrimination and equal

[[Page 537]]

opportunity provisions of WIA and this part, and for developing and 
issuing policies, standards, guidance, and procedures for effecting 
compliance.



Sec.  37.13  Who is responsible for providing interpretations of this part?

    The Director will make any rulings under, or interpretations of, the 
nondiscrimination and equal opportunity provisions of WIA or this part.



Sec.  37.14  Under what circumstances may the Secretary delegate 
the responsibilities of this part?

    (a) The Secretary may from time to time assign to officials of other 
departments or agencies of the Government (with the consent of such 
department or agency) responsibilities in connection with the 
effectuation of the nondiscrimination and equal opportunity provisions 
of WIA and this part (other than responsibility for final decisions 
under Sec.  37.112), including the achievement of effective coordination 
and maximum uniformity within the Department and within the executive 
branch of the Government in the application of the nondiscrimination and 
equal opportunity provisions of WIA or this part to similar programs and 
similar situations.
    (b) Any action taken, determination made, or requirement imposed by 
an official of another department or agency acting under an assignment 
of responsibility under this section has the same effect as if the 
action had been taken by the Director.



Sec.  37.15  What are the Director's responsibilities to coordinate 
with other civil rights agencies?

    (a) Whenever a compliance review or complaint investigation under 
this part reveals possible violation of one or more of the laws listed 
in paragraph (b) of this section, or of any other Federal civil rights 
law, that is not also a violation of the nondiscrimination and equal 
opportunity provisions of WIA or this part, the Director must attempt to 
notify the appropriate agency and provide it with all relevant documents 
and information.
    (b) This section applies to the following:
    (1) Executive Order 11246, as amended;
    (2) Section 503 of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 793);
    (3) The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
    (4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
    (5) Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000e et seq.);
    (6) The Age Discrimination in Employment Act of 1967, as amended (29 
U.S.C. 621);
    (7) The Americans with Disabilities Act of 1990, as amended (42 
U.S.C. 12101 et seq.);
    (8) The anti-discrimination provision of the Immigration and 
Nationality Act, as amended (8 U.S.C. 1324b); and
    (9) Any other Federal civil rights law.



Sec.  37.16  What is this part's effect on a recipient's obligations 
under other laws, and what limitations apply?

    (a) Effect of State or local law or other requirements. The 
obligation to comply with the nondiscrimination and equal opportunity 
provisions of WIA or this part are not excused or reduced by any State 
or local law or other requirement that, on a prohibited ground, 
prohibits or limits an individual's eligibility to receive aid, 
benefits, services, or training; to participate in any WIA Title I--
financially assisted program or activity; to be employed by any 
recipient; or to practice any occupation or profession.
    (b) Effect of private organization rules. The obligation to comply 
with the nondiscrimination and equal opportunity provisions of WIA and 
this part is not excused or reduced by any rule or regulation of any 
private organization, club, league or association that, on a prohibited 
ground, prohibits or limits an individual's eligibility to participate 
in any WIA Title I--financially assisted program or activity to which 
this part applies.
    (c) Effect of possible future exclusion from employment 
opportunities. A recipient must not exclude any individual from, or 
restrict any individual's participation in, any program or activity

[[Page 538]]

based on the recipient's belief or concern that the individual will 
encounter limited future employment opportunities because of his or her 
race, color, religion, sex, national origin, age, disability, political 
affiliation or belief, or citizenship.



 Subpart B_Recordkeeping and Other Affirmative Obligations of Recipients

                               Assurances



Sec.  37.20  What is a grant applicant's obligation to provide 
a written assurance?

    (a)(1) Each application for financial assistance under Title I of 
WIA, as defined in Sec.  37.4, must include the following assurance:

    As a condition to the award of financial assistance from the 
Department of Labor under Title I of WIA, the grant applicant assures 
that it will comply fully with the nondiscrimination and equal 
opportunity provisions of the following laws:
    Section 188 of the Workforce Investment Act of 1998 (WIA), which 
prohibits discrimination against all individuals in the United States on 
the basis of race, color, religion, sex, national origin, age, 
disability, political affiliation or belief, and against beneficiaries 
on the basis of either citizenship/status as a lawfully admitted 
immigrant authorized to work in the United States or participation in 
any WIA Title I--financially assisted program or activity;
    Title VI of the Civil Rights Act of 1964, as amended, which 
prohibits discrimination on the bases of race, color and national 
origin;
    Section 504 of the Rehabilitation Act of 1973, as amended, which 
prohibits discrimination against qualified individuals with 
disabilities;
    The Age Discrimination Act of 1975, as amended, which prohibits 
discrimination on the basis of age; and
    Title IX of the Education Amendments of 1972, as amended, which 
prohibits discrimination on the basis of sex in educational programs.
    The grant applicant also assures that it will comply with 29 CFR 
part 37 and all other regulations implementing the laws listed above. 
This assurance applies to the grant applicant's operation of the WIA 
Title I-financially assisted program or activity, and to all agreements 
the grant applicant makes to carry out the WIA Title I-financially 
assisted program or activity. The grant applicant understands that the 
United States has the right to seek judicial enforcement of this 
assurance.

    (2) The assurance is considered incorporated by operation of law in 
the grant, cooperative agreement, contract or other arrangement whereby 
Federal financial assistance under Title I of the WIA is made available, 
whether or not it is physically incorporated in such document and 
whether or not there is a written agreement between the Department and 
the recipient, between the Department and the Governor, between the 
Governor and the recipient, or between recipients. The assurance also 
may be incorporated by reference in such grants, cooperative agreements, 
contracts, or other arrangements.
    (b) Continuing State programs. Each Strategic Five-Year State Plan 
submitted by a State to carry out a continuing WIA Title I-financially 
assisted program or activity must provide a statement that the WIA Title 
I-financially assisted program or activity is (or, in the case of a new 
WIA Title I-financially assisted program or activity, will be) conducted 
in compliance with the nondiscrimination and equal opportunity 
provisions of WIA and this part, as a condition to the approval of the 
Five-Year Plan and the extension of any WIA Title I financial assistance 
under the Plan. The State also must certify that it has developed and 
maintains a Methods of Administration under Sec.  37.54.



Sec.  37.21  How long will the recipient's obligation under 
the assurance last, and how broad is the obligation?

    (a) Where the WIA Title I financial assistance is intended to 
provide, or is in the form of, either personal property, real property, 
structures on real property, or interest in any such property or 
structures, the assurance will obligate the recipient, or (in the case 
of a subsequent transfer) the transferee, for the longer of:
    (1) The period during which the property is used either:
    (i) For a purpose for which WIA Title I financial assistance is 
extended; or
    (ii) For another purpose involving the provision of similar services 
or benefits; or
    (2) The period during which either:

[[Page 539]]

    (i) The recipient retains ownership or possession of the property; 
or
    (ii) The transferee retains ownership or possession of the property 
without compensating the Departmental grantmaking agency for the fair 
market value of that ownership or possession.
    (b) In all other cases, the assurance will obligate the recipient 
for the period during which WIA Title I financial assistance is 
extended.



Sec.  37.22  How must covenants be used in connection with this part?

    (a) Where WIA Title I financial assistance is provided in the form 
of a transfer of real property, structures, or improvements on real 
property or structures, or interests in real property or structures, the 
instrument effecting or recording the transfer must contain a covenant 
assuring nondiscrimination and equal opportunity for the period 
described in Sec.  37.21.
    (b) Where no Federal transfer of real property or interest therein 
from the Federal Government is involved, but real property or an 
interest therein is acquired or improved under a program of WIA Title I 
financial assistance, the recipient must include the covenant described 
in paragraph (a) of this section in the instrument effecting or 
recording any subsequent transfer of such property.
    (c) When the property is obtained from the Federal Government, the 
covenant described in paragraph (a) of this section also may include a 
condition coupled with a right of reverter to the Department in the 
event of a breach of the covenant.

                       Equal Opportunity Officers



Sec.  37.23  Who must designate an Equal Opportunity Officer?

    Every recipient must designate an Equal Opportunity Officer (``EO 
Officer''), except small recipients and service providers, as defined in 
Sec.  37.4. The responsibilities of small recipients and service 
providers are described in Sec. Sec.  37.27 and 37.28.



Sec.  37.24  Who is eligible to serve as an Equal Opportunity Officer?

    A senior-level employee of the recipient should be appointed as the 
recipient's Equal Opportunity Officer. Depending upon the size of the 
recipient, the size of the recipient's WIA Title I-financially assisted 
programs or activities, and the number of applicants, registrants, and 
participants served by the recipient, the EO Officer may, or may not, be 
assigned other duties. However, he or she must not have other 
responsibilities or activities that create a conflict, or the appearance 
of a conflict, with the responsibilities of an EO Officer.



Sec.  37.25  What are the responsibilities of an Equal Opportunity Officer?

    An Equal Opportunity Officer is responsible for coordinating a 
recipient's obligations under this part. Those responsibilities include, 
but are not limited to:
    (a) Serving as the recipient's liaison with CRC;
    (b) Monitoring and investigating the recipient's activities, and the 
activities of the entities that receive WIA Title I funds from the 
recipient, to make sure that the recipient and its subrecipients are not 
violating their nondiscrimination and equal opportunity obligations 
under WIA Title I and this part;
    (c) Reviewing the recipient's written policies to make sure that 
those policies are nondiscriminatory;
    (d) Developing and publishing the recipient's procedures for 
processing discrimination complaints under Sec. Sec.  37.76 through 
37.79, and making sure that those procedures are followed;
    (e) Reporting directly to the appropriate official (including, but 
not limited to, the State WIA Director, Governor's WIA Liaison, Job 
Corps Center Director, SESA Administrator, or LWIA grant recipient) 
about equal opportunity matters;
    (f) Undergoing training (at the recipient's expense) to maintain 
competency, if the Director requires him or her, and/or his or her 
staff, to do so; and
    (g) If applicable, overseeing the development and implementation of 
the recipient's Methods of Administration under Sec.  37.54.

[[Page 540]]



Sec.  37.26  What are a recipient's obligations relating to 
the Equal Opportunity Officer?

    A recipient has the following obligations:
    (a) Making the Equal Opportunity Officer's name, and his or her 
position title, address, and telephone number (voice and TDD/TTY) 
public;
    (b) Ensuring that the EO Officer's identity and contact information 
appears on all internal and external communications about the 
recipient's nondiscrimination and equal opportunity programs;
    (c) Assigning sufficient staff and resources to the Equal 
Opportunity Officer, and providing him or her with the necessary support 
of top management, to ensure compliance with the nondiscrimination and 
equal opportunity provisions of WIA and this part; and
    (d) Ensuring that the EO Officer and his/her staff are afforded the 
opportunity to receive the training necessary and appropriate to 
maintain competency.



Sec.  37.27  What are the obligations of small recipients regarding 
Equal Opportunity Officers?

    Although small recipients do not need to designate Equal Opportunity 
Officers who have the full range of responsibilities listed above, they 
must designate an individual who will be responsible for developing and 
publishing of complaint procedures, and the processing of complaints, as 
explained in Sec. Sec.  37.76 through 37.79.



Sec.  37.28  What are the obligations of service providers regarding 
Equal Opportunity Officers?

    Service providers, as defined in Sec.  37.4, are not required to 
designate an Equal Opportunity Officer. The obligation for ensuring 
service provider compliance with the nondiscrimination and equal 
opportunity provisions of WIA and this part rests with the Governor or 
LWIA grant recipient, as specified in the State's Methods of 
Administration.

                        Notice and Communication



Sec.  37.29  What are a recipient's obligations to disseminate 
its equal opportunity policy?

    (a) A recipient must provide initial and continuing notice that it 
does not discriminate on any prohibited ground. This notice must be 
provided to:
    (1) Registrants, applicants, and eligible applicants/registrants;
    (2) Participants;
    (3) Applicants for employment and employees;
    (4) Unions or professional organizations that hold collective 
bargaining or professional agreements with the recipient;
    (5) Subrecipients that receive WIA Title I funds from the recipient; 
and
    (6) Members of the public, including those with impaired vision or 
hearing.
    (b) As provided in Sec.  37.9, the recipient must take appropriate 
steps to ensure that communications with individuals with disabilities 
are as effective as communications with others.



Sec.  37.30  What specific wording must the notice contain?

    The notice must contain the following specific wording:

                      Equal Opportunity Is the Law

    It is against the law for this recipient of Federal financial 
assistance to discriminate on the following bases:
    against any individual in the United States, on the basis of race, 
color, religion, sex, national origin, age, disability, political 
affiliation or belief; and
    against any beneficiary of programs financially assisted under Title 
I of the Workforce Investment Act of 1998 (WIA), on the basis of the 
beneficiary's citizenship/status as a lawfully admitted immigrant 
authorized to work in the United States, or his or her participation in 
any WIA Title I-financially assisted program or activity.
    The recipient must not discriminate in any of the following areas:
    deciding who will be admitted, or have access, to any WIA Title I-
financially assisted program or activity;
    providing opportunities in, or treating any person with regard to, 
such a program or activity; or
    making employment decisions in the administration of, or in 
connection with, such a program or activity.

[[Page 541]]

      What To Do If You Believe You Have Experienced Discrimination

    If you think that you have been subjected to discrimination under a 
WIA Title I-financially assisted program or activity, you may file a 
complaint within 180 days from the date of the alleged violation with 
either:
    the recipient's Equal Opportunity Officer (or the person whom the 
recipient has designated for this purpose); or
    the Director, Civil Rights Center (CRC), U.S. Department of Labor, 
200 Constitution Avenue NW, Room N-4123, Washington, DC 20210.
    If you file your complaint with the recipient, you must wait either 
until the recipient issues a written Notice of Final Action, or until 90 
days have passed (whichever is sooner), before filing with the Civil 
Rights Center (see address above).
    If the recipient does not give you a written Notice of Final Action 
within 90 days of the day on which you filed your complaint, you do not 
have to wait for the recipient to issue that Notice before filing a 
complaint with CRC. However, you must file your CRC complaint within 30 
days of the 90-day deadline (in other words, within 120 days after the 
day on which you filed your complaint with the recipient).
    If the recipient does give you a written Notice of Final Action on 
your complaint, but you are dissatisfied with the decision or 
resolution, you may file a complaint with CRC. You must file your CRC 
complaint within 30 days of the date on which you received the Notice of 
Final Action.



Sec.  37.31  Where must the notice required by Sec. Sec.  37.29 and 
37.30 be published?

    (a) At a minimum, the notice required by Sec. Sec.  37.29 and 37.30 
must be:
    (1) Posted prominently, in reasonable numbers and places;
    (2) Disseminated in internal memoranda and other written or 
electronic communications;
    (3) Included in handbooks or manuals; and
    (4) Made available to each participant, and made part of each 
participant's file.
    (b) The notice must be provided in appropriate formats to 
individuals with visual impairments. Where notice has been given in an 
alternate format to a participant with a visual impairment, a record 
that such notice has been given must be made a part of the participant's 
file.



Sec.  37.32  When must the notice required by Sec. Sec.  37.29 and 
37.30 be provided?

    The notice required by Sec. Sec.  37.29 and 37.30 must be initially 
provided within 90 days of the effective date of this part, or of the 
date this part first applies to the recipient, whichever comes later.



Sec.  37.33  Who is responsible for meeting the notice requirement 
with respect to service providers?

    The Governor or the LWIA grant recipient, as determined by the 
Governor and as provided in that State's Methods of Administration, will 
be responsible for meeting the notice requirement provided in Sections 
37.29 and 37.30 with respect to a State's service providers.



Sec.  37.34  What type of notice must a recipient include in publications, 
broadcasts, and other communications?

    (a) Recipients must indicate that the WIA Title I-financially 
assisted program or activity in question is an ``equal opportunity 
employer/program,'' and that ``auxiliary aids and services are available 
upon request to individuals with disabilities,'' in recruitment 
brochures and other materials that are ordinarily distributed or 
communicated in written and/or oral form, electronically and/or on 
paper, to staff, clients, or the public at large, to describe programs 
financially assisted under Title I of WIA or the requirements for 
participation by recipients and participants. Where such materials 
indicate that the recipient may be reached by telephone, the materials 
must state the telephone number of the TDD/TTY or relay service used by 
the recipient, as required by Sec.  37.9(c).
    (b) Recipients that publish or broadcast program information in the 
news media must ensure that such publications and broadcasts state that 
the WIA Title I-financially assisted program or activity in question is 
an equal opportunity employer/program (or otherwise indicate that 
discrimination in the WIA Title I-financially assisted program or 
activity is prohibited by Federal law), and indicate that auxiliary aids 
and services are available

[[Page 542]]

upon request to individuals with disabilities.
    (c) A recipient must not communicate any information that suggests, 
by text or illustration, that the recipient treats beneficiaries, 
registrants, applicants, participants, employees or applicants for 
employment differently on any prohibited ground specified in Sec.  37.5, 
except as such treatment is otherwise permitted under Federal law or 
this part.



Sec.  37.35  What are a recipient's responsibilities to provide services 
and information in languages other than English?

    (a) A significant number or proportion of the population eligible to 
be served, or likely to be directly affected, by a WIA Title I-
financially assisted program or activity may need services or 
information in a language other than English in order to be effectively 
informed about, or able to participate in, the program or activity. 
Where such a significant number or proportion exists, a recipient must 
take the following actions:
    (1) Consider:
    (i) The scope of the program or activity, and
    (ii) The size and concentration of the population that needs 
services or information in a language other than English; and
    (2) Based on those considerations, take reasonable steps to provide 
services and information in appropriate languages. This information must 
include the initial and continuing notice required under Sec. Sec.  
37.29 and 37.30, and all information that is communicated under Sec.  
37.34.
    (b) In circumstances other than those described in paragraph (a) of 
this section, a recipient should nonetheless make reasonable efforts to 
meet the particularized language needs of limited-English-speaking 
individuals who seek services or information from the recipient.



Sec.  37.36  What responsibilities does a recipient have to communicate 
information during orientations?

    During each presentation to orient new participants, new employees, 
and/or the general public to its WIA Title I-financially assisted 
program or activity, a recipient must include a discussion of rights 
under the nondiscrimination and equal opportunity provisions of WIA and 
this part, including the right to file a complaint of discrimination 
with the recipient or the Director.

             Data and Information Collection and Maintenance



Sec.  37.37  What are a recipient's responsibilities to collect 
and maintain data and other information?

    (a) The Director will not require submission of data that can be 
obtained from existing reporting requirements or sources, including 
those of other agencies, if the source is known and available to the 
Director.
    (b)(1) Each recipient must collect such data and maintain such 
records, in accordance with procedures prescribed by the Director, as 
the Director finds necessary to determine whether the recipient has 
complied or is complying with the nondiscrimination and equal 
opportunity provisions of WIA or this part. The system and format in 
which the records and data are kept must be designed to allow the 
Governor and CRC to conduct statistical or other quantifiable data 
analyses to verify the recipient's compliance with section 188 of WIA 
and this part.
    (2) Such records must include, but are not limited to, records on 
applicants, registrants, eligible applicants/registrants, participants, 
terminees, employees, and applicants for employment. Each recipient must 
record the race/ethnicity, sex, age, and where known, disability status, 
of every applicant, registrant, eligible applicant/registrant, 
participant, terminee, applicant for employment, and employee. Such 
information must be stored in a manner that ensures confidentiality, and 
must be used only for the purposes of recordkeeping and reporting; 
determining eligibility, where appropriate, for WIA Title I-financially 
assisted programs or activities; determining the extent to which the 
recipient is operating its WIA Title I-financially assisted program or 
activity in a nondiscriminatory manner; or other use authorized by law.
    (c) Each recipient must maintain, and submit to CRC upon request, a 
log of complaints filed with it that allege

[[Page 543]]

discrimination on the ground(s) of race, color, religion, sex, national 
origin, age, disability, political affiliation or belief, citizenship, 
and/or participation in a WIA Title I-financially assisted program or 
activity. The log must include: the name and address of the complainant; 
the ground of the complaint; a description of the complaint; the date 
the complaint was filed; the disposition and date of disposition of the 
complaint; and other pertinent information. Information that could lead 
to identification of a particular individual as having filed a complaint 
must be kept confidential.
    (d) Where designation of individuals by race or ethnicity is 
required, the guidelines of the Office of Management and Budget must be 
used.
    (e) A service provider's responsibility for collecting and 
maintaining the information required under this section may be assumed 
by the Governor or LWIA grant recipient, as provided in the State's 
Methods of Administration.



Sec.  37.38  What information must grant applicants and recipients 
provide to CRC?

    In addition to the information which must be collected, maintained, 
and, upon request, submitted to CRC under Sec.  37.37:
    (a) Each grant applicant and recipient must promptly notify the 
Director when any administrative enforcement actions or lawsuits are 
filed against it alleging discrimination on the ground of race, color, 
religion, sex, national origin, age, disability, political affiliation 
or belief, and for beneficiaries only, citizenship or participation in a 
WIA Title I-financially assisted program or activity. This notification 
must include:
    (1) The names of the parties to the action or lawsuit;
    (2) The forum in which each case was filed; and
    (3) The relevant case numbers.
    (b) Each grant applicant (as part of its application) and recipient 
(as part of a compliance review conducted under Sec.  37.63, or 
monitoring activity carried out under Sec.  37.65) must provide the 
following information:
    (1) The name of any other Federal agency that conducted a civil 
rights compliance review or complaint investigation, and that found the 
grant applicant or recipient to be in noncompliance, during the two 
years before the grant application was filed or CRC began its 
examination; and
    (2) Information about any administrative enforcement actions or 
lawsuits that alleged discrimination on any protected basis, and that 
were filed against the grant applicant or recipient during the two years 
before the application or renewal application, compliance review, or 
monitoring activity. This information must include:
    (i) The names of the parties;
    (ii) The forum in which each case was filed; and
    (iii) The relevant case numbers.
    (c) At the discretion of the Director, grant applicants and 
recipients may be required to provide, in a timely manner, any 
information and data necessary to investigate complaints and conduct 
compliance reviews on grounds prohibited under the nondiscrimination and 
equal opportunity provisions of WIA and this part.
    (d) At the discretion of the Director, recipients may be required to 
provide, in a timely manner, the particularized information and/or to 
submit the periodic reports that the Director considers necessary to 
determine compliance with the nondiscrimination and equal opportunity 
provisions of WIA or this part.
    (e) At the discretion of the Director, grant applicants may be 
required to submit, in a timely manner, the particularized information 
necessary to determine whether or not the grant applicant, if 
financially assisted, would be able to comply with the nondiscrimination 
and equal opportunity provisions of WIA or this part.
    (f) Where designation of individuals by race or ethnicity is 
required, the guidelines of the Office of Management and Budget must be 
used.



Sec.  37.39  How long must grant applicants and recipients maintain 
the records required under this part?

    (a) Each recipient must maintain the following records for a period 
of not less than three years from the close of the applicable program 
year:

[[Page 544]]

    (1) The records of applicants, registrants, eligible applicants/
registrants, participants, terminees, employees, and applicants for 
employment; and
    (2) Such other records as are required under this part or by the 
Director.
    (b) Records regarding complaints and actions taken on the complaints 
must be maintained for a period of not less than three years from the 
date of resolution of the complaint.



Sec.  37.40  What access to sources of information must grant applicants 
and recipients provide the Director?

    (a) Each grant applicant and recipient must permit access by the 
Director during normal business hours to its premises and to its 
employees and participants, to the extent that such individuals are on 
the premises during the course of the investigation, for the purpose of 
conducting complaint investigations, compliance reviews, monitoring 
activities associated with a State's development and implementation of a 
Methods of Administration, and inspecting and copying such books, 
records, accounts and other materials as may be pertinent to ascertain 
compliance with and ensure enforcement of the nondiscrimination and 
equal opportunity provisions of WIA or this part.
    (b) Asserted considerations of privacy or confidentiality are not a 
basis for withholding information from CRC and will not bar CRC from 
evaluating or seeking to enforce compliance with the nondiscrimination 
and equal opportunity provisions of WIA and this part.
    (c) Whenever any information that the Director asks a grant 
applicant or recipient to provide is in the exclusive possession of 
another agency, institution, or person, and that agency, institution, or 
person fails or refuses to furnish the information upon request, the 
grant applicant or recipient must certify to CRC that it has made 
efforts to obtain the information and that the agency, institution, or 
person has failed or refused to provide it. This certification must list 
the name and address of the agency, institution, or person that has 
possession of the information and the specific efforts the grant 
applicant or recipient made to obtain it.



Sec.  37.41  What responsibilities do grant applicants, recipients, 
and the Department have to maintain the confidentiality 
of the information collected?

    The identity of any individual who furnishes information relating 
to, or assisting in, an investigation or a compliance review, including 
the identity of any individual who files a complaint, must be kept 
confidential to the extent possible, consistent with a fair 
determination of the issues. An individual whose identity it is 
necessary to disclose must be protected from retaliation (see Sec.  
37.11).



Sec.  37.42  What are a recipient's responsibilities under this part 
to provide universal access to WIA Title I-financially assisted programs 
and activities?

    Recipients must take appropriate steps to ensure that they are 
providing universal access to their WIA Title I-financially assisted 
programs and activities. These steps should involve reasonable efforts 
to include members of both sexes, various racial and ethnic groups, 
individuals with disabilities, and individuals in differing age groups. 
Such efforts may include, but are not limited to:
    (a) Advertising the recipient's programs and/or activities in media, 
such as newspapers or radio programs, that specifically target various 
populations;
    (b) Sending notices about openings in the recipient's programs and/
or activities to schools or community service groups that serve various 
populations; and
    (c) Consulting with appropriate community service groups about ways 
in which the recipient may improve its outreach and service to various 
populations.



Subpart C_Governor's Responsibilities To Implement the Nondiscrimination 
                and Equal Opportunity Requirements of WIA



Sec.  37.50  To whom does this subpart apply?

    This subpart applies to State Programs as defined in Sec.  37.4. 
However, the provisions of Sec.  37.52(b) do not apply to

[[Page 545]]

State Employment Security Agencies (SESAs), because the Governor's 
liability for any noncompliance on the part of a SESA cannot be waived.



Sec.  37.51  What are a Governor's oversight responsibilities?

    The Governor is responsible for oversight of all WIA Title I-
financially assisted State programs. This responsibility includes 
ensuring compliance with the nondiscrimination and equal opportunity 
provisions of WIA and this part, and negotiating, where appropriate, 
with a recipient to secure voluntary compliance when noncompliance is 
found under Sec.  37.95(b).



Sec.  37.52  To what extent may a Governor be liable for the actions 
of a recipient he or she has financially assisted under WIA Title I?

    (a) The Governor and the recipient are jointly and severally liable 
for all violations of the nondiscrimination and equal opportunity 
provisions of WIA and this part by the recipient, unless the Governor 
has:
    (1) Established and adhered to a Methods of Administration, under 
Sec.  37.54, designed to give reasonable guarantee of the recipient's 
compliance with such provisions;
    (2) Entered into a written contract with the recipient that clearly 
establishes the recipient's obligations regarding nondiscrimination and 
equal opportunity;
    (3) Acted with due diligence to monitor the recipient's compliance 
with these provisions; and
    (4) Taken prompt and appropriate corrective action to effect 
compliance.
    (b) If the Director determines that the Governor has demonstrated 
substantial compliance with the requirements of paragraph (a) of this 
section, he or she may recommend to the Secretary that the imposition of 
sanctions against the Governor be waived and that sanctions be imposed 
only against the noncomplying recipient.



Sec.  37.53  What are a Governor's oversight responsibilities 
regarding recipients' recordkeeping?

    The Governor must ensure that recipients collect and maintain 
records in a manner consistent with the provisions of Sec.  37.37 and 
any procedures prescribed by the Director under Sec.  37.37(b). The 
Governor must further ensure that recipients are able to provide data 
and reports in the manner prescribed by the Director.



Sec.  37.54  What are a Governor's obligations to develop and maintain 
a Methods of Administration?

    (a) (1) Each Governor must establish and adhere to a Methods of 
Administration for State programs as defined in Sec.  37.4. In those 
States in which one agency contains both SESA or unemployment insurance 
and WIA Title I-financially assisted programs, the Governor should 
develop a combined Methods of Administration.
    (2) Each Methods of Administration must be designed to give a 
reasonable guarantee that all recipients will comply, and are complying, 
with the nondiscrimination and equal opportunity provisions of WIA and 
this part.
    (b) The Methods of Administration must be:
    (1) In writing, addressing each requirement of Sec.  37.54(d) with 
narrative and documentation;
    (2) Reviewed and updated as required in Sec.  37.55; and
    (3) Signed by the Governor.
    (c) [Reserved]
    (d) At a minimum, each Methods of Administration must:
    (1) Describe how the State programs and recipients have satisfied 
the requirements of the following regulations:
    (i) Sections 37.20 through 37.22 (assurances);
    (ii) Sections 37.23 through 37.28 (Equal Opportunity Officers);
    (iii) Sections 37.29 through 37.36 (Notice and Communication);
    (iv) Sections 37.37 through 37.41 (Data and Information Collection 
and Maintenance);
    (v) Section 37.42 (Universal Access);
    (vi) Section 37.53 (Governor's Oversight Responsibilities Regarding 
Recipients' Recordkeeping); and
    (vii) Sections 37.76 through 37.79 (Complaint Processing 
Procedures); and
    (2) Include the following additional elements:

[[Page 546]]

    (i) A system for determining whether a grant applicant, if 
financially assisted, and/or a training provider, if selected as 
eligible under section 122 of the Act, is likely to conduct its WIA 
Title I--financially assisted programs or activities in a 
nondiscriminatory way, and to comply with the regulations in this part;
    (ii) A system for periodically monitoring the compliance of 
recipients with WIA section 188 and this part, including a determination 
as to whether each recipient is conducting its WIA Title I--financially 
assisted program or activity in a nondiscriminatory way. At a minimum, 
each periodic monitoring review required by this paragraph must include:
    (A) A statistical or other quantifiable analysis of records and data 
kept by the recipient under Sec.  37.37, including analyses by race/
ethnicity, sex, age, and disability status;
    (B) An investigation of any significant differences identified in 
paragraph (A) of this section in participation in the programs, 
activities, or employment provided by the recipient, to determine 
whether these differences appear to be caused by discrimination. This 
investigation must be conducted through review of the recipient's 
records and any other appropriate means; and
    (C) An assessment to determine whether the recipient has fulfilled 
its administrative obligations under section 188 or this part (for 
example, recordkeeping, notice and communication) and any duties 
assigned to it under the MOA;
    (iii) A review of recipient policy issuances to ensure they are 
nondiscriminatory;
    (iv) A system for reviewing recipients' job training plans, 
contracts, assurances, and other similar agreements to ensure that they 
are both nondiscriminatory and contain the required language regarding 
nondiscrimination and equal opportunity;
    (v) Procedures for ensuring that recipients comply with the 
requirements of Section 504 and this part with regard to individuals 
with disabilities;
    (vi) A system of policy communication and training to ensure that EO 
Officers and members of the recipients' staffs who have been assigned 
responsibilities under the nondiscrimination and equal opportunity 
provisions of WIA or this part are aware of and can effectively carry 
out these responsibilities;
    (vii) Procedures for obtaining prompt corrective action or, as 
necessary, applying sanctions when noncompliance is found; and
    (viii) Supporting documentation to show that the commitments made in 
the Methods of Administration have been and/or are being carried out. 
This supporting documentation includes, but is not limited to:
    (A) Policy and procedural issuances concerning required elements of 
the Methods of Administration;
    (B) Copies of monitoring instruments and instructions;
    (C) Evidence of the extent to which nondiscrimination and equal 
opportunity policies have been developed and communicated as required by 
this part;
    (D) Information reflecting the extent to which Equal Opportunity 
training, including training called for by Sec. Sec.  37.25(f) and 
37.26(c), is planned and/or has been carried out;
    (E) Reports of monitoring reviews and reports of follow-up actions 
taken under those reviews where violations have been found, including, 
where appropriate, sanctions; and
    (F) Copies of any notices made under Sec. Sec.  37.29 through 37.36.



Sec.  37.55  When must the Governor carry out his or her obligations 
with regard to the Methods of Administration?

    (a) Within 180 days of either the date on which this interim final 
rule is effective, or the date on which the Department gives final 
approval to a State's Five-Year Plan, whichever is later, a Governor 
must:
    (1) Develop and implement a Methods of Administration consistent 
with the requirements of this part, and
    (2) Submit a copy of the Methods of Administration to the Director.
    (b) The Governor must promptly update the Methods of Administration 
whenever necessary, and must notify the Director in writing at the time 
that any such updates are made.

[[Page 547]]

    (c) Every two years from the date on which the initial MOA is 
submitted to the Director under Sec.  37.55(a)(2), the Governor must 
review the Methods of Administration and the manner in which it has been 
implemented, and determine whether any changes are necessary in order 
for the State to comply fully and effectively with the nondiscrimination 
and equal opportunity provisions of WIA and this part.
    (1) If any such changes are necessary, the Governor must make the 
appropriate changes and submit them, in writing, to the Director.
    (2) If the Governor determines that no such changes are necessary, 
s/he must certify, in writing, to the Director that the Methods of 
Administration previously submitted continues in effect.



                     Subpart D_Compliance Procedures



Sec.  37.60  How does the Director evaluate compliance with 
the nondiscrimination and equal opportunity provisions of WIA and this part?

    From time to time, the Director may conduct pre-approval compliance 
reviews of grant applicants for, and post-approval compliance reviews of 
recipients of, WIA Title I financial assistance, to determine compliance 
with the nondiscrimination and equal opportunity provisions of WIA and 
this part. Reviews may focus on one or more specific programs or 
activities, or one or more issues within a program or activity. The 
Director may also investigate and resolve complaints alleging violations 
of the nondiscrimination and equal opportunity provisions of WIA and 
this part.



Sec.  37.61  Is there authority to issue subpoenas?

    Yes, section 183(c) of WIA authorizes the issuance of subpoenas. A 
subpoena may direct the individual named on the subpoena to take the 
following actions:
    (a) To appear:
    (1) Before a designated CRC representative,
    (2) At a designated time and place;
    (b) To give testimony; and/or
    (c) To produce documentary evidence.


The subpoena may require the appearance of witnesses, and the production 
of documents, from any place in the United States, at any designated 
time and place.

                           Compliance Reviews



Sec.  37.62  What are the authority and procedures for conducting 
pre-approval compliance reviews?

    (a) As appropriate and necessary to ensure compliance with the 
nondiscrimination and equal opportunity provisions of WIA or this part, 
the Director may review any application, or class of applications, for 
Federal financial assistance under Title I of WIA, before and as a 
condition of their approval. The basis for such review may be the 
assurance specified in Sec.  37.20, information and reports submitted by 
the grant applicant under this part or guidance published by the 
Director, and any relevant records on file with the Department.
    (b) Where the Director determines that the grant applicant for 
Federal financial assistance under WIA Title I, if financially assisted, 
might not comply with the nondiscrimination and equal opportunity 
requirements of WIA or this part, the Director must:
    (1) Notify, in a timely manner, the Departmental grantmaking agency 
and the Assistant Attorney General of the findings of the pre-approval 
compliance review; and
    (2) Issue a Letter of Findings. The Letter of Findings must advise 
the grant applicant, in writing, of:
    (i) The preliminary findings of the review;
    (ii) The proposed remedial or corrective action under Section 37.94 
and the time within which the remedial or corrective action should be 
completed;
    (iii) Whether it will be necessary for the grant applicant to enter 
into a written Conciliation Agreement as described in Sec. Sec.  37.95 
and 37.97; and
    (iv) The opportunity to engage in voluntary compliance negotiations.
    (c) If a grant applicant has agreed to certain remedial or 
corrective actions in order to receive WIA Title I-funded Federal 
financial assistance, the Department must ensure that the remedial or 
corrective actions have been

[[Page 548]]

taken, or that a Conciliation Agreement has been entered into, before 
approving the award of further assistance under WIA Title I. If a grant 
applicant refuses or fails to take remedial or corrective actions or to 
enter into a Conciliation Agreement, as applicable, the Director must 
follow the procedures outlined in Sec. Sec.  37.98 through 37.100.



Sec.  37.63  What are the authority and procedures for conducting 
post-approval compliance reviews?

    (a) The Director may initiate a post-approval compliance review of 
any recipient to determine compliance with the nondiscrimination and 
equal opportunity provisions of WIA and this part. The initiation of a 
post-approval review may be based on, but need not be limited to, the 
results of routine program monitoring by other Departmental or Federal 
agencies, or the nature or frequency of complaints.
    (b) A post-approval review must be initiated by a Notification 
Letter, advising the recipient of:
    (1) The practices to be reviewed;
    (2) The programs to be reviewed;
    (3) The information, records, and/or data to be submitted by the 
recipient within 30 days of the receipt of the Notification Letter, 
unless this time frame is modified by the Director; and
    (4) The opportunity, at any time before receipt of the Final 
Determination described in Sec. Sec.  37.99 and 37.100, to make a 
documentary or other submission that explains, validates or otherwise 
addresses the practices under review.
    (c) The Director may conduct post-approval reviews using such 
techniques as desk audits and on-site reviews.



Sec.  37.64  What procedures must the Director follow when CRC has completed 
a post-approval compliance review?

    (a) Where, as the result of a post-approval review, the Director has 
made a finding of noncompliance, he or she must issue a Letter of 
Findings. This Letter must advise the recipient, in writing, of:
    (1) The preliminary findings of the review;
    (2) Where appropriate, the proposed remedial or corrective action to 
be taken, and the time by which such action should be completed, as 
provided in Sec.  37.94;
    (3) Whether it will be necessary for the recipient to enter into a 
written assurance and/or Conciliation Agreement, as provided in 
Sec. Sec.  37.96 and 37.97; and
    (4) The opportunity to engage in voluntary compliance negotiations.
    (b) Where no violation is found, the recipient must be so informed 
in writing.



Sec.  37.65  What is the Director's authority to monitor the activities 
of a Governor?

    (a) The Director may periodically review the adequacy of the Methods 
of Administration established by a Governor, as well as the adequacy of 
the Governor's performance under the Methods of Administration, to 
determine compliance with the requirements of Sec. Sec.  37.50 through 
37.55. The Director may review the Methods of Administration during a 
compliance review under Sec. Sec.  37.62 and 37.63, or at another time.
    (b) Nothing in this subpart limits or precludes the Director from 
monitoring directly any WIA Title I recipient or from investigating any 
matter necessary to determine a recipient's compliance with the 
nondiscrimination and equal opportunity provisions of WIA or this part.



Sec.  37.66  What happens if a recipient fails to submit requested data, 
records, and/or information, or fails to provide CRC with the required access?

    The Director may issue a Notice to Show Cause to a recipient failing 
to comply with the requirements of this part, where such failure results 
in the inability of the Director to make a finding. Such a failure 
includes, but is not limited to, the recipient's failure or refusal to:
    (a) Submit requested information, records, and/or data within 30 
days of receiving a Notification Letter;
    (b) Submit, in a timely manner, information, records, and/or data 
requested during a compliance review, complaint investigation, or other 
action to determine a recipient's compliance with the nondiscrimination 
and

[[Page 549]]

equal opportunity provisions of WIA or this part; or
    (c) Provide CRC access in a timely manner to a recipient's premises, 
records, or employees during a compliance review, as required in Sec.  
37.40.



Sec.  37.67  What information must a Notice to Show Cause contain?

    (a) A Notice to Show Cause must contain:
    (1) A description of the violation and a citation to the pertinent 
nondiscrimination or equal opportunity provision(s) of WIA and this 
part;
    (2) The corrective action necessary to achieve compliance or, as may 
be appropriate, the concepts and principles of acceptable corrective or 
remedial action and the results anticipated; and
    (3) A request for a written response to the findings, including 
commitments to corrective action or the presentation of opposing facts 
and evidence.
    (b) A Notice to Show Cause must give the recipient 30 days to show 
cause why enforcement proceedings under the nondiscrimination and equal 
opportunity provisions of WIA or this part should not be instituted.



Sec.  37.68  How may a recipient show cause why enforcement proceedings 
should not be instituted?

    A recipient may show cause why enforcement proceedings should not be 
instituted by, among other means:
    (a) Correcting the violation(s) that brought about the Notice to 
Show Cause and entering into a written assurance and/or entering into a 
Conciliation Agreement, as appropriate, under Sec. Sec.  37.95 through 
37.97;
    (b) Demonstrating that CRC does not have jurisdiction; or
    (c) Demonstrating that the violation alleged by CRC did not occur.



Sec.  37.69  What happens if a recipient fails to show cause?

    If the recipient fails to show cause why enforcement proceedings 
should not be initiated, the Director must follow the enforcement 
procedures outlined in Sec. Sec.  37.99 and 37.100.

                     Complaint Processing Procedures



Sec.  37.70  Who may file a complaint concerning discrimination connected 
with WIA Title I?

    Any person who believes that either he or she, or any specific class 
of individuals, has been or is being subjected to discrimination 
prohibited by WIA or this part, may file a written complaint, either by 
him/herself or through a representative.



Sec.  37.71  Where may a complaint be filed?

    A complainant may file a complaint with either the recipient or the 
Director. Complaints filed with the Director should be sent to the 
address listed in the notice in Sec.  37.30.



Sec.  37.72  When must a complaint be filed?

    Generally, a complaint must be filed within 180 days of the alleged 
discrimination. However, for good cause shown, the Director may extend 
the filing time. The time period for filing is for the administrative 
convenience of CRC, and does not create a defense for the respondent.



Sec.  37.73  What information must a complaint contain?

    Each complaint must be filed in writing, and must contain the 
following information:
    (a) The complainant's name and address (or another means of 
contacting the complainant);
    (b) The identity of the respondent (the individual or entity that 
the complainant alleges is responsible for the discrimination);
    (c) A description of the complainant's allegations. This description 
must include enough detail to allow the Director or the recipient, as 
applicable, to decide whether:
    (i) CRC or the recipient, as applicable, has jurisdiction over the 
complaint;
    (ii) The complaint was filed in time; and
    (iii) The complaint has apparent merit; in other words, whether the 
complainant's allegations, if true,

[[Page 550]]

would violate any of the nondiscrimination and equal opportunity 
provisions of WIA or this part; and
    (d) The complainant's signature or the signature of the 
complainant's authorized representative.



Sec.  37.74  Are there any forms that a complainant may use 
to file a complaint?

    Yes. A complainant may file a complaint by completing and submitting 
CRC's Complaint Information and Privacy Act Consent Forms, which may be 
obtained either from the recipient's EO Officer, or from CRC at the 
address listed in the notice contained in Sec.  37.30.



Sec.  37.75  Is there a right of representation in the complaint process?

    Yes. Both the complainant and the respondent have the right to be 
represented by an attorney or other individual of their choice.



Sec.  37.76  What are the required elements of a recipient's discrimination 
complaint processing procedures?

    (a) The procedures that a recipient adopts and publishes must 
provide that the recipient will issue a written Notice of Final Action 
on discrimination complaints within 90 days of the date on which the 
complaint is filed.
    (b) At a minimum, the procedures must include the following 
elements:
    (1) Initial, written notice to the complainant that contains the 
following information:
    (i) An acknowledgment that the recipient has received the complaint, 
and
    (ii) Notice that the complainant has the right to be represented in 
the complaint process;
    (2) A written statement of the issue(s), provided to the 
complainant, that includes the following information:
    (i) A list of the issues raised in the complaint, and
    (ii) For each such issue, a statement whether the recipient will 
accept the issue for investigation or reject the issue, and the reasons 
for each rejection;
    (3) A period for fact-finding or investigation of the circumstances 
underlying the complaint;
    (4) A period during which the recipient attempts to resolve the 
complaint. The methods available to resolve the complaint must include 
alternative dispute resolution (ADR), as described in paragraph (c) of 
this section
    (5) A written Notice of Final Action, provided to the complainant 
within 90 days of the date on which the complaint was filed, that 
contains the following information:
    (i) For each issue raised in the complaint, a statement of either:
    (A) The recipient's decision on the issue and an explanation of the 
reasons underlying the decision, or
    (B) A description of the way the parties resolved the issue; and
    (ii) Notice that the complainant has a right to file a complaint 
with CRC within 30 days of the date on which the Notice of Final Action 
is issued if he or she is dissatisfied with the recipient's final action 
on the complaint.
    (c) The procedures the recipient adopts must provide for alternative 
dispute resolution (ADR). The recipient's ADR procedures must provide 
that:
    (1) The choice whether to use ADR or the customary process rests 
with the complainant;
    (2) A party to any agreement reached under ADR may file a complaint 
with the Director in the event the agreement is breached. In such 
circumstances, the following rules will apply:
    (i) The non-breaching party may file a complaint with the Director 
within 30 days of the date on which the non-breaching party learns of 
the alleged breach;
    (ii) The Director must evaluate the circumstances to determine 
whether the agreement has been breached. If he or she determines that 
the agreement has been breached, the complainant may file a complaint 
with CRC based upon his/her original allegation(s), and the Director 
will waive the time deadline for filing such a complaint.
    (3) If the parties do not reach an agreement under ADR, the 
complainant may file a complaint with the Director as described in 
Sec. Sec.  37.71 through 37.74.

[[Page 551]]



Sec.  37.77  Who is responsible for developing and publishing complaint 
processing procedures for service providers?

    The Governor or the LWIA grant recipient, as provided in the State's 
Methods of Administration, must develop and publish, on behalf of its 
service providers, the complaint processing procedures required in Sec.  
37.76. The service providers must then follow those procedures.



Sec.  37.78  Does a recipient have any special obligations in cases in which 
the recipient determines that it has no jurisdiction over a complaint?

    Yes. If a recipient determines that it does not have jurisdiction 
over a complaint, it must notify the complainant, in writing, 
immediately. This Notice of Lack of Jurisdiction must include:
    (a) A statement of the reasons for that determination, and
    (b) Notice that the complainant has a right to file a complaint with 
CRC within 30 days of the date on which the complainant receives the 
Notice.



Sec.  37.79  If, before the 90-day period has expired, a recipient issues 
a Notice of Final Action with which the complainant is dissatisfied, 
how long does the complainant have to file a complaint with the Director?

    If, during the 90-day period, the recipient issues its Notice of 
Final Action, but the complainant is dissatisfied with the recipient's 
decision on the complaint, the complainant or his/her representative may 
file a complaint with the Director within 30 days after the date on 
which the complainant receives the Notice.



Sec.  37.80  What happens if a recipient fails to issue 
a Notice of Final Action within 90 days of the date on which 
a complaint was filed?

    If, by the end of 90 days from the date on which the complainant 
filed the complaint, the recipient has failed to issue a Notice of Final 
Action, the complainant or his/her representative may file a complaint 
with the Director within 30 days of the expiration of the 90-day period. 
In other words, the complaint must be filed with the Director within 120 
days of the date on which the complaint was filed with the recipient.



Sec.  37.81  Are there any circumstances under which the Director may extend 
the time limit for filing a complaint with him or her?

    Yes. The Director may extend the 30-day time limit:
    (a) If the recipient does not include in its Notice of Final Action 
the required notice about the complainant's right to file with the 
Director, as described in Sec.  37.76(b)(5)(ii); or
    (b) For other good cause shown.
    The complainant has the burden of proving to the Director that the 
time limit should be extended.



Sec.  37.82  Does the Director accept every complaint for resolution?

    No. The Director must determine whether CRC will accept a particular 
complaint for resolution. For example, a complaint need not be accepted 
if:
    (a) It has not been timely filed;
    (b) CRC has no jurisdiction over the complaint; or
    (c) CRC has previously decided the matter.



Sec.  37.83  What happens if a complaint does not contain enough information?

    (a) If a complaint does not contain enough information, the Director 
must try to get the needed information from the complainant.
    (b) The Director may close the complainant's file, without 
prejudice, if:
    (1) The Director makes reasonable efforts to try to find the 
complainant, but is unable to reach him or her; or
    (2) The complainant does not provide the needed information to CRC 
within the time specified in the request for more information.
    (c) If the Director closes the complainant's file, he or she must 
send written notice to the complainant's last known address.



Sec.  37.84  What happens if CRC does not have jurisdiction over a complaint?

    If CRC does not have jurisdiction over a complaint, the Director 
must:
    (a) Notify the complainant and explain why the complaint falls 
outside the coverage of the nondiscrimination

[[Page 552]]

and equal opportunity provisions of WIA or this part; and
    (b) Where possible, transfer the complaint to an appropriate 
Federal, State or local authority.



Sec.  37.85  Are there any other circumstances in which the Director 
will send a complaint to another authority?

    Yes. The Director refers complaints to other agencies in the 
following circumstances:
    (a) Where the complaint alleges discrimination based on age, and the 
complaint falls within the jurisdiction of the Age Discrimination Act of 
1975, as amended, then the Director must refer the complaint, in 
accordance with the provisions of 45 CFR 90.43(c)(3).
    (b) Where the only allegation in the complaint is a charge of 
individual employment discrimination that is covered both by WIA or this 
part and by one or more of the laws listed below, then the complaint is 
a ``joint complaint,'' and the Director may refer it to the EEOC for 
investigation and conciliation under the procedures described in 29 CFR 
part 1640 or 1691, as appropriate. The relevant laws are:
    (1) Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000e to 2000e-17);
    (2) The Equal Pay Act of 1963, as amended (29 U.S.C. 206(d));
    (3) The Age Discrimination in Employment Act of 1976, as amended (29 
U.S.C. 621, et seq.); and
    (4) Title I of the Americans with Disabilities Act of 1990, as 
amended (42 U.S.C. 12101 et seq.).
    (c) Where the complaint alleges discrimination by an entity that 
operates a program or activity financially assisted by a Federal 
grantmaking agency other than the Department, but that participates as a 
partner in a One-Stop delivery system, the following procedures apply:
    (1) Where the complaint alleges discrimination on a basis that is 
prohibited both by Section 188 of WIA and by a civil rights law enforced 
by the Federal grantmaking agency, then CRC and the grantmaking agency 
have dual jurisdiction over the complaint, and the Director will refer 
the complaint to the grantmaking agency for processing. In such 
circumstances, the grantmaking agency's regulations will govern the 
processing of the complaint.
    (2) Where the complaint alleges discrimination on a basis that is 
prohibited by Section 188 of WIA, but not by any civil rights laws 
enforced by the Federal grantmaking agency, then CRC has sole 
jurisdiction over the complaint, and will retain the complaint and 
process it pursuant to this part. Such bases generally include religion, 
political affiliation or belief, citizenship, and/or participation in a 
WIA Title I-financially assisted program or activity.
    (d) Where the Director makes a referral under this section, he or 
she must notify the complainant and the respondent about the referral.



Sec.  37.86  What must the Director do if he or she determines that 
a complaint will not be accepted?

    If a complaint will not be accepted, the Director must notify the 
complainant, in writing, about that fact, and provide the complainant 
his/her reasons for making that determination.



Sec.  37.87  What must the Director do if he or she determines 
that a complaint will be accepted?

    If the Director accepts the complaint for resolution, he or she must 
notify the complainant, the respondent, and the grantmaking agency. The 
notice must:
    (a) State that the complaint will be accepted,
    (b) Identify the issues over which CRC has accepted jurisdiction; 
and
    (c) Explain the reasons why any issues were rejected.



Sec.  37.88  Who may contact CRC about a complaint?

    Both the complainant and the respondent, or their authorized 
representatives, may contact CRC for information about the complaint. 
The Director will determine what information, if any, about the 
complaint will be released.

[[Page 553]]



Sec.  37.89  May the Director offer the parties to a complaint 
the option of mediation?

    Yes. The Director may offer the parties to a complaint the option of 
mediating the complaint. In such circumstances, the following rules 
apply:
    (a) Mediation is voluntary; the parties must consent before the 
mediation process will proceed.
    (b) The mediation will be conducted under guidance issued by the 
Director.
    (c) If the parties are unable to reach resolution of the complaint 
through mediation, CRC will investigate and process the complaint under 
Sec. Sec.  37.82 through 37.88 of this part.

                             Determinations



Sec.  37.90  If a complaint is investigated, what must the Director do 
when the investigation is completed?

    At the conclusion of the investigation of the complaint, the 
Director must take the following actions:
    (a) Determine whether there is reasonable cause to believe that the 
respondent has violated the nondiscrimination and equal opportunity 
provisions of WIA or this part; and
    (b) Notify the complainant, the respondent, and the grantmaking 
agency, in writing, of that determination.



Sec.  37.91  What notice must the Director issue if he or she finds 
reasonable cause to believe that a violation has taken place?

    If the Director finds reasonable cause to believe that the 
respondent has violated the nondiscrimination and equal opportunity 
provisions of WIA or this part, he or she must issue an Initial 
Determination. The Initial Determination must include:
    (a) The specific findings of the investigation;
    (b) The corrective or remedial action that the Department proposes 
to the respondent, under Sec.  37.94;
    (c) The time by which the respondent must complete the corrective or 
remedial action;
    (d) Whether it will be necessary for the respondent to enter into a 
written agreement under Sec.  37.95 and 37.96; and
    (e) The opportunity to engage in voluntary compliance negotiations.



Sec.  37.92  What notice must the Director issue if he or she finds 
no reasonable cause to believe that a violation has taken place?

    If the Director determines that there is no reasonable cause to 
believe that a violation has taken place, he or she must issue a Final 
Determination under Sec.  37.100. The Final Determination represents the 
Department's final agency action on the complaint.



Sec.  37.93  What happens if the Director finds that a violation 
has taken place, and the recipient fails or refuses to take 
the corrective action listed in the Initial Determination?

    Under such circumstances, the Department must take the actions 
described in Sec.  37.99 of this part.



Sec.  37.94  What corrective or remedial actions may be imposed where, 
after a compliance review or complaint investigation, the Director finds 
a violation of the nondiscrimination and equal opportunity provisions 
of WIA or this part?

    (a) A Letter of Findings, Notice to Show Cause, or Initial 
Determination, issued under Sec.  37.62 or Sec. Sec.  37.63, 37.66 and 
37.67, or Sec.  37.91 respectively, must include the specific steps the 
grant applicant or recipient, as applicable, must take within a stated 
period of time in order to achieve voluntary compliance.
    (b) Such steps must include:
    (1) Actions to end and/or redress the violation of the 
nondiscrimination and equal opportunity provisions of WIA or this part;
    (2) Make whole relief where discrimination has been identified, 
including, as appropriate, back pay (which must not accrue from a date 
more than 2 years before the filing of the complaint or the initiation 
of a compliance review) or other monetary relief; hire or reinstatement; 
retroactive seniority; promotion; benefits or other services 
discriminatorily denied; and
    (3) Such other remedial or affirmative relief as the Director deems 
necessary, including but not limited to outreach, recruitment and 
training designed to ensure equal opportunity.
    (c) Monetary relief may not be paid from Federal funds.

[[Page 554]]



Sec.  37.95  What procedures apply if the Director finds that a recipient 
has violated the nondiscrimination and equal opportunity provisions 
of WIA or this part?

    (a) Violations at State level. Where the Director has determined 
that a violation of the nondiscrimination and equal opportunity 
provisions of WIA or this part has occurred at the State level, he or 
she must notify the Governor through the issuance of a Letter of 
Findings, Notice to Show Cause or Initial Determination, as appropriate, 
under Sec.  37.62 or Sec. Sec.  37.63, 37.66 and 37.67, or Sec.  37.91, 
respectively. The Director may secure compliance with the 
nondiscrimination and equal opportunity provisions of WIA and this part 
through, among other means, the execution of a written assurance and/or 
Conciliation Agreement, under paragraph (d) of this section.
    (b) Violations below State level. Where the Director has determined 
that a violation of the nondiscrimination and equal opportunity 
provisions of WIA or this part has occurred below the State level, the 
Director must so notify the Governor and the violating recipient(s) 
through the issuance of a Letter of Findings, Notice to Show Cause or 
Initial Determination, as appropriate, under Sec.  37.62 or Sec. Sec.  
37.63, 37.66 and 37.67, or Sec.  37.91, respectively.
    (1) Such issuance must:
    (i) Direct the Governor to initiate negotiations immediately with 
the violating recipient(s) to secure compliance by voluntary means;
    (ii) Direct the Governor to complete such negotiations within 30 
days of the Governor's receipt of the Notice to Show Cause or within 45 
days of the Governor's receipt of the Letter of Findings or Initial 
Determination, as applicable. The Director reserves the right to enter 
into negotiations with the recipient at any time during the period. For 
good cause shown, the Director may approve an extension of time to 
secure voluntary compliance. The total time allotted to secure voluntary 
compliance must not exceed 60 days.
    (iii) Include a determination as to whether compliance must be 
achieved by:
    (A) Immediate correction of the violation(s) and written assurance 
that such violations have been corrected, under Sec.  37.96;
    (B) Entering into a written Conciliation Agreement under Sec.  
37.97; or
    (C) Both.
    (2) If the Governor determines, at any time during the period 
described in paragraph (b)(1)(ii) of this section, that a recipient's 
compliance cannot be achieved by voluntary means, the Governor must so 
notify the Director.
    (3) If the Governor is able to secure voluntary compliance under 
paragraph (b)(1) of this section, he or she must submit to the Director 
for approval, as applicable:
    (i) Written assurance that the required action has been taken, as 
described in Sec.  37.96;
    (ii) A copy of the Conciliation Agreement, as described in Sec.  
37.97; or
    (iii) Both.
    (4) The Director may disapprove any written assurance or 
Conciliation Agreement submitted for approval under paragraph (b)(3) of 
this section that fails to satisfy each of the applicable requirements 
provided in Sec.  37.96 or Sec.  37.97.
    (c) Violations in National Programs. Where the Director has 
determined that a violation of the nondiscrimination and equal 
opportunity provisions of WIA or this part has occurred in a National 
Program, he or she must notify the Federal grantmaking agency and the 
recipient by issuing a Letter of Findings, Notice to Show Cause, or 
Initial Determination, as appropriate, under Sec.  37.62 or Sec. Sec.  
37.63, 37.66 and 37.67, or Sec.  37.91, respectively. The Director may 
secure compliance with the nondiscrimination and equal opportunity 
provisions of WIA and this part through, among other means, the 
execution of a written assurance and/or Conciliation Agreement under 
Sec.  37.96 or Sec.  37.97, as applicable.



Sec.  37.96  What are the required elements of a written assurance?

    A written assurance must provide documentation that the violations 
listed in the Letter of Findings, Notice to Show Cause or Initial 
Determination, as applicable, have been corrected.

[[Page 555]]



Sec.  37.97  What are the required elements of a Conciliation Agreement?

    A Conciliation Agreement must:
    (a) Be in writing;
    (b) Address each cited violation;
    (c) Specify the corrective or remedial action to be taken within a 
stated period of time to come into compliance;
    (d) Provide for periodic reporting on the status of the corrective 
and remedial action;
    (e) Provide that the violation(s) will not recur; and
    (f) Provide for enforcement for a breach of the agreement.



Sec.  37.98  When will the Director conclude that compliance 
cannot be secured by voluntary means?

    The Director will conclude that compliance cannot be secured by 
voluntary means under the following circumstances:
    (a) The grant applicant or recipient fails or refuses to correct the 
violation(s) within the time period established by the Letter of 
Findings, Notice to Show Cause or Initial Determination; or
    (b) The Director has not approved an extension of time for agreement 
on voluntary compliance, under Sec.  37.95(b)(1)(ii), and he or she 
either:
    (1) Has not been notified, under Sec.  37.95(b)(3), that the grant 
applicant or recipient has agreed to voluntary compliance;
    (2) Has disapproved a written assurance or Conciliation Agreement, 
under Sec.  37.95(b)(4); or
    (3) Has received notice from the Governor, under Sec.  37.95(b)(2), 
that the grant applicant or recipient will not comply voluntarily.



Sec.  37.99  If the Director concludes that compliance cannot be secured 
by voluntary means, what actions must he or she take?

    If the Director concludes that compliance cannot be secured by 
voluntary means, he or she must either:
    (a) Issue a Final Determination;
    (b) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted; or
    (c) Take such other action as may be provided by law.



Sec.  37.100  What information must a Final Determination contain?

    A Final Determination must contain the following information:
    (a) A statement of the efforts made to achieve voluntary compliance, 
and a statement that those efforts have been unsuccessful;
    (b) A statement of those matters upon which the grant applicant or 
recipient and CRC continue to disagree;
    (c) A list of any modifications to the findings of fact or 
conclusions that were set forth in the Initial Determination, Notice to 
Show Cause or Letter of Findings;
    (d) A statement of the grant applicant's or recipient's liability, 
and, if appropriate, the extent of that liability;
    (e) A description of the corrective or remedial actions that the 
grant applicant or recipient must take to come into compliance;
    (f) A notice that if the grant applicant or recipient fails to come 
into compliance within 10 days of the date on which it receives the 
Final Determination, one or more of the following consequences may 
result:
    (1) After the grant applicant or recipient is given the opportunity 
for a hearing, its WIA Title I funds may be terminated, discontinued, or 
withheld in whole or in part, or its application for such funds may be 
denied, as appropriate;
    (2) The Secretary of Labor may refer the case to the Department of 
Justice with a request to file suit against the grant applicant or 
recipient; or
    (3) the Secretary may take any other action against the grant 
applicant or recipient that is provided by law;
    (g) A notice of the grant applicant's or recipient's right to 
request a hearing under the procedures described in Sec. Sec.  37.112 
through 37.115; and
    (h) A determination of the Governor's liability, if any, under Sec.  
37.52.



Sec.  37.101  Whom must the Director notify of a finding of noncompliance?

    Where a compliance review or complaint investigation results in a 
finding of noncompliance, the Director must notify:
    (a) The grant applicant or recipient;
    (b) The grantmaking agency; and

[[Page 556]]

    (c) Tthe Assistant Attorney General.

                   Breaches of Conciliation Agreements



Sec.  37.102  What happens if a grant applicant or recipient breaches 
a Conciliation Agreement?

    When it becomes known to the Director that a Conciliation Agreement 
has been breached, the Director may issue a Notification of Breach of 
Conciliation Agreement.



Sec.  37.103  Whom must the Director notify about a breach 
of a Conciliation Agreement?

    The Director must send a Notification of Breach of Conciliation 
Agreement to the Governor, the grantmaking agency, and/or other 
party(ies) to the Conciliation Agreement, as applicable.



Sec.  37.104  What information must a Notification of Breach 
of Conciliation Agreement contain?

    A Notification of Breach of Conciliation Agreement must:
    (a) Specify any efforts made to achieve voluntary compliance, and 
indicate that those efforts have been unsuccessful;
    (b) Identify the specific provisions of the Conciliation Agreement 
violated;
    (c) Determine liability for the violation and the extent of the 
liability;
    (d) Indicate that failure of the violating party to come into 
compliance within 10 days of the receipt of the Notification of Breach 
of Conciliation Agreement may result, after opportunity for a hearing, 
in the termination or denial of the grant, or discontinuation of 
assistance, as appropriate, or in referral to the Department of Justice 
with a request from the Department to file suit;
    (e) Advise the violating party of the right to request a hearing, 
and reference the applicable procedures in Sec.  37.111; and
    (f) Include a determination as to the Governor's liability, if any, 
in accordance with the provisions of Sec.  37.52.



Sec.  37.105  Whom must the Director notify if enforcement action 
under a Notification of Breach of Conciliation Agreement is commenced?

    In such circumstances, the Director must notify:
    (a) The grantmaking agency; and
    (b) The Governor, recipient or grant applicant, as applicable.



          Subpart E_Federal Procedures For Effecting Compliance



Sec.  37.110  What enforcement procedures does the Department follow to effect 
compliance with the nondiscrimination and equal opportunity provisions 
of WIA and this part?

    (a) Sanctions; judicial enforcement. If compliance has not been 
achieved after issuance of a Final Determination under Sec. Sec.  37.99 
and 37.100, or a Notification of Breach of Conciliation Agreement under 
Sec. Sec.  37.102 through 37.105, the Secretary may:
    (1) After opportunity for a hearing, suspend, terminate, deny or 
discontinue the WIA Title I financial assistance, in whole or in part;
    (2) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted; or
    (3) Take such action as may be provided by law.
    (b) Deferral of new grants. When proceedings under Sec.  37.111 have 
been initiated against a particular recipient, the Department may defer 
action on that recipient's applications for new WIA Title I financial 
assistance until a Final Decision under Sec.  37.112 has been rendered. 
Deferral is not appropriate when WIA Title I financial assistance is due 
and payable under a previously approved application.
    (1) New WIA Title I financial assistance includes all assistance for 
which an application or approval, including renewal or continuation of 
existing activities, or authorization of new activities, is required 
during the deferral period.
    (2) New WIA Title I financial assistance does not include assistance 
approved before the beginning of proceedings under Sec.  37.111, or 
increases in

[[Page 557]]

funding as a result of changed computations of formula awards.



Sec.  37.111  What hearing procedures does the Department follow?

    (a) Notice of opportunity for hearing. As part of a Final 
Determination, or a Notification of Breach of a Conciliation Agreement, 
the Director must include, and serve on the grant applicant or recipient 
(by certified mail, return receipt requested), a notice of opportunity 
for hearing.
    (b) Complaint; request for hearing; answer. (1) In the case of 
noncompliance that cannot be voluntarily resolved, the Final 
Determination or Notification of Breach of Conciliation Agreement is 
considered the Department's formal complaint.
    (2) To request a hearing, the grant applicant or recipient must file 
a written answer to the Final Determination or Notification of Breach of 
Conciliation Agreement, and a copy of the Final Determination or 
Notification of Breach of Conciliation Agreement, with the Office of the 
Administrative Law Judges, 800 K Street N.W., Suite 400, Washington, DC 
20001.
    (i) The answer must be filed within 30 days of the date of receipt 
of the Final Determination or Notification of Breach of Conciliation 
Agreement.
    (ii) A request for hearing must be set forth in a separate paragraph 
of the answer.
    (iii) The answer must specifically admit or deny each finding of 
fact in the Final Determination or Notification of Breach of 
Conciliation Agreement. Where the grant applicant or recipient does not 
have knowledge or information sufficient to form a belief, the answer 
may so state and the statement will have the effect of a denial. 
Findings of fact not denied are considered admitted. The answer must 
separately state and identify matters alleged as affirmative defenses, 
and must also set forth the matters of fact and law relied on by the 
grant applicant or recipient.
    (3) The grant applicant or recipient must simultaneously serve a 
copy of its filing on the Office of the Solicitor, Civil Rights 
Division, Room N-2464, U.S. Department of Labor, 200 Constitution Avenue 
N.W., Washington DC 20210.
    (4) (i) The failure of a grant applicant or recipient to request a 
hearing under this paragraph, or to appear at a hearing for which a date 
has been set, waives the right to a hearing; and
    (ii) Whenever a hearing is waived, all allegations of fact contained 
in the Final Determination or Notification of Breach of Conciliation 
Agreement are considered admitted, and the Final Determination or 
Notification of Breach of Conciliation Agreement becomes the Final 
Decision of the Secretary as of the day following the last date by which 
the grant applicant or recipient was required to request a hearing or 
was to appear at a hearing. See Sec.  37.112(b)(3).
    (c) Time and place of hearing. Hearings will be held at a time and 
place ordered by the Administrative Law Judge upon reasonable notice to 
all parties and, as appropriate, the complainant. In selecting a place 
for the hearing, due regard must be given to the convenience of the 
parties, their counsel, and witnesses, if any.
    (d) Judicial process; evidence. (1) The Administrative Law Judge may 
use judicial process to secure the attendance of witnesses and the 
production of documents authorized by Section 9 of the Federal Trade 
Commission Act (15 U.S.C. 49).
    (2) Evidence. In any hearing or administrative review conducted 
under this part, evidentiary matters will be governed by the standards 
and principles set forth in the Uniform Rules of Evidence issued by the 
Department of Labor's Office of Administrative Law Judges, 29 CFR part 
18.



Sec.  37.112  What procedures for initial and final decisions 
does the Department follow?

    (a) Initial decision. After the hearing, the Administrative Law 
Judge must issue an initial decision and order, containing findings of 
fact and conclusions of law. The initial decision and order must be 
served on all parties by certified mail, return receipt requested.

[[Page 558]]

    (b) Exceptions; final decision. (1) Final decision after a hearing. 
The initial decision and order becomes the Final Decision and Order of 
the Secretary unless exceptions are filed by a party or, in the absence 
of exceptions, the Secretary serves notice that he or she will review 
the decision.
    (i) A party dissatisfied with the initial decision and order may, 
within 45 days of receipt, file with the Secretary and serve on the 
other parties to the proceedings and on the Administrative Law Judge, 
exceptions to the initial decision and order or any part thereof.
    (ii) Upon receipt of exceptions, the Administrative Law Judge must 
index and forward the record and the initial decision and order to the 
Secretary within three days of such receipt.
    (iii) A party filing exceptions must specifically identify the 
finding or conclusion to which exception is taken. Any exception not 
specifically urged is waived.
    (iv) Within 45 days of the date of filing such exceptions, a reply, 
which must be limited to the scope of the exceptions, may be filed and 
served by any other party to the proceeding.
    (v) Requests for extensions for the filing of exceptions or replies 
must be received by the Secretary no later than 3 days before the 
exceptions or replies are due.
    (vi) If no exceptions are filed, the Secretary may, within 30 days 
of the expiration of the time for filing exceptions, on his or her own 
motion serve notice on the parties that the Secretary will review the 
decision.
    (vii) Final decision and order. (A) Where exceptions have been 
filed, the initial decision and order of the Administrative Law Judge 
becomes the Final Decision and Order of the Secretary unless the 
Secretary, within 30 days of the expiration of the time for filing 
exceptions and replies, has notified the parties that the case is 
accepted for review.
    (B) Where exceptions have not been filed, the initial decision and 
order of the Administrative Law Judge becomes the Final Decision and 
Order of the Secretary unless the Secretary has served notice on the 
parties that he or she will review the decision, as provided in 
paragraph (b)(1)(vi) of this section.
    (viii) Any case reviewed by the Secretary under this paragraph must 
be decided within 180 days of the notification of such review. If the 
Secretary fails to issue a Final Decision and Order within the 180-day 
period, the initial decision and order of the Administrative Law Judge 
becomes the Final Decision and Order of the Secretary.
    (2) Final Decision where a hearing is waived.
    (i) If, after issuance of a Final Determination under Sec.  37.100 
or Notification of Breach of Conciliation Agreement under Sec.  37.104, 
voluntary compliance has not been achieved within the time set by this 
part and the opportunity for a hearing has been waived as provided for 
in Sec.  37.111(b)(4), the Final Determination or Notification of Breach 
of Conciliation Agreement becomes the Final Decision of the Secretary.
    (ii) When a Final Determination or Notification of Breach of 
Conciliation Agreement becomes the Final Decision of the Secretary, the 
Secretary may, within 45 days, issue an order terminating or denying the 
grant or continuation of assistance or imposing other appropriate 
sanctions for the grant applicant or recipient's failure to comply with 
the required corrective and/or remedial actions, or referring the matter 
to the Attorney General for further enforcement action.
    (3) Final agency action. A Final Decision and Order issued under 
Sec.  37.112(b) constitutes final agency action.



Sec.  37.113  What procedure does the Department follow to suspend, 
terminate, withhold, deny or discontinue WIA Title I financial assistance?

    Any action to suspend, terminate, deny or discontinue WIA Title I 
financial assistance must be limited to the particular political entity, 
or part thereof, or other recipient (or grant applicant) as to which the 
finding has been made, and must be limited in its effect to the 
particular program, or part thereof, in which the noncompliance has been 
found. No order suspending, terminating, denying or discontinuing WIA 
Title I financial assistance will become effective until:

[[Page 559]]

    (a) The Director has issued a Final Determination under Sec.  37.100 
or Notification of Breach of Conciliation Agreement under Sec.  37.104;
    (b) There has been an express finding on the record, after 
opportunity for a hearing, of failure by the grant applicant or 
recipient to comply with a requirement imposed by or under the 
nondiscrimination and equal opportunity provisions of WIA or this part;
    (c) A Final Decision has been issued by the Secretary, the 
Administrative Law Judge's decision and order has become the Final 
Decision of the Secretary, or the Final Determination or Notification of 
Conciliation Agreement has been deemed the Final Decision of the 
Secretary, under Sec.  37.112(b); and
    (d) The expiration of 30 days after the Secretary has filed, with 
the committees of Congress having legislative jurisdiction over the 
program involved, a full written report of the circumstances and grounds 
for such action.



Sec.  37.114  What procedure does the Department follow to distribute 
WIA Title I financial assistance to an alternate recipient?

    When the Department withholds funds from a recipient or grant 
applicant under these regulations, the Secretary may disburse the 
withheld funds directly to an alternate recipient. In such case, the 
Secretary will require any alternate recipient to demonstrate:
    (a) The ability to comply with these regulations; and
    (b) The ability to achieve the goals of the nondiscrimination and 
equal opportunity provisions of WIA.



Sec.  37.115  What procedures does the Department follow 
for post-termination proceedings?

    (a) A grant applicant or recipient adversely affected by a Final 
Decision and Order issued under Sec.  37.112(b) will be restored, where 
appropriate, to full eligibility to receive WIA Title I financial 
assistance if the grant applicant or recipient satisfies the terms and 
conditions of the Final Decision and Order and brings itself into 
compliance with the nondiscrimination and equal opportunity provisions 
of WIA and this part.
    (b) A grant applicant or recipient adversely affected by a Final 
Decision and Order issued under Sec.  37.112(b) may at any time petition 
the Director to restore its eligibility to receive WIA Title I financial 
assistance. A copy of the petition must be served on the parties to the 
original proceeding that led to the Final Decision and Order. The 
petition must be supported by information showing the actions taken by 
the grant applicant or recipient to bring itself into compliance. The 
grant applicant or recipient has the burden of demonstrating that it has 
satisfied the requirements of paragraph (a) of this section. While 
proceedings under this section are pending, sanctions imposed by the 
Final Decision and Order under Sec.  37.112(b) (1) and (2) must remain 
in effect.
    (c) The Director must issue a written decision on the petition for 
restoration.
    (1) If the Director determines that the grant applicant or recipient 
has not brought itself into compliance, he or she must issue a decision 
denying the petition.
    (2) Within 30 days of its receipt of the Director's decision, the 
recipient or grant applicant may file a petition for review of the 
decision by the Secretary, setting forth the grounds for its objection 
to the Director's decision.
    (3) The petition must be served on the Director and on the Office of 
the Solicitor, Civil Rights Division.
    (4) The Director may file a response to the petition within 14 days.
    (5) The Secretary must issue the final agency decision denying or 
granting the recipient's or grant applicant's request for restoration to 
eligibility.



PART 38_IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL OPPORTUNITY 
PROVISIONS OF THE WORKFORCE INNOVATION AND OPPORTUNITY ACT--Table of Contents



                      Subpart A_General Provisions

Sec.
38.1 Purpose.
38.2 Applicability.
38.3 Effect on other obligations.
38.4 Definitions.
38.5 General prohibitions on discrimination.

[[Page 560]]

38.6 Specific discriminatory actions prohibited on bases other than 
          disability.
38.7 Discrimination prohibited based on sex.
38.8 Discrimination prohibited based on pregnancy.
38.9 Discrimination prohibited based on national origin, including 
          limited English proficiency.
38.10 Harassment prohibited.
38.11 Discrimination prohibited based on citizenship status.
38.12 Discrimination prohibited based on disability.
38.13 Accessibility requirements.
38.14 Reasonable accommodations and reasonable modifications for 
          individuals with disabilities.
38.15 Communications with individuals with disabilities.
38.16 Service animals.
38.17 Mobility aids and devices.
38.18 Employment practices covered.
38.19 Intimidation and retaliation prohibited.
38.20 Administration of this part.
38.21 Interpretation of this part.
38.22 Delegation of administration and interpretation of this part.
38.23 Coordination with other agencies.
38.24 Effect on other laws and policies.

Subpart B_Recordkeeping and Other Affirmative Obligations of Recipients 
                               Assurances

38.25 A grant applicant's obligation to provide a written assurance.
38.26 Duration and scope of the assurance.
38.27 Covenants.

                       Equal Opportunity Officers

38.28 Designation of Equal Opportunity Officers.
38.29 Recipients' obligations regarding Equal Opportunity Officers.
38.30 Requisite skill and authority of Equal Opportunity Officer.
38.31 Equal Opportunity Officer responsibilities.
38.32 Small recipient Equal Opportunity Officer obligations.
38.33 Service provider Equal Opportunity Officer obligations.

                        Notice and Communication

38.34 Recipients' obligations to disseminate equal opportunity notice.
38.35 Equal Opportunity notice/poster.
38.36 Recipients' obligations to publish equal opportunity notice.
38.37 Notice requirement for service providers.
38.38 Publications, broadcasts, and other communications.
38.39 Communication of notice in orientations.
38.40 Affirmative outreach.

             Data and Information Collection and Maintenance

38.41 Collection and maintenance of equal opportunity data and other 
          information.
38.42 Information to be provided to the Civil Rights Center (CRC) by 
          grant applicants and recipients.
38.43 Required maintenance of records by recipients.
38.44 CRC access to information and information sources.
38.45 Confidentiality responsibilities of grant applicants, recipients, 
          and the Department.

Subpart C_Governor's Responsibilities To Implement the Nondiscrimination 
   and Equal Opportunity Requirements of the Workforce Innovation and 
                         Opportunity Act (WIOA)

38.50 Subpart application to State Programs.
38.51 Governor's oversight and monitoring responsibilities for State 
          Programs.
38.52 Governor's liability for actions of recipients the Governor has 
          financially assisted under Title I of WIOA.
38.53 Governor's oversight responsibility regarding recipients' 
          recordkeeping.
38.54 Governor's obligations to develop and implement a 
          Nondiscrimination Plan.
38.55 Schedule of the Governor's obligations regarding the 
          Nondiscrimination Plan.

                     Subpart D_Compliance Procedures

38.60 Evaluation of compliance.
38.61 Authority to issue subpoenas.

                           Compliance Reviews

38.62 Authority and procedures for pre-approval compliance reviews.
38.63 Authority and procedures for conducting post-approval compliance 
          reviews.
38.64 Procedures for concluding post-approval compliance reviews.
38.65 Authority to monitor the activities of a Governor.
38.66 Notice to Show Cause issued to a recipient.
38.67 Methods by which a recipient may show cause why enforcement 
          proceedings should not be instituted.
38.68 Failing to show cause.

                     Complaint Processing Procedures

38.69 Complaint filing.
38.70 Required contents of complaint.
38.71 Right to representation.
38.72 Required elements of a recipient's complaint processing 
          procedures.

[[Page 561]]

38.73 Responsibility for developing and publishing complaint processing 
          procedures for service providers.
38.74 Recipient's obligations when it determines that it has no 
          jurisdiction over a complaint.
38.75 If the complainant is dissatisfied after receiving a Notice of 
          Final Action.
38.76 If a recipient fails to issue a Notice of Final Action within 90 
          days after the complaint was filed.
38.77 Extension of deadline to file complaint.
38.78 Determinations regarding acceptance of complaints.
38.79 When a complaint contains insufficient information.
38.80 Lack of jurisdiction.
38.81 Complaint referral.
38.82 Notice that complaint will not be accepted.
38.83 Notice of complaint acceptance.
38.84 Contacting CRC about a complaint.
38.85 Alternative dispute resolution.

                        Complaint Determinations

38.86 Notice at conclusion of complaint investigation.
38.87 Director's Initial Determination that reasonable cause exists to 
          believe that a violation has taken place.
38.88 Director's Final Determination that no reasonable cause exists to 
          believe that a violation has taken place.
38.89 When the recipient fails or refuses to take corrective action 
          listed in the Initial Determination.
38.90 Corrective or remedial action that may be imposed when the 
          Director finds a violation.
38.91 Post-violation procedures.
38.92 Written assurance.
38.93 Required elements of a conciliation agreement.
38.94 When voluntary compliance cannot be secured.
38.95 Enforcement when voluntary compliance cannot be secured.
38.96 Contents of a Final Determination of a violation.
38.97 Notification of finding of noncompliance.

                   Breaches of Conciliation Agreements

38.98 Notification of Breach of Conciliation Agreement.
38.99 Contents of Notification of Breach of Conciliation Agreement.
38.100 Notification of an enforcement action under based on breach of 
          conciliation agreement.

          Subpart E_Federal Procedures for Effecting Compliance

38.110 Enforcement procedures.
38.111 Hearing procedures.
38.112 Initial and final decision procedures.
38.113 Suspension, termination, withholding, denial, or discontinuation 
          of financial assistance.
38.114 Distribution of WIOA Title I financial assistance to an alternate 
          recipient.
38.115 Post-termination proceedings.

    Authority: 29 U.S.C. 3101 et seq.; 42 U.S.C. 2000d et seq.; 29 
U.S.C. 794; 42 U.S.C. 6101 et seq.; and 20 U.S.C. 1681 et seq.

    Source: 81 FR 87211, Dec. 2, 2016, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  38.1  Purpose.

    The purpose of this part is to implement the nondiscrimination and 
equal opportunity provisions of the Workforce Innovation and Opportunity 
Act (WIOA), which are contained in section 188 of WIOA (29 U.S.C. 3248). 
Section 188 prohibits discrimination on the basis of race, color, 
religion, sex, national origin, age, disability, or political 
affiliation or belief, or, for beneficiaries, applicants, and 
participants only, on the basis of citizenship status or participation 
in a WIOA Title I-financially assisted program or activity. This part 
clarifies the application of the nondiscrimination and equal opportunity 
provisions of WIOA and provides uniform procedures for implementing 
them.



Sec.  38.2  Applicability.

    (a) Applicability. This part applies to:
    (1) Any recipient, as defined in Sec.  38.4;
    (2) Programs and activities that are part of the one-stop delivery 
system and that are operated by one-stop partners listed in section 
121(b) of WIOA, to the extent that the programs and activities are being 
conducted as part of the one-stop delivery system; and
    (3) As provided in Sec.  38.18, the employment practices of a 
recipient and/or one-stop partner, to the extent that the employment is 
in the administration of or in connection with programs and activities 
that are being conducted as a part of WIOA Title I or the one-stop 
delivery system.
    (b) Limitation of application. This part does not apply to:

[[Page 562]]

    (1) Programs or activities that are financially assisted by the U.S. 
Department of Labor (Department) exclusively under laws other than Title 
I of WIOA, and that are not part of the one-stop delivery system 
(including programs or activities implemented under, authorized by, and/
or financially assisted by the Department under the Workforce Investment 
Act of 1998 (WIA));
    (2) Contracts of insurance or guaranty;
    (3) The ultimate beneficiary to a program of Federal financial 
assistance; and
    (4) Federal procurement contracts, with the exception of contracts 
to operate or provide services to Job Corps Centers.



Sec.  38.3  Effect on other obligations.

    (a) A recipient's compliance with this part will satisfy any 
obligation of the recipient to comply with 29 CFR part 31, the 
Department's regulations implementing Title VI of the Civil Rights Act 
of 1964, as amended (Title VI), and with subparts A, D, and E of 29 CFR 
part 32, the Department's regulations implementing Section 504 of the 
Rehabilitation Act of 1973, as amended (Section 504).
    (b) 29 CFR part 32, subparts B and C and appendix A, the 
Department's regulations which implement the requirements of Section 504 
pertaining to employment practices and employment-related training, 
program accessibility, and reasonable accommodation, are hereby adopted 
by this part. Therefore, recipients must comply with the requirements 
set forth in those regulatory sections as well as the requirements 
listed in this part.
    (c) This part does not invalidate or limit the obligations, 
remedies, rights, and procedures under any Federal law, or the law of 
any State or political subdivision, that provides greater or equal 
protection for the rights of persons as compared to this part:
    (1) Recipients that are also public entities or public 
accommodations, as defined by Titles II and III of the Americans with 
Disabilities Act of 1990 (ADA), should be aware of obligations imposed 
by those titles.
    (2) Similarly, recipients that are also employers, employment 
agencies, or other entities covered by Title I of the ADA should be 
aware of obligations imposed by that title.
    (d) Compliance with this part does not affect, in any way, any 
additional obligations that a recipient may have to comply with 
applicable federal laws and their implementing regulations, such as the 
following:
    (1) Executive Order 11246, as amended;
    (2) Executive Order 13160;
    (3) Sections 503 and 504 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 793 and 794);
    (4) The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
    (5) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
    (6) Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000e et seq.);
    (7) The Age Discrimination Act of 1975, as amended (42 U.S.C. 6101);
    (8) The Age Discrimination in Employment Act of 1967, as amended (29 
U.S.C. 621);
    (9) Title IX of the Education Amendments of 1972, as amended (Title 
IX) (20 U.S.C. 1681);
    (10) The Americans with Disabilities Act of 1990, as amended (42 
U.S.C. 12101 et seq.); and
    (11) The anti-discrimination provision of the Immigration and 
Nationality Act, as amended (8 U.S.C. 1324b).



Sec.  38.4  Definitions.

    For the purpose of this part:
    (a) Administrative Law Judge means a person appointed as provided in 
5 U.S.C. 3105 and 5 CFR 930.203, and qualified under 5 U.S.C. 557, to 
preside at hearings held under the nondiscrimination and equal 
opportunity provisions of WOIA and this part.
    (b) Aid, benefit, service, or training means WIOA Title I-
financially assisted services, financial or other aid, training, or 
benefits provided by or through a recipient or its employees, or by 
others through contract or other arrangements with the recipient. ``Aid, 
benefit, service, or training'' includes, but is not limited to:

[[Page 563]]

    (1) Career Services;
    (2) Education or training;
    (3) Health, welfare, housing, social service, rehabilitation, or 
other supportive services;
    (4) Work opportunities;
    (5) Cash, loans, or other financial assistance to individuals; and
    (6) Any aid, benefits, services, or training provided in or through 
a facility that has been constructed, expanded, altered, leased, rented, 
or otherwise obtained, in whole or in part, with Federal financial 
assistance under Title I of WIOA.
    (c) Applicant means an individual who is interested in being 
considered for any WIOA Title I-financially assisted aid, benefit, 
service, or training by a recipient, and who has signified that interest 
by submitting personal information in response to a request by the 
recipient. See also the definitions of ``application for benefits,'' 
``eligible applicant/registrant,'' ``participant,'' ``participation,'' 
and ``recipient'' in this section.
    (d) Applicant for employment means a person or persons who make(s) 
an application for employment with a recipient of Federal financial 
assistance under WIOA Title I.
    (e) Application for benefits means the process by which information, 
including but not limited to a completed application form, is provided 
by applicants or eligible applicants before and as a condition of 
receiving any WIOA Title I-financially assisted aid, benefit, service, 
or training from a recipient.
    (f) Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    (g) Assistant Secretary means the Assistant Secretary for 
Administration and Management, United States Department of Labor.
    (h) Auxiliary aids or services includes:
    (1) Qualified interpreters on-site or through video remote 
interpreting (VRI) services; notetakers; real-time computer-aided 
transcription services; written materials; exchange of written notes; 
telephone handset amplifiers; assistive listening devices; assistive 
listening systems; telephones compatible with hearing aids; closed 
caption decoders; open and closed captioning, including real-time 
captioning; voice, text, and video-based telecommunications products and 
systems, including text telephones (TTYs), videophones, and captioned 
telephones, or equally effective telecommunications devices; videotext 
displays; accessible electronic and information technology; or other 
effective means of making aurally delivered materials available to 
individuals with hearing impairments;
    (2) Qualified readers; taped texts; audio recordings; Brailled 
materials and displays; screen reader software; magnification software; 
optical readers; secondary auditory programs (SAP); large print 
materials; accessible electronic and information technology; or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services, devices, and actions.
    (i) Babel notice means a short notice included in a document or 
electronic medium (e.g., Web site, ``app,'' email) in multiple languages 
informing the reader that the communication contains vital information, 
and explaining how to access language services to have the contents of 
the communication provided in other languages.
    (j) Beneficiary means the individual or individuals intended by 
Congress to receive aid, benefits, services, or training from a 
recipient.
    (k) Citizenship See ``Discrimination prohibited based on citizenship 
status.'' in Sec.  38.11.
    (l) CRC means the Civil Rights Center, Office of the Assistant 
Secretary for Administration and Management, U.S. Department of Labor.
    (m) Department means the U.S. Department of Labor, including its 
agencies and organizational units.
    (n) Departmental grantmaking agency means a grantmaking agency 
within the U.S. Department of Labor.
    (o) Director means the Director, Civil Rights Center, Office of the 
Assistant Secretary for Administration and Management, U.S. Department 
of Labor, or a designee authorized to act for the Director.

[[Page 564]]

    (p) Direct threat means a significant risk of substantial harm to 
the health or safety of others that cannot be eliminated or reduced by 
auxiliary aids and services, reasonable accommodations, or reasonable 
modifications in policies, practices and/or procedures. The 
determination whether an individual with a disability poses a direct 
threat must be based on an individualized assessment of the individual's 
present ability safely to either:
    (1) Satisfy the essential eligibility requirements of the program or 
activity (in the case of aid, benefits, services, or training); or
    (2) Perform the essential functions of the job (in the case of 
employment). This assessment must be based on a reasonable medical 
judgment that relies on the most current medical knowledge and/or on the 
best available objective evidence. In determining whether an individual 
would pose a direct threat, the factors to be considered include:
    (i) The duration of the risk;
    (ii) The nature and severity of the potential harm;
    (iii) The likelihood that the potential harm will occur; and
    (iv) The imminence of the potential harm.
    (q) Disability--(1) General. ``Disability'' means, with respect to 
an individual:
    (i) A physical or mental impairment that substantially limits one or 
more of the major life activities of such individual;
    (ii) A record of such an impairment; or
    (iii) Being regarded as having such an impairment as described in 
paragraph (q)(7) of this section.
    (2) Rules of construction. (i) The definition of ``disability'' 
shall be construed broadly in favor of expansive coverage, to the 
maximum extent permitted by Federal disability nondiscrimination law and 
this part.
    (ii) An individual may establish coverage under any one or more of 
the three prongs of the general definition of disability in paragraph 
(q)(1) of this section, the ``actual disability'' prong in paragraph 
(q)(1)(i) of this section, the ``record of'' prong in paragraph 
(q)(1)(ii) of this section, or the ``regarded as'' prong in paragraph 
(q)(1)(iii) of this section.
    (iii) Where an individual is not challenging a recipient's failure 
to provide reasonable accommodations or reasonable modifications under 
Sec.  38.14(a) or (b), it is generally unnecessary to proceed under the 
``actual disability'' or ``record of'' prongs, which require a showing 
of an impairment that substantially limits a major life activity or a 
record of such an impairment. In these cases, the evaluation of coverage 
can be made solely under the ``regarded as'' prong of the definition of 
``disability,'' which does not require a showing of an impairment that 
substantially limits a major life activity or a record of such an 
impairment. An individual may choose, however, to proceed under the 
``actual disability'' or ``record of'' prong regardless of whether the 
individual is challenging a recipient's failure to provide reasonable 
accommodations, or reasonable modifications.
    (3) Physical or mental impairment. (i) ``Physical or mental 
impairment'' means--
    (A) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more body systems, such as: 
Neurological, musculoskeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, immune, circulatory, hemic, lymphatic, skin, and 
endocrine; or
    (B) Any mental or psychological disorder such as intellectual 
disability, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (ii) ``Physical or mental impairment'' includes, but is not limited 
to, contagious and noncontagious diseases and conditions such as the 
following: Orthopedic, visual, speech and hearing impairments, and 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, intellectual disability, emotional 
illness, pregnancy-related medical conditions, dyslexia and other 
specific learning disabilities, Attention Deficit Hyperactivity 
Disorder, Human Immunodeficiency Virus infection

[[Page 565]]

(whether symptomatic or asymptomatic), tuberculosis, drug addiction, and 
alcoholism.
    (iii) ``Physical or mental impairment'' does not include 
homosexuality or bisexuality.
    (4) Major life activities. (i) Major life activities include, but 
are not limited to:
    (A) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, writing, communicating, interacting with others, and working; 
and
    (B) The operation of a ``major bodily function,'' such as the 
functions of the immune system, special sense organs and skin, normal 
cell growth, and digestive, genitourinary, bowel, bladder, neurological, 
brain, respiratory, circulatory, cardiovascular, endocrine, hemic, 
lymphatic, musculoskeletal, and reproductive systems. The operation of a 
major bodily function includes the operation of an individual organ 
within a body system.
    (ii) Rules of construction. (A) In determining whether an impairment 
substantially limits a major life activity, the term ``major'' shall not 
be interpreted strictly to create a demanding standard.
    (B) Whether an activity is a ``major life activity'' is not 
determined by reference to whether it is of central importance to daily 
life.
    (5) Substantially limits--(i) Rules of construction. The following 
rules of construction apply when determining whether an impairment 
substantially limits an individual in a major life activity.
    (A) The term ``substantially limits'' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by Federal 
disability nondiscrimination law and this part. ``Substantially limits'' 
is not meant to be a demanding standard.
    (B) The primary object of attention in disability cases brought 
under WIOA Section 188 should be whether recipients have complied with 
their obligations and whether discrimination has occurred, not the 
extent to which an individual's impairment substantially limits a major 
life activity. Accordingly, the threshold issue of whether an impairment 
substantially limits a major life activity should not demand extensive 
analysis.
    (C) An impairment that substantially limits one major life activity 
does not need to limit other major life activities in order to be 
considered a substantially limiting impairment.
    (D) An impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity when active.
    (E) An impairment is a disability within the meaning of this section 
if it substantially limits the ability of an individual to perform a 
major life activity as compared to most people in the general 
population. An impairment does not need to prevent, or significantly or 
severely restrict, the individual from performing a major life activity 
in order to be considered substantially limiting. Nonetheless, not every 
impairment will constitute a disability within the meaning of this 
section.
    (F) The determination of whether an impairment substantially limits 
a major life activity requires an individualized assessment. However, in 
making this assessment, the term ``substantially limits'' shall be 
interpreted and applied to require a degree of functional limitation 
that is lower than the standard for ``substantially limits'' applied 
prior to the ADA Amendments Act of 2008 (ADAAA).
    (G) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical evidence. Nothing in this paragraph (q)(5)(i)(G) 
is intended, however, to prohibit or limit the presentation of 
scientific, medical, or statistical evidence in making such a comparison 
where appropriate.
    (H) The determination of whether an impairment substantially limits 
a major life activity shall be made without regard to the ameliorative 
effects of mitigating measures. However, the

[[Page 566]]

ameliorative effects of ordinary eyeglasses or contact lenses shall be 
considered in determining whether an impairment substantially limits a 
major life activity. Ordinary eyeglasses or contact lenses are lenses 
that are intended to fully correct visual acuity or to eliminate 
refractive error.
    (I) The six-month ``transitory'' part of the ``transitory and 
minor'' exception in paragraph (q)(7)(ii) of this section does not apply 
to the ``actual disability'' or ``record of'' prongs of the definition 
of ``disability.'' The effects of an impairment lasting or expected to 
last less than six months can be substantially limiting within the 
meaning of this paragraph (q)(5)(i) for establishing an actual 
disability or a record of a disability.
    (ii) Predictable assessments. (A) The principles set forth in 
paragraph (q)(5)(i) of this section are intended to provide for more 
generous coverage and application of the prohibition on discrimination 
through a framework that is predictable, consistent, and workable for 
all individuals and recipients with rights and responsibilities with 
respect to avoiding discrimination on the basis of disability.
    (B) Applying these principles, the individualized assessment of some 
types of impairments will, in virtually all cases, result in a 
determination of coverage under paragraph (q)(1)(i) of this section (the 
``actual disability'' prong) or paragraph (q)(1)(ii) (the ``record of'' 
prong). Given their inherent nature, these types of impairments will, as 
a factual matter, virtually always be found to impose a substantial 
limitation on a major life activity. Therefore, with respect to these 
types of impairments, the necessary individualized assessment should be 
particularly simple and straightforward.
    (C) For example, applying these principles, it should easily be 
concluded that the types of impairments set forth in paragraphs 
(q)(5)(ii)(C)(1) through (11) of this section will, at a minimum, 
substantially limit the major life activities indicated. The types of 
impairments described in paragraphs (q)(5)(ii)(C)(1) through (11) may 
substantially limit additional major life activities (including major 
bodily functions) not explicitly listed in paragraphs (q)(5)(ii)(C)(1) 
through (11).
    (1) Deafness substantially limits hearing;
    (2) Blindness substantially limits seeing;
    (3) Intellectual disability substantially limits brain function;
    (4) Partially or completely missing limbs or mobility impairments 
requiring the use of a wheelchair substantially limit musculoskeletal 
function;
    (5) Autism substantially limits brain function;
    (6) Cancer substantially limits normal cell growth;
    (7) Cerebral palsy substantially limits brain function;
    (8) Diabetes substantially limits endocrine function;
    (9) Epilepsy, muscular dystrophy, and multiple sclerosis each 
substantially limits neurological function;
    (10) Human Immunodeficiency Virus (HIV) infection substantially 
limits immune function; and
    (11) Major depressive disorder, bipolar disorder, post-traumatic 
stress disorder, traumatic brain injury, obsessive compulsive disorder, 
and schizophrenia each substantially limits brain function.
    (iii) Condition, manner, or duration. (A) At all times taking into 
account the principles in paragraph (q)(5)(i) of this section, in 
determining whether an individual is substantially limited in a major 
life activity, it may be useful in appropriate cases to consider, as 
compared to most people in the general population, the conditions under 
which the individual performs the major life activity; the manner in 
which the individual performs the major life activity; or the duration 
of time it takes the individual to perform the major life activity, or 
for which the individual can perform the major life activity.
    (B) Consideration of facts such as condition, manner or duration may 
include, among other things, consideration of the difficulty, effort or 
time required to perform a major life activity; pain experienced when 
performing a major life activity; the length of time a major life 
activity can be performed; or the way an impairment affects the 
operation of a major bodily

[[Page 567]]

function. In addition, the non-ameliorative effects of mitigating 
measures, such as negative side effects of medication or burdens 
associated with following a particular treatment regimen, may be 
considered when determining whether an individual's impairment 
substantially limits a major life activity.
    (C) In determining whether an individual has a disability under the 
``actual disability'' or ``record of'' prongs of the definition of 
``disability,'' the focus is on how a major life activity is 
substantially limited, and not on what outcomes an individual can 
achieve. For example, someone with a learning disability may achieve a 
high level of academic success, but may nevertheless be substantially 
limited in one or more major life activities, including, but not limited 
to, reading, writing, speaking, or learning, because of the additional 
time or effort the individual must spend to read, write, speak, or learn 
compared to most people in the general population.
    (D) Given the rules of construction set forth in paragraph (q)(5)(i) 
of this section, it may often be unnecessary to conduct an analysis 
involving most or all of the facts related to condition, manner, or 
duration. This is particularly true with respect to impairments such as 
those described in paragraph (q)(5)(ii)(C) of this section, which by 
their inherent nature should be easily found to impose a substantial 
limitation on a major life activity, and for which the individualized 
assessment should be particularly simple and straightforward.
    (iv) Mitigating measures include, but are not limited to:
    (A) Medication, medical supplies, equipment, appliances, low-vision 
devices (defined as devices that magnify, enhance, or otherwise augment 
a visual image, but not including ordinary eyeglasses or contact 
lenses), prosthetics including limbs and devices, hearing aid(s) and 
cochlear implant(s) or other implantable hearing devices, mobility 
devices, and oxygen therapy equipment and supplies;
    (B) Use of assistive technology;
    (C) Reasonable modifications of policies, practices, and procedures, 
or auxiliary aids or services;
    (D) Learned behavioral or adaptive neurological modifications; or
    (E) Psychotherapy, behavioral therapy, or physical therapy.
    (6) Has a record of such an impairment. (i) An individual has a 
record of such an impairment if the individual has a history of, or has 
been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (ii) Broad construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity shall be 
construed broadly to the maximum extent permitted by Federal disability 
nondiscrimination law and this part and should not demand extensive 
analysis. An individual will be considered to fall within this prong of 
the definition of ``disability'' if the individual has a history of an 
impairment that substantially limited one or more major life activities 
when compared to most people in the general population, or was 
misclassified as having had such an impairment. In determining whether 
an impairment substantially limited a major life activity, the 
principles articulated in paragraph (q)(5)(i) of this section apply.
    (iii) Reasonable accommodation or reasonable modification. An 
individual with a record of a substantially limiting impairment may be 
entitled to a reasonable accommodation or reasonable modification if 
needed and related to the past disability.
    (7) Is regarded as having such an impairment. The following 
principles apply under the ``regarded as'' prong of the definition of 
``disability'' (paragraph (q)(1)(iii) of this section):
    (i) Except as set forth in paragraph (q)(7)(ii) of this section, an 
individual is ``regarded as having such an impairment'' if the 
individual is subjected to an action prohibited by WIOA Section 188 and 
this part because of an actual or perceived physical or mental 
impairment, whether or not that impairment substantially limits, or is 
perceived to substantially limit, a major life activity, even if the 
recipient asserts, or may or does ultimately establish, a defense to the 
action prohibited by WIOA Section 188 and this part.

[[Page 568]]

    (ii) An individual is not ``regarded as having such an impairment'' 
if the recipient demonstrates that the impairment is, objectively, both 
``transitory'' and ``minor.'' A recipient may not defeat ``regarded as'' 
coverage of an individual simply by demonstrating that it subjectively 
believed the impairment was transitory and minor; rather, the recipient 
must demonstrate that the impairment is (in the case of an actual 
impairment) or would be (in the case of a perceived impairment), 
objectively, both ``transitory'' and ``minor.'' For purposes of this 
section, ``transitory'' is defined as lasting or expected to last six 
months or less.
    (iii) Establishing that an individual is ``regarded as having such 
an impairment'' does not, by itself, establish liability. Liability is 
established only when an individual proves that a recipient 
discriminated on the basis of disability within the meaning of federal 
nondiscrimination law and this part.
    (r) Eligible applicant/registrant means an individual who has been 
determined eligible to participate in one or more WIOA Title I-
financially assisted programs or activities.
    (s) Employment practices of a recipient include, but are not limited 
to:
    (1) Recruitment or recruitment advertising;
    (2) Selection, placement, layoff or termination of employees;
    (3) Upgrading, promotion, demotion or transfer of employees;
    (4) Training, including employment-related training;
    (5) Participation in upward mobility programs;
    (6) Deciding rates of pay or other forms of compensation;
    (7) Use of facilities; or
    (8) Deciding other terms, conditions, benefits, and/or privileges of 
employment.
    (t) Employment-related training means training that allows or 
enables an individual to obtain skills, abilities and/or knowledge that 
are designed to lead to employment.
    (u) Entity means any person, corporation, partnership, joint 
venture, sole proprietorship, unincorporated association, consortium, 
Native American tribe or tribal organization, Native Hawaiian 
organization, and/or entity authorized by State or local law; any State 
or local government; and/or any agency, instrumentality or subdivision 
of such a government.
    (v) Facility means all or any portion of buildings, structures, 
sites, complexes, equipment, roads, walks, passageways, parking lots, 
rolling stock or other conveyances, or other real or personal property 
or interest in such property, including the site where the building, 
property, structure, or equipment is located. The phrase ``real or 
personal property'' in the preceding sentence includes indoor constructs 
that may or may not be permanently attached to a building or structure. 
Such constructs include, but are not limited to, office cubicles, 
computer kiosks, and similar constructs.
    (w) Federal grantmaking agency means a Federal agency that provides 
financial assistance under any Federal statute.
    (x) Financial assistance means any of the following:
    (1) Any grant, subgrant, loan, or advance of funds, including funds 
extended to any entity for payment to or on behalf of participants 
admitted to that recipient for training, or extended directly to such 
participants for payment to that recipient;
    (2) Provision of the services of grantmaking agency personnel, or of 
other personnel at the grantmaking agency's expense;
    (3) A grant or donation of real or personal property or any interest 
in or use of such property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration;
    (ii) Proceeds from a subsequent sale, transfer, or lease of such 
property, if the grantmaking agency's share of the fair market value of 
the property is not returned to the grantmaking agency; and
    (iii) The sale, lease, or license of, and/or the permission to use 
(other than on a casual or transient basis), such property or any 
interest in such property, either:
    (A) Without consideration;
    (B) At a nominal consideration; or

[[Page 569]]

    (C) At a consideration that is reduced or waived either for the 
purpose of assisting the recipient, or in recognition of the public 
interest to be served by such sale or lease to or use by the recipient;
    (4) Waiver of charges that would normally be made for the furnishing 
of services by the grantmaking agency; and
    (5) Any other agreement, arrangement, contract or subcontract (other 
than a procurement contract or a contract of insurance or guaranty), or 
other instrument that has as one of its purposes the provision of 
assistance or benefits under the statute or policy that authorizes 
assistance by the grantmaking agency.
    (y) Financial assistance under Title I of WIOA means any of the 
following, when authorized or extended under WIOA Title I:
    (1) Any grant, subgrant, loan, or advance of federal funds, 
including funds extended to any entity for payment to or on behalf of 
participants admitted to that recipient for training, or extended 
directly to such participants for payment to that recipient;
    (2) Provision of the services of Federal personnel, or of other 
personnel at Federal expense;
    (3) A grant or donation of Federal real or personal property or any 
interest in or use of such property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration;
    (ii) Proceeds from a subsequent sale, transfer, or lease of such 
property, if the Federal share of the fair market value of the property 
is not returned to the Federal Government; and
    (iii) The sale, lease, or license of, and/or the permission to use 
(other than on a casual or transient basis), such property or any 
interest in such property, either:
    (A) Without consideration;
    (B) At a nominal consideration; or
    (C) At a consideration that is reduced or waived either for the 
purpose of assisting the recipient, or in recognition of the public 
interest to be served by such sale or lease to or use by the recipient;
    (4) Waiver of charges that would normally be made for the furnishing 
of Government services; and
    (5) Any other agreement, arrangement, contract or subcontract (other 
than a Federal procurement contract or a contract of insurance or 
guaranty), or other instrument that has as one of its purposes the 
provision of assistance or benefits under WIOA Title I.
    (z) Fundamental alteration means:
    (1) A change in the essential nature of a program or activity as 
defined in this part, including but not limited to an aid, service, 
benefit, or training; or
    (2) A cost that a recipient can demonstrate would result in an undue 
burden. Factors to be considered in making the determination whether the 
cost of a modification would result in such a burden include:
    (i) The nature and net cost of the modification needed, taking into 
consideration the availability of tax credits and deductions, and/or 
outside financial assistance, for the modification;
    (ii) The overall financial resources of the facility or facilities 
involved in the provision of the modification, including:
    (A) The number of persons aided, benefited, served, or trained by, 
or employed at, the facility or facilities; and
    (B) The effect the modification would have on the expenses and 
resources of the facility or facilities;
    (iii) The overall financial resources of the recipient, including:
    (A) The overall size of the recipient;
    (B) The number of persons aided, benefited, served, trained, or 
employed by the recipient; and
    (C) The number, type and location of the recipient's facilities;
    (iv) The type of operation or operations of the recipient, 
including:
    (A) The geographic separateness and administrative or fiscal 
relationship of the facility or facilities in question to the recipient; 
and
    (B) Where the modification sought is employment-related, the 
composition, structure and functions of the recipient's workforce; and
    (v) The impact of the modification upon the operation of the 
facility or facilities, including:

[[Page 570]]

    (A) The impact on the ability of other participants to receive aid, 
benefit, service, or training, or of other employees to perform their 
duties; and
    (B) The impact on the facility's ability to carry out its mission.
    (aa) Governor means the chief executive of a State or an outlying 
area, or the Governor's designee.
    (bb) Grant applicant means an entity that submits required 
documentation to the Governor, recipient, or Department, before and as a 
condition of receiving financial assistance under Title I of WIOA.
    (cc) Grantmaking agency means an entity that provides Federal 
financial assistance.
    (dd) Guideline means written informational material supplementing an 
agency's regulations and provided to grant applicants and recipients to 
provide program-specific interpretations of their responsibilities under 
the regulations.
    (ee) Illegal use of drugs means the use of drugs, the possession or 
distribution of which is unlawful under the Controlled Substances Act, 
as amended (21 U.S.C. 812). ``Illegal use of drugs'' does not include 
the use of a drug taken under supervision of a licensed health care 
professional, or other uses authorized by the Controlled Substances Act 
or other provisions of Federal law.
    (ff) Individual with a disability means a person who has a 
disability as previously defined in this section.
    (1) The term ``individual with a disability'' does not include an 
individual on the basis of:
    (i) Transvestism, transsexualism, or gender identity disorders not 
resulting from physical impairments;
    (ii) Pedophilia, exhibitionism, voyeurism, or other sexual behavior 
disorders;
    (iii) Compulsive gambling, kleptomania, or pyromania; or
    (iv) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    (2) The term ``individual with a disability'' does not include an 
individual who is currently engaging in the illegal use of drugs, when a 
recipient acts on the basis of such use. This limitation does not 
exclude as an individual with a disability an individual who:
    (i) Has successfully completed a supervised drug rehabilitation 
program and is no longer engaging in the illegal use of drugs, or has 
otherwise been rehabilitated successfully and is no longer engaging in 
the illegal use of drugs;
    (ii) Is participating in a supervised rehabilitation program and is 
no longer engaging in such use; or
    (iii) Is erroneously regarded as engaging in such use, but is not 
engaging in such use, except that it is not a violation of the 
nondiscrimination and equal opportunity provisions of WIOA or this part 
for a recipient to adopt or administer reasonable policies or 
procedures, including but not limited to drug testing, designed to 
ensure that an individual described in paragraph (ff)(2)(i) or (ii) of 
this section is no longer engaging in the illegal use of drugs.
    (3) With regard to employment, the term ``individual with a 
disability'' does not include any individual who:
    (i) Is an alcoholic if:
    (A) The individual's current use of alcohol prevents such individual 
from performing the duties of the job in question; or
    (B) The individual's employment, by reason of such current alcohol 
abuse, would constitute a direct threat to the individual or the safety 
of others; or
    (ii) Has a currently contagious disease or infection, if:
    (A) That disease or infection prevents the individual from 
performing the essential functions of the job in question; or
    (B) The individual's employment, because of that disease or 
infection, would constitute a direct threat to the health or safety of 
the individual or others.
    (gg) Labor market area means an economically integrated geographic 
area within which individuals can reside and find employment within a 
reasonable distance or can readily change employment without changing 
their place of residence. Such an area must be identified in accordance 
with either criteria used by the Bureau of Labor Statistics of the 
Department of Labor in defining such areas, or similar criteria 
established by a Governor.

[[Page 571]]

    (hh) Limited English proficient (LEP) individual means an individual 
whose primary language for communication is not English and who has a 
limited ability to read, speak, write, and/or understand English. LEP 
individuals may be competent in English for certain types of 
communication (e.g., speaking or understanding), but still be LEP for 
other purposes (e.g., reading or writing).
    (ii) LWDA (Local Workforce Development Area) grant recipient means 
the entity that receives WIOA Title I financial assistance for a local 
area directly from the Governor and disburses those funds for workforce 
development activities.
    (jj) National Programs means:
    (1) Job Corps; and
    (2) Programs receiving Federal financial assistance under Title I, 
Subtitle D of WIOA directly from the Department. Such programs include, 
but are not limited to, the Migrant and Seasonal Farmworkers Programs, 
Native American Programs, National Dislocated Worker Grant Programs, and 
YouthBuild programs.
    (kk) Noncompliance means a failure of a grant applicant or recipient 
to comply with any of the applicable requirements of the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part.
    (ll) Nondiscrimination Plan means the written document and 
supporting documentation developed under Sec.  38.54.
    (mm) On-the-Job Training (OJT) means training by an employer that is 
provided to a paid participant while the participant is engaged in 
productive work that:
    (1) Provides knowledge or skills essential to the full and adequate 
performance of the job;
    (2) Provides reimbursement to the employer of up to 50 percent of 
the wage rate of the participant (or up to 75 percent as provided in 
WIOA section 134(c)(3)(H)), for the extraordinary costs of providing the 
training and additional supervision related to the training; and
    (3) Is limited in duration as appropriate to the occupation for 
which the participant is being trained, taking into account the content 
of the training, the prior work experience of the participant, and the 
service strategy of the participant, as appropriate.
    (nn) Other power-driven mobility device means any mobility device 
powered by batteries, fuel, or other engines or by similar means--
whether or not designed primarily for use by individuals with mobility 
disabilities--that is used by individuals with mobility disabilities for 
the purpose of locomotion, including golf cars, electronic personal 
assistance mobility devices (EPAMDs), such as the Segway[supreg] PT, or 
any mobility device designed to operate in areas without defined 
pedestrian routes, but that is not a wheelchair within the meaning of 
this section.
    (oo) Participant means an individual who has been determined to be 
eligible to participate in, and who is receiving any aid, benefit, 
service, or training under, a program or activity financially assisted 
in whole or in part under Title I of WIOA. ``Participant'' includes, but 
is not limited to, individuals receiving any service(s) under State 
Employment Service programs, and claimants receiving any service(s) or 
benefits under State Unemployment Insurance programs.
    (pp) Participation is considered to commence on the first day, 
following determination of eligibility, on which the participant began 
receiving subsidized aid, benefit, service, or training provided under 
Title I of WIOA.
    (qq) Parties to a hearing means the Department and the grant 
applicant(s), recipient(s), or Governor.
    (rr) Population eligible to be served means the total population of 
adults and eligible youth who reside within the labor market area that 
is served by a particular recipient, and who are eligible to seek WIOA 
Title I-financially assisted aid, benefits, services, or training from 
that recipient. See the definition of ``labor market area'' in this 
section.
    (ss) Program or activity, see ``WIOA Title I-financially assisted 
program or activity'' in this section.
    (tt) Programmatic accessibility means policies, practices, and 
procedures providing effective and meaningful opportunity for persons 
with disabilities to participate in or benefit from aid, benefits, 
services, and training.

[[Page 572]]

    (uu) Prohibited basis means any basis upon which it is illegal to 
discriminate under the nondiscrimination and equal opportunity 
provisions of WIOA or this part, i.e., race, color, religion, sex, 
national origin, age, disability, or political affiliation or belief, 
or, for beneficiaries, applicants, and participants only, citizenship 
status or participation in a WIOA Title I-financially assisted program 
or activity.
    (vv) Public entity means:
    (1) Any State or local government; and
    (2) Any department, agency, special purpose district, workforce 
development board, or other instrumentality of a State or States or 
local government.
    (ww) Qualified individual with a disability means:
    (1) With respect to employment, an individual who satisfies the 
requisite skill, experience, education, and other job-related 
requirements of the employment position such individual holds or 
desires, and who, with or without reasonable accommodation, can perform 
the essential functions of such position;
    (2) With respect to aid, benefits, services, or training, an 
individual who, with or without auxiliary aids and services, reasonable 
accommodations, and/or reasonable modifications in policies, practices 
and procedures, meets the essential eligibility requirements for the 
receipt of such aid, benefits, services, or training.
    (xx) Qualified interpreter means an interpreter who is able to 
interpret effectively, accurately, and impartially, either for 
individuals with disabilities or for individuals who are limited English 
proficient. The interpreter must be able to interpret both receptively 
and expressively, using any necessary specialized vocabulary, either in-
person, through a telephone, a video remote interpreting (VRI) service, 
or via internet, video, or other technological methods.
    (1) Qualified interpreter for an individual with a disability 
includes, for example, a sign language interpreter, oral transliterator, 
and cued-language transliterator. When an interpreter is provided to a 
person with a disability, the qualified interpreter must be able to sign 
or otherwise communicate effectively, accurately, and impartially, both 
receptively and expressively, using any necessary specialized 
vocabulary.
    (2) Qualified interpreter for an individual who is limited English 
proficient means an individual who demonstrates expertise and ability to 
communicate information effectively, accurately, and impartially, in 
both English and the other language, and identifies and employs the 
appropriate mode of interpreting (e.g., consecutive, simultaneous, or 
sight translation).
    (yy) Reasonable accommodation. (1) The term ``reasonable 
accommodation'' means:
    (i) Modifications or adjustments to an application/registration 
process that enables a qualified applicant/registrant with a disability 
to be considered for the aid, benefits, services, training, or 
employment that the qualified applicant/registrant desires; or
    (ii) Modifications or adjustments that enable a qualified individual 
with a disability to perform the essential functions of a job, or to 
receive aid, benefits, services, or training equal to that provided to 
qualified individuals without disabilities. These modifications or 
adjustments may be made to:
    (A) The environment where work is performed or aid, benefits, 
services, or training are given; or
    (B) The customary manner in which, or circumstances under which, a 
job is performed or aid, benefits, services, or training are given; or
    (iii) Modifications or adjustments that enable a qualified 
individual with a disability to enjoy the same benefits and privileges 
of the aid, benefits, services, training, or employment as are enjoyed 
by other similarly situated individuals without disabilities.
    (2) ``Reasonable accommodation'' includes, but is not limited to:
    (i) Making existing facilities used by applicants, registrants, 
eligible applicants/registrants, participants, applicants for 
employment, and employees readily accessible to and usable by 
individuals with disabilities; and

[[Page 573]]

    (ii) Restructuring of a job or a service, or of the way in which 
aid, benefits, services, or training is/are provided; part-time or 
modified work or training schedules; acquisition or modification of 
equipment or devices; appropriate adjustment or modifications of 
examinations, training materials, or policies; the provision of readers 
or interpreters; and other similar accommodations for individuals with 
disabilities.
    (3) To determine the appropriate reasonable accommodation, it may be 
necessary for the recipient to initiate an informal, interactive process 
with the qualified individual with a disability in need of the 
accommodation. This process should identify the precise limitations 
resulting from the disability and potential reasonable accommodations 
that could overcome those limitations.
    (4) A recipient is required, absent undue hardship, to provide a 
reasonable accommodation to an otherwise qualified individual who meets 
the definition of disability under the ``actual disability'' prong 
(paragraph (q)(1)(i) of this section) or the ``record of'' a disability 
prong (paragraph (q)(1)(ii) of this section), but is not required to 
provide a reasonable accommodation to an individual who meets the 
definition of disability solely under the ``regarded as'' prong 
(paragraph (q)(1)(iii) of this section).
    (zz) Recipient means entity to which financial assistance under 
Title I of WIOA is extended, directly from the Department or through the 
Governor or another recipient (including any successor, assignee, or 
transferee of a recipient). The term excludes any ultimate beneficiary 
of the WIOA Title I-financially assisted program or activity. In 
instances in which a Governor operates a program or activity, either 
directly or through a State agency, using discretionary funds 
apportioned to the Governor under WIOA Title I (rather than disbursing 
the funds to another recipient), the Governor is also a recipient. In 
addition, for purposes of this part, one-stop partners, as defined in 
section 121(b) of WIOA, are treated as ``recipients,'' and are subject 
to the nondiscrimination and equal opportunity requirements of this 
part, to the extent that they participate in the one-stop delivery 
system. ``Recipient'' includes, but is not limited to:
    (1) State-level agencies that administer, or are financed in whole 
or in part with, WIOA Title I funds;
    (2) State Workforce Agencies;
    (3) State and Local Workforce Development Boards;
    (4) LWDA grant recipients;
    (5) One-stop operators;
    (6) Service providers, including eligible training providers;
    (7) On-the-Job Training (OJT) employers;
    (8) Job Corps contractors and center operators;
    (9) Job Corps national training contractors;
    (10) Outreach and admissions agencies, including Job Corps 
contractors that perform these functions;
    (11) Placement agencies, including Job Corps contractors that 
perform these functions;
    (12) Other National Program recipients.
    (aaa) Registrant means the same as ``applicant'' for purposes of 
this part. See also the definitions of ``application for benefits,'' 
``eligible applicant/registrant,'' ``participant,'' ``participation,'' 
and ``recipient'' in this section.
    (bbb) Respondent means a grant applicant or recipient (including a 
Governor) against which a complaint has been filed under the 
nondiscrimination and equal opportunity provisions of WIOA or this part.
    (ccc) Secretary means the Secretary of Labor, U.S. Department of 
Labor, or the Secretary's designee.
    (ddd) Sectarian activities means religious worship or ceremony, or 
sectarian instruction.
    (eee) Section 504 means Section 504 of the Rehabilitation Act of 
1973, 29 U.S.C. 794, as amended, which forbids discrimination against 
qualified individuals with disabilities in federally-financed and 
conducted programs and activities.
    (fff) Service animal means any dog that is individually trained to 
do work or perform tasks for the benefit of an individual with a 
disability, including a physical, sensory, psychiatric, intellectual, or 
other mental disability. Other species of animals, whether wild or 
domestic, trained or untrained, are

[[Page 574]]

not service animals for the purposes of this definition. The work or 
tasks performed by a service animal must be directly related to the 
individual's disability. Examples of work or tasks include, but are not 
limited to, assisting individuals who are blind or have low vision with 
navigation and other tasks, alerting individuals who are deaf or hard of 
hearing to the presence of people or sounds, providing non-violent 
protection or rescue work, pulling a wheelchair, assisting an individual 
during a seizure, alerting individuals to the presence of allergens, 
retrieving items such as medicine or the telephone, providing physical 
support and assistance with balance and stability to individuals with 
mobility disabilities, and helping persons with psychiatric and 
neurological disabilities by preventing or interrupting impulsive or 
destructive behaviors. The crime deterrent effects of an animal's 
presence and the provision of emotional support, well-being, comfort, or 
companionship, without more, do not constitute work or tasks for the 
purposes of this definition.
    (ggg) Service provider means:
    (1) Any operator of, or provider of aid, benefits, services, or 
training to:
    (i) Any program or activity that receives WIOA Title I financial 
assistance from or through any State or LWDA grant recipient; or
    (ii) Any participant through that participant's Individual Training 
Account (ITA); or
    (2) Any entity that is selected and/or certified as an eligible 
provider of training services to participants.
    (hhh) Small recipient means a recipient who:
    (1) Serves a total of fewer than 15 beneficiaries during the entire 
grant year; and
    (2) Employs fewer than 15 employees on any given day during the 
grant year.
    (iii) Solicitor means the Solicitor of Labor, U.S. Department of 
Labor, or the Solicitor's designee.
    (jjj) State means the individual states of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, American Samoa, Guam, Wake Island, the Commonwealth of the 
Northern Mariana Islands, the Federated States of Micronesia, the 
Republic of the Marshall Islands, and Palau.
    (kkk) State Programs means programs financially assisted in whole or 
in part under Title I of WIOA in which either:
    (1) The Governor and/or State receives and disburses the grant to or 
through LWDA grant recipients; or
    (2) The Governor retains the grant funds and operates the programs, 
either directly or through a State agency.
    (3) ``State Programs'' also includes State Workforce Agencies, State 
Employment Service agencies, and/or State unemployment compensation 
agencies.
    (lll) State Workforce Agency (SWA) means the State agency that, 
under the State Administrator, contains both State agencies with 
responsibility for administering programs authorized under the Wagner-
Peyser Act, and unemployment insurance programs authorized under Title 
III of the Social Security Act.
    (mmm) Supportive services means services, such as transportation, 
child care, dependent care, housing, and needs-related payments, that 
are necessary to enable an individual to participate in WIOA Title I-
financially assisted programs and activities, as consistent with the 
provisions of WIOA Title I.
    (nnn) Terminee means a participant whose participation in the 
program or employee whose employment with the program ends voluntarily 
or involuntarily, during the applicable program year.
    (ooo) Title VI means Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d, et seq., as amended, which forbids recipients of federal 
financial assistance from discriminating on the basis of race, color, or 
national origin.
    (ppp) Transferee means a person or entity to whom or to which real 
or personal property, or an interest in such property, is transferred.
    (qqq) Ultimate beneficiary, see the definition of ``beneficiary'' in 
this section.
    (rrr) Undue burden or undue hardship has different meanings, 
depending upon whether it is used with regard to reasonable 
accommodation of individuals

[[Page 575]]

with disabilities, or with regard to religious accommodation.
    (1) Reasonable accommodation of individuals with disabilities. (i) 
In general, ``undue hardship'' means significant difficulty or expense 
incurred by a recipient, when considered in light of the factors set 
forth in paragraph (rrr)(1)(ii) of this section.
    (ii) Factors to be considered in determining whether an 
accommodation would impose an undue hardship on a recipient include:
    (A) The nature and net cost of the accommodation needed, taking into 
consideration the availability of tax credits and deductions, and/or 
outside funding, for the accommodation;
    (B) The overall financial resources of the facility or facilities 
involved in the provision of the reasonable accommodation, including:
    (1) The number of persons aided, benefited, served, or trained by, 
or employed at, the facility or facilities; and
    (2) The effect the accommodation would have on the expenses and 
resources of the facility or facilities;
    (C) The overall financial resources of the recipient, including:
    (1) The overall size of the recipient;
    (2) The number of persons aided, benefited, served, trained, or 
employed by the recipient; and
    (3) The number, type and location of the recipient's facilities;
    (D) The type of operation or operations of the recipient, including:
    (1) The geographic separateness and administrative or fiscal 
relationship of the facility or facilities in question to the recipient; 
and
    (2) Where the individual is seeking an employment-related 
accommodation, the composition, structure and functions of the 
recipient's workforce; and
    (E) The impact of the accommodation upon the operation of the 
facility or facilities, including:
    (1) The impact on the ability of other participants to receive aid, 
benefits, services, or training, or of other employees to perform their 
duties; and
    (2) The impact on the facility's ability to carry out its mission.
    (2) Religious accommodation. For purposes of religious accommodation 
only, ``undue hardship'' means anything more than a de minimis cost or 
operational burden that a particular accommodation would impose upon a 
recipient.
    (sss) Video remote interpreting (VRI) service means an interpreting 
service that uses video conference technology over dedicated lines or 
wireless technology offering high-speed, wide-bandwidth video connection 
that delivers high-quality video images, as provided in Sec.  38.15.
    (ttt) Vital information means information, whether written, oral or 
electronic, that is necessary for an individual to understand how to 
obtain any aid, benefit, service, and/or training; necessary for an 
individual to obtain any aid, benefit, service, and/or training; or 
required by law. Examples of documents containing vital information 
include, but are not limited to applications, consent and complaint 
forms; notices of rights and responsibilities; notices advising LEP 
individuals of their rights under this part, including the availability 
of free language assistance; rulebooks; written tests that do not assess 
English language competency, but rather assess competency for a 
particular license, job, or skill for which English proficiency is not 
required; and letters or notices that require a response from the 
beneficiary or applicant, participant, or employee.
    (uuu) Wheelchair means a manually-operated or power-driven device 
designed primarily for use by an individual with a mobility disability 
for the main purpose of indoor and/or outdoor locomotion.
    (vvv) WIOA means the Workforce Innovation and Opportunity Act.
    (www) WIOA Title I financial assistance, see the definition of 
``Financial assistance under WIOA'' in this section.
    (xxx) WIOA Title I-financially assisted program or activity means:
    (1) A program or activity, operated by a recipient and financially 
assisted, in whole or in part, under Title I of WIOA that provides 
either:
    (i) Any aid, benefit, service, or training to individuals; or
    (ii) Facilities for furnishing any aid, benefits, services, or 
training to individuals;

[[Page 576]]

    (2) Aid, benefit, service, or training provided in facilities that 
are being or were constructed with the aid of Federal financial 
assistance under WIOA Title I; or
    (3) Aid, benefit, service, or training provided with the aid of any 
non-WIOA Title I financial assistance, property, or other resources that 
are required to be expended or made available in order for the program 
to meet matching requirements or other conditions which must be met in 
order to receive the WIOA Title I financial assistance. See the 
definition of ``aid, benefit, service, or training'' in this section.



Sec.  38.5  General prohibitions on discrimination.

    No individual in the United States may, on the basis of race, color, 
religion, sex, national origin, age, disability, or political 
affiliation or belief, or, for beneficiaries, applicants, and 
participants only, on the basis of citizenship or participation in any 
WIOA Title I-financially assisted program or activity, be excluded from 
participation in, denied the benefits of, subjected to discrimination 
under, or denied employment in the administration of or in connection 
with any WIOA Title I-financially assisted program or activity.



Sec.  38.6  Specific discriminatory actions prohibited on bases 
other than disability.

    (a) For the purposes of this section, prohibited bases for 
discrimination are race, color, religion, sex, national origin, age, and 
political affiliation and belief, and, for beneficiaries, applicants, 
and participants only, citizenship and participation in any WIOA Title 
I-financially assisted program or activity.
    (b) A recipient must not, directly or through contractual, 
licensing, or other arrangements, on a prohibited basis:
    (1) Deny an individual any aid, benefit, service, or training 
provided under a WIOA Title I-financially assisted program or activity;
    (2) Provide to an individual any aid, benefit, service, or training 
that is different, or is provided in a different manner, from that 
provided to others under a WIOA Title I-financially assisted program or 
activity;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to receipt of any aid, benefit, service, or training 
under a WIOA Title I-financially assisted program or activity;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any aid, benefit, 
service, or training under a WIOA Title I-financially assisted program 
or activity;
    (5) Treat an individual differently from others in determining 
whether the individual satisfies any admission, enrollment, eligibility, 
membership, or other requirement or condition for any aid, benefit, 
service, or training provided under a WIOA Title I-financially assisted 
program or activity;
    (6) Deny or limit an individual with respect to any opportunity to 
participate in a WIOA Title I-financially assisted program or activity, 
or afford the individual an opportunity to do so that is different from 
the opportunity afforded others under a WIOA Title I-financially 
assisted program or activity;
    (7) Deny an individual the opportunity to participate as a member of 
a planning or advisory body that is an integral part of the WIOA Title 
I-financially assisted program or activity; or
    (8) Otherwise limit an individual enjoyment of any right, privilege, 
advantage, or opportunity enjoyed by others receiving any WIOA Title I-
financially assisted aid, benefit, service, or training.
    (c) A recipient must not, directly or through contractual, 
licensing, or other arrangements:
    (1) Aid or perpetuate discrimination by providing significant 
assistance to an agency, organization, or person that discriminates on a 
basis prohibited by WIOA Section 188 or this part in providing any aid, 
benefit, service, or training, to registrants, applicants or 
participants in a WIOA Title I-financially assisted program or activity; 
or
    (2) Refuse to accommodate an individual's religious practices or 
beliefs, unless to do so would result in undue hardship, as defined in 
Sec.  38.4(rrr)(2).
    (d)(1) In making any of the determinations listed in paragraph 
(d)(2) of

[[Page 577]]

this section, either directly or through contractual, licensing, or 
other arrangements, a recipient must not use standards, procedures, 
criteria, or administrative methods that have any of the following 
purposes or effects:
    (i) Subjecting individuals to discrimination on a prohibited basis; 
or
    (ii) Defeating or substantially impairing, on a prohibited basis, 
accomplishment of the objectives of either:
    (A) The WIOA Title I-financially assisted program or activity; or
    (B) The nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (2) The determinations to which this paragraph (d) applies include, 
but are not limited to:
    (i) The types of aid, benefit, service, training, or facilities that 
will be provided under any WIOA Title I-financially assisted program or 
activity;
    (ii) The class of individuals to whom such aid, benefit, service, 
training, or facilities will be provided; or
    (iii) The situations in which such aid, benefit, service, training, 
or facilities will be provided.
    (3) Paragraph (d) of this section applies to the administration of 
WIOA Title I-financially assisted programs or activities providing any 
aid, benefit, service, training, or facilities in any manner, including, 
but not limited to:
    (i) Outreach and recruitment;
    (ii) Registration;
    (iii) Counseling and guidance;
    (iv) Testing;
    (v) Selection, placement, appointment, and referral;
    (vi) Training; and
    (vii) Promotion and retention.
    (4) A recipient must not take any of the prohibited actions listed 
in paragraph (d) of this section either directly or through contractual, 
licensing, or other arrangements.
    (e) In determining the site or location of facilities, a grant 
applicant or recipient must not make selections that have any of the 
following purposes or effects:
    (1) On a prohibited basis:
    (i) Excluding individuals from a WIOA Title I-financially assisted 
program or activity;
    (ii) Denying them the benefits of such a program or activity; or
    (iii) Subjecting them to discrimination; or
    (2) Defeating or substantially impairing the accomplishment of the 
objectives of either:
    (i) The WIOA Title I-financially assisted program or activity; or
    (ii) The nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (f)(1) 29 CFR part 2, subpart D, governs the circumstances under 
which Department support, including under WIOA Title I financial 
assistance, may be used to employ or train participants in religious 
activities. Under that subpart, such assistance may be used for such 
employment or training only when the assistance is provided indirectly 
within the meaning of the Establishment Clause of the U.S. Constitution, 
and not when the assistance is provided directly. As explained in that 
subpart, assistance provided through an Individual Training Account is 
generally considered indirect, and other mechanisms may also be 
considered indirect. See also 20 CFR 683.255 and 683.285. 29 CFR part 2, 
subpart D, also contains requirements related to equal treatment of 
religious organizations in Department of Labor programs, and to 
protection of religious liberty for Department of Labor social service 
providers and beneficiaries.
    (2) Except under the circumstances described in paragraph (f)(3) of 
this section, a recipient must not employ participants to carry out the 
construction, operation, or maintenance of any part of any facility that 
is used, or to be used, for religious instruction or as a place for 
religious worship.
    (3) A recipient may employ participants to carry out the maintenance 
of a facility that is not primarily or inherently devoted to religious 
instruction or religious worship if the organization operating the 
facility is part of a program or activity providing services to 
participants.
    (g) The exclusion of an individual from programs or activities 
limited by Federal statute or Executive Order to a certain class or 
classes of individuals of which the individual in question is not a 
member is not prohibited by this part.

[[Page 578]]



Sec.  38.7  Discrimination prohibited based on sex.

    (a) In providing any aid, benefit, service, or training under a WIOA 
Title I-financially assisted program or activity, a recipient must not 
directly or through contractual, licensing, or other arrangements, 
discriminate on the basis of sex. An individual may not be excluded from 
participation in, denied the benefits of, or subjected to discrimination 
under any WIOA Title I-financially assisted program or activity based on 
sex. The term sex includes, but is not limited to, pregnancy, 
childbirth, and related medical conditions, transgender status, and 
gender identity.
    (b) Recipients may not make any distinction based on sex in 
providing any aid, benefit, service, or training under a WIOA Title I-
financially assisted program or activity. Such unlawful sex-based 
discriminatory practices include, but are not limited to, the following:
    (1) Making a distinction between married and unmarried persons that 
is not applied equally to both sexes;
    (2) Denying individuals of one sex who have children access to any 
aid, benefit, service, or training that is available to individuals of 
another sex who have children;
    (3) Adversely treating unmarried individuals of one sex, but not 
unmarried individuals of another sex, who become parents;
    (4) Distinguishing on the basis of sex in formal or informal job 
training and/or educational programs, other opportunities such as 
networking, mentoring, individual development plans, or on the job 
training opportunities;
    (5) Posting job announcements for jobs that recruit or advertise for 
individuals for certain jobs on the basis of sex;
    (6) Treating an individual adversely because the individual 
identifies with a gender different from that individual's sex assigned 
at birth, or the individual has undergone, is undergoing, or is planning 
to undergo, any processes or procedures designed to facilitate the 
individual's transition to a sex other than the individual's sex 
assigned at birth;
    (7) Denying individuals who are pregnant, who become pregnant, or 
who plan to become pregnant opportunities for or access to any aid, 
benefit, service, or training on the basis of pregnancy (see also Sec.  
38.8);
    (8) Making any facilities associated with WIOA Title I-financially 
assisted program or activities available only to members of one sex, 
except that if the recipient provides restrooms or changing facilities, 
the recipient may provide separate or single-user restrooms or changing 
facilities; and
    (9) Denying individuals access to the restrooms, locker rooms, 
showers, or similar facilities consistent with the gender with which 
they identify.
    (c) A recipient's policies or practices that have the effect of 
discriminating on the basis of sex and that lack a substantial 
legitimate justification constitute sex discrimination in violation of 
WIOA and this part. Such unlawful sex-based discriminatory practices 
include, but are not limited to, the following:
    (1) Height or weight qualifications that lack a substantial 
legitimate justification and that negatively affect women substantially 
more than men.
    (2) Strength, agility, or other physical requirements that lack a 
substantial legitimate justification and that negatively affect women 
substantially more than men.
    (d) Discrimination on the basis of sex stereotypes, such as 
stereotypes about how persons of a particular sex are expected to look, 
speak, or act, is a form of unlawful sex discrimination. Examples of sex 
stereotyping include, but are not limited to:
    (1) Denying an individual access to, or otherwise subjecting the 
individual to adverse treatment in accessing, any aid, benefit, service, 
or training under a WIOA Title I-financially assisted program or 
activity because of that individual's failure to comply with gender 
norms and expectations for dress, appearance and/or behavior, including 
wearing jewelry, make-up, high-heeled shoes, suits, or neckties.
    (2) Harassment or other adverse treatment of a male applicant, 
participant, or beneficiary of a WIOA Title I-financially assisted 
program or activity because he is considered effeminate or 
insufficiently masculine.

[[Page 579]]

    (3) Adverse treatment of an applicant, participant, or beneficiary 
of a WIOA Title I-financially assisted program or activity because of 
the individual's actual or perceived gender identity.
    (4) Adverse treatment of an applicant, participant, or beneficiary 
of a WIOA Title I-financially assisted program or activity based on sex 
stereotypes about caregiver responsibilities. For example, adverse 
treatment of a female participant because of a sex-based assumption that 
she has (or will have) family caretaking responsibilities, and that 
those responsibilities will interfere with her ability to access any 
aid, benefit, service, or training, is discrimination based on sex.
    (5) Adverse treatment of a male applicant, participant, or 
beneficiary of a WIOA Title I-financially assisted program or activity 
because he has taken, or is planning to take, care of his newborn or 
recently adopted or fostered child, based on the sex-stereotyped belief 
that women, and not men, should care for children.
    (6) Denying a woman access to, or otherwise subjecting her to 
adverse treatment in accessing, any aid, benefit, service, or training 
under a WIOA Title I-financially assisted program or activity, based on 
the sex-stereotyped belief that women with children should not work long 
hours, regardless of whether the recipient is acting out of hostility or 
belief that it is acting in her or her children's best interest.
    (7) Denying an individual access to, or otherwise subjecting the 
individual to adverse treatment in accessing, any aid, benefit, service, 
or training under a WIOA Title I-financially assisted program or 
activity, based on sex stereotyping including the belief that a victim 
of domestic violence would disrupt the program or activity and/or may be 
unable to access any aid, benefit, service, or training.
    (8) Adverse treatment of a woman applicant, participant, or 
beneficiary of a WIOA Title I-financially assisted program or activity 
because she does not dress or talk in a feminine manner.
    (9) Denying an individual access to, failing to provide information 
about, or otherwise subjecting the individual to adverse treatment in 
accessing, any aid, benefit, service, or training under a WIOA Title I-
financially assisted program or activity, because the individual does 
not conform to a sex stereotype about individuals of a particular sex 
working in a specific job, sector, or industry.
    (10) Adverse treatment of an applicant, participant, or beneficiary 
of a WIOA Title I-financially assisted program or activity based on 
sexual orientation where the evidence establishes that the 
discrimination is based on gender stereotypes.



Sec.  38.8  Discrimination prohibited based on pregnancy.

    Discrimination on the basis of pregnancy, childbirth, or related 
medical conditions, including childbearing capacity, is a form of sex 
discrimination and a violation of the nondiscrimination provisions of 
WIOA and this part. Recipients may not treat persons of childbearing 
capacity, or those affected by pregnancy, childbirth, or related medical 
conditions, adversely in accessing any aid, benefit, service, or 
training under a WIOA Title I-financially assisted program or activity. 
In their covered employment practices, recipients must treat people of 
childbearing capacity and those affected by pregnancy, childbirth, or 
related medical conditions the same for all employment-related purposes, 
including receipt of benefits under fringe-benefit programs, as other 
persons not so affected but similar in their ability or inability to 
work. Related medical conditions include, but are not limited to: 
Lactation; disorders directly related to pregnancy, such as preeclampsia 
(pregnancy-induced high blood pressure), placenta previa, and 
gestational diabetes; symptoms such as back pain; complications 
requiring bed rest; and the after-effects of a delivery. A pregnancy-
related medical condition may also be a disability. See Sec.  
38.4(q)(3)(ii). Examples of unlawful pregnancy discrimination may 
include:
    (a) Refusing to provide any aid, benefit, service, or training under 
a WIOA Title I-financially assisted program or activity to a pregnant 
individual or an individual of childbearing capacity, or otherwise 
subjecting such individuals

[[Page 580]]

to adverse treatment on the basis of pregnancy or childbearing capacity;
    (b) Limiting an individual's access to any aid, benefit, service, or 
training under a WIOA Title I-financially assisted program or activity 
based on her pregnancy, or requiring a doctor's note in order for a 
pregnant woman to begin or continue participation while pregnant when 
doctors' notes are not required for participants who are similarly 
situated;
    (c) Denying an individual access to any aid, benefit, service, or 
training under a WIOA Title I-financially assisted program or activity 
or requiring the individual to terminate participation in any WIOA Title 
I-financially assisted program or activity when the individual becomes 
pregnant or has a child; and
    (d) Denying reasonable accommodations or modifications of policies, 
practices, or procedures to a pregnant applicant or participant who is 
temporarily unable to participate in some portions of a WIOA Title I-
financially assisted program or activity because of pregnancy, 
childbirth, and/or related medical conditions, when such accommodations 
or modifications are provided, or are required to be provided, by a 
recipient's policy or by other relevant laws, to other similarly 
situated applicants or participants.



Sec.  38.9  Discrimination prohibited based on national origin, 
including limited English proficiency.

    (a) In providing any aid, benefit, service, or training under a WIOA 
Title I-financially assisted program or activity, a recipient must not, 
directly or through contractual, licensing, or other arrangements, 
discriminate on the basis of national origin, including limited English 
proficiency. An individual must not be excluded from participation in, 
denied the benefits of, or otherwise subjected to discrimination under, 
any WIOA Title I-financially assisted program or activity based on 
national origin. National origin discrimination includes treating 
individual beneficiaries, participants, or applicants for any aid, 
benefit, service, or training under any WIOA Title I-financially 
assisted program or activity adversely because they (or their families 
or ancestors) are from a particular country or part of the world, 
because of ethnicity or accent (including physical, linguistic, and 
cultural characteristics closely associated with a national origin 
group), or because the recipient perceives the individual to be of a 
certain national origin, even if they are not.
    (b) A recipient must take reasonable steps to ensure meaningful 
access to each limited English proficient (LEP) individual served or 
encountered so that LEP individuals are effectively informed about and/
or able to participate in the program or activity.
    (1) Reasonable steps generally may include, but are not limited to, 
an assessment of an LEP individual to determine language assistance 
needs; providing oral interpretation or written translation of both hard 
copy and electronic materials, in the appropriate non-English languages, 
to LEP individuals; and outreach to LEP communities to improve service 
delivery in needed languages.
    (2) Reasonable steps to provide meaningful access to training 
programs may include, but are not limited to, providing:
    (i) Written training materials in appropriate non-English languages 
by written translation or by oral interpretation or summarization; and
    (ii) Oral training content in appropriate non-English languages 
through in-person interpretation or telephone interpretation.
    (c) A recipient should ensure that every program delivery avenue 
(e.g., electronic, in person, telephonic) conveys in the appropriate 
languages how an individual may effectively learn about, participate in, 
and/or access any aid, benefit, service, or training that the recipient 
provides. As a recipient develops new methods for delivery of 
information or assistance, it is required to take reasonable steps to 
ensure that LEP individuals remain able to learn about, participate in, 
and/or access any aid, benefit, service, or training that the recipient 
provides.
    (d) Any language assistance services, whether oral interpretation or 
written translation, must be accurate, provided in a timely manner and 
free of charge. Language assistance will be considered

[[Page 581]]

timely when it is provided at a place and time that ensures equal access 
and avoids the delay or denial of any aid, benefit, service, or training 
at issue.
    (e) A recipient must provide adequate notice to LEP individuals of 
the existence of interpretation and translation services and that these 
language assistance services are available free of charge.
    (f)(1) A recipient shall not require an LEP individual to provide 
their own interpreter.
    (2) A recipient also shall not rely on an LEP individual's minor 
child or adult family or friend(s) to interpret or facilitate 
communication, except:
    (i) An LEP individual's minor child or adult family or friend(s) may 
interpret or facilitate communication in emergency situations while 
awaiting a qualified interpreter; or
    (ii) The accompanying adult (but not minor child) may interpret or 
facilitate communication when the information conveyed is of minimal 
importance to the services to be provided or when the LEP individual 
specifically requests that the accompanying adult provide language 
assistance, the accompanying adult agrees to provide assistance, and 
reliance on that adult for such assistance is appropriate under the 
circumstances. When the recipient permits the accompanying adult to 
provide such assistance, it must make and retain a record of the LEP 
individual's decision to use their own interpreter.
    (3) Where precise, complete, and accurate interpretations or 
translation of information and/or testimony are critical for 
adjudicatory or legal reasons, or where the competency of the 
interpreter requested by the LEP individual is not established, a 
recipient may decide to provide its own, independent interpreter, even 
if an LEP individual wants to use their own interpreter as well.
    (g) With regard to vital information:
    (1) For languages spoken by a significant number or portion of the 
population eligible to be served, or likely to be encountered, a 
recipient must translate vital information in written materials into 
these languages and make the translations readily available in hard 
copy, upon request, or electronically such as on a Web site. Written 
training materials offered or used within employment-related training 
programs as defined under Sec.  38.4(t) are excluded from these 
translation requirements. However, recipients must take reasonable steps 
to ensure meaningful access as stated in Sec.  38.9(b).
    (2) For languages not spoken by a significant number or portion of 
the population eligible to be served, or likely to be encountered, a 
recipient must take reasonable steps to meet the particularized language 
needs of LEP individuals who seek to learn about, participate in, and/or 
access the aid, benefit, service, or training that the recipient 
provides. Vital information may be conveyed orally if not translated.
    (3) Recipients must include a ``Babel notice,'' indicating in 
appropriate languages that language assistance is available, in all 
communications of vital information, such as hard copy letters or 
decisions or those communications posted on Web sites.
    (h) To the extent otherwise required by this part, once a recipient 
becomes aware of the non-English preferred language of an LEP 
beneficiary, participant, or applicant for aid, benefit, service, or 
training, the recipient must convey vital information in that language.
    (i) Recipients are required to take reasonable steps to provide 
language assistance and should develop a written language access plan to 
ensure that LEP individuals have meaningful access. The appendix to this 
section provides guidance to recipients on developing a language access 
plan.

             Appendix to Sec.  38.9--Guidance to Recipients

   Recipient Language Assistance Plan (LEP Plan): Promising Practices

    The guidelines in this appendix are consistent with and, in large 
part, derived from existing federal guidance to federal financial 
assistance recipients to take reasonable steps to ensure meaningful 
access by limited English proficient (LEP) individuals.
    Recipients that develop, implement, and periodically revise a 
written language assistance plan are more likely to fulfill their 
obligation of taking reasonable steps to ensure

[[Page 582]]

access to programs and activities by LEP individuals. The guidelines set 
forth below provide a clear framework for developing a written plan that 
will ensure meaningful access to LEP individuals. Developing and 
implementing a written plan has many benefits, including providing the 
recipient with a roadmap for establishing and documenting compliance 
with nondiscrimination obligations and ensuring that LEP beneficiaries 
receive the necessary assistance to participate in the recipient's 
programs and activities.
    The elements of a successful LEP plan are not fixed. Written LEP 
plans must be tailored to the recipient's specific programs and 
activities. And, over time, plans will need to be revised to reflect new 
recommendations and government guidance; changes in the recipient's 
operations, as well as the recipient's experiences and lessons learned; 
changing demographics; and stakeholder and beneficiary feedback. 
Nonetheless, a recipient that develops an LEP plan incorporating the 
elements identified below will benefit greatly in accomplishing its 
mission and providing an equal opportunity for LEP individuals to 
participate in its programs and activities.
    A written LEP plan should identify and describe:

1. The process the recipient will use to determine the language needs of 
          individuals who may or may seek to participate in the 
          recipient's program and activities (self- or needs-assessment)
2. The results of the assessment, e.g., identifying the LEP populations 
          to be served by the recipient
3. Timelines for implementing the written LEP plan
4. All language services to be provided to LEP individuals
5. The manner in which LEP individuals will be advised of available 
          services
6. Steps individuals should take to request language assistance
7. The manner in which staff will provide language assistance services
8. What steps must be taken to implement the LEP plan, e.g., creating or 
          modifying policy documents, employee manuals, employee 
          training material, posters, Web sites, outreach material, 
          contracts, and electronic and information technologies, 
          applications, or adaptations
9. The manner in which staff will be trained
10. Steps the recipient will take to ensure quality control, including 
          monitoring implementation, establishing a complaint process, 
          timely addressing complaints, and obtaining feedback from 
          stakeholders and employees
11. The manner in which the recipient will document the provision of 
          language assistance services
12. The schedule for revising the LEP plan
13. The individual(s) assigned to oversee implementation of the plan 
          (e.g., LEP Coordinator or Program Manager)
14. Allocation of resources to implement the plan

     Illustrative Applications in Recipient Programs and Activities

                 Unemployment Insurance Program Example

    1. Unemployment insurance programs are recipients covered under this 
rule, and States must take reasonable steps to provide meaningful access 
to LEP individuals served or encountered in their unemployment insurance 
programs and activities. For example, given the nature and importance of 
unemployment insurance, if an LEP individual who speaks Urdu seeks 
information about unemployment insurance from a State's telephone call 
center that assists unemployment insurance enrollees and applicants, the 
State may consider the proportion of Urdu-speaking LEP individuals 
served or encountered by the State's unemployment insurance program; the 
frequency with which Urdu-speaking LEP individuals come in contact with 
the State's unemployment insurance program; and the resources available 
to the State and costs in determining how it will provide this LEP 
individual with language assistance. Urdu is a language that is rarely, 
if ever, encountered by this State's UI program. Because low-cost 
commercial language services, such as telephonic oral interpretation 
services, are widely available, the State should, at a minimum, provide 
the Urdu-speaking LEP individual telephonic interpretation services to 
ensure meaningful access to unemployment insurance because, even if Urdu 
is a non-frequently encountered, non-English language, low-cost 
commercial language services, such as telephonic oral interpretation 
services, are widely available.

       Population Significance as It Pertains to Vital Information

    2. Recipients have some flexibility as to the means to provide 
language assistance services to LEP individuals, as long as they take 
reasonable steps to provide meaningful access to their program or 
activity. For instance, if a recipient provides career services to an 
LEP individual who speaks Tagalog and the individual requests a 
translated brochure on an upcoming job fair, the recipient should 
consider the importance of the information in the brochure, and may 
consider: The proportion of Tagalog-speaking LEP individuals served or 
encountered; the frequency with which Tagalog-speaking LEP individuals 
come in contact with the recipient; and the resources available to the 
recipient. In this instance, the recipient would be required to provide 
a written translation

[[Page 583]]

of the brochure for the LEP individual if Tagalog were a language spoken 
by a significant number or proportion of the LEP persons in the eligible 
service population and a language frequently encountered in the career 
services program. But if Tagalog is not spoken by a significant number 
or proportion of the population eligible to be served, and was not 
frequently encountered by the career services program, it would be 
reasonable for the recipient to provide an oral summary of the 
brochure's contents in Tagalog.

    Training Provider Example Incorporating English Language Learning

    3. Providing English language learning opportunities may be one step 
that a recipient takes in order to take reasonable steps to provide an 
LEP individual meaningful access to its programs or activities. For 
example, John, a Korean-speaking LEP individual, learns through the one-
stop center about available welding positions at ABC Welding, Co. He 
also learns through the one-stop center about upcoming welder training 
courses offered at XYZ Technical Institute, an eligible training 
provider. John decides to enroll in one of the XYZ welding courses. XYZ, 
which conducts its training courses in English, must take reasonable 
steps to provide John meaningful access to the welder training course.
    Recipients may work together to provide meaningful access, but 
remain independently obligated to take reasonable steps to provide 
meaningful access to programs and activities. In this regard, XYZ is not 
required to administer an English language learning class itself. 
Instead, XYZ may coordinate with the one-stop center to ensure that John 
receives appropriate English language learning either directly from the 
one-stop or from another organization that provides such English 
language training. The English language class would not be offered to 
John instead of the training program, but John could attend the English 
language class at the same time as or prior to the training program. 
Whether John takes the English class before or concurrently with the 
welding course will depend on many factors including an objective, 
individualized analysis of John's English proficiency relative to the 
welding course. Regardless of how the English language learning is 
delivered, it must be provided at no cost to John.
    In evaluating whether reasonable steps include oral interpretation, 
translation, English language learning, another language service, or 
some combination of these services, XYZ may work with the one-stop 
center to provide meaningful access to John.



Sec.  38.10  Harassment prohibited.

    Harassment of an individual based on race, color, religion, sex, 
national origin, age, disability, or political affiliation or belief, 
or, for beneficiaries, applicants, and participants only, based on 
citizenship status or participation in any WIOA Title I-financially 
assisted program or activity, is a violation of the nondiscrimination 
provisions of WIOA and this part.
    (a) Unwelcome sexual advances, requests for sexual favors, or 
offensive remarks about a person's race, color, religion, sex, national 
origin, age, disability, political affiliation or belief, or citizenship 
or participation, and other unwelcome verbal or physical conduct based 
on one or more of these protected categories constitutes unlawful 
harassment on that basi(e)s when:
    (1) Submission to such conduct is made either explicitly or 
implicitly a term or condition of accessing the aid, benefit, service, 
or training of, or employment in the administration of or in connection 
with, any WIOA Title I-financially assisted program or activity;
    (2) Submission to or rejection of such conduct by an individual is 
used as the basis for limiting that individual's access to any aid, 
benefit, service, training, or employment from, or employment in the 
administration of or in connection with, any WIOA Title I-financially 
assisted program or activity; or
    (3) Such conduct has the purpose or effect of unreasonably 
interfering with an individual's participation in a WIOA Title I-
financially assisted program or activity creating an intimidating, 
hostile or offensive program environment.
    (b) Harassment because of sex includes harassment based on gender 
identity; harassment based on failure to comport with sex stereotypes; 
harassment based on pregnancy, childbirth, and related medical 
conditions; and sex-based harassment that is not sexual in nature but 
that is because of sex or where one sex is targeted for the harassment.



Sec.  38.11  Discrimination prohibited based on citizenship status.

    In providing any aid, benefit, service, or training under a WIOA 
Title I-financially assisted program or activity, a recipient must not 
directly or through contractual, licensing, or other arrangements, 
discriminate on the basis

[[Page 584]]

of citizenship status. Individuals protected under this section include 
citizens and nationals of the United States, lawfully admitted permanent 
resident aliens, refugees, asylees, and parolees, and other immigrants 
authorized by the Secretary of Homeland Security or the Secretary's 
designee to work in the United States. Citizenship discrimination occurs 
when a recipient maintains and enforces policies and procedures that 
have the purpose or effect of discriminating against individual 
beneficiaries, applicants, and participants, on the basis of their 
status as citizens or nationals of the United States, lawfully admitted 
permanent resident aliens, refugees, asylees, and parolees, or other 
immigrants authorized by the Secretary of Homeland Security or the 
Secretary's designee to work in the United States.



Sec.  38.12  Discrimination prohibited based on disability.

    (a) In providing any aid, benefit, service, or training under a WIOA 
Title I-financially assisted program or activity, a recipient must not, 
directly or through contractual, licensing, or other arrangements, on 
the basis of disability:
    (1) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, service, or training, 
including meaningful opportunities to seek employment and work in 
competitive integrated settings;
    (2) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefits, services, or 
training that is not equal to that afforded others;
    (3) Provide a qualified individual with a disability with any aid, 
benefit, service, or training that is not as effective in affording 
equal opportunity to obtain the same result, to gain the same benefit, 
or to reach the same level of achievement as that provided to others;
    (4) Provide different, segregated, or separate aid, benefit, 
service, or training to individuals with disabilities, or to any class 
of individuals with disabilities, unless such action is necessary to 
provide qualified individuals with disabilities with any aid, benefit, 
service, or training that is as effective as those provided to others, 
and consistent with the requirements of the Rehabilitation Act as 
amended by WIOA, including those provisions that prioritize 
opportunities in competitive integrated employment;
    (5) Deny a qualified individual with a disability the opportunity to 
participate as a member of planning or advisory boards; or
    (6) Otherwise limit a qualified individual with a disability in 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving any aid, benefit, service, or training.
    (b) A recipient must not, directly or through contractual, 
licensing, or other arrangements, aid or perpetuate discrimination 
against qualified individuals with disabilities by providing significant 
assistance to an agency, organization, or person that discriminates on 
the basis of disability in providing any aid, benefit, service, or 
training to registrants, applicants, or participants.
    (c) A recipient must not deny a qualified individual with a 
disability the opportunity to participate in WIOA Title I-financially 
assisted programs or activities despite the existence of permissibly 
separate or different programs or activities.
    (d) A recipient must administer WIOA Title I-financially assisted 
programs and activities in the most integrated setting appropriate to 
the needs of qualified individuals with disabilities.
    (e) A recipient must not, directly or through contractual, 
licensing, or other arrangements, use standards, procedures, criteria, 
or administrative methods:
    (1) That have the purpose or effect of subjecting qualified 
individuals with disabilities to discrimination on the basis of 
disability;
    (2) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the WIOA Title I-
financially assisted program or activity with respect to individuals 
with disabilities; or
    (3) That perpetuate the discrimination of another entity if both 
entities are subject to common administrative

[[Page 585]]

control or are agencies of the same State.
    (f) In determining the site or location of facilities, a grant 
applicant or recipient must not make selections that have any of the 
following purposes or effects:
    (1) On the basis of disability:
    (i) Excluding qualified individuals from a WIOA Title I-financially 
assisted program or activity;
    (ii) Denying qualified individuals the benefits of such a program or 
activity; or
    (iii) Subjecting qualified individuals to discrimination; or
    (2) Defeating or substantially impairing the accomplishment of the 
disability-related objectives of either:
    (i) The WIOA Title I-financially assisted program or activity; or
    (ii) The nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (g) A recipient, in the selection of contractors, must not use 
criteria that subject qualified individuals with disabilities to 
discrimination on the basis of disability.
    (h) A recipient must not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may a 
recipient establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. The programs 
or activities of entities that are licensed or certified by a recipient 
are not, themselves, covered by this part.
    (i) A recipient must not impose or apply eligibility criteria that 
screen out or tend to screen out individuals with disabilities or any 
class of individuals with disabilities from fully and equally enjoying 
any aid, benefit, service, training, program, or activity, unless such 
criteria can be shown to be necessary for the provision of any aid, 
benefit, service, training, program, or activity being offered.
    (j) Nothing in this part prohibits a recipient from providing any 
aid, benefit, service, training, or advantages to individuals with 
disabilities, or to a particular class of individuals with disabilities, 
beyond those required by this part.
    (k) A recipient must not place a surcharge on a particular 
individual with a disability, or any group of individuals with 
disabilities, to cover the costs of measures, such as the provision of 
auxiliary aids or program accessibility, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by WIOA Title I or this part.
    (l) A recipient must not exclude, or otherwise deny equal aid, 
benefits, services, training, programs, or activities to, an individual 
or entity because of the known disability of an individual with whom the 
individual or entity is known to have a relationship or association.
    (m) The exclusion of an individual without a disability from the 
benefits of a program limited by federal law to individuals with 
disabilities, or the exclusion of a specific class of individuals with 
disabilities from a program limited by Federal statute or Executive 
Order to a different class of individuals with disabilities, is not 
prohibited by this part.
    (n) This part does not require a recipient to provide any of the 
following to individuals with disabilities:
    (1) Personal devices, such as wheelchairs;
    (2) Individually prescribed devices, such as prescription eyeglasses 
or hearing aids;
    (3) Readers for personal use or study; or
    (4) Services of a personal nature, including assistance in eating, 
toileting, or dressing.
    (o)(1) Nothing in this part requires an individual with a disability 
to accept any accommodation, aid, benefit, service, training, or 
opportunity provided under WIOA Title I or this part that such 
individual chooses not to accept.
    (2) Nothing in this part authorizes the representative or guardian 
of an individual with a disability to decline food, water, medical 
treatment, or medical services for that individual.
    (p) Claims of no disability. Nothing in this part provides the basis 
for a claim that an individual without a disability was subject to 
discrimination because of a lack of disability, including a

[[Page 586]]

claim that an individual with a disability was granted auxiliary aids or 
services, reasonable modifications, or reasonable accommodations that 
were denied to an individual without a disability.



Sec.  38.13  Accessibility requirements.

    (a) Physical accessibility. No qualified individual with a 
disability may be excluded from participation in, or be denied the 
benefits of a recipient's service, program, or activity or be subjected 
to discrimination by any recipient because a recipient's facilities are 
inaccessible or unusable by individuals with disabilities. Recipients 
that are subject to Title II of the ADA must also ensure that new 
facilities or alterations of facilities that began construction after 
January 26, 1992, comply with the applicable federal accessible design 
standards, such as the ADA Standards for Accessible Design (1991 or 
2010) or the Uniform Federal Accessibility Standards. In addition, 
recipients that receive federal financial assistance must meet their 
accessibility obligations under Section 504 of the Rehabilitation Act 
and the implementing regulations at 29 CFR part 32. Some recipients may 
be subject to additional accessibility requirements under other 
statutory authority, including Title III of the ADA, that is not 
enforced by CRC. As indicated in Sec.  38.3(d)(10), compliance with this 
part does not affect a recipient's obligation to comply with the 
applicable ADA Standards for Accessible Design.
    (b) Programmatic accessibility. All WIOA Title I-financially 
assisted programs and activities must be programmatically accessible, 
which includes providing reasonable accommodations for individuals with 
disabilities, making reasonable modifications to policies, practices, 
and procedures, administering programs in the most integrated setting 
appropriate, communicating with persons with disabilities as effectively 
as with others, and providing appropriate auxiliary aids or services, 
including assistive technology devices and services, where necessary to 
afford individuals with disabilities an equal opportunity to participate 
in, and enjoy the benefits of, the program or activity.



Sec.  38.14  Reasonable accommodations and reasonable modifications 
for individuals with disabilities.

    (a) With regard to any aid, benefit, service, training, and 
employment, a recipient must provide reasonable accommodations to 
qualified individuals with disabilities who are applicants, registrants, 
eligible applicants/registrants, participants, employees, or applicants 
for employment, unless providing the accommodation would cause undue 
hardship. See the definitions of ``reasonable accommodation'' and 
``undue hardship'' in Sec.  38.4(rrr)(1).
    (1) In those circumstances where a recipient believes that the 
proposed accommodation would cause undue hardship, the recipient has the 
burden of proving that the accommodation would result in such hardship.
    (2) The recipient must make the decision that the accommodation 
would cause such hardship only after considering all factors listed in 
the definition of ``undue hardship'' in Sec.  38.4(rrr)(1). The decision 
must be accompanied by a written statement of the recipient's reasons 
for reaching that conclusion. The recipient must provide a copy of the 
statement of reasons to the individual or individuals who requested the 
accommodation.
    (3) If a requested accommodation would result in undue hardship, the 
recipient must, after consultation with an individual with a disability 
(or individuals with disabilities), take any other action that would not 
result in such hardship, but would nevertheless ensure that, to the 
maximum extent possible, individuals with disabilities receive the aid, 
benefit, service, training, or employment provided by the recipient.
    (b) With regard to any aid, benefit, service, training, and 
employment, a recipient must also make reasonable modifications in 
policies, practices, or procedures when the modifications are necessary 
to avoid discrimination on the basis of disability, unless making the 
modifications would fundamentally alter the nature of the service, 
program, or activity. See the definition of ``fundamental alteration'' 
in Sec.  38.4(z).
    (1) In those circumstances where a recipient believes that the 
proposed modification would fundamentally

[[Page 587]]

alter the program, activity, or service, the recipient has the burden of 
proving that the modification would result in such an alteration.
    (2) The recipient must make the decision that the modification would 
result in such an alteration only after considering all factors listed 
in the definition of ``fundamental alteration'' in Sec.  38.4(z). The 
decision must be accompanied by a written statement of the recipient's 
reasons for reaching that conclusion. The recipient must provide a copy 
of the statement of reasons to the individual or individuals who 
requested the modification.
    (3) If a modification would result in a fundamental alteration, the 
recipient must take any other action that would not result in such an 
alteration, but would nevertheless ensure that, to the maximum extent 
possible, individuals with disabilities receive the aid, benefits, 
services, training, or employment provided by the recipient.



Sec.  38.15  Communications with individuals with disabilities.

    (a) General--(1) Communications with individuals with disabilities. 
(i) A recipient must take appropriate steps to ensure that 
communications with individuals with disabilities, such as 
beneficiaries, registrants, applicants, eligible applicants/registrants, 
participants, applicants for employment, employees, members of the 
public, and their companions are as effective as communications with 
others.
    (ii) For purposes of this section, ``companion'' means a family 
member, friend, or associate of an individual seeking access to an aid, 
benefit, service, training, program, or activity of a recipient, who, 
along with such individual, is an appropriate person with whom the 
recipient should communicate.
    (2) Auxiliary aids and services. (i) A recipient must furnish 
appropriate auxiliary aids and services where necessary to afford 
individuals with disabilities, including beneficiaries, registrants, 
applicants, eligible applicants/registrants, participants, members of 
the public, and companions, an equal opportunity to participate in, and 
enjoy the benefits of, a WIOA Title I-financially assisted service, 
program, or activity of a recipient.
    (ii) The type of auxiliary aid or service necessary to ensure 
effective communication will vary in accordance with the method of 
communication used by the individual; the nature, length, and complexity 
of the communication involved; and the context in which the 
communication is taking place. In determining what types of auxiliary 
aids and services are necessary, a recipient must give primary 
consideration to the requests of individuals with disabilities. In order 
to be effective, auxiliary aids and services must be provided in 
accessible formats, in a timely manner, and in such a way as to protect 
the privacy and independence of the individual with a disability.
    (3) Interpreters. (i) A recipient must not require an individual 
with a disability to bring another individual to interpret for him or 
her.
    (ii) A recipient must not rely on an adult accompanying an 
individual with a disability to interpret or facilitate communication 
except--
    (A) In an emergency involving an imminent threat to the safety or 
welfare of an individual or the public where there is no interpreter 
available; or
    (B) Where the individual with a disability specifically requests 
that an accompanying adult interpret or facilitate communication, the 
accompanying adult agrees to provide such assistance, and reliance on 
that adult for such assistance is appropriate under the circumstances.
    (iii) A recipient must not rely on a minor child to interpret or 
facilitate communication, except in an emergency involving an imminent 
threat to the safety or welfare of an individual or the public where 
there is no interpreter available.
    (4) Video remote interpreting (VRI) services. A recipient that 
chooses to provide qualified interpreters via VRI services must ensure 
that it provides--
    (i) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that 
delivers high-quality video images that do not produce lags, choppy, 
blurry, or grainy images, or irregular pauses in communication;

[[Page 588]]

    (ii) A sharply delineated image that is large enough to display the 
interpreter's face, arms, hands, and fingers, and the participating 
individual's face, arms, hands, and fingers, regardless of the 
individual's body position;
    (iii) A clear, audible transmission of voices; and
    (iv) Adequate training to users of the technology and other involved 
individuals so that they may quickly and efficiently set up and operate 
the VRI.
    (5) Electronic and information technology. When developing, 
procuring, maintaining, or using electronic and information technology, 
a recipient must utilize electronic and information technologies, 
applications, or adaptations which:
    (i) Incorporate accessibility features for individuals with 
disabilities;
    (ii) Are consistent with modern accessibility standards, such as 
Section 508 Standards (36 CFR part 1194) and W3C's Web Content 
Accessibility Guidelines (WCAG) 2.0 AA; and
    (iii) Provide individuals with disabilities access to, and use of, 
information, resources, programs, and activities that are fully 
accessible, or ensure that the opportunities and benefits provided by 
the electronic and information technologies are provided to individuals 
with disabilities in an equally effective and equally integrated manner.
    (b) Telecommunications. (1) Where a recipient communicates by 
telephone with beneficiaries, registrants, applicants, eligible 
applicants/registrants, participants, applicants for employment, 
employees, and/or members of the public, text telephones (TTYs) or 
equally effective telecommunications systems must be used to communicate 
with individuals who are deaf or hard of hearing or have speech 
impairments.
    (2) When a recipient uses an automated-attendant system, including, 
but not limited to, voicemail and messaging, or an interactive voice 
response system, for receiving and directing incoming telephone calls, 
that system must provide effective real-time communication with 
individuals using auxiliary aids and services, including TTYs and all 
forms of FCC-approved telecommunications relay systems, including 
internet-based relay systems.
    (3) A recipient must respond to telephone calls from a 
telecommunications relay service established under title IV of the 
Americans with Disabilities Act in the same manner that it responds to 
other telephone calls.
    (c) Information and signage. (1) A recipient must ensure that 
interested individuals, including individuals with visual or hearing 
impairments, can obtain information as to the existence and location of 
accessible services, activities, and facilities.
    (2)(i) A recipient must provide signage at the public entrances to 
each of its inaccessible facilities, directing users to a location at 
which they can obtain information about accessible facilities. The 
signage provided must meet the Standards for Accessible Design under the 
Americans with Disabilities Act. Alternative standards for the signage 
may be adopted when it is clearly evident that such alternative 
standards provide equivalent or greater access to the information. See 
36 CFR part 1191, appendix B, section 103.
    (ii) The international symbol for accessibility must be used at each 
primary entrance of an accessible facility.
    (d) Fundamental alteration. This section does not require a 
recipient to take any action that it can demonstrate would result in a 
fundamental alteration in the nature of a WIOA Title I-financially 
assisted service, program, or activity.
    (1) In those circumstances where a recipient believes that the 
proposed action would fundamentally alter the WIOA Title I-financially 
assisted program, activity, or service, the recipient has the burden of 
proving that compliance with this section would result in such an 
alteration.
    (2) The decision that compliance would result in such an alteration 
must be made by the recipient after considering all resources available 
for use in the funding and operation of the WIOA Title I-financially 
assisted program, activity, or service, and must be accompanied by a 
written statement of the recipient's reasons for reaching that 
conclusion.
    (3) If an action required to comply with this section would result 
in the fundamental alteration described in

[[Page 589]]

paragraph (d)(1) of this section, the recipient must take any other 
action that would not result in such an alteration or such burdens, but 
would nevertheless ensure that, to the maximum extent possible, 
individuals with disabilities receive the benefits or services provided 
by the recipient.



Sec.  38.16  Service animals.

    (a) General. Generally, a recipient shall modify its policies, 
practices, or procedures to permit the use of a service animal by an 
individual with a disability.
    (b) Exceptions. A recipient may ask an individual with a disability 
to remove a service animal from the premises if--
    (1) The animal is out of control and the animal's handler does not 
take effective action to control it; or
    (2) The animal is not housebroken.
    (c) If an animal is properly excluded. If a recipient properly 
excludes a service animal under paragraph (b) of this section, the 
recipient must give the individual with a disability the opportunity to 
participate in the WIOA Title I-financially assisted service, program, 
or activity without having the service animal on the premises.
    (d) Animal under handler's control. A service animal must be under 
the control of its handler. A service animal must have a harness, leash, 
or other tether, unless either the handler is unable because of a 
disability to use a harness, leash, or other tether, or the use of a 
harness, leash, or other tether would interfere with the service 
animal's safe, effective performance of work or tasks, in which case the 
service animal must be otherwise under the handler's control (e.g., 
voice control, signals, or other effective means).
    (e) Care or supervision. A recipient is not responsible for the care 
or supervision of a service animal.
    (f) Inquiries. A recipient must not ask about the nature or extent 
of a person's disability, but may make two inquiries to determine 
whether an animal qualifies as a service animal. A recipient may ask if 
the animal is required because of a disability and what work or task the 
animal has been trained to perform. A recipient must not require 
documentation, such as proof that the animal has been certified, 
trained, or licensed as a service animal. Generally, a recipient may not 
make these inquiries about a service animal when it is readily apparent 
that an animal is trained to do work or perform tasks for an individual 
with a disability (e.g., the dog is observed guiding an individual who 
is blind or has low vision, pulling a person's wheelchair, or providing 
assistance with stability or balance to an individual with an observable 
mobility disability).
    (g) Access to areas of a recipient's facilities.
    (1) In general. Individuals with disabilities must be permitted to 
be accompanied by their service animals in all areas of a recipient's 
facilities where members of the public, participants in services, 
programs or activities, beneficiaries, registrants, applicants, eligible 
applicants/registrants, applicants for employment and employees, or 
invitees, as relevant, are allowed to go.
    (2) Use of service animals in food preparation areas. An employee, 
applicant or beneficiary with a disability who needs to use a service 
animal in a food preparation area must be allowed to do so unless the 
employer recipient, after an individualized assessment, can demonstrate, 
that the presence of the service animal presents a direct threat to 
health or safety that cannot be eliminated or reduced by a reasonable 
accommodation to the employee, applicant or beneficiary.
    (h) Surcharges. A recipient must not ask or require an individual 
with a disability to pay a surcharge because of the individual's service 
animal, even if people accompanied by pets are required to pay fees, or 
to comply with other requirements generally not applicable to people 
without pets. If a recipient normally charges individuals for the damage 
they cause, an individual with a disability may be charged for damage 
caused by the individual's service animal.



Sec.  38.17  Mobility aids and devices.

    (a) Use of wheelchairs and manually-powered mobility aids. A 
recipient must permit individuals with mobility disabilities to use 
wheelchairs and manually-powered mobility aids, such as

[[Page 590]]

walkers, crutches, canes, braces, or other similar devices designed for 
use by individuals with mobility disabilities, in any areas open to 
pedestrian use.
    (b)(1) Use of other power-driven mobility devices. A recipient must 
make reasonable modifications in its policies, practices, or procedures 
to permit the use of other power-driven mobility devices by individuals 
with mobility disabilities, unless the recipient can demonstrate that 
the class of other power-driven mobility devices cannot be operated in 
accordance with legitimate safety requirements that the recipient has 
adopted.
    (2) Assessment factors. In determining whether a particular other 
power-driven mobility device can be allowed in a specific facility as a 
reasonable modification under paragraph (b)(1) of this section, a 
recipient must consider--
    (i) The type, size, weight, dimensions, and speed of the device;
    (ii) The facility's volume of pedestrian traffic (which may vary at 
different times of the day, week, month, or year);
    (iii) The facility's design and operational characteristics (e.g., 
whether its WIOA Title I-financially assisted service, program, or 
activity is conducted indoors, its square footage, the density and 
placement of stationary devices, and the availability of storage for the 
device, if requested by the user);
    (iv) Whether legitimate safety requirements can be established to 
permit the safe operation of the other power-driven mobility device in 
the specific facility; and
    (v) Whether the use of the other power-driven mobility device 
creates a substantial risk of serious harm to the immediate environment 
or natural or cultural resources, or poses a conflict with Federal land 
management laws.



Sec.  38.18  Employment practices covered.

    (a) Employment practices covered. It is an unlawful employment 
practice to discriminate on the basis of race, color, religion, sex 
(including pregnancy, childbirth, and related medical conditions, 
transgender status, and gender identity), national origin, age, 
disability, or political affiliation or belief in the administration of, 
or in connection with:
    (1) Any WIOA Title I-financially assisted program or activity; and
    (2) Any program or activity that is part of the one-stop delivery 
system and is operated by a one-stop partner listed in Section 121(b) of 
WIOA, to the extent that the program or activity is being conducted as 
part of the one-stop delivery system.
    (b) Employee selection procedures. In implementing this section, a 
recipient must comply with the Uniform Guidelines on Employee Selection 
Procedures, 41 CFR part 60-3, where applicable.
    (c) Standards for employment-related investigations and reviews. In 
any investigation or compliance review, the Director must consider Equal 
Employment Opportunity Commission (EEOC) regulations, guidance and 
appropriate case law in determining whether a recipient has engaged in 
an unlawful employment practice.
    (d) Section 504 of the Rehabilitation Act. As provided in Sec.  
38.3(b), 29 CFR part 32, subparts B and C and appendix A, which 
implement the requirements of Section 504 pertaining to employment 
practices and employment-related training, program accessibility, and 
reasonable accommodation, have been adopted by this part. Therefore, 
recipients must comply with the requirements set forth in those 
regulatory sections as well as the requirements listed in this part.
    (e) Employers, employment agencies, or other entities. (1) 
Recipients that are also employers, employment agencies, or other 
entities subject to or covered by Titles I and II of the ADA should be 
aware of obligations imposed by those titles. See 29 CFR part 1630 and 
28 CFR part 35.
    (2) Recipients that are also employers, employment agencies, or 
other entities subject to or covered by Section 503 of the 
Rehabilitation Act of 1973 (29 U.S.C. 793) must meet their obligations 
imposed by that provision.
    (f) Immigration and Nationality Act. Similarly, recipients that are 
also employers covered by the anti-discrimination provision of the 
Immigration and Nationality Act should be aware of the

[[Page 591]]

obligations imposed by that provision. See 8 U.S.C. 1324b, as amended.
    (g) State and local requirements. This section does not preempt 
consistent State and local requirements.



Sec.  38.19  Intimidation and retaliation prohibited.

    (a) A recipient must not discharge, intimidate, retaliate, threaten, 
coerce or discriminate against any individual because the individual 
has:
    (1) Filed a complaint alleging a violation of Section 188 of WIOA or 
this part;
    (2) Opposed a practice prohibited by the nondiscrimination and equal 
opportunity provisions of WIOA or this part;
    (3) Furnished information to, or assisted or participated in any 
manner in, an investigation, review, hearing, or any other activity 
related to any of the following:
    (i) Administration of the nondiscrimination and equal opportunity 
provisions of WIOA or this part;
    (ii) Exercise of authority under those provisions; or
    (iii) Exercise of privilege secured by those provisions; or
    (4) Otherwise exercised any rights and privileges under the 
nondiscrimination and equal opportunity provisions of WIOA or this part.
    (b) The sanctions and penalties contained in Section 188(b) of WIOA 
or this part may be imposed against any recipient that engages in any 
such retaliation or intimidation, or fails to take appropriate steps to 
prevent such activity.



Sec.  38.20  Administration of this part.

    The Civil Rights Center, in the Office of the Assistant Secretary 
for Administration and Management, U.S. Department of Labor, is 
responsible for administering and enforcing the nondiscrimination and 
equal opportunity provisions of WIOA and this part, and for developing 
and issuing policies, standards, guidance, and procedures for effecting 
compliance.



Sec.  38.21  Interpretation of this part.

    The Director will make any rulings under, or interpretations of, the 
nondiscrimination and equal opportunity provisions of WIOA or this part.



Sec.  38.22  Delegation of administration and interpretation of this part.

    (a) The Secretary may from time to time assign to officials of other 
departments or agencies of the Federal Government (with the consent of 
such department or agency) responsibilities in connection with the 
effectuation of the nondiscrimination and equal opportunity provisions 
of WIOA and this part (other than responsibility for final decisions 
under Sec.  38.112), including the achievement of effective coordination 
and maximum uniformity within the Department and within the executive 
branch of the Government in the application of the nondiscrimination and 
equal opportunity provisions of WIOA or this part to similar programs 
and similar situations.
    (b) Any action taken, determination made, or requirement imposed by 
an official of another department or agency acting under an assignment 
of responsibility under this section has the same effect as if the 
action had been taken by the Director.



Sec.  38.23  Coordination with other agencies.

    (a) Whenever a compliance review or complaint investigation under 
this part reveals possible violation of one or more of the laws listed 
in paragraph (b) of this section, or of any other Federal civil rights 
law, that is not also a violation of the nondiscrimination and equal 
opportunity provisions of WIOA or this part, the Director must attempt 
to notify the appropriate agency and provide it with all relevant 
documents and information.
    (b) This section applies to the following:
    (1) Executive Order 11246, as amended;
    (2) Section 503 of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 793);
    (3) The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
    (4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
    (5) Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000e et seq.);

[[Page 592]]

    (6) The Age Discrimination in Employment Act of 1967, as amended (29 
U.S.C. 621);
    (7) The Americans with Disabilities Act of 1990, as amended (42 
U.S.C. 12101 et seq.);
    (8) The anti-discrimination provision of the Immigration and 
Nationality Act, as amended (8 U.S.C. 1324b); and
    (9) Any other Federal civil rights law.



Sec.  38.24  Effect on other laws and policies.

    (a) Effect of State or local law or other requirements. The 
obligation to comply with the nondiscrimination and equal opportunity 
provisions of WIOA or this part are not excused or reduced by any State 
or local law or other requirement that, on a prohibited basis, prohibits 
or limits an individual's eligibility to receive any aid, benefit, 
service, or training; to participate in any WIOA Title I-financially 
assisted program or activity; to be employed by any recipient; or to 
practice any occupation or profession.
    (b) Effect of private organization rules. The obligation to comply 
with the nondiscrimination and equal opportunity provisions of WIOA 
Title I-financially assisted program or activity and this part is not 
excused or reduced by any rule or regulation of any private 
organization, club, league or association that, on a prohibited basis, 
prohibits or limits an individual's eligibility to participate in any 
WIOA financially assisted program or activity to which this part 
applies.
    (c) Effect of possible future exclusion from employment 
opportunities. A recipient must not exclude any individual from, or 
restrict any individual's participation in, any program or activity 
based on the recipient's belief or concern that the individual will 
encounter limited future employment opportunities because of the 
individual's race, color, religion, sex, national origin, age, 
disability, political affiliation or belief, citizenship status, or 
participation in a WIOA Title I-financially assisted program or 
activity.



 Subpart B_Recordkeeping and Other Affirmative Obligations of Recipients

                               Assurances



Sec.  38.25  A grant applicant's obligation to provide a written assurance.

    (a) Grant applicant's obligation to provide a written assurance. (1) 
Each application for financial assistance, under Title I of WIOA, as 
defined in Sec.  38.4, must include the following assurance:
    (i) As a condition to the award of financial assistance from the 
Department of Labor under Title I of WIOA, the grant applicant assures 
that it has the ability to comply with the nondiscrimination and equal 
opportunity provisions of the following laws and will remain in 
compliance for the duration of the award of federal financial 
assistance:
    (A) Section 188 of the Workforce Innovation and Opportunity Act 
(WIOA), which prohibits discrimination against all individuals in the 
United States on the basis of race, color, religion, sex (including 
pregnancy, childbirth, and related medical conditions, transgender 
status, and gender identity), national origin (including limited English 
proficiency), age, disability, or political affiliation or belief, or 
against beneficiaries on the basis of either citizenship status or 
participation in any WIOA Title I-financially assisted program or 
activity;
    (B) Title VI of the Civil Rights Act of 1964, as amended, which 
prohibits discrimination on the bases of race, color and national 
origin;
    (C) Section 504 of the Rehabilitation Act of 1973, as amended, which 
prohibits discrimination against qualified individuals with 
disabilities;
    (D) The Age Discrimination Act of 1975, as amended, which prohibits 
discrimination on the basis of age; and
    (E) Title IX of the Education Amendments of 1972, as amended, which 
prohibits discrimination on the basis of sex in educational programs.
    (ii) The grant applicant also assures that, as a recipient of WIOA 
Title I financial assistance, it will comply with 29 CFR part 38 and all 
other regulations implementing the laws listed above. This assurance 
applies to the

[[Page 593]]

grant applicant's operation of the WIOA Title I-financially assisted 
program or activity, and to all agreements the grant applicant makes to 
carry out the WIOA Title I-financially assisted program or activity. The 
grant applicant understands that the United States has the right to seek 
judicial enforcement of this assurance.
    (2) The assurance is considered incorporated by operation of law in 
the grant, cooperative agreement, contract or other arrangement whereby 
Federal financial assistance under Title I of WIOA is made available, 
whether it is explicitly incorporated in such document and whether there 
is a written agreement between the Department and the recipient, between 
the Department and the Governor, between the Governor and the recipient, 
or between recipients. The assurance also may be incorporated in such 
grants, cooperative agreements, contracts, or other arrangements by 
reference.
    (b) Continuing State Programs. Each Strategic Four-Year State Plan 
submitted by a State to carry out a continuing WIOA financially assisted 
program or activity must provide the text of the assurance in paragraph 
(a)(1) of this section, as a condition to the approval of the Four-Year 
Plan and the extension of any WIOA Title I assistance under the Plan. 
The State also must certify that it has developed and maintains a 
Nondiscrimination Plan under Sec.  38.54.



Sec.  38.26  Duration and scope of the assurance.

    (a) Where the WIOA Title I financial assistance is intended to 
provide, or is in the form of, either personal property, real property, 
structures on real property, or interest in any such property or 
structures, the assurance will obligate the recipient, or (in the case 
of a subsequent transfer) the transferee, for the longer of:
    (1) The period during which the property is used either:
    (i) For a purpose for which WIOA Title I financial assistance is 
extended; or
    (ii) For another purpose involving the provision of similar services 
or benefits; or
    (2) The period during which either:
    (i) The recipient retains ownership or possession of the property; 
or
    (ii) The transferee retains ownership or possession of the property 
without compensating the Departmental grantmaking agency for the fair 
market value of that ownership or possession.
    (b) In all other cases, the assurance will obligate the recipient 
for the period during which WIOA Title I financial assistance is 
extended.



Sec.  38.27  Covenants.

    (a) Where WIOA Title I financial assistance is provided in the form 
of a transfer of real property, structures, or improvements on real 
property or structures, or interests in real property or structures, the 
instrument effecting or recording the transfer must contain a covenant 
assuring nondiscrimination and equal opportunity for the period 
described in Sec.  38.25(a)(1).
    (b) Where no Federal transfer of real property or interest therein 
from the Federal Government is involved, but real property or an 
interest therein is acquired or improved under a program of WIOA Title I 
financial assistance, the recipient must include the covenant described 
in paragraph (a) of this section in the instrument effecting or 
recording any subsequent transfer of such property.
    (c) When the property is obtained from the Federal Government, the 
covenant described in paragraph (a) of this section also may include a 
condition coupled with a right of reverter to the Department in the 
event of a breach of the covenant.

                       Equal Opportunity Officers



Sec.  38.28  Designation of Equal Opportunity Officers.

    (a) Governors. Every Governor must designate an individual as a 
State-level Equal Opportunity Officer (State-level EO Officer), who 
reports directly to the Governor and is responsible for State Program-
wide coordination of compliance with the equal opportunity and 
nondiscrimination requirements in WIOA and this part, including but not 
limited to Sec. Sec.  38.51, 38.53, 38.54, and 38.55 for State Programs. 
The State-level EO Officer must have staff and resources

[[Page 594]]

sufficient to carry out these requirements.
    (b) All recipients. Every recipient except small recipients and 
service providers, as defined in Sec.  38.4(hhh) and (ggg), must 
designate a recipient-level Equal Opportunity Officer (recipient-level 
EO Officer), who reports directly to the individual in the highest-level 
position of authority for the entity that is the recipient, such as the 
Governor, the Administrator of the State Department of Employment 
Services, the Chair of the Local Workforce Development Board, the Chief 
Executive Officer, the Chief Operating Officer, or an equivalent 
official. The recipient-level EO Officer must have staff and resources 
sufficient to carry out the requirements of this section and Sec.  
38.31. The responsibilities of small recipients and service providers 
are described in Sec. Sec.  38.32 and 38.33.



Sec.  38.29  Recipients' obligations regarding Equal Opportunity Officers.

    All recipients have the following obligations related to their EO 
Officers:
    (a) Ensuring that the EO Officer is a senior-level employee 
reporting directly to the individual in the highest-level position of 
authority for the entity that is the recipient, such as the Governor, 
the Administrator of the State Department of Employment Services, the 
Chair of the Local Workforce Development Board, the Chief Executive 
Officer, the Chief Operating Officer, or an equivalent official;
    (b) Designating an individual who can fulfill the responsibilities 
of an EO Officer as described in Sec.  38.31;
    (c) Making the EO Officer's name, position title, address, and 
telephone number (voice and TDD/TTY) public;
    (d) Ensuring that the EO Officer's identity and contact information 
appear on all internal and external communications about the recipient's 
nondiscrimination and equal opportunity programs;
    (e) Assigning sufficient authority, staff, and resources to the EO 
Officer, and support of top management, to ensure compliance with the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part; and
    (f) Ensuring that the EO Officer and the EO Officer's staff are 
afforded the opportunity to receive (at the recipient's expense) the 
training necessary and appropriate to maintain competency.



Sec.  38.30  Requisite skill and authority of Equal Opportunity Officer.

    The EO Officer must be a senior level employee of the recipient who 
has the knowledge, skills and abilities necessary to fulfill the 
responsibilities competently as described in this subpart. Depending 
upon the size of the recipient, the size of the recipient's WIOA Title 
I-financially assisted programs or activities, and the number of 
applicants, registrants, and participants served by the recipient, the 
EO Officer may, or may not, be assigned other duties. However, the EO 
Officer must not have other responsibilities or activities that create a 
conflict or the appearance of a conflict with the responsibilities of an 
EO Officer.



Sec.  38.31  Equal Opportunity Officer responsibilities.

    An Equal Opportunity Officer is responsible for coordinating a 
recipient's obligations under this part. Those responsibilities include, 
but are not limited to:
    (a) Serving as a recipient's liaison with CRC;
    (b) Monitoring and investigating the recipient's activities, and the 
activities of the entities that receive WIOA Title I-financial 
assistance from the recipient, to make sure that the recipient and its 
subrecipients are not violating their nondiscrimination and equal 
opportunity obligations under WIOA Title I and this part, which includes 
monitoring the collection of data required in this part to ensure 
compliance with the nondiscrimination and equal opportunity requirements 
of WIOA and this part;
    (c) Reviewing the recipient's written policies to make sure that 
those policies are nondiscriminatory;
    (d) Developing and publishing the recipient's procedures for 
processing discrimination complaints under Sec. Sec.  38.72 through 
38.73, including tracking the discrimination complaints filed against 
the recipient, developing procedures for investigating and resolving 
discrimination complaints filed against

[[Page 595]]

the recipient, making sure that those procedures are followed, and 
making available to the public, in appropriate languages and formats, 
the procedures for filing a complaint;
    (e) Conducting outreach and education about equal opportunity and 
nondiscrimination requirements consistent with Sec.  38.40 and how an 
individual may file a complaint consistent with Sec.  38.69;
    (f) Undergoing training (at the recipient's expense) to maintain 
competency of the EO Officer and staff, as required by the Director; and
    (g) If applicable, overseeing the development and implementation of 
the recipient's Nondiscrimination Plan under Sec.  38.54.



Sec.  38.32  Small recipient Equal Opportunity Officer obligations.

    Although small recipients, as defined in Sec.  38.4(hhh), do not 
need to designate EO Officers who have the full range of 
responsibilities listed in Sec.  38.31, they must designate an 
individual who will be responsible for adopting and publishing complaint 
procedures, and processing complaints, as explained in Sec. Sec.  38.72 
through 38.75.



Sec.  38.33  Service provider Equal Opportunity Officer obligations.

    Service providers, as defined in Sec.  38.4(ggg), are not required 
to designate an EO Officer. The obligation for ensuring service provider 
compliance with the nondiscrimination and equal opportunity provisions 
of WIOA and this part rests with the Governor or LWDA grant recipient, 
as specified in the State's Nondiscrimination Plan.

                        Notice and Communication



Sec.  38.34  Recipients' obligations to disseminate equal opportunity notice.

    (a) A recipient must provide initial and continuing notice as 
defined in Sec.  38.36 that it does not discriminate on any prohibited 
basis. This notice must be provided to:
    (1) Registrants, applicants, and eligible applicants/registrants;
    (2) Participants;
    (3) Applicants for employment and employees;
    (4) Unions or professional organizations that hold collective 
bargaining or professional agreements with the recipient;
    (5) Subrecipients that receive WIOA Title I financial assistance 
from the recipient; and
    (6) Members of the public, including those with impaired vision or 
hearing and those with limited English proficiency.
    (b) As provided in Sec.  38.15, the recipient must take appropriate 
steps to ensure that communications with individuals with disabilities 
are as effective as communications with others and that this notice is 
provided in appropriate languages to ensure meaningful access for LEP 
individuals as described in Sec.  38.9.



Sec.  38.35  Equal opportunity notice/poster.

    The notice must contain the following specific wording:


Equal Opportunity Is the Law

    It is against the law for this recipient of Federal financial 
assistance to discriminate on the following bases: Against any 
individual in the United States, on the basis of race, color, religion, 
sex (including pregnancy, childbirth, and related medical conditions, 
sex stereotyping, transgender status, and gender identity), national 
origin (including limited English proficiency), age, disability, or 
political affiliation or belief, or, against any beneficiary of, 
applicant to, or participant in programs financially assisted under 
Title I of the Workforce Innovation and Opportunity Act, on the basis of 
the individual's citizenship status or participation in any WIOA Title 
I-financially assisted program or activity.
    The recipient must not discriminate in any of the following areas:
    Deciding who will be admitted, or have access, to any WIOA Title I-
financially assisted program or activity;
    providing opportunities in, or treating any person with regard to, 
such a program or activity; or
    making employment decisions in the administration of, or in 
connection with, such a program or activity.

[[Page 596]]

    Recipients of federal financial assistance must take reasonable 
steps to ensure that communications with individuals with disabilities 
are as effective as communications with others. This means that, upon 
request and at no cost to the individual, recipients are required to 
provide appropriate auxiliary aids and services to qualified individuals 
with disabilities.

      What To Do If You Believe You Have Experienced Discrimination

    If you think that you have been subjected to discrimination under a 
WIOA Title I-financially assisted program or activity, you may file a 
complaint within 180 days from the date of the alleged violation with 
either:
    The recipient's Equal Opportunity Officer (or the person whom the 
recipient has designated for this purpose); or
    The Director, Civil Rights Center (CRC), U.S. Department of Labor, 
200 Constitution Avenue NW., Room N-4123, Washington, DC 20210 or 
electronically as directed on the CRC Web site at www.dol.gov/crc.
    If you file your complaint with the recipient, you must wait either 
until the recipient issues a written Notice of Final Action, or until 90 
days have passed (whichever is sooner), before filing with the Civil 
Rights Center (see address above).
    If the recipient does not give you a written Notice of Final Action 
within 90 days of the day on which you filed your complaint, you may 
file a complaint with CRC before receiving that Notice. However, you 
must file your CRC complaint within 30 days of the 90-day deadline (in 
other words, within 120 days after the day on which you filed your 
complaint with the recipient).
    If the recipient does give you a written Notice of Final Action on 
your complaint, but you are dissatisfied with the decision or 
resolution, you may file a complaint with CRC. You must file your CRC 
complaint within 30 days of the date on which you received the Notice of 
Final Action.



Sec.  38.36  Recipients' obligations to publish equal opportunity notice.

    (a) At a minimum, the Equal Opportunity Notice required by 
Sec. Sec.  38.34 and 38.35 must be:
    (1) Posted prominently, in reasonable numbers and places, in 
available and conspicuous physical locations and on the recipient's Web 
site pages;
    (2) Disseminated in internal memoranda and other written or 
electronic communications with staff;
    (3) Included in employee and participant handbooks or manuals 
regardless of form, including electronic and paper form if both are 
available; and
    (4) Provided to each participant and employee; the notice must be 
made part of each employee's and participant's file. It must be a part 
of both paper and electronic files, if both are maintained.
    (b) The notice must be provided in appropriate formats to 
registrants, applicants, eligible applicants/registrants, applicants for 
employment and employees and participants with visual impairments. Where 
notice has been given in an alternate format to registrants, applicants, 
eligible applicants/registrants, participants, applicants for employment 
and employees with a visual impairment, a record that such notice has 
been given must be made a part of the employee's or participant's file.
    (c) The notice must be provided to participants in appropriate 
languages other than English as required in Sec.  38.9.
    (d) The notice required by Sec. Sec.  38.34 and 38.35 must be 
initially published and provided within 90 days of January 3, 2017, or 
of the date this part first applies to the recipient, whichever comes 
later.



Sec.  38.37  Notice requirement for service providers.

    The Governor or the LWDA grant recipient, as determined by the 
Governor and as provided in that State's Nondiscrimination Plan, will be 
responsible for meeting the notice requirement provided in Sec. Sec.  
38.34 and 38.35 with respect to a State's service providers.



Sec.  38.38  Publications, broadcasts, and other communications.

    (a) Recipients must indicate that the WIOA Title I-financially 
assisted program or activity in question is an ``equal opportunity 
employer/program,'' and that ``auxiliary aids and services are available 
upon request to

[[Page 597]]

individuals with disabilities,'' in recruitment brochures and other 
materials that are ordinarily distributed or communicated in written 
and/or oral form, electronically and/or on paper, to staff, clients, or 
the public at large, to describe programs financially assisted under 
Title I of WIOA or the requirements for participation by recipients and 
participants. Where such materials indicate that the recipient may be 
reached by voice telephone, the materials must also prominently provide 
the telephone number of the text telephone (TTY) or equally effective 
telecommunications system, such as a relay service, videophone, or 
captioned telephone used by the recipient, as required by Sec.  
38.15(b).
    (b) Recipients that publish or broadcast program information in the 
news media must ensure that such publications and broadcasts state that 
the WIOA Title I-financially assisted program or activity in question is 
an equal opportunity employer/program (or otherwise indicate that 
discrimination in the WIOA Title I-financially assisted program or 
activity is prohibited by Federal law), and indicate that auxiliary aids 
and services are available upon request to individuals with 
disabilities.
    (c) A recipient must not communicate any information that suggests, 
by text or illustration, that the recipient treats beneficiaries, 
registrants, applicants, participants, employees or applicants for 
employment differently on any prohibited basis specified in Sec.  38.5, 
except as such treatment is otherwise permitted under Federal law or 
this part.



Sec.  38.39  Communication of notice in orientations.

    During each presentation to orient new participants, new employees, 
and/or the general public to its WIOA Title I-financially assisted 
program or activity, in person or over the internet or using other 
technology, a recipient must include a discussion of rights and 
responsibilities under the nondiscrimination and equal opportunity 
provisions of WIOA and this part, including the right to file a 
complaint of discrimination with the recipient or the Director. This 
information must be communicated in appropriate languages as required in 
Sec.  38.9 and in formats accessible for individuals with disabilities 
as required in this part and specified in Sec.  38.15.



Sec.  38.40  Affirmative outreach.

    Recipients must take appropriate steps to ensure that they are 
providing equal access to their WIOA Title I-financially assisted 
programs and activities. These steps should involve reasonable efforts 
to include members of the various groups protected by these regulations 
including but not limited to persons of different sexes, various racial 
and ethnic/national origin groups, various religions, individuals with 
limited English proficiency, individuals with disabilities, and 
individuals in different age groups. Such efforts may include, but are 
not limited to:
    (a) Advertising the recipient's programs and/or activities in media, 
such as newspapers or radio programs, that specifically target various 
populations;
    (b) Sending notices about openings in the recipient's programs and/
or activities to schools or community service groups that serve various 
populations; and
    (c) Consulting with appropriate community service groups about ways 
in which the recipient may improve its outreach and service to various 
populations.

               Data and Information Collection Maintenance



Sec.  38.41  Collection and maintenance of equal opportunity data 
and other information.

    (a) The Director will not require submission of data that can be 
obtained from existing reporting requirements or sources, including 
those of other agencies, if the source is known and available to the 
Director.
    (b)(1) Each recipient must collect such data and maintain such 
records, in accordance with procedures prescribed by the Director, as 
the Director finds necessary to determine whether the recipient has 
complied or is complying with the nondiscrimination and equal 
opportunity provisions of WIOA or this part. The system and format in 
which the records and data are kept

[[Page 598]]

must be designed to allow the Governor and CRC to conduct statistical or 
other quantifiable data analyses to verify the recipient's compliance 
with section 188 of WIOA and this part.
    (2) Such records must include, but are not limited to, records on 
applicants, registrants, eligible applicants/registrants, participants, 
terminees, employees, and applicants for employment. Each recipient must 
record the race/ethnicity, sex, age, and where known, disability status, 
of every applicant, registrant, participant, terminee, applicant for 
employment, and employee. Beginning on January 3, 2019, each recipient 
must also record the limited English proficiency and preferred language 
of each applicant, registrant, participant, and terminee. Such 
information must be stored in a manner that ensures confidentiality, and 
must be used only for the purposes of recordkeeping and reporting; 
determining eligibility, where appropriate, for WIOA Title I-financially 
assisted programs or activities; determining the extent to which the 
recipient is operating its WIOA Title I-financially assisted program or 
activity in a nondiscriminatory manner; or other use authorized by law.
    (3) Any medical or disability-related information obtained about a 
particular individual, including information that could lead to the 
disclosure of a disability, must be collected on separate forms. All 
such information, whether in hard copy, electronic, or both, must be 
maintained in one or more separate files, apart from any other 
information about the individual, and treated as confidential. Whether 
these files are electronic or hard copy, they must be locked or 
otherwise secured (for example, through password protection).
    (i) Knowledge of disability status or medical condition and access 
to information in related files. Persons in the following categories may 
be informed about an individual's disability or medical condition and 
have access to the information in related files under the following 
listed circumstances:
    (A) Program staff who are responsible for documenting eligibility, 
where disability is an eligibility criterion for a program or activity.
    (B) First aid and safety personnel who need access to underlying 
documentation related to a participant's medical condition in an 
emergency.
    (C) Government officials engaged in enforcing this part, any other 
laws administered by the Department, or any other Federal laws. See also 
Sec.  38.44.
    (ii) Knowledge of disability status or medical condition only. 
Supervisors, managers, and other necessary personnel may be informed 
regarding restrictions on the activities of individuals with 
disabilities and regarding reasonable accommodations for such 
individuals.
    (c) Each recipient must maintain, and submit to CRC upon request, a 
log of complaints filed with the recipient that allege discrimination on 
the basis(es) of race, color, religion, sex (including pregnancy, 
childbirth, and related medical conditions, transgender status, and 
gender identity), national origin, age, disability, political 
affiliation or belief, citizenship, and/or participation in a WIOA Title 
I-financially assisted program or activity. The log must include: The 
name and address of the complainant; the basis of the complaint; a 
description of the complaint; the date the complaint was filed; the 
disposition and date of disposition of the complaint; and other 
pertinent information. Information that could lead to identification of 
a particular individual as having filed a complaint must be kept 
confidential.
    (d) Where designation of individuals by race or ethnicity is 
required, the guidelines of the Office of Management and Budget must be 
used.
    (e) A service provider's responsibility for collecting and 
maintaining the information required under this section may be assumed 
by the Governor or LWDA grant recipient, as provided in the State's 
Nondiscrimination Plan.



Sec.  38.42  Information to be provided to the Civil Rights Center (CRC) 
by grant applicants and recipients.

    In addition to the information which must be collected, maintained, 
and, upon request, submitted to CRC under Sec.  38.41:
    (a) Each grant applicant and recipient must promptly notify the 
Director

[[Page 599]]

when any administrative enforcement actions or lawsuits are filed 
against it alleging discrimination on the basis of race, color, 
religion, sex (including pregnancy, childbirth, and related medical 
conditions, transgender status, and gender identity), national origin 
(including limited English proficiency), age, disability, or political 
affiliation or belief, or, for beneficiaries, applicants, and 
participants only, on the basis of citizenship or participation in a 
WIOA Title I-financially assisted program or activity. This notification 
must include:
    (1) The names of the parties to the action or lawsuit;
    (2) The forum in which each case was filed; and
    (3) The relevant case numbers.
    (b) Each recipient (as part of a compliance review conducted under 
Sec.  38.63, or monitoring activity carried out under Sec.  38.65) must 
provide the following information:
    (1) The name of any other Federal agency that conducted a civil 
rights compliance review or complaint investigation, and that found the 
grant applicant or recipient to be in noncompliance, during the two 
years before the grant application was filed or CRC began its 
examination; and
    (2) Information about any administrative enforcement actions or 
lawsuits that alleged discrimination on any protected basis, and that 
were filed against the grant applicant or recipient during the two years 
before the application or renewal application, compliance review, or 
monitoring activity. This information must include:
    (i) The names of the parties;
    (ii) The forum in which each case was filed; and
    (iii) The relevant case numbers.
    (c) At the discretion of the Director, grant applicants and 
recipients may be required to provide, in a timely manner, any 
information and data that the Director considers necessary to 
investigate complaints and conduct compliance reviews on bases 
prohibited under the nondiscrimination and equal opportunity provisions 
of WIOA and this part.
    (d) At the discretion of the Director, recipients may be required to 
provide, in a timely manner, the particularized information and/or to 
submit the periodic reports that the Director considers necessary to 
determine compliance with the nondiscrimination and equal opportunity 
provisions of WIOA or this part.
    (e) At the discretion of the Director, grant applicants may be 
required to submit, in a timely manner, the particularized information 
that the Director considers necessary to determine whether or not the 
grant applicant, if financially assisted, would be able to comply with 
the nondiscrimination and equal opportunity provisions of WIOA or this 
part.
    (f) Where designation of individuals by race or ethnicity is 
required, the guidelines of the Office of Management and Budget must be 
used.



Sec.  38.43  Required maintenance of records by recipients.

    (a) Each recipient must maintain the following records, whether they 
exist in electronic form (including email) or hard copy, for a period of 
not less than three years from the close of the applicable program year:
    (1) The records of applicants, registrants, eligible applicants/
registrants, participants, terminees, employees, and applicants for 
employment; and
    (2) Such other records as are required under this part or by the 
Director.
    (b) Where a discrimination complaint has been filed or compliance 
review initiated, every recipient that possesses or maintains any type 
of hard-copy or electronic record related to the complaint (including 
records that have any relevance to the underlying allegations in the 
complaint, as well as records regarding actions taken on the complaint) 
or to the subject of the compliance review must preserve all records, 
regardless whether hard-copy or electronic, that may be relevant to a 
complaint investigation or compliance review, and maintain those records 
for a period of not less than three years from the date of final action 
related to resolution of the complaint or compliance review.

[[Page 600]]



Sec.  38.44  CRC access to information and information sources.

    (a) Each grant applicant and recipient must permit access by the 
Director or the Director's designee during its hours of operation to its 
premises and to its employees and participants, to the extent that such 
individuals are on the premises during the course of the investigation, 
for the purpose of conducting complaint investigations, compliance 
reviews, or monitoring activities associated with a State's development 
and implementation of a Nondiscrimination Plan, and for inspecting and 
copying such books, records, accounts and other materials as may be 
pertinent to ascertain compliance with and ensure enforcement of the 
nondiscrimination and equal opportunity provisions of WIOA or this part.
    (b) Asserted considerations of privacy or confidentiality are not a 
basis for withholding information from CRC and will not bar CRC from 
evaluating or seeking to enforce compliance with the nondiscrimination 
and equal opportunity provisions of WIOA and this part.
    (c) Whenever any information that the Director asks a grant 
applicant or recipient to provide is in the exclusive possession of 
another agency, institution, or person, and that agency, institution, or 
person fails or refuses to furnish the information upon request, the 
grant applicant or recipient must certify to CRC that it has made 
efforts to obtain the information and that the agency, institution, or 
person has failed or refused to provide it. This certification must list 
the name and address of the agency, institution, or person that has 
possession of the information and the specific efforts the grant 
applicant or recipient made to obtain it.



Sec.  38.45  Confidentiality responsibilities of grant applicants, recipients, 
and the Department.

    Grant applicants, recipients and the Department must keep 
confidential to the extent possible, consistent with a fair 
determination of the issues, the identity of any individual who 
furnishes information relating to, or assists in, an investigation or a 
compliance review, including the identity of any individual who files a 
complaint. An individual whose identity is disclosed must be protected 
from retaliation (See Sec.  38.19).



Subpart C_Governor's Responsibilities to Implement the Nondiscrimination 
   and Equal Opportunity Requirements of the Workforce Innovation and 
                         Opportunity Act (WIOA)



Sec.  38.50  Subpart application to State Programs.

    This subpart applies to State Programs as defined in Sec.  38.4. 
However, the provisions of Sec.  38.52(b) do not apply to State 
Workforce Agencies (SWA), because the Governor's liability for any 
noncompliance on the part of a SWA cannot be waived.



Sec.  38.51  Governor's oversight and monitoring responsibilities 
for State Programs.

    The Governor is responsible for oversight and monitoring of all WIOA 
Title I-financially assisted State Programs. This responsibility 
includes:
    (a) Ensuring compliance with the nondiscrimination and equal 
opportunity provisions of WIOA and this part, and negotiating, where 
appropriate, with a recipient to secure voluntary compliance when 
noncompliance is found under Sec.  38.91(b).
    (b) Annually monitoring the compliance of recipients with WIOA 
section 188 and this part, including a determination as to whether each 
recipient is conducting its WIOA Title I-financially assisted program or 
activity in a nondiscriminatory way. At a minimum, each annual 
monitoring review required by this paragraph must include:
    (1) A statistical or other quantifiable analysis of records and data 
kept by the recipient under Sec.  38.41, including analyses by race/
ethnicity, sex, limited English proficiency, preferred language, age, 
and disability status;
    (2) An investigation of any significant differences identified in 
paragraph (b)(1) of this section in participation in the programs, 
activities, or employment provided by the recipient, to determine 
whether these differences appear to be caused by discrimination.

[[Page 601]]

This investigation must be conducted through review of the recipient's 
records and any other appropriate means; and
    (3) An assessment to determine whether the recipient has fulfilled 
its administrative obligations under Section 188 of WIOA or this part 
(for example, recordkeeping, notice and communication) and any duties 
assigned to it under the Nondiscrimination Plan.



Sec.  38.52  Governor's liability for actions of recipients the Governor 
has financially assisted under Title I of WIOA.

    (a) The Governor and the recipient are jointly and severally liable 
for all violations of the nondiscrimination and equal opportunity 
provisions of WIOA and this part by the recipient, unless the Governor 
has:
    (1) Established and implemented a Nondiscrimination Plan, under 
Sec.  38.54, designed to give a reasonable guarantee of the recipient's 
compliance with such provisions;
    (2) Entered into a written contract with the recipient that clearly 
establishes the recipient's obligations regarding nondiscrimination and 
equal opportunity;
    (3) Acted with due diligence to monitor the recipient's compliance 
with these provisions; and
    (4) Taken prompt and appropriate corrective action to effect 
compliance.
    (b) If the Director determines that the Governor has demonstrated 
substantial compliance with the requirements of paragraph (a) of this 
section, the Director may recommend to the Secretary that the imposition 
of sanctions against the Governor be waived and that sanctions be 
imposed only against the noncomplying recipient.



Sec.  38.53  Governor's oversight responsibilities regarding 
recipients' recordkeeping.

    The Governor must ensure that recipients collect and maintain 
records in a manner consistent with the provisions of Sec.  38.41 and 
any procedures prescribed by the Director under Sec.  38.41(a). The 
Governor must further ensure that recipients are able to provide data 
and reports in the manner prescribed by the Director.



Sec.  38.54  Governor's obligations to develop and implement 
a Nondiscrimination Plan.

    (a)(1) Each Governor must establish and implement a 
Nondiscrimination Plan for State Programs as defined in Sec.  38.4(kkk). 
In those States in which one agency contains both SWA or unemployment 
insurance and WIOA Title I-financially assisted programs, the Governor 
must develop a combined Nondiscrimination Plan.
    (2) Each Nondiscrimination Plan must be designed to give a 
reasonable guarantee that all recipients will comply, and are complying, 
with the nondiscrimination and equal opportunity provisions of WIOA and 
this part.
    (b) The Nondiscrimination Plan must be:
    (1) In writing, addressing each requirement of paragraph (c) of this 
section with narrative and documentation;
    (2) Reviewed and updated as required in Sec.  38.55; and
    (3) Signed by the Governor.
    (c) At a minimum, each Nondiscrimination Plan must:
    (1) Describe how the State Programs and recipients have satisfied 
the requirements of the following regulations:
    (i) Sections 38.25 through 38.27 (Assurances);
    (ii) Sections 38.28 through 38.33 (Equal Opportunity Officers);
    (iii) Sections 38.34 through 38.39 (Notice and Communication);
    (iv) Sections 38.41 through 38.45 (Data and Information Collection 
and Maintenance);
    (v) Section 38.40 (Affirmative Outreach);
    (vi) Section 38.53 (Governor's Oversight Responsibility Regarding 
Recipients' Recordkeeping);
    (vii) Sections 38.72 and 38.73 (Complaint Processing Procedures); 
and
    (viii) Sections 38.51 and 38.53 (Governor's Oversight and Monitoring 
Responsibilities for State Programs).
    (2) Include the following additional elements:
    (i) A system for determining whether a grant applicant, if 
financially assisted, and/or a training provider, if selected as 
eligible under Section 122 of WIOA, is likely to conduct its WIOA

[[Page 602]]

Title I-financially assisted programs or activities in a 
nondiscriminatory way, and to comply with the regulations in this part;
    (ii) A review of recipient policy issuances to ensure they are 
nondiscriminatory;
    (iii) A system for reviewing recipients' job training plans, 
contracts, assurances, and other similar agreements to ensure that they 
are both nondiscriminatory and contain the required language regarding 
nondiscrimination and equal opportunity;
    (iv) Procedures for ensuring that recipients comply with the 
nondiscrimination and equal opportunity requirements of Sec.  38.5 
regarding race, color, religion, sex (including pregnancy, childbirth, 
and related medical conditions, transgender status, and gender 
identity), national origin (including limited English proficiency), age, 
political affiliation or belief, citizenship, or participation in any 
WIOA Title I-financially assisted program or activity;
    (v) Procedures for ensuring that recipients comply with the 
requirements of applicable Federal disability nondiscrimination law, 
including Section 504; Title II of the Americans with Disabilities Act 
of 1990, as amended, if applicable; WIOA Section 188, and this part with 
regard to individuals with disabilities;
    (vi) A system of policy communication and training to ensure that EO 
Officers and members of the recipients' staffs who have been assigned 
responsibilities under the nondiscrimination and equal opportunity 
provisions of WIOA or this part are aware of and can effectively carry 
out these responsibilities;
    (vii) Procedures for obtaining prompt corrective action or, as 
necessary, applying sanctions when noncompliance is found; and
    (viii) Supporting documentation to show that the commitments made in 
the Nondiscrimination Plan have been and/or are being carried out. This 
supporting documentation includes, but is not limited to:
    (A) Policy and procedural issuances concerning required elements of 
the Nondiscrimination Plan;
    (B) Copies of monitoring instruments and instructions;
    (C) Evidence of the extent to which nondiscrimination and equal 
opportunity policies have been developed and communicated as required by 
this part;
    (D) Information reflecting the extent to which equal opportunity 
training, including training called for by Sec. Sec.  38.29(f) and 
38.31(f), is planned and/or has been carried out;
    (E) Reports of monitoring reviews and reports of follow-up actions 
taken under those reviews where violations have been found, including, 
where appropriate, sanctions; and
    (F) Copies of any notices made under Sec. Sec.  38.34 through 38.40.



Sec.  38.55  Schedule of the Governor's obligations regarding 
the Nondiscrimination Plan.

    (a) Within 180 days of either January 3, 2017, or the date on which 
the Governor is required to review and update their Methods of 
Administration as determined by the schedule in Sec.  37.55, whichever 
is later, a Governor must:
    (1) Develop and implement a Nondiscrimination Plan consistent with 
the requirements of this part; and
    (2) Submit a copy of the Nondiscrimination Plan to the Director.
    (b) The Governor must promptly update the Nondiscrimination Plan 
whenever necessary, and submit the changes made to the Director in 
writing at the time that any such updates are made.
    (c) Every two years from the date on which the initial 
Nondiscrimination Plan is submitted to the Director under paragraph 
(a)(2) of this section, the Governor must review the Nondiscrimination 
Plan and the manner in which it has been implemented, and determine 
whether any changes are necessary in order for the State to comply fully 
and effectively with the nondiscrimination and equal opportunity 
provisions of WIOA and this part.
    (1) If any such changes are necessary, the Governor must make the 
appropriate changes and submit them, in writing, to the Director.
    (2) If the Governor determines that no such changes are necessary, 
the Governor must certify, in writing, to

[[Page 603]]

the Director that the Nondiscrimination Plan previously submitted 
continues in effect.
    (3) Submit a copy of all reports of any monitoring reviews conducted 
by the Governor pursuant to Sec.  38.51(b) since the last 
Nondiscrimination Plan update.



                     Subpart D_Compliance Procedures



Sec.  38.60  Evaluation of compliance.

    From time to time, the Director may conduct pre-approval compliance 
reviews of grant applicants for WIOA Title I-financial assistance to 
determine the ability to comply with the nondiscrimination and equal 
opportunity provisions of WIOA and this part and may conduct post-
approval compliance reviews of recipients to determine compliance with 
the nondiscrimination and equal opportunity provisions of WIOA and this 
part. Reviews may focus on one or more specific programs or activities, 
or one or more issues within a program or activity. The Director may 
also investigate and resolve complaints alleging violations of the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part.



Sec.  38.61  Authority to issue subpoenas.

    Section 183(c) of WIOA authorizes the issuance of subpoenas. The 
subpoena may require the appearance of witnesses, and the production of 
documents, from any place in the United States, at any designated time 
and place. A subpoena may direct the individual named on the subpoena to 
take the following actions:
    (a) To appear:
    (1) Before a designated CRC representative;
    (2) At a designated time and place;
    (b) To give testimony; and/or
    (c) To produce documentary evidence.

                           Compliance Reviews



Sec.  38.62  Authority and procedures for pre-approval compliance reviews.

    (a) As appropriate and necessary to ensure compliance with the 
nondiscrimination and equal opportunity provisions of WIOA or this part, 
the Director may review any application, or class of applications, for 
Federal financial assistance under Title I of WIOA, before and as a 
condition of their approval. The basis for such review may be the 
assurance specified in Sec.  38.25, information and reports submitted by 
the grant applicant under this part or guidance published by the 
Director, and any relevant records on file with the Department.
    (b) When awarding financial assistance under Title I of WIOA, 
departmental grantmaking agencies must consult with the Director to 
review whether the CRC has issued a Notice to Show Cause under Sec.  
38.66(b) or a Final Determination against an applicant that has been 
identified as a probable awardee.
    (c) The grantmaking agency will consider, in consultation with the 
Director, the information referenced in paragraph (b) of this section, 
along with any other information provided by the Director in determining 
whether to award a grant or grants. Departmental grantmaking agencies 
must consider refraining from awarding new grants to applicants or must 
consider including special terms in the grant agreement for entities 
named by the Director as described in paragraph (b) of this section. 
Special terms will not be lifted until a compliance review has been 
conducted by the Director, and the Director has approved a determination 
that the applicant is likely to comply with the nondiscrimination and 
equal opportunity requirements of WIOA and this part.
    (d) Where the Director determines that the grant applicant for 
Federal financial assistance under Title I of WIOA, if financially 
assisted, is not likely to comply with the nondiscrimination and equal 
opportunity requirements of WIOA or this part, the Director must:
    (1) Notify, in a timely manner, the Departmental grantmaking agency 
and the Assistant Attorney General of the findings of the pre-approval 
compliance review; and
    (2) Issue a Letter of Findings. The Letter of Findings must advise 
the grant applicant, in writing, of:

[[Page 604]]

    (i) The preliminary findings of the review;
    (ii) The proposed remedial or corrective action under Sec.  38.90 
and the time within which the remedial or corrective action should be 
completed;
    (iii) Whether it will be necessary for the grant applicant to enter 
into a written Conciliation Agreement as described in Sec. Sec.  38.91 
and 38.93; and
    (iv) The opportunity to engage in voluntary compliance negotiations.
    (e) If a grant applicant has agreed to certain remedial or 
corrective actions in order to receive WIOA Title I financial 
assistance, the Department must ensure that the remedial or corrective 
actions have been taken, or that a Conciliation Agreement has been 
entered into, before approving the award of further assistance under 
WIOA Title I. If a grant applicant refuses or fails to take remedial or 
corrective actions or to enter into a Conciliation Agreement, as 
applicable, the Director must follow the procedures outlined in 
Sec. Sec.  38.95 through 38.97.



Sec.  38.63  Authority and procedures for conducting post-approval 
compliance reviews.

    (a) The Director may initiate a post-approval compliance review of 
any recipient to determine compliance with the nondiscrimination and 
equal opportunity provisions of WIOA and this part. The initiation of a 
post-approval review may be based on, but need not be limited to, the 
results of routine program monitoring by other Departmental or Federal 
agencies, or the nature or frequency of complaints.
    (b) A post-approval review must be initiated by a Notification 
Letter, advising the recipient of:
    (1) The practices to be reviewed;
    (2) The programs to be reviewed;
    (3) The information, records, and/or data to be submitted by the 
recipient within 30 days of the receipt of the Notification Letter, 
unless this time frame is modified by the Director; and
    (4) The opportunity, at any time before receipt of the Final 
Determination described in Sec. Sec.  38.95 and 38.96, to make a 
documentary or other written submission that explains, validates or 
otherwise addresses the practices under review.
    (c) The Director may conduct post-approval reviews using such 
techniques as desk audits and on-site reviews.



Sec.  38.64  Procedures for concluding post-approval compliance reviews.

    (a) Where, as the result of a post-approval review, the Director has 
made a finding of noncompliance, the Director must issue a Letter of 
Findings. This Letter must advise the recipient, in writing, of:
    (1) The preliminary findings of the review;
    (2) Where appropriate, the proposed remedial or corrective action to 
be taken, and the time by which such action should be completed, as 
provided in Sec.  38.90;
    (3) Whether it will be necessary for the recipient to enter into a 
written assurance or Conciliation Agreement, as provided in Sec. Sec.  
38.92 and 38.93; and
    (4) The opportunity to engage in voluntary compliance negotiations.
    (b) Where no violation is found, the recipient must be so informed 
in writing.



Sec.  38.65  Authority to monitor the activities of a Governor.

    (a) The Director may periodically review the adequacy of the 
Nondiscrimination Plan established by a Governor, as well as the 
adequacy of the Governor's performance under the Nondiscrimination Plan, 
to determine compliance with the requirements of Sec. Sec.  38.50 
through 38.55. The Director may review the Nondiscrimination Plan during 
a compliance review under Sec. Sec.  38.62 and 38.63, or at another 
time.
    (b) Nothing in this subpart limits or precludes the Director from 
monitoring directly any recipient or from investigating any matter 
necessary to determine a recipient's compliance with the 
nondiscrimination and equal opportunity provisions of WIOA or this part.
    (c) Where the Director determines that the Governor has not complied 
with the oversight and monitoring responsibilities set forth in the 
nondiscrimination and equal opportunity requirements of WIOA or this 
part, the Director may:
    (1) Issue a Letter of Findings. The Letter of Findings must advise 
the Governor, in writing, of:

[[Page 605]]

    (i) The preliminary findings of the review;
    (ii) The proposed remedial or corrective action under Sec.  38. 90 
and the time within which the remedial or corrective action should be 
completed;
    (iii) Whether it will be necessary for the Governor to enter into a 
conciliation agreement as described in Sec. Sec.  38.91 and 38.93; and
    (iv) The opportunity to engage in voluntary compliance negotiations.
    (2) If a Governor refuses or fails to take remedial or corrective 
actions or to enter into a conciliation agreement, the Director may 
follow the procedures outlined in Sec. Sec.  38.89, 38.90, and 38.91.



Sec.  38.66  Notice to Show Cause issued to a recipient.

    (a) The Director may issue a Notice to Show Cause to a recipient 
failing to comply with the requirements of this part, where such failure 
results in the inability of the Director to make a finding. Such a 
failure includes, but is not limited to, the recipient's failure or 
refusal to:
    (1) Submit requested information, records, and/or data within the 
timeframe specified in a Notification Letter issued pursuant to Sec.  
38.63;
    (2) Submit, in a timely manner, information, records, and/or data 
requested during a compliance review, complaint investigation, or other 
action to determine a recipient's compliance with the nondiscrimination 
and equal opportunity provisions of WIOA or this part; or
    (3) Provide CRC access in a timely manner to a recipient's premises, 
records, or employees during a compliance review or complaint 
investigation, as required in Sec.  38.42(c).
    (b) The Director may issue a Notice to Show Cause to a recipient 
after a Letter of Findings and/or an Initial Determination has been 
issued, and after a reasonable period of time has passed within which 
the recipient refuses to negotiate a conciliation agreement with the 
Director regarding the violation(s).
    (c) A Notice to Show Cause must contain:
    (1) A description of the violation and a citation to the pertinent 
nondiscrimination or equal opportunity provision(s) of WIOA and this 
part;
    (2) The corrective action necessary to achieve compliance or, as may 
be appropriate, the concepts and principles of acceptable corrective or 
remedial action and the results anticipated; and
    (3) A request for a written response to the findings, including 
commitments to corrective action or the presentation of opposing facts 
and evidence.
    (d) A Notice to Show Cause must give the recipient 30 days from 
receipt of the Notice to show cause why enforcement proceedings under 
the nondiscrimination and equal opportunity provisions of WIOA or this 
part should not be instituted.



Sec.  38.67  Methods by which a recipient may show cause why 
enforcement proceedings should not be instituted.

    A recipient may show cause why enforcement proceedings should not be 
instituted by, among other means:
    (a) Correcting the violation(s) that brought about the Notice to 
Show Cause and entering into a Conciliation Agreement, under Sec. Sec.  
38.91 and 38.93;
    (b) Demonstrating that CRC does not have jurisdiction; or
    (c) Demonstrating that the violation alleged by CRC did not occur.



Sec.  38.68  Failing to show cause.

    If the recipient fails to show cause why enforcement proceedings 
should not be initiated, the Director may follow the enforcement 
procedures outlined in Sec.  38.95.

                     Complaint Processing Procedures



Sec.  38.69  Complaint filing.

    (a) Any person or the person's representative who believes that any 
of the following circumstances exist may file a written complaint:
    (1) A person, or any specific class of individuals, has been or is 
being discriminated against on the basis of race, color, religion, sex 
(including pregnancy, childbirth, and related medical conditions, 
transgender status, and gender identity), national origin (including 
limited English proficiency), age, disability, political affiliation or

[[Page 606]]

belief, citizenship status, or participation in any WIOA Title I-
financially assisted program or activity as prohibited by WIOA or this 
part.
    (2) Either the person, or any specific class of individuals, has 
been or is being retaliated against as described in Sec.  38.19.
    (b) A person or the person's representative may file a complaint 
with either the recipient's EO Officer (or the person the recipient has 
designated for this purpose) or the Director. Complaints filed with the 
Director should be sent to the address listed in the notice or filed 
electronically as described in the notice in Sec.  38.35.
    (c) Generally, a complaint must be filed within 180 days of the 
alleged discrimination or retaliation. However, for good cause shown, 
the Director may extend the filing time. The time period for filing is 
for the administrative convenience of CRC, and does not create a defense 
for the respondent.



Sec.  38.70  Required contents of complaint.

    Each complaint must be filed in writing, either electronically or in 
hard copy, and must contain the following information:
    (a) The complainant's name, mailing address, and, if available, 
email address (or another means of contacting the complainant).
    (b) The identity of the respondent (the individual or entity that 
the complainant alleges is responsible for the discrimination).
    (c) A description of the complainant's allegations. This description 
must include enough detail to allow the Director or the recipient, as 
applicable, to decide whether:
    (1) CRC or the recipient, as applicable, has jurisdiction over the 
complaint;
    (2) The complaint was filed in time; and
    (3) The complaint has apparent merit; in other words, whether the 
complainant's allegations, if true, would indicate noncompliance with 
any of the nondiscrimination and equal opportunity provisions of WIOA or 
this part.
    (d) The written or electronic signature of the complainant or the 
written or electronic signature of the complainant's representative.
    (e) A complainant may file a complaint by completing and submitting 
CRC's Complaint Information and Privacy Act Consent Forms, which may be 
obtained either from the recipient's EO Officer or from CRC. The forms 
are available electronically on CRC's Web site, and in hard copy via 
postal mail upon request. The latter requests may be sent to CRC at the 
address listed in the notice contained in Sec.  38.35.



Sec.  38.71  Right to representation.

    Both the complainant and the respondent have the right to be 
represented by an attorney or other individual of their choice.



Sec.  38.72  Required elements of a recipient's complaint 
processing procedures.

    (a) The procedures that a recipient adopts and publishes for 
processing complaints permitted under this part and WIOA Section 188 
must state that the recipient will issue a written Notice of Final 
Action on complaints within 90 days of the date on which the complaint 
is filed.
    (b) At a minimum, the procedures must include the following 
elements:
    (1) Initial, written notice to the complainant that contains the 
following information:
    (i) An acknowledgment that the recipient has received the complaint; 
and
    (ii) Notice that the complainant has the right to be represented in 
the complaint process;
    (iii) Notice of rights contained in Sec.  38.35; and
    (iv) Notice that the complainant has the right to request and 
receive, at no cost, auxiliary aids and services, language assistance 
services, and that this notice will be translated into the non-English 
languages as required in Sec. Sec.  38.4(h) and (i), 38.34, and 38.36.
    (2) A written statement of the issue(s), provided to the 
complainant, that includes the following information:
    (i) A list of the issues raised in the complaint; and
    (ii) For each such issue, a statement whether the recipient will 
accept the issue for investigation or reject the

[[Page 607]]

issue, and the reasons for each rejection.
    (3) A period for fact-finding or investigation of the circumstances 
underlying the complaint.
    (4) A period during which the recipient attempts to resolve the 
complaint. The methods available to resolve the complaint must include 
alternative dispute resolution (ADR), as described in paragraph (c) of 
this section.
    (5) A written Notice of Final Action, provided to the complainant 
within 90 days of the date on which the complaint was filed, that 
contains the following information:
    (i) For each issue raised in the complaint, a statement of either:
    (A) The recipient's decision on the issue and an explanation of the 
reasons underlying the decision; or
    (B) A description of the way the parties resolved the issue; and
    (ii) Notice that the complainant has a right to file a complaint 
with CRC within 30 days of the date on which the Notice of Final Action 
is received if the complainant is dissatisfied with the recipient's 
final action on the complaint.
    (c) The procedures the recipient adopts must provide for alternative 
dispute resolution (ADR). The recipient's ADR procedures must provide 
that:
    (1) The complainant may attempt ADR at any time after the 
complainant has filed a written complaint with the recipient, but before 
a Notice of Final Action has been issued.
    (2) The choice whether to use ADR or the customary process rests 
with the complainant.
    (3) A party to any agreement reached under ADR may notify the 
Director in the event the agreement is breached. In such circumstances, 
the following rules will apply:
    (i) The non-breaching party may notify with the Director within 30 
days of the date on which the non-breaching party learns of the alleged 
breach; and
    (ii) The Director must evaluate the circumstances to determine 
whether the agreement has been breached. If the Director determines that 
the agreement has been breached, the complaint will be reinstated and 
processed in accordance with the recipient's procedures.
    (4) If the parties do not reach an agreement under ADR, the 
complainant may file a complaint with the Director as described in 
Sec. Sec.  38.69 through 38.71.



Sec.  38.73  Responsibility for developing and publishing complaint 
processing procedures for service providers.

    The Governor or the LWDA grant recipient, as provided in the State's 
Nondiscrimination Plan, must develop and publish, on behalf of its 
service providers, the complaint processing procedures required in Sec.  
38.72. The service providers must then follow those procedures.



Sec.  38.74  Recipient's obligations when it determines that it has 
no jurisdiction over a complaint.

    If a recipient determines that it does not have jurisdiction over a 
complaint, it must notify the complainant, in writing within five 
business days of making such determination. This Notice of Lack of 
Jurisdiction must include:
    (a) A statement of the reasons for that determination; and
    (b) Notice that the complainant has a right to file a complaint with 
CRC within 30 days of the date on which the complainant receives the 
Notice.



Sec.  38.75  If the complainant is dissatisfied after receiving 
a Notice of Final Action.

    If the recipient issues its Notice of Final Action before the 90-day 
period ends, but the complainant is dissatisfied with the recipient's 
decision on the complaint, the complainant or the complainant's 
representative may file a complaint with the Director within 30 days 
after the date on which the complainant receives the Notice.



Sec.  38.76  If a recipient fails to issue a Notice of Final Action within 
90 days after the complaint was filed.

    If, by the end of 90 days from the date on which the complainant 
filed the complaint, the recipient has failed to issue a Notice of Final 
Action, the complainant or the complainant's representative may file a 
complaint with

[[Page 608]]

the Director within 30 days of the expiration of the 90-day period. In 
other words, the complaint must be filed with the Director within 120 
days of the date on which the complaint was filed with the recipient.



Sec.  38.77  Extension of deadline to file complaint.

    (a) The Director may extend the 30-day time limit for filing a 
complaint:
    (1) If a recipient does not include in its Notice of Final Action 
the required notice about the complainant's right to file with the 
Director, as described in Sec.  38.72(b)(5); or
    (2) For other good cause shown.
    (b) The complainant has the burden of proving to the Director that 
the time limit should be extended.



Sec.  38.78  Determinations regarding acceptance of complaints.

    The Director must decide whether CRC will accept a particular 
complaint for resolution. For example, a complaint need not be accepted 
if:
    (a) It has not been timely filed;
    (b) CRC has no jurisdiction over the complaint; or
    (c) CRC has previously decided the matter.



Sec.  38.79  When a complaint contains insufficient information.

    (a) If a complaint does not contain enough information to identify 
the respondent or the basis of the alleged discrimination, the 
timeliness of the complaint, or the apparent merit of the complaint, the 
Director must try to get the needed information from the complainant.
    (b) The Director may close the complainant's file, without 
prejudice, if:
    (1) The Director makes reasonable efforts to try to find the 
complainant, but is unable to reach him or her; or
    (2) The complainant does not provide the needed information to CRC 
within the time specified in the request for more information.
    (c) If the Director closes the complainant's file, the Director must 
send written notice to the complainant's last known address, email 
address (or another known method of contacting the complainant in 
writing).



Sec.  38.80  Lack of jurisdiction.

    If CRC does not have jurisdiction over a complaint, the Director 
must:
    (a) Notify the complainant in writing and explain why the complaint 
falls outside the coverage of the nondiscrimination and equal 
opportunity provisions of WIOA or this part; and
    (b) Where possible, transfer the complaint to an appropriate 
Federal, State or local authority.



Sec.  38.81  Complaint referral.

    The Director refers complaints to other agencies in the following 
circumstances:
    (a) Where the complaint alleges discrimination based on age, and the 
complaint falls within the jurisdiction of the Age Discrimination Act of 
1975, as amended, then the Director must refer the complaint, in 
accordance with the provisions of 45 CFR 90.43(c)(3).
    (b) Where the only allegation in the complaint is a charge of 
individual employment discrimination that is covered both by WIOA or 
this part and by one or more of the laws listed in paragraphs (b)(1) 
through (4) of this section, then the complaint is a ``joint 
complaint,'' and the Director may refer it to the EEOC for investigation 
and conciliation under the procedures described in 29 CFR part 1640 or 
1691, as appropriate. The relevant laws are:
    (1) Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000e to 2000e-17);
    (2) The Equal Pay Act of 1963, as amended (29 U.S.C. 206(d));
    (3) The Age Discrimination in Employment Act of 1976, as amended (29 
U.S.C. 621, et seq.); and
    (4) Title I of the Americans with Disabilities Act of 1990, as 
amended (42 U.S.C. 12101 et seq.).
    (c) Where the complaint alleges discrimination by an entity that 
operates a program or activity financially assisted by a Federal 
grantmaking agency other than the Department, but that participates as a 
partner in a one-stop delivery system, the following procedures apply:
    (1) Where the complaint alleges discrimination on a basis that is 
prohibited both by Section 188 of WIOA and by a civil rights law 
enforced by the Federal grantmaking agency, then CRC

[[Page 609]]

and the grantmaking agency have dual jurisdiction over the complaint, 
and the Director will refer the complaint to the grantmaking agency for 
processing. In such circumstances, the grantmaking agency's regulations 
will govern the processing of the complaint.
    (2) Where the complaint alleges discrimination on a basis that is 
prohibited by Section 188 of WIOA, but not by any civil rights laws 
enforced by the Federal grantmaking agency, then CRC has sole 
jurisdiction over the complaint, and will retain the complaint and 
process it pursuant to this part. Such bases generally include religion, 
political affiliation or belief, citizenship, and/or participation in a 
WIOA Title I-financially assisted program or activity.
    (d) Where the Director makes a referral under this section, the 
Director must notify the complainant and the respondent about the 
referral.



Sec.  38.82  Notice that complaint will not be accepted.

    If a complaint will not be accepted, the Director must notify the 
complainant, in writing, about that fact, and provide the complainant 
the Director's reasons for making that determination.



Sec.  38.83  Notice of complaint acceptance.

    If the Director accepts the complaint for resolution, the Director 
must notify in writing the complainant, the respondent, and the 
grantmaking agency. The notice must:
    (a) State that the complaint will be accepted;
    (b) Identify the issues over which CRC has accepted jurisdiction; 
and
    (c) Explain the reasons why any issues were rejected.



Sec.  38.84  Contacting CRC about a complaint.

    Both the complainant and the respondent, or their representative, 
may contact CRC for information about the complaint. The Director will 
determine what information, if any, about the complaint will be 
released.



Sec.  38.85  Alternative dispute resolution.

    The Director may offer the option of alternative dispute resolution 
(ADR) of the complaint filed with CRC. In such circumstances, the 
following rules apply:
    (a) ADR is voluntary; consent must be given by the complainant and 
respondent before the ADR process will proceed.
    (b) The ADR will be conducted under the guidance of the Director.
    (c) ADR may take place at any time after a complaint has been filed 
under Sec.  38.69, as deemed appropriate by the Director.
    (d) CRC will not suspend its investigation and complaint processes 
during ADR.

                        Complaint Determinations



Sec.  38.86  Notice at conclusion of complaint investigation.

    At the conclusion of the investigation of the complaint, the 
Director must take the following actions:
    (a) Determine whether there is reasonable cause to believe that the 
respondent has violated the nondiscrimination and equal opportunity 
provisions of WIOA or this part; and
    (b) Notify the complainant, the respondent, and the grantmaking 
agency, in writing, of that determination as provided in Sec. Sec.  
38.87 and 38.88.



Sec.  38.87  Director's Initial Determination that reasonable cause exists 
to believe that a violation has taken place.

    If the Director finds reasonable cause to believe that the 
respondent has violated the nondiscrimination and equal opportunity 
provisions of WIOA or this part the Director must issue an Initial 
Determination. The Initial Determination must include:
    (a) The specific findings of the investigation;
    (b) The corrective or remedial action that the Department proposes 
to the respondent, under Sec.  38.90;
    (c) The time by which the respondent must complete the corrective or 
remedial action;
    (d) Whether it will be necessary for the respondent to enter into a 
written agreement under Sec. Sec.  38.91 through 38.93; and
    (e) The opportunity to engage in voluntary compliance negotiations.

[[Page 610]]



Sec.  38.88  Director's Final Determination that no reasonable cause exists 
to believe that a violation has taken place.

    If the Director determines that there is no reasonable cause to 
believe that a violation has taken place, the Director must issue a 
Final Determination under Sec.  38.96. The Final Determination 
represents the Department's final agency action on the complaint.



Sec.  38.89  When the recipient fails or refuses to take 
the corrective action listed in the Initial Determination.

    Under such circumstances, following a complaint investigation or 
compliance review, the Department may take the actions described in 
Sec.  38.95.



Sec.  38.90  Corrective or remedial action that may be imposed 
when the Director finds a violation.

    (a) A Letter of Findings, Notice to Show Cause, or Initial 
Determination, issued under Sec.  38.62 or Sec.  38.64, Sec. Sec.  38.66 
and 38.67, or Sec.  38.87, respectively, must include the specific steps 
the grant applicant or recipient, as applicable, must take within a 
stated period of time in order to achieve voluntary compliance.
    (b) Such steps may include:
    (1) Actions to end and/or redress the violation of the 
nondiscrimination and equal opportunity provisions of WIOA or this part;
    (2) Make-whole relief where discrimination has been identified, 
including, as appropriate, back pay (which must not accrue from a date 
more than 2 years before the filing of the complaint or the initiation 
of a compliance review), or other monetary relief; hire or 
reinstatement; retroactive seniority; promotion; benefits or other 
services discriminatorily denied; and
    (3) Such other remedial or affirmative relief as the Director deems 
necessary, including but not limited to outreach, recruitment and 
training designed to ensure equal opportunity.
    (c) Monetary relief may not be paid from Federal funds.



Sec.  38.91  Post-violation procedures.

    (a) Violations at the State level. Where the Director has determined 
that a violation of the nondiscrimination and equal opportunity 
provisions of WIOA or this part has occurred at the State level, the 
Director must notify the Governor of that State through the issuance of 
a Letter of Findings, Notice to Show Cause, or Initial Determination, as 
appropriate, under Sec.  38.62 or Sec.  38.64, Sec. Sec.  38.66 and 
38.67, or Sec.  38.87, respectively. The Director may secure compliance 
with the nondiscrimination and equal opportunity provisions of WIOA and 
this part through, among other means, the execution of a written 
assurance or Conciliation Agreement.
    (b) Violations below State level. Where the Director has determined 
that a violation of the nondiscrimination and equal opportunity 
provisions of WIOA or this part has occurred below the State level, the 
Director must so notify the Governor and the violating recipient(s) 
through the issuance of a Letter of Findings, Notice to Show Cause or 
Initial Determination, as appropriate, under Sec.  38.62 or Sec.  38.64, 
Sec. Sec.  38.66 and 38.67, or Sec.  38.87, respectively.
    (1) Such issuance may:
    (i) Direct the Governor to initiate negotiations immediately with 
the violating recipient(s) to secure compliance by voluntary means.
    (ii) Direct the Governor to complete such negotiations within 30 
days of the Governor's receipt of the Notice to Show Cause or within 45 
days of the Governor's receipt of the Letter of Findings or Initial 
Determination, as applicable. The Director reserves the right to enter 
into negotiations with the recipient at any time during the period. For 
good cause shown, the Director may approve an extension of time to 
secure voluntary compliance. The total time allotted to secure voluntary 
compliance must not exceed 60 days.
    (iii) Include a determination as to whether compliance must be 
achieved by:
    (A) Immediate correction of the violation(s) and written assurance 
that such violations have been corrected, under Sec.  38.92; or
    (B) Entering into a written Conciliation Agreement under Sec.  
38.93.
    (2) If the Governor determines, at any time during the period 
described in paragraph (b)(1)(ii) of this section, that a recipient's 
compliance cannot be

[[Page 611]]

achieved by voluntary means, the Governor must so notify the Director.
    (3) If the Governor is able to secure voluntary compliance under 
paragraph (b)(1) of this section, the Governor must submit to the 
Director for approval, as applicable:
    (i) Written assurance that the required action has been taken, as 
described in Sec.  38.92; or
    (ii) A copy of the Conciliation Agreement, as described in Sec.  
38.93.
    (4) The Director may disapprove any written assurance or 
Conciliation Agreement submitted for approval under paragraph (b)(3) of 
this section that fails to satisfy each of the applicable requirements 
provided in Sec. Sec.  38.92 and 38.93.
    (c) Violations in National Programs. Where the Director has 
determined that a violation of the nondiscrimination and equal 
opportunity provisions of WIOA or this part has occurred in a National 
Program, the Director must notify the Federal grantmaking agency and the 
recipient by issuing a Letter of Findings, Notice to Show Cause, or 
Initial Determination, as appropriate, under Sec.  38.62 or Sec.  38.63, 
Sec. Sec.  38.66 and 38.67, or Sec.  38.87, respectively. The Director 
may secure compliance with the nondiscrimination and equal opportunities 
provisions of WIOA through, among other means, the execution of a 
written assurance or conciliation agreement under Sec.  38.92 or Sec.  
38.93.



Sec.  38.92  Written assurance.

    A written assurance is the resolution document that may be used when 
the Director determines that a recipient has, within fifteen business 
days after receipt of the Letter of Findings or Initial Determination 
identifying the violations, taken all corrective actions to remedy the 
violations specified in those documents.



Sec.  38.93  Required elements of a conciliation agreement.

    A conciliation agreement must:
    (a) Be in writing;
    (b) Address the legal and contractual obligations of the recipient;
    (c) Address each cited violation;
    (d) Specify the corrective or remedial action to be taken within a 
stated period of time to come into compliance;
    (e) Provide for periodic reporting on the status of the corrective 
and remedial action;
    (f) State that the violation(s) will not recur;
    (g) State that nothing in the agreement will prohibit CRC from 
sending the agreement to the complainant, making it available to the 
public, or posting it on the CRC or recipient's Web site;
    (h) State that, in any proceeding involving an alleged violation of 
the conciliation agreement, CRC may seek enforcement of the agreement 
itself and shall not be required to present proof of the underlying 
violations resolved by the agreement; and
    (i) Provide for enforcement for a breach of the agreement.



Sec.  38.94  When voluntary compliance cannot be secured.

    The Director will conclude that compliance cannot be secured by 
voluntary means under the following circumstances:
    (a) The Governor, grant applicant or recipient fails to or refuses 
to correct the violation(s) within the time period established by the 
Letter of Findings, Notice to Show Cause or Initial Determination; or
    (b) The Director has not approved an extension of time for agreement 
on voluntary compliance under Sec.  38.91(b)(1)(ii) and the Director 
either:
    (1) Has not been notified under Sec.  38.91(b)(3) that the Governor, 
grant applicant, or recipient has agreed to voluntary compliance;
    (2) Has disapproved a written assurance or Conciliation Agreement, 
under Sec.  38.91(b)(4); or
    (3) Has received notice from the Governor, under Sec.  38.91(b)(2), 
that the grant applicant or recipient will not comply voluntarily.



Sec.  38.95  Enforcement when voluntary compliance cannot be secured.

    If the Director concludes that compliance cannot be secured by 
voluntary means, the Director must either:
    (a) Issue a Final Determination;
    (b) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted; or

[[Page 612]]

    (c) Take such other action as may be provided by law.



Sec.  38.96  Contents of a Final Determination of a violation.

    A Final Determination must contain the following information:
    (a) A statement of the efforts made to achieve voluntary compliance, 
and a statement that those efforts have been unsuccessful;
    (b) A statement of those matters upon which the grant applicant or 
recipient and CRC continue to disagree;
    (c) A list of any modifications to the findings of fact or 
conclusions that were set forth in the Initial Determination, Notice to 
Show Cause or Letter of Findings;
    (d) A statement of the grant applicant's or recipient's liability, 
and, if appropriate, the extent of that liability;
    (e) A description of the corrective or remedial actions that the 
grant applicant or recipient must take to come into compliance;
    (f) A notice that if the grant applicant or recipient fails to come 
into compliance within 10 days of the date on which it receives the 
Final Determination, one or more of the following consequences may 
result:
    (1) After the grant applicant or recipient is given the opportunity 
for a hearing, its WIOA Title I financial assistance may be terminated, 
discontinued, or withheld in whole or in part, or its application for 
such financial assistance may be denied, as appropriate;
    (2) The Secretary of Labor may refer the case to the Department of 
Justice with a request to file suit against the grant applicant or 
recipient; or
    (3) The Secretary may take any other action against the grant 
applicant or recipient that is provided by law;
    (g) A notice of the grant applicant's or recipient's right to 
request a hearing under the procedures described in Sec. Sec.  38.112 
through 37.115; and
    (h) A determination of the Governor's liability, if any, under Sec.  
38.52.



Sec.  38.97  Notification of finding of noncompliance.

    Where a compliance review or complaint investigation results in a 
finding of noncompliance, the Director must notify:
    (a) The grant applicant or recipient;
    (b) The grantmaking agency; and
    (c) The Assistant Attorney General.

                   Breaches of Conciliation Agreements



Sec.  38.98  Notification of Breach of Conciliation Agreement.

    (a) When it becomes known to the Director that a Conciliation 
Agreement has been breached, the Director may issue a Notification of 
Breach of Conciliation Agreement.
    (b) The Director must send a Notification of Breach of Conciliation 
Agreement to the Governor, the grantmaking agency, and/or other 
party(ies) to the Conciliation Agreement, as applicable.



Sec.  38.99  Contents of Notification of Breach of Conciliation Agreement.

    A Notification of Breach of Conciliation Agreement must:
    (a) Specify any efforts made to achieve voluntary compliance, and 
indicate that those efforts have been unsuccessful;
    (b) Identify the specific provisions of the Conciliation Agreement 
violated;
    (c) Determine liability for the violation and the extent of the 
liability;
    (d) Indicate that failure of the violating party to come into 
compliance within 10 days of the receipt of the Notification of Breach 
of Conciliation Agreement may result, after opportunity for a hearing, 
in the termination or denial of the grant, or discontinuation of 
assistance, as appropriate, or in referral to the Department of Justice 
with a request from the Department to file suit;
    (e) Advise the violating party of the right to request a hearing, 
and reference the applicable procedures in Sec.  38.111; and
    (f) Include a determination as to the Governor's liability, if any, 
in accordance with the provisions of Sec.  38.52.



Sec.  38.100  Notification of an enforcement action based on breach 
of conciliation agreement.

    In such circumstances, the Director must notify:
    (a) The grantmaking agency; and

[[Page 613]]

    (b) The Governor, recipient or grant applicant, as applicable.



          Subpart E_Federal Procedures for Effecting Compliance



Sec.  38.110  Enforcement procedures.

    (a) Sanctions; judicial enforcement. If compliance has not been 
achieved after issuance of a Final Determination under Sec. Sec.  38.95 
and 38.96, or a Notification of Breach of Conciliation Agreement under 
Sec. Sec.  38.98 through 38.100, the Secretary may:
    (1) After opportunity for a hearing, suspend, terminate, deny or 
discontinue the WIOA Title I financial assistance, in whole or in part;
    (2) Refer the matter to the Attorney General with a recommendation 
that an appropriate civil action be instituted; or
    (3) Take such action as may be provided by law, which may include 
seeking injunctive relief.
    (b) Deferral of new grants. When proceedings under Sec.  38.111 have 
been initiated against a particular recipient, the Department may defer 
action on that recipient's applications for new WIOA Title I financial 
assistance until a Final Decision under Sec.  38.112 has been rendered. 
Deferral is not appropriate when WIOA Title I financial assistance is 
due and payable under a previously approved application.
    (1) New WIOA Title I financial assistance includes all assistance 
for which an application or approval, including renewal or continuation 
of existing activities, or authorization of new activities, is required 
during the deferral period.
    (2) New WIOA Title I financial assistance does not include 
assistance approved before the beginning of proceedings under Sec.  
38.111, or increases in funding as a result of changed computations of 
formula awards.



Sec.  38.111  Hearing procedures.

    (a) Notice of opportunity for hearing. As part of a Final 
Determination, or a Notification of Breach of a Conciliation Agreement, 
the Director must include, and serve on the grant applicant or recipient 
(by certified mail, return receipt requested), a notice of opportunity 
for hearing.
    (b) Complaint; request for hearing; answer. (1) In the case of 
noncompliance that cannot be voluntarily resolved, the Final 
Determination or Notification of Breach of Conciliation Agreement is 
considered the Department's formal complaint.
    (2) To request a hearing, the grant applicant or recipient must file 
a written answer to the Final Determination or Notification of Breach of 
Conciliation Agreement, and a copy of the Final Determination or 
Notification of Breach of Conciliation Agreement, with the Office of the 
Administrative Law Judges, 800 K Street NW., Suite 400, Washington, DC 
20001.
    (i) The answer must be filed within 30 days of the date of receipt 
of the Final Determination or Notification of Breach of Conciliation 
Agreement.
    (ii) A request for hearing must be set forth in a separate paragraph 
of the answer.
    (iii) The answer must specifically admit or deny each finding of 
fact in the Final Determination or Notification of Breach of 
Conciliation Agreement. Where the grant applicant or recipient does not 
have knowledge or information sufficient to form a belief, the answer 
may so state and the statement will have the effect of a denial. 
Findings of fact not denied are considered admitted. The answer must 
separately state and identify matters alleged as affirmative defenses, 
and must also set forth the matters of fact and law relied on by the 
grant applicant or recipient.
    (3) The grant applicant or recipient must simultaneously serve a 
copy of its filing on the Office of the Solicitor, Civil Rights and 
Labor-Management Division, Room N-2474, U.S. Department of Labor, 200 
Constitution Avenue NW., Washington, DC 20210.
    (4)(i) The failure of a grant applicant or recipient to request a 
hearing under this paragraph (b), or to appear at a hearing for which a 
date has been set, waives the right to a hearing; and
    (ii) Whenever a hearing is waived, all allegations of fact contained 
in the Final Determination or Notification of Breach of Conciliation 
Agreement are considered admitted, and the Final Determination or 
Notification of Breach of Conciliation Agreement becomes the

[[Page 614]]

Final Decision of the Secretary as of the day following the last date by 
which the grant applicant or recipient was required to request a hearing 
or was to appear at a hearing.
    (c) Time and place of hearing. Hearings will be held at a time and 
place ordered by the Administrative Law Judge upon reasonable notice to 
all parties and, as appropriate, the complainant. In selecting a place 
for the hearing, due regard must be given to the convenience of the 
parties, their counsel, and witnesses, if any.
    (d) Judicial process; evidence--(1) Judicial process. The 
Administrative Law Judge may use judicial process to secure the 
attendance of witnesses and the production of documents authorized by 
Section 9 of the Federal Trade Commission Act (15 U.S.C. 49).
    (2) Evidence. In any hearing or administrative review conducted 
under this part, evidentiary matters will be governed by the standards 
and principles set forth in the Rules of Evidence issued by the 
Department of Labor's Office of Administrative Law Judges, 29 CFR part 
18.



Sec.  38.112  Initial and final decision procedures.

    (a) Initial decision. After the hearing, the Administrative Law 
Judge must issue an initial decision and order, containing findings of 
fact and conclusions of law. The initial decision and order must be 
served on all parties by certified mail, return receipt requested.
    (b) Exceptions; Final Decision--(1) Final Decision after a hearing. 
The initial decision and order becomes the Final Decision and Order of 
the Department unless exceptions are filed by a party or, in the absence 
of exceptions, the Administrative Review Board serves notice that it 
will review the decision.
    (i) Exceptions. A party dissatisfied with the initial decision and 
order may, within 45 days of receipt, file with the Administrative 
Review Board and serve on the other parties to the proceedings and on 
the Administrative Law Judge, exceptions to the initial decision and 
order or any part thereof.
    (ii) Transmittal of record and initial decision by Administrative 
Law Judge. Upon receipt of exceptions, the Administrative Law Judge must 
index and forward the record and the initial decision and order to the 
Administrative Review Board within three days of such receipt.
    (iii) Specificity required when filing exceptions. A party filing 
exceptions must specifically identify the finding or conclusion to which 
exception is taken.
    (iv) Reply. Within 45 days of the date of filing such exceptions, a 
reply, which must be limited to the scope of the exceptions, may be 
filed and served by any other party to the proceeding.
    (v) Requests for extensions. Requests for extensions for the filing 
of exceptions or replies must be received by the Administrative Review 
Board no later than 3 days before the exceptions or replies are due.
    (vi) Review by Administrative Review Board on its own motion. If no 
exceptions are filed, the Administrative Review Board may, within 30 
days of the expiration of the time for filing exceptions, on its own 
motion serve notice on the parties that it will review the decision.
    (vii) Final Decision and Order without review by Administrative 
Review Board. (A) Where exceptions have been filed, the initial decision 
and order of the Administrative Law Judge becomes the Final Decision and 
Order unless the Administrative Review Board, within 30 days of the 
expiration of the time for filing exceptions and replies, has notified 
the parties that the case is accepted for review.
    (B) Where exceptions have not been filed, the initial decision and 
order of the Administrative Law Judge becomes the Final Decision and 
Order unless the Administrative Review Board has served notice on the 
parties that it will review the decision, as provided in paragraph 
(b)(1)(vi) of this section.
    (viii) Final Decision and Order after review by Administrative 
Review Board. Any case reviewed by the Administrative Review Board under 
this paragraph must be decided within 180 days of the notification of 
such review. If the Administrative Review Board fails to issue a Final 
Decision and Order within the 180-day period, the initial

[[Page 615]]

decision and order of the Administrative Law Judge becomes the Final 
Decision and Order.
    (2) Final Decision where a hearing is waived. (i) If, after issuance 
of a Final Determination under Sec.  38.95 or Notification of Breach of 
Conciliation Agreement under Sec.  38.98, voluntary compliance has not 
been achieved within the time set by this part and the opportunity for a 
hearing has been waived as provided for in Sec.  38.111(b)(4), the Final 
Determination or Notification of Breach of Conciliation Agreement 
becomes the Final Decision.
    (ii) When a Final Determination or Notification of Breach of 
Conciliation Agreement becomes the Final Decision, the Administrative 
Review Board may, within 45 days, issue an order terminating or denying 
the grant or continuation of assistance; or imposing other appropriate 
sanctions for the grant applicant's, Governor's, or recipient's failure 
to comply with the required corrective and/or remedial actions, or the 
Secretary may refer the matter to the Attorney General for further 
enforcement action.
    (3) Final agency action. A Final Decision and Order issued under 
paragraph (b) of this section constitutes final agency action.



Sec.  38.113  Suspension, termination, withholding, denial, 
or discontinuation of financial assistance.

    Any action to suspend, terminate, deny or discontinue WIOA Title I 
financial assistance must be limited to the particular political entity, 
or part thereof, or other recipient (or grant applicant) as to which the 
finding has been made, and must be limited in its effect to the 
particular program, or part thereof, in which the noncompliance has been 
found. No order suspending, terminating, denying or discontinuing WIOA 
Title I financial assistance will become effective until:
    (a) The Director has issued a Final Determination under Sec.  38.95 
or Notification of Breach of Conciliation Agreement under Sec.  38.98;
    (b) There has been an express finding on the record, after 
opportunity for a hearing, of failure by the grant applicant or 
recipient to comply with a requirement imposed by or under the 
nondiscrimination and equal opportunity provisions of WIOA or this part;
    (c) A Final Decision has been issued by the Administrative Review 
Board, the Administrative Law Judge's decision and order has become the 
Final Agency Decision, or the Final Determination or Notification of 
Conciliation Agreement has been deemed the Final Agency Decision, under 
Sec.  38.112(b); and
    (d) The expiration of 30 days after the Secretary has filed, with 
the committees of Congress having legislative jurisdiction over the 
program involved, a full written report of the circumstances and grounds 
for such action.



Sec.  38.114  Distribution of WIOA Title I financial assistance 
to an alternate recipient.

    When the Department withholds funds from a recipient or grant 
applicant under these regulations, the Secretary may disburse the 
withheld funds directly to an alternate recipient. In such case, the 
Secretary will require any alternate recipient to demonstrate:
    (a) The ability to comply with these regulations; and
    (b) The ability to achieve the goals of the nondiscrimination and 
equal opportunity provisions of WIOA.



Sec.  38.115  Post-termination proceedings.

    (a) A grant applicant or recipient adversely affected by a Final 
Decision and Order issued under Sec.  38.112(b) will be restored, where 
appropriate, to full eligibility to receive WIOA Title I financial 
assistance if the grant applicant or recipient satisfies the terms and 
conditions of the Final Decision and Order and brings itself into 
compliance with the nondiscrimination and equal opportunity provisions 
of WIOA and this part.
    (b) A grant applicant or recipient adversely affected by a Final 
Decision and Order issued under Sec.  38.112(b) may at any time petition 
the Director to restore its eligibility to receive WIOA Title I 
financial assistance. A copy of the petition must be served on the 
parties to the original proceeding that led to the Final Decision and 
Order. The

[[Page 616]]

petition must be supported by information showing the actions taken by 
the grant applicant or recipient to bring itself into compliance. The 
grant applicant or recipient has the burden of demonstrating that it has 
satisfied the requirements of paragraph (a) of this section. While 
proceedings under this section are pending, sanctions imposed by the 
Final Decision and Order under Sec.  38.112(b)(1) and (2) must remain in 
effect.
    (c) The Director must issue a written decision on the petition for 
restoration.
    (1) If the Director determines that the grant applicant or recipient 
has not brought itself into compliance, the Director must issue a 
decision denying the petition.
    (2) Within 30 days of its receipt of the Director's decision, the 
recipient or grant applicant may file a petition for review of the 
decision by the Administrative Review Board, setting forth the grounds 
for its objection to the Director's decision.
    (3) The petition must be served on the Director and on the Office of 
the Solicitor, Civil Rights and Labor-Management Division.
    (4) The Director may file a response to the petition within 14 days.
    (5) The Administrative Review Board must issue the final agency 
decision denying or granting the recipient's or grant applicant's 
request for restoration to eligibility.



PART 42_COORDINATED ENFORCEMENT--Table of Contents



Sec.
42.1 General statement.
42.2 Purpose.
42.3 National Committee.
42.4 Structure of the National Committee.
42.5 Policy review.
42.6 Enforcement strategy.
42.7 Complaint/directed action logs.
42.8 Coordination plan.
42.9 Farm Labor Specialist (ESA).
42.10 Farm Labor contact persons and regional coordinators (OSHA).
42.20 Regional Farm Labor Coordinated Enforcement Committee.
42.21 Data collection.

    Authority: 29 U.S.C. 49, et seq.; 29 U.S.C. 201 et seq.; 29 U.S.C. 
651, et seq.; 29 U.S.C. 801, et seq.; 5 U.S.C. 301.

    Source: 45 FR 39489, June 10, 1980, unless otherwise noted.



Sec.  42.1  General statement.

    These regulations are promulgated by the Secretary of Labor to 
describe the coordination of the activities of the Employment Standards 
Administration, the Occupational Safety and Health Administration, and 
the Employment and Training Administration relating to migrant 
farmworkers.



Sec.  42.2  Purpose.

    (a) These regulations coordinate the activities of ESA, OSHA and 
ETA, and are intended to:
    (1) Ensure effective enforcement efforts under the protective 
statutes--i.e., the Farm Labor Contractor Registration Act (FLCRA), the 
Occupational Safety and Health Act (OSHA), and the Fair Labor Standards 
Act (FLSA) (protective statutes).
    (2) Ensure that the enforcement efforts of DOL agencies are 
coordinated to maximize their effectiveness, yet minimize unnecessary 
duplication.
    (3) Focus the attention of DOL agencies upon the special employment-
related problems faced by migrant farmworkers.
    (4) Coordinate DOL enforcement efforts with related activities of 
farmworker groups, federal and State agencies, and other concerned 
parties outside the Department of Labor whose operations are related to 
the employment, housing, and working conditions of migrant farmworkers.
    (5) Establish an information exchange which will afford the 
Department, farmworker groups, and other concerned parties outside the 
Department of Labor the opportunity to exchange information concerning 
wages, hours and working conditions.



Sec.  42.3  National Committee.

    A National Farm Labor Coordinated Enforcement Committee (National 
Committee) is hereby established which shall be responsible for: 
Reviewing policies, guidelines and enforcement goals and strategies for 
the Department of Labor with respect to migrant farm labor-related 
enforcement efforts

[[Page 617]]

under the protective statutes; resolving policies which are in conflict 
between DOL agencies; advising the Secretary on legislative initiatives 
which would strengthen farm labor-related enforcement efforts; and 
providing guidance and recommendations to DOL agencies on related 
enforcement activities.



Sec.  42.4  Structure of the National Committee.

    (a) The National Committee shall consist of the Under Secretary of 
Labor, the Solicitor of Labor, and the Assistant Secretaries for the 
Employment Standards Administration (ESA), the Occupational Safety and 
Health Administration (OSHA), and the Employment and Training 
Administration (ETA).
    (b) The Committee shall be headed by the Under Secretary, who shall 
assign to one of his/her Special Assistants the responsibility of 
directing the necessary staff work required by the Committee.
    (c) The National Committee shall meet on a quarterly basis to review 
the Department's responsibilities affecting migrant farmworkers, and at 
any other time as determined by the Under Secretary to be necessary to 
carry out the National Committee's responsibilities.
    (d) There shall be a National Committee staff level working group 
consisting of senior staff representatives from the Branch of Farm Labor 
Law Enforcement, the Wage and Hour Division, the U.S. Employment Service 
(the National MSFW Monitor Advocate), the Employment and Training 
Administration, the Office of Field Coordination and the Directorate of 
Federal Compliance and State Programs in the Occupational Safety and 
Health Administration, and the Office of the Solicitor.
    (e) The Special Assistant to the Under Secretary shall be the 
director of the staff level working group.
    (f) The staff level working group shall meet monthly or more 
frequently as requested by the director.
    (g) The director, or another member of the National Committee, shall 
attend the annual public meeting of each of the Regional Farm Labor 
Coordinating Committees.



Sec.  42.5  Policy review.

    (a) The National Committee shall review the policies of OSHA, ESA 
and the United States Employment Service (USES), and the Office of the 
Solicitor and shall guide the respective agencies in improving the 
effectiveness of and coordination among all DOL agencies assigned 
responsibilities related to migrant farmworkers. These policies and 
guidance shall include such issues as the following:
    (1) The coordination of inspections, including housing inspections, 
reports and procedures of DOL agencies and State agencies designated by 
the Department to follow-up on complaints under, and to detect promptly 
violations of, any of the protective statutes.
    (2) The expedited enforcement and legal procedures to accommodate 
the transient and seasonal nature of migrant farmworker's problems.
    (3) The development of systems for prompt and efficient referral to 
the appropriate federal or State agency of violations or complaints 
discovered by or reported to DOL agencies or appropriate State agencies, 
along with prompt and efficient follow-up action by the appropriate 
agency from the initiation of the investigation through final 
enforcement action.
    (4) The training of all appropriate DOL personnel in order to ensure 
coordinated and effective enforcement.
    (5) The level of enforcement achieved by the remedies or sanctions 
used by DOL agencies to enforce the protective statutes.
    (6) The effectiveness of the Specialists Program and the Regional 
Farm Labor Coordinated Enforcement Committees.



Sec.  42.6  Enforcement strategy.

    (a) Each Regional Farm Labor Coordinated Enforcement Committee shall 
annually prepare, on a regional basis, a migrant farm labor enforcement 
strategy for each protective statute pursuant to Sec.  42.20(c)(3). The 
National Committee shall review these regional strategies and make 
recommendations to the appropriate DOL agencies. In reviewing the 
enforcement strategies, the Committee shall pay particular attention to:

[[Page 618]]

    (1) The priorities set for the investigation and enforcement 
activities of compliance officers.
    (2) Available data on the past and current levels of enforcement of 
the protective statutes in the region, including the data collected 
pursuant to Sec.  42.21, infra.
    (3) The level of attention given to directed activity as 
distinguished from complaint-initiated compliance activities.
    (4) The capability of the agency to respond quickly and thoroughly 
under the strategy to emergencies involving violations of any of the 
protective statutes.
    (5) The level of priority given by the Office of the Solicitor to 
farm labor-related enforcement activities under the respective 
protective statutes.
    (6) The ability of agencies to respond quickly and effectively to 
resolve complaints.
    (7) The extent to which agencies follow through with appropriate 
remedies and sanctions.
    (8) The degree to which agencies coordinate and cooperate on a local 
and regional level.
    (9) Other activities of DOL agencies related to migrant farmworker 
enforcement.



Sec.  42.7  Complaint/directed action logs.

    (a) To facilitate the Committee's review of all migrant farmworker 
complaints, including pre and post occupancy housing inspections and the 
enforcement strategies of DOL agencies, the Committee shall oversee the 
operation of a system of coordinated Complaint/Directed Action Logs 
(logs). The logs shall be maintained by each DOL agency and appropriate 
SESA and OSHA State agencies.
    (b) The logs shall record both the numbers of compliance actions 
initiated as a result of complaints and those initiated on the basis of 
directed activity. They shall also include a statistical record of all 
original referrals both from and to other DOL agencies or federal or 
State authorities.
    (1) Whenever a complaint is received and/or an investigation is 
completed by an agency, the appropriate official of that agency shall 
enter the matter on the log.
    (2) Wherever possible, the responsible agency, upon request, shall 
inform the complainant of the status of the actions pending, and shall 
inform, when applicable, the referring agency.
    (3) ESA, OSHA, USES, and the Office of the Solicitor shall be 
responsible for preparing the quarterly statistical summary by regions 
of the respective agency's compliance activity. This summary shall 
include all complaints and compliance actions which
    (i) Were pursued to completion by the subagency during the reporting 
period or
    (ii) Were received during the reporting period or earlier, and are 
pending. Each agency also shall report a summary of aging and resource 
allocation data. The summary shall be submitted to the National 
Committee and the appropriate Regional Committee.
    (c) The National Committee staff shall analyze the statistical 
summaries and shall recommend National or Regional Committee action 
where problems or short-comings are identified. Pursuant to this review, 
the National Committee shall take steps to ensure that the responsible 
agencies make timely responses to complaints and conduct vigorous 
enforcement action.



Sec.  42.8  Coordination plan.

    (a) Based upon, among other things, the regional enforcement 
strategies submitted under Sec.  42.6, the National Committee shall 
develop an annual coordination plan concerning farm labor-related 
responsibilities of the Department, including migrant housing 
inspections, the referral of complaints, enforcement action on 
violations of federal or State employment-related laws subject to the 
jurisdiction of DOL, or regulations administered by DOL or appropriate 
State agencies, and assistance to stranded migrant farmworkers.
    (b) The coordination plan shall describe the present program 
responsibilities of ESA for enforcement in the farm labor area of the 
Fair Labor Standards Act, and the Farm Labor Contractor Registration 
Act. The plan shall include a statistical summary of the prior-year 
complaints under, and alleged violations of, FLSA and FLCRA as recorded 
in the logs of the ESA Wage and Hour Regional and Area

[[Page 619]]

Offices, and shall set forth general goals and objectives for FLSA and 
FLCRA enforcement activities for the following year as established by 
ESA.
    (c) The coordination plan shall describe the present program 
responsibilities of OSHA for protecting the safety and health of migrant 
farmworkers. The plan shall include a statistical summary of prior-year 
complaints under, and alleged violations of, OSHA recorded in the logs 
of the OSHA State and area offices, and shall provide general goals for 
OSHA enforcement activities for the following year as established by 
OSHA.
    (d) The plan shall include a review of the procedures developed by 
ETA to handle emergency situations, such as the stranding or 
displacement of migrants, and shall provide general goals for USES 
activities for the following year.



Sec.  42.9  Farm Labor Specialist (ESA).

    (a) The Assistant Secretary for ESA shall designate ESA Compliance 
Officers as Farm Labor Specialists (Specialists). The Specialists shall 
be assigned to area offices, or field stations under area offices, with 
significant numbers of agricultural worker activity as designated by 
ESA. These Specialists shall coordinate FLCRA and FLSA activities in 
agricultural employment and shall be responsible for:
    (1) Conducting FLCRA/FLSA farm labor investigations;
    (2) Serving as staff advisors and consultants to regional and area 
officials on FLCRA and FLSA;
    (3) Coordinating FLCRA and FLSA activities with appropriate OSHA and 
USES activities;
    (4) Directing special migrant farmworker enforcement activities;
    (5) Monitoring the farm labor-related activities of significant crew 
leaders and growers in the area to ascertain that those against whom ESA 
has taken enforcement action are operating in compliance with FLCRA and 
FLSA;
    (6) Conducting technical assistance and public information programs 
regarding FLCRA and FLSA;
    (7) Coordinating of referrals to and from other federal and State 
agencies with farm labor responsibilities, such as OSHA and USES;
    (8) Advising regularly the Regional Committee on actual farm labor 
working conditions in their areas and otherwise participating in 
regional coordination activities as directed by the Regional Committee; 
and
    (9) Providing specialized training on FLCRA and FLSA as may be 
requried.



Sec.  42.10  Farm labor contact persons and regional coordinators (OSHA).

    (a) OSHA Area Directors shall be responsible for ensuring that: (1) 
Migrant farmworker complaints and referrals are evaluated, and 
appropriate action is taken; and (2) migrant farmworker camp inspections 
are scheduled promptly.
    (b) OSHA Area Directors shall designate OSHA compliance officers to 
serve in the capacity of Farm Labor Contact Persons. These Farm Labor 
Contact Persons shall be trained in enforcement of the Occupational 
Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. 651 et seq.) and 
all OSHA standards affecting migrant farmworkers. These Farm Labor 
Contact Persons shall be designated in OSHA area offices with 
responsibility for conducting a significant number of migrant farmworker 
camp inspections.
    (c) The OSHA Area Directors shall assign the Farm Labor Contact 
Person to:
    (1) Conduct migrant farmworker camp inspections during periods when 
migrant housing facilities are occupied, or when it is reasonably 
predictable the facilities will imminently be occupied;
    (2) Serve as a technical advisor on migrant farmworker-related 
matters;
    (3) Train other compliance officers to conduct migrant farmworker 
camp inspections; and
    (4) Perform other OSHA duties, including duties not related to 
migrant farmworker OSHA enforcement.
    (d) Regional Administrators for OSHA shall designate a Farm Labor 
Regional Coordinator to coordinate migrant farmworker activities. The 
Farm Labor Regional Coordinators shall:

[[Page 620]]

    (1) Coordinate all migrant farmworker related activity within the 
Region's jurisdiction, i.e., enforcement, training, and public 
information;
    (2) Serve as representatives of the OSHA Regional Administrators on 
the Regional Farm Labor Coordinated Enforcement Committee's staff level 
work group; and
    (3) Perform other OSHA duties.
    (e) OSHA shall request State designees of States having approved 
occupational safety and health plans and responsibility for conducting a 
significant number of migrant farmworker camp inspections to appoint a 
State Farm Labor Coordinator. The State Farm Labor Coordinator shall:
    (1) Coordinate State OSHA migrant farmworker camp inspections and 
other migrant farmworker enforcement activities consistent with the 
objectives of this section; and
    (2) Represent the State on the Regional Farm Labor Coordinating 
Committee's staff level working group.



Sec.  42.20  Regional Farm Labor Coordinated Enforcement Committee.

    (a) Under the leadership of the ESA Regional Administrator, each 
region shall establish a Regional Farm Labor Coordinated Enforcement 
Committee (Regional Committee), including representatives of ESA, OSHA, 
ETA (the Regional MSFW Monitor Advocate), and the Office of the Regional 
Solicitor.
    (b) The Regional Committee shall be headed by the Regional 
Administrator of ESA.
    (c) The Regional Committee shall:
    (1) Meet regularly on at least a quarterly basis;
    (2) Exchange information on enforcement activities, including 
complaint/directed action logs developed by the DOL subagencies;
    (3) Develop a written coordinated enforcement strategy specifying 
for the region all information which the Regional Committee believes 
will be helpful to the National Committee in formulating the annual 
coordination plan. This strategy shall include at a minimum all 
information called for by Sec.  42.8 for the region, taking into account 
particular conditions in the region (e.g., the seasonality of the farm 
labor population). Once it is reviewed by the National Committee and 
appropriately revised, the regional offices of ESA, ETA, and OSHA shall 
follow the enforcement strategy for the year, with revisions as needed 
by changing circumstances during the year. The National Committee shall 
be advised of any such revisions;
    (4) Maintain contacts with State agencies, farm labor groups, 
growers, and other interested parties; and
    (5) Coordinate cross-training of enforcement personnel within the 
region.
    (d) There shall be a regional committee staff level working group in 
each region consisting of regional staff representatives from ESA, ETA, 
OSHA, the Office of the Regional Solicitor, and OSHA State Farm Labor 
Coordinators within that region. This working group shall meet at least 
monthly.
    (e) The designated Farm Labor Specialist (ESA), Farm Labor Regional 
Coordinators (OSHA), and MSFW Monitor Advocates (USES) in each region 
shall be available to provide staff support to the Regional Committees.
    (f) To facilitate coordination with farm labor groups and growers in 
each region, the respective Regional Committee shall hold an annual 
public meeting, transcribe or recorded at the option of the Regional 
Committee, which shall be:
    (1) Publicized to all appropriate migrant farmworker and grower 
associations in the region;
    (2) Conducted by the director of the Regional Committee with other 
DOL agency representatives participating as necessary; and
    (3) Opened to all members of the public.
    (g) The Regional Committee shall conduct and cooperate with the 
National Committee in order to develop, implement and ensure the uniform 
and effective application of coordinated enforcement efforts.



Sec.  42.21  Data collection.

    (a) For each protective statute, ESA, OSHA, and the Office of the 
Solicitor (SOL) shall regularly collect statistical data reflecting 
their enforcement efforts on a regional and national basis and shall 
submit such data quarterly

[[Page 621]]

to the National and Regional Committees. Fourth quarter data shall be 
accompanied by annual summaries. These submissions shall include at 
least the data items specified in this section. The data collected will 
provide a basis for coordination of enforcement of the protection 
statutes.
    (b) The statistical data submitted by ESA on FLCRA enforcement shall 
include: (1) Total compliance actions covered by the Act, showing total 
farm labor contractor (FLC) actions, total farm labor contractor 
employee (FLCE) actions, total User actions, total concurrent FLSA 
actions, and total actions with noncompliance; (2) total types of 
assignments (JS complaint, other complaint, employers of undocumented 
workers); (3) total types of compliance actions (conciliation, full 
investigation, follow-up investigation, other); (4) total compliance 
hours expended; (5) total crew workers affected; (6) total violations by 
categories and type of violation (FLC, FLCE, User); (7) total compliance 
actions in which civil money penalties (CMPs) are assessed and total 
amount assessed; (8) total compliance actions in which CMPs are 
collected and total amount collected.
    (c) The Wage-Hour Division shall submit the following statistical 
data on FLSA enforcement with respect to employees working within the 
categories of Agriculture, Agricultural Products, and Agricultural 
Services, etc., and various subcategories of each of these three major 
categories: (1) Total number of completed investigations; (2) total 
hours spent in conducting investigations; (3) number of employees found 
underpaid (total, under minimum wage provisions, under overtime 
provisions); (4) amount of underpayment found (total, under minimum wage 
provisions, under overtime provisions); (5) total number of employees to 
whom income was restored; and (6) total amount of money restored.
    (d) OSHA's migrant farmworker enforcement statistical data shall be 
submitted for each region on a state-by-state basis, including OSHA 
State Plan States, and shall include: (1) Number of complaints received 
and number of inspections conducted in response; (2) number of referrals 
received and number of inspections conducted in response; (3) number of 
programmed or directed inspections, (4) number of violations found by 
type of violation (serious, willful, repeat and other than serious); (5) 
total number of employees affected by inspections; (6) approximate total 
hours spent on migrant camp inspections; (7) number of inspections for 
which penalties were proposed and amount proposed; (8) number of 
inspections for which penalties were collected and amount collected.
    (e) The SOL shall submit statistical data on farm labor-related 
enforcement efforts under each protective statute which shall include: 
(1) Total cases received by SOL; (2) actions taken on cases (settled, 
referred to ALJ, civil actions filed, referrals to U.S. Attorney); and 
(3) results of cases (including injunctions and license revocations and 
denials).
    (f) Complaint Response Data--ESA and OSHA shall submit annually a 
summary of aging data for their respective migrant farmworker-related 
activities under FLCRA, FLSA and OSHA respectively, showing aging from 
receipt of a complaint or completion of an investigation until referral 
to SOL or other final action by the enforcement agency. The Office of 
the Solicitor shall submit similar data showing aging of matters between 
receipt by SOL of a case and the completion of some responsive action on 
the case. Where available, OSHA shall submit data showing the average 
length of time between receipt of a complaint and the completion of the 
action taken in response to the complaint. Where available, ESA shall 
submit data showing complaints received, complaints on hand, and number 
of actions completed based on complaints.
    (g) The National Committee shall review the data collection systems 
of ESA, OSHA and SOL, as they pertain to farm labor enforcement, and 
recommend any necessary changes to the sub agencies.

[[Page 622]]



PART 44_PROCESS FOR ELECTING STATE AGENCY EMPLOYMENT STATISTICS 
REPRESENTATIVES FOR CONSULTATIONS WITH DEPARTMENT OF LABOR--Table of Contents



Sec.
44.1 Purpose and scope.
44.2 Election cycle and tenure of representatives.
44.3 Election process.

    Authority: 5 U.S.C. 301; 20 U.S.C. 9276(c); 29 U.S.C. 49 1-2.

    Source: 65 FR 7195, Feb. 11, 2000, unless otherwise noted.



Sec.  44.1  Purpose and scope.

    This part contains the regulations of the U.S. Department of Labor 
establishing a process for the election of representatives of the States 
to participate in formal consultations with the Department of Labor for 
purposes of the development of an annual employment statistics plan and 
to address other employment statistics issues. The representatives are 
to be elected by and from the State employment statistics directors 
affiliated with the State agencies designated to carry out the 
employment statistics responsibilities under the revised section 15 of 
the Wagner-Peyser Act (29 U.S.C. 49 1-2), as amended by section 309 of 
the Workforce Investment Act of 1998. The revised section 15(d)(2) of 
the Wagner-Peyser Act requires the Secretary to establish a process for 
the election of such representatives from each of the 10 Federal regions 
of the Department of Labor.



Sec.  44.2  Election cycle and tenure of representatives.

    (a) Election cycle. The States located within each Federal region, 
as defined in this paragraph, shall elect one representative in 
accordance with the procedures specified in this part. The initial 
election for representatives of the States from all 10 Federal regions 
will be held not later than February 17, 1999. For purposes of this 
section, the Federal regions shall be the Standard Federal regions 
identified in former OMB Circular A-105 (issued April 4, 1974). This 
former Circular is available through the Office of the Commissioner of 
Labor Statistics, telephone number (202) 691-7808. For the 
representatives elected from the Federal regions II, IV, VII, VIII, and 
X, the initial term shall terminate on January 1, 2000. Subsequent 
elections for representatives from such regions shall be held in the 
last quarter of 1999 and thereafter biennially within the last calendar 
quarter of the year. For the representatives from the Federal regions I, 
III, V, VI, and IX, the initial term shall terminate on January 1, 2001. 
Subsequent elections for representatives from such regions shall be held 
within the last calendar quarter of 2000 and thereafter, biennially 
within the last calendar quarter of the year. After the initial 
election, the terms of all representatives shall terminate on January 1 
of the third calendar year after the preceding scheduled election.
    (b) Tenure. The terms of the representatives elected in the first 
election shall commence upon election. The terms of representatives 
elected in subsequent elections shall commence January 1 of the year 
following the scheduled election. Representatives may serve for an 
unlimited number of terms.



Sec.  44.3  Election process.

    (a) Process. The Commissioner of Labor Statistics of the U.S. 
Department of Labor (hereafter referred to as ``the Commissioner'') or 
his or her designee shall conduct the elections. The Commissioner shall 
provide a ballot containing the names of the employment statistics 
directors in the appropriate region to the employment statistics 
director in each State who is affiliated with the State agency 
designated pursuant to section 15(e) of the Wagner-Peyser Act. If a 
State has not designated an agency, or has not provided the name of the 
employment statistics director to the Commissioner, the State shall not 
participate in the election process. Each director may vote for one 
director to be the regional representative. The Commissioner shall 
prescribe a time limit that will not be less than one week for the 
directors to mark and return the ballots. Only votes received by the 
Commissioner within the prescribed time limit will be counted. The 
Commissioner will

[[Page 623]]

tally the votes from the ballots received within the prescribed time 
limit and the director receiving the most votes in the region will be 
the representative for that region. If there is a tie after the first 
round of votes are counted, the Commissioner shall conduct additional 
rounds of voting using a ballot containing the names of the directors 
who tied with the most votes in the previous round until a 
representative is elected. The Commissioner will prescribe a time limit 
of not less than one week for each additional round of voting and will 
tally the votes received within the prescribed time limit. The director 
with the most votes will be the representative.
    (b) Method of transmission. The Commissioner may distribute the 
ballots relating to the election under this part by electronic mail or 
other methods the Commissioner determines to be appropriate and may 
specify the methods through which votes are to be cast.
    (c) Vacancies. If a representative does not complete the term, the 
Commissioner shall conduct an election to elect a replacement for the 
remainder of the term using the procedures described in paragraph (a) 
and (b) of this section.



PART 70_PRODUCTION OR DISCLOSURE OF INFORMATION OR MATERIALS--
Table of Contents



                            Subpart A_General

Sec.
70.1 General provisions.
70.2 Definitions.
70.3 Presumption of openness.
70.4 Proactive disclosure of Departmental records.
70.5 Compilation of new records.
70.6 Disclosure of originals.
70.7-70.18 [Reserved]

  Subpart B_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

70.19 Requirements for making a request.
70.20 Responsibility for responding to requests.
70.21 Responses to requests.
70.22 Appeals from denial of requests.
70.23 Action on appeals.
70.24 Form and content of action on appeals.
70.25 Time limits and order in which requests and appeals must be 
          processed.
70.26 Confidential commercial information.
70.27 Preservation of records.
70.28-70.37 [Reserved]

                Subpart C_Costs for Production of Records

70.38 Definitions related to costs.
70.39 Statutes specifically providing for setting of fees.
70.40 Charges assessed for the production of records.
70.41 Waiver or reduction of fees.
70.42 Consent to pay fees.
70.43 Payment of fees.
70.44 Other rights and services.
70.45-70.52 [Reserved]

                  Subpart D_Public Records and Filings

70.53 Office of Labor-Management Standards.
70.54 Employee Benefits Security Administration.

Appendix A to Part 70--FOIA Components
Appendix B to Part 70 [Reserved]

    Authority: 5 U.S.C. 301; 29 U.S.C. 551 et seq.; 5 U.S.C. 552, as 
amended; Reorganization Plan No. 6 of 1950, 5 U.S.C. Appendix, 29 U.S.C. 
1026 (106), 5 U.S.C. app. 11., Executive Order. 12,600, 52 FR 23781, 3 
CFR, 1988 Comp., p. 235. This part also implements the public 
information provisions of the Labor-Management Reporting and Disclosure 
Act (LMRDA), 29 U.S.C. 435, see Sec.  70.53 below; the Employee 
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1026 (106), 
see Sec.  70.54 below; and the Federal Advisory Committee Act (FACA), 5 
U.S.C. app. 11, see Sec.  70.40(i) below.

    Source: 82 FR 7671, Jan. 24, 2017, unless otherwise noted.



                            Subpart A_General



Sec.  70.1  General provisions.

    (a) This part is organized as follows: Subpart A contains general 
information about Department of Labor policies and procedures; subpart B 
sets forth the procedures for obtaining access to records of the 
Department; subpart C contains the Department's regulations on fees; and 
subpart D sets forth the procedures for obtaining access to certain 
public records. Appendix A contains a list of all Department of Labor 
FOIA components from which records may be obtained.
    (b) This part contains the rules that the Department of Labor 
follows in

[[Page 624]]

processing requests for records under the Freedom of Information Act 
(FOIA), as amended, 5 U.S.C. 552. The rules in this part should be read 
together with the text of the FOIA, which provides additional 
information about access to records maintained by the Department. 
Additionally, the Department's ``Guide to Submitting Requests under the 
FOIA'' and related documents contain helpful information about the 
specific procedures particular to the Department with respect to making 
FOIA requests, and descriptions of the types of records maintained by 
different components of the Department. These references are available 
at http://www.dol.gov/dol/foia/guide6.html.
    (c) Requests made by individuals for records about themselves under 
the Privacy Act of 1974, 5 U.S.C. 552a, are processed under 29 CFR part 
71 as well as under this part. Information routinely provided to the 
public as part of a regular Department activity (for example, press 
releases issued by the Office of Public Affairs (OPA)) may be provided 
to the public without following this subpart.
    (d) As set forth in Sec.  70.3 of this part, the Department operates 
its FOIA program with a presumption of openness and withholds records or 
information under the FOIA only when the Department reasonably foresees 
that disclosure would harm an interest protected by a FOIA exemption or 
when disclosure is prohibited by law.
    (e) The Department has a decentralized system for processing 
requests, with each component handling requests for its own records. 
Each component has a FOIA Customer Service Center that can assist 
individuals in locating records and address questions regarding pending 
FOIA requests. A list of the Department's Customer Service Centers is 
available at http://www.dol.gov/dol/foia/RequestorServiceCenters.htm.
    (f) The Secretary has designated a Chief FOIA Officer for the 
Department. Contact information for the Chief FOIA Officer is available 
on the Department's FOIA Web site, http://www.dol.gov/dol/foia/. The 
Office of Information Services (OIS), which is located within the Office 
of the Solicitor, provides Department level guidance and oversight for 
the Department's FOIA program and supports the statutorily-based 
responsibilities of the DOL Chief FOIA Officer.
    (g) The Department has a designated FOIA Public Liaison who can 
assist individuals in locating records of a particular component and 
with resolving issues relating to the processing of a pending FOIA 
request. Information concerning the DOL FOIA Public Liaison is available 
at http://www.dol.gov/sol/foia/liaison.htm. The DOL FOIA Public Liaison 
is responsible for assisting in reducing delays in FOIA processing, 
increasing transparency and understanding, providing information 
concerning the status of requests, and assisting in the resolution of 
disputes.



Sec.  70.2  Definitions.

    As used in this part:
    (a) The terms agency, person, party, rule, order, and adjudication 
have the meaning attributed to these terms by the definitions in 5 
U.S.C. 551.
    (b) Confidential commercial information means commercial or 
financial information received or obtained by the Department from a 
submitter, directly or indirectly, that arguably may be protected from 
disclosure under Exemption 4 of the FOIA.
    (c) The Department means the Department of Labor.
    (d) FOIA Component means an official component of the Department 
that has authority to disclose or withhold records under the FOIA and to 
which requests to inspect or copy records in its custody should be 
addressed. Department of Labor components are listed in Appendix A to 
this part.
    (e) Record means any information that would be an agency record 
subject to the requirements of this part when maintained by an agency in 
any format, including an electronic format, and any information 
described under this part that is maintained for an agency by an entity 
under Government contract, for the purposes of records management.
    (f) Request means any written request for records made pursuant to 5 
U.S.C. 552(a)(3) and which meets the requirements of this part.

[[Page 625]]

    (g) Requester means any person who makes a request.
    (h) Search means to look for, manually or by automated means, 
Department records for the purpose of locating them in response to a 
pending request.
    (i) The Secretary means the Secretary of Labor.
    (j) Submitter means any person or entity from whom the Department 
receives or obtains confidential commercial or financial information, 
directly or indirectly. The term submitter includes, but is not limited 
to, corporations, labor organizations, non-profit organizations, and 
local, state, and tribal and foreign governments.
    (k) Unusual circumstances means, to the extent reasonably necessary 
for the proper processing of a FOIA request:
    (1) The need to search for and collect the requested records from 
physically separate facilities;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are demanded in 
a single request; or
    (3) The need for consultation, which will be conducted with all 
practicable speed, with another agency or among two or more components 
of the Department having a substantial interest in the determination of 
the request.



Sec.  70.3  Presumption of openness.

    All agency records, except those exempt from mandatory disclosure by 
one or more provisions of 5 U.S.C. 552(b) or the law enforcement 
exclusions in 5 U.S.C. 552(c), will be made promptly available to any 
person submitting a written request in accordance with the procedures of 
this part. The Department will withhold records under the FOIA only when 
the Department reasonably foresees that disclosure would harm an 
interest protected by a FOIA exemption or is prohibited by law. Whenever 
the Department determines that full disclosure of a requested record is 
not possible, the Department will consider whether partial disclosure is 
possible and will take reasonable steps to segregate and release 
nonexempt material. As set forth in Sec. 70.4, the Department 
proactively identifies and discloses records of interest to the public.



Sec.  70.4  Proactive disclosure of Departmental records.

    Records that are required by the FOIA, 5 U.S.C. 552(a)(2), to be 
made available for public inspection in an electronic format may be 
accessed through the Department's Web site. Each component is 
responsible for determining which of its records are required to be made 
publicly available, as well as identifying additional records of 
interest to the public that are appropriate for public disclosure, and 
for posting and indexing such records. Each component must review and 
update its Web site of posted records and indices on an ongoing basis.



Sec.  70.5  Compilation of new records.

    Nothing in 5 U.S.C. 552 or this part requires that any agency or 
component create a new record in order to respond to a request for 
records. A component must, however, make reasonable efforts to search 
for records that already exist in electronic form or format, except when 
such efforts would significantly interfere with the operation of the 
component's automated information systems. The component will determine 
what constitutes a reasonable effort on a case-by-case basis.



Sec.  70.6  Disclosure of originals.

    (a) No original record or file in the custody of the Department of 
Labor, or of any component or official thereof, will on any occasion be 
given to any agent, attorney, or other person not officially connected 
with the Department without the written consent of the Secretary, the 
Solicitor of Labor or the Inspector General.
    (b) The individual authorizing the release of the original record or 
file must ensure that a copy of the document or file is retained in the 
component that had custody and/or control when an original document or 
file is released pursuant to this subpart.

[[Page 626]]



Sec. Sec.  70.7-70.18  [Reserved]



  Subpart B_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act



Sec.  70.19  Requirements for making a request.

    (a) General information. The Department of Labor has a decentralized 
system for responding to requests submitted under the FOIA, as explained 
in Sec.  70.1 of this part. In addition to processing requests for its 
own records, each agency component has the ability to receive FOIA 
requests in writing by mail, delivery service/courier or facsimile at 
its designated mailing address. However, to enable proper handling, any 
FOIA request submitted electronically, by email, must be submitted to 
the Department's central FOIA mailbox at [email protected]. FOIA 
requests sent electronically to any other email address will not be 
accepted. A FOIA request submitted via email should designate the 
component or components to which the requester is submitting his/her 
request. The Department's central FOIA mailbox is regularly monitored, 
and requests will be assigned to the appropriate DOL FOIA component.
    (b) Request for records. To make a request for records of the 
Department, whenever possible, a requester should write directly to the 
FOIA office of the component that maintains the records sought or, if 
emailing a request to the DOL central FOIA mailbox, should identify the 
component(s) to which the request is directed. Submitting the request 
directly to the FOIA office of the component that maintains the records 
sought, or identifying that component when sending a FOIA request via 
email, will facilitate the quickest response. The requester must provide 
a mailing address to receive correspondence, and it may facilitate 
processing if telephone and email contact information are provided.
    (1) The Department's components for the purposes of the FOIA are 
listed in Appendix A to this part. The function and mailing address of 
each Department of Labor component is available on the Department's FOIA 
Web site at http://www.dol.gov/dol.foia. This page also provides other 
information that is helpful in determining where to make a request.
    (2) Requesters who cannot determine the proper FOIA office component 
or who are requesting records from multiple components may also send 
requests to the Office of the Solicitor, Office of Information Services, 
200 Constitution Avenue NW., Room N-2420, Washington, DC 20210 or by 
email to [email protected].
    (3) Pursuant to Sec.  70.25(a), if a requester submits a FOIA 
request to the incorrect DOL FOIA component, or sends a request to the 
Department's central FOIA office or mailbox without identifying the 
component(s) to which the request is submitted, the time to respond 
begins to run when the request is received by the proper component, but 
no later than 10 working days after receipt in any component identified 
in Appendix A or in the Office of Information Services.
    (c) Description of records sought. Requesters must describe the 
record or records sought in sufficient detail to enable Department 
personnel to locate them with a reasonable amount of effort. To the 
extent possible, the request should provide enough identifying 
information to help the component identify the requested records, such 
as the subject of the record, the date or approximate date when the 
record was created, the record's title or name, case or file number, 
reference number, the person or office or the office location that 
created it, and any other pertinent identifying details. Prior to 
submitting the request, a requester may wish to consult the references 
provided in Sec.  70.1 of this part, the relevant FOIA Requester Service 
Center or the FOIA Public Liaison to discuss the records they are 
seeking and to receive assistance on how to describe the records.
    (d) Deficient descriptions and revised requests. If the description 
is insufficient, so that a knowledgeable employee who is familiar with 
the subject area of the request cannot identify the record with a 
reasonable amount of effort, the component processing the request will 
notify the requester and describe what additional information is needed 
to process the request.

[[Page 627]]

    (1) Requesters who are attempting to modify or reformulate their 
requests may discuss their requests with the component's designated FOIA 
contact, the FOIA Public Liaison, or a representative of OIS, each of 
whom is available to assist the requester in reasonably describing the 
records sought. Every reasonable effort will be made to assist a 
requester in the identification and location of the records sought. If 
the requester fails to reasonably describe the records sought, the 
agency's response to the request may be delayed.
    (2) Any amended request must be confirmed in writing and meet the 
requirements for a request under this part.
    (3) While an agency component awaits a requester's modified FOIA 
request, the processing time limits described in Sec.  70.25(a)(1) will 
be tolled (that is, the processing time clock will be stopped on one 
occasion only) until clarification is received from the requester.



Sec.  70.20  Responsibility for responding to requests.

    (a) In general. Except in the instances stated in paragraph (d) of 
this section, the component that first receives a request for a record 
and maintains that record is the component responsible for responding to 
the request. In determining which records are responsive to a request, a 
component ordinarily will include only records in its possession as of 
the date that the component begins the search; if any other date is 
used, the component will inform the requester of that date. A record 
that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 
552(c), is not considered responsive to a request. When it is determined 
that records responsive to a request may be located in multiple 
components of the Department, the Office of Information Services may 
coordinate the Department's response. If the Office of Information 
Services deems a consolidated response appropriate, it will issue such a 
response on behalf of the Department.
    (b) Authority to grant or deny requests. Pursuant to relevant 
exemptions under 5 U.S.C. 552(b) or an exclusion under 5 U.S.C. 552(c), 
the head of a component, or designee, is authorized to grant or to deny 
any requests for records that are maintained by that component.
    (c) Re-routing of misdirected requests. Where a component's FOIA 
office determines that a request was misdirected within the Department, 
the receiving component's FOIA office will work with OIS to facilitate 
the routing of the request to the FOIA office of the proper 
component(s).
    (d) Consultations and referrals. When a component is reviewing 
records in response to a request, it will determine if another component 
of the Department, or of the Federal Government, is better able to 
determine whether the record can be disclosed or is exempt from 
disclosure under the FOIA. If the receiving component determines that it 
is not best able to process the record, then the receiving component 
will either:
    (1) Respond to the request after consulting with the component or 
agency best able to determine whether to disclose the record and with 
any other component or agency that has a substantial interest in the 
record; or
    (2) Refer the responsibility for responding to the request regarding 
that record to the component best able to determine whether to disclose 
it, or to another agency that originated the record (but only if that 
entity is subject to the FOIA). Ordinarily, the component or agency that 
originated the record will be presumed to be best able to determine 
whether to disclose it.
    (e) Notice of referral. Whenever a component refers all or any part 
of the responsibility for responding to a request to another component 
or agency, the component will notify the requester of the referral and 
inform the requester of the name of each component or agency to which 
the request has been referred and provide contact information for that 
component or agency.
    (f) Classified records. Any request for classified records which are 
in the custody of the Department of Labor will be referred to the 
classifying agency under paragraphs (d) and (e) of this section.



Sec.  70.21  Responses to requests.

    (a) In general. Components should, to the extent practicable, 
communicate

[[Page 628]]

with requesters using the method that is most likely to increase the 
speed and efficiency of the communication, including by electronic 
means, such as by email.
    (b) Acknowledgements of requests. A component will acknowledge each 
new request and assign it an individualized tracking number. Components 
will include in the acknowledgment a brief description of the records 
sought to allow the requesters to more easily keep track of their 
requests.
    (c) Granting a request. After a component makes a determination to 
grant a request in full or in part, the component will notify the 
requester in writing. The component will provide the record in the form 
or format requested if the record is readily reproducible in that form 
or format, provided the requester has agreed to pay and/or has paid any 
fees required by subpart C of this part. The component will determine on 
a case-by-case basis what constitutes a readily reproducible format. 
Each component should make reasonable efforts to maintain its records in 
commonly reproducible forms or formats. The component must notify the 
requester of the right to seek assistance from the Department's FOIA 
Public Liaison.
    (d) Adverse determinations of requests. A component making an 
adverse determination denying a request in any respect must notify the 
requester in writing. Adverse determinations, or denials of requests, 
include decisions that: The requested record is exempt, in whole or in 
part, from release pursuant to one or more exemptions under the FOIA, 5 
U.S.C. 552; 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 producible in the form 
or format sought by the requester. Adverse determinations also include 
denials involving fees or fee waiver matters or denials for requests for 
expedited processing.
    (e) Content of the denial. The denial notice must be signed by the 
component agency head or a designee and will include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reason or reasons for the denial, 
including any FOIA exemption or exemptions applied or procedural reasons 
relied upon by the component in denying the request;
    (3) An estimate of the volume of records or information withheld, in 
number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through deletions on records disclosed in part, or if 
providing an estimate would harm an interest protected by the exemption 
under which the deletion was made;
    (4) A statement that the denial may be appealed as described under 
Sec. 70.22; and
    (5) A statement notifying the requester of the right to seek dispute 
resolution services from the Department's FOIA Public Liaison or the 
Office of Government Information Services (within the National Archives 
and Records Administration). Engaging in dispute resolution services 
provided by OGIS is a voluntary process. If the Department agrees to 
participate in the mediation services provided by OGIS, it will actively 
engage as a partner to the process in an attempt to resolve the dispute.
    (f) Markings on released documents. Markings on released documents 
must be clearly visible to the requester. Records disclosed in part 
shall be marked to show the amount of information deleted and the 
exemption(s) under which the deletion was made unless doing so would 
harm an interest protected by an applicable exemption. The location of 
the information deleted shall also be indicated on the records, if 
technically feasible.



Sec.  70.22  Appeals from denial of requests.

    (a) A requester may appeal to the Solicitor of Labor from any 
adverse determination, including but not limited to when one or more of 
the following has occurred: A request for access to records has been 
denied in whole or in part; a requester disputes a determination that 
records cannot be located or

[[Page 629]]

have been destroyed; a requester disputes a determination by a component 
concerning the assessment or waiver of fees; a requester disputes the 
denial of a request for expedited processing; or a component fails to 
respond to a request within the time limits set forth in the FOIA and 
referenced in 70.25(a). The appeal must be filed within 90 days of the 
date of the action being appealed.
    (b) The appeal must state in writing the grounds for appeal, and it 
may include any supporting statements or arguments, but such statements 
are not required. In order to facilitate processing of the appeal, the 
appeal should include the assigned request number (if applicable), 
appellant's mailing address and daytime telephone number, as well as 
copies of the initial request and the component's response. If mailed, 
the envelope and the letter of appeal should be clearly marked: 
``Freedom of Information Act Appeal.'' Any amendment to the appeal must 
be in writing and received prior to a decision on the appeal.
    (c) The appeal should be addressed to the Solicitor of Labor, Office 
of the Solicitor, FOIA Appeals Unit, Division of Management and 
Administrative Legal Services, U.S. Department of Labor, 200 
Constitution Avenue NW., Room N-2420, Washington, DC 20210. Appeals also 
may be submitted by fax to 202-693-5538 or by email to 
[email protected]. Appeals submitted to any other email address will 
not be accepted.



Sec.  70.23  Action on appeals.

    The Solicitor of Labor, or designee, will review the appellant's 
appeal and make a determination de novo whether the action of the 
component was proper and in accordance with the applicable law.



Sec.  70.24  Form and content of action on appeals.

    The disposition of an appeal will be issued by the Solicitor of 
Labor or designee in writing. A decision affirming, in whole or in part, 
the decision below will include a brief statement of the reason or 
reasons for the affirmance, including the FOIA exemption or exemptions 
relied upon, and its relation to each record withheld. The appeal 
determination will advise the requester of the availability of the 
mediation services of the Office of Government Information Services 
(OGIS) as a non-exclusive alternative to litigation. The appeal will 
also notify the requester of the statutory right to judicial review of 
the denial by the United States District Court for the judicial district 
in which the requester resides or maintains his or her principal place 
of business, the judicial district in which the requested records are 
located, or the District of Columbia. If it is determined on appeal that 
a record should be disclosed, the record will be provided in accordance 
with the decision on appeal. If it is determined that records should be 
denied in whole or in part, the appeal determination will include an 
estimate of the volume of records or information withheld, in number of 
pages or in some other reasonable form of estimation. This estimate does 
not need to be provided if the volume is otherwise indicated through 
deletions on records disclosed in part, or if providing an estimate 
would harm an interest protected by an applicable exemption.



Sec.  70.25  Time limits and order in which requests and appeals 
must be processed.

    (a) Time limits. The FOIA establishes a 20 business day deadline for 
regular requests and appeals, and a 10 calendar day time limit for 
making determinations regarding expedited processing. Components of the 
Department of Labor will comply with the time limits required by the 
FOIA for responding to and processing requests and appeals. In instances 
involving misdirected requests that are re-routed pursuant to Sec.  
70.20(c) of this subpart, the response time will commence on the date 
that the request is received by the proper component's office that is 
designated to receive requests, but in any event not later than 10 
working days after the request is first received by any component's 
office that is designated by these regulations to receive requests. A 
component or the designated appeal authority will notify a requester 
whenever they are unable to

[[Page 630]]

respond to or process the request or appeal within the time limits 
established by the FOIA.
    (b) Multitrack processing. All components must designate a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (d) of this section. A 
component may also designate additional processing tracks that 
distinguish between simple and complex requests based on the estimated 
amount of work and/or time needed to process the request, including 
based on the number of pages involved and the need for consultations or 
referrals. Components shall advise the requesters of the track into 
which their request falls and, when appropriate, shall offer the 
requester an opportunity to limit the scope of their requests in order 
to qualify for faster processing within the specified limits of the 
component's faster track.
    (c) Unusual circumstances. (1) Where the statutory time limits for 
processing a request cannot be met because of ``unusual circumstances,'' 
as set forth in the FOIA at 5 U.S.C. 552(a)(6)(B)(i)-(iii), and the 
component determines to extend the time limits on that basis, the 
component shall, before the expiration of the 20 working day deadline to 
respond, notify the requester in writing of the unusual circumstances 
and of the date by which processing of the request can be expected to be 
completed. If the component intends to extend the deadline to respond by 
more than ten working days, the component must:
    (i) Provide the requester with an opportunity either to modify the 
request so that it may be processed within the time limits or to arrange 
an alternative time period with the component for processing the request 
or a modified request;
    (ii) Make available to the requester the contact information for the 
designated FOIA contact and the FOIA Public Liaison to assist the 
requester; and
    (iii) Notify the requester of the right to seek dispute resolution 
services from the Office of Government Information Services (OGIS).
    (d) Aggregating requests. Where a component reasonably believes that 
multiple requests submitted by a requester, or by a group of requesters 
acting in concert, constitute a single request that would otherwise 
involve unusual circumstances, and the requests involve clearly related 
matters, they may be aggregated. Components shall not aggregate multiple 
requests involving unrelated matters.
    (e) Expedited processing. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever it is determined that 
they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exists possible questions about the 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 received by 
the proper component. Requests based on paragraphs (e)(1)(i) through 
(iv) of this section must be submitted to the component that maintains 
the records requested.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requester within the category in 
paragraph (e)(1)(ii) of this section, if not a full-time member of the 
news media, must establish that he or she is a person whose main 
professional activity or occupation is information dissemination, though 
it need not be his or her sole occupation. Such a requester also must 
establish a particular urgency to inform the public about the government 
activity involved in the request--one that goes beyond the public's 
general right to

[[Page 631]]

know about government activity. The existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on a 
topic. As a matter of administrative discretion, a component may waive 
the formality of certification.
    (4) Within ten calendar days of its receipt of a request for 
expedited processing, the proper component will decide whether to grant 
the request and will notify the requester of the decision. If a request 
for expedited treatment is granted, the request will be given priority 
and will be processed as soon as practicable. If a request for expedited 
processing is denied, any appeal of that decision will be acted on 
expeditiously.



Sec.  70.26  Confidential commercial information.

    (a) In general. Confidential commercial information will be 
disclosed under the FOIA only in accordance with this section and 
Executive Order 12,600, ``Predisclosure Notification Procedures for 
Confidential Commercial Information'' (3 CFR 1988 Comp., p.235).
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information will use good-faith efforts to 
designate, by appropriate markings, either at the time of submission or 
at a reasonable time thereafter, any portions of its submission that it 
considers to be protected from disclosure under Exemption 4. These 
designations will expire ten years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
designation period.
    (c) Notice to submitters. A component will provide a submitter with 
prompt written notice of a FOIA request that seeks its confidential 
commercial information whenever required under paragraph (d) of this 
section, except as provided in paragraph (g) of this section, in order 
to give the submitter an opportunity to object in writing to disclosure 
of any specified portion of that information under paragraph (e) of this 
section. The notice will either describe the confidential commercial 
information requested or include copies of the requested records or 
record portions containing the information. When notification to a 
voluminous number of submitters is required, notification may be made by 
posting or publishing notice reasonably likely to accomplish such 
notification.
    (d) When notice is required. Notice will be given to a submitter 
whenever:
    (1) The information requested under the FOIA has been designated in 
good faith by the submitter as information considered protected from 
disclosure under Exemption 4; or
    (2) A component has reason to believe that the information requested 
under the FOIA may be protected from disclosure under Exemption 4, but 
has not yet determined whether the information is protected from 
disclosure under that exemption or any other applicable exemption.
    (e) Opportunity to object to disclosure. A component will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (c) of this section taking into account the amount of material 
the submitter has to review and the deadlines imposed by the FOIA or 
agreed to with the requester. If a submitter has any objection to 
disclosure, it is required to submit a detailed written statement. The 
statement must show why the information is a trade secret or commercial 
or financial information that is privileged or confidential. In the 
event that a submitter fails to respond to the notice within the time 
specified, the submitter will be considered to have no objection to 
disclosure of the information. Information provided by a submitter under 
this paragraph may itself be subject to disclosure under the FOIA.
    (f) Notice of intent to disclose. A component will consider a 
submitter's timely objections and specific grounds for non-disclosure in 
deciding whether to disclose confidential commercial information. 
Whenever a component decides to disclose confidential commercial 
information over the objection of a submitter, the component will give 
the submitter written notice, which will include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections were not sustained;

[[Page 632]]

    (2) A description of the confidential commercial information to be 
disclosed; and
    (3) A specified disclosure date, which will be a reasonable time 
subsequent to the notice.
    (g) Exceptions to notice requirements. The notice requirements of 
paragraphs (c) and (f) of this section will not apply if:
    (1) The component determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other than 
the FOIA) or by a regulation issued in accordance with the requirements 
of Executive Order 12,600; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous or such a designation would be 
unsupportable--except that, in such a case, the component will, within a 
reasonable time prior to a specified disclosure date, give the submitter 
written notice of any final decision to disclose the information.
    (h) Notice of a FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial information, 
the component will promptly notify the submitter.
    (i) Corresponding notice to requesters. Whenever a component 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraphs (d) and (e) of this section, the component 
will also notify the requester(s). Whenever a component notifies a 
submitter of its intent to disclose requested information under 
paragraph (f) of this section, the component will also notify the 
requester(s). Whenever a submitter files a lawsuit seeking to prevent 
the disclosure of confidential commercial information, the component 
will notify the requester(s).
    (j) Notice requirements. The component will fulfill the notice 
requirements of this section by addressing the notice to the 
confidential commercial submitter or its legal successor at the address 
indicated on the records, or the last known address. If the notice is 
returned, the component will make a reasonable effort to locate the 
confidential commercial submitter or its legal successor. Where 
notification of a voluminous number of submitters is required, such 
notification may be accomplished by posting and publishing the notice in 
a place reasonably calculated to accomplish notification.



Sec.  70.27  Preservation of records.

    Each component will preserve all correspondence relating to the 
requests it receives under this part, and all records processed pursuant 
to such requests, until disposition or destruction of such 
correspondence and records is authorized by Title 44 of the United 
States Code or the National Archives and Records Administration's 
General Records Schedule 4.2. Records are not to be destroyed while they 
are the subject of a pending request, appeal, or lawsuit under the Act.



Sec. Sec.  70.28-70.37  [Reserved]



                Subpart C_Costs for Production of Records



Sec.  70.38  Definitions related to costs.

    The following definitions apply to this subpart:
    (a) Request, in this subpart, includes any request, as defined by 
Sec.  70.2(f) of this part.
    (b) Direct costs means those expenditures which a component actually 
incurs in searching for and duplicating (and in the case of commercial 
use requests, reviewing) records to respond to a FOIA request. Direct 
costs include, for example, the salary of the Federal employee 
performing work (the basic rate of pay for the Federal employee plus 16 
percent of that rate to cover benefits) and the cost of operating 
duplication machinery. Not included in direct costs are overhead 
expenses such as costs of space, heating or lighting the facility in 
which the records are kept.
    (c) Duplication means the process of making a copy of a record 
necessary to respond to a request. Such copy can take the form of paper, 
microform, audio-visual materials or electronic records (such as a CD or 
other media).

[[Page 633]]

    (d) Search means the process of looking for and retrieving records 
or information that are responsive to a FOIA request. It includes page-
by-page or line-by-line identification of information within records and 
also includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. FOIA components will 
ensure that searches are done in the most efficient and least expensive 
manner reasonably possible. A search does not include the review of 
material, as defined in paragraph (e) of this section, which is 
performed to determine whether material is exempt from disclosure.
    (e) Review means the process of examining records, including audio-
visual, electronic mail, etc., located in response to a request to 
determine whether any portion of the located record is exempt from 
disclosure, and accordingly may be withheld. It also includes the act of 
preparing materials for disclosure, i.e., doing all that is necessary to 
excise them and otherwise prepare them for release. Review time includes 
time spent contacting any submitter, and considering and responding to 
any objections to disclosure made by a submitter under Sec. 70.26, but 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (f) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade or profit interests, which can include furthering 
those interests through litigation. When considering fee issues, 
components will determine, whenever reasonably possible, the use to 
which a requester will put the requested records. When it appears that 
the requester will put the records to a commercial use, either because 
of the nature of the request itself or because a component has 
reasonable cause to doubt a requester's stated use, the component will 
provide the requester a reasonable opportunity to submit further 
clarification.
    (g) Educational institution means an institution which:
    (1) Is a preschool, public or private elementary or secondary 
school, an institution of undergraduate higher education, an institution 
of graduate higher education, an institution of professional education, 
or an institution of vocational education; or
    (2) Operates a program or programs of scholarly research. To qualify 
under this definition, the program of scholarly research in connection 
with which the information is sought must be carried out under the 
auspices of the academic institution itself as opposed to the individual 
scholarly pursuits of persons affiliated with an institution. For 
example, a request from a professor predicated upon research funding 
granted to the institution would meet its requirements. A request from a 
professor seeking information that will assist in the writing of a book, 
independent of his or her institutional responsibilities, would not 
qualify under this definition.
    (h) Non-commercial scientific institution means an institution that 
is not operated on a commercial basis and that is operated solely for 
the purpose of conducting scientific research, the results of which are 
not intended to promote any particular product or industry.
    (i) Representative of the news media means any person or entity that 
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. 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, as well as news organizations that operate solely on 
the internet. Alternative media may be considered to be news media 
entities. These examples are not all inclusive.
    (1) Factors indicating status as a news media representative include 
press accreditation, guild membership, a history of continuing 
publication, business registration, and/or Federal Communication 
Commission licensing, among others.
    (2) For purposes of this definition, news contemplates information 
that is about current events or that would be of current interest to the 
public.

[[Page 634]]

    (3) A freelance journalist will be treated as a representative of 
the news media if the person can demonstrate a solid basis for expecting 
publication of matters related to the requested information through a 
news media entity. A publication contract with a news media entity 
satisfies this requirement. An individual's past publication record with 
such organizations is also relevant in making this determination.



Sec.  70.39  Statutes specifically providing for setting of fees.

    This subpart will not apply to fees charged under any statute, other 
than the FOIA, that specifically requires an agency to set and collect 
fees for particular types of records.



Sec.  70.40  Charges assessed for the production of records.

    (a) General. Components shall charge for processing requests under 
the FOIA in accordance with the provisions of this section and with the 
OMB Guidelines. In order to resolve any fee issues that arise under this 
section, a component may contact a requester for additional information. 
Components will ensure that searches, review, and duplication are 
conducted in the most efficient and least expensive manner. A component 
ordinarily will collect all applicable fees before sending copies of 
records to the requester.
    (b) Types of charges. There are three types of charges assessed in 
connection with the production of records in response to a request, 
specifically, charges for costs associated with:
    (1) Searching for or locating responsive records (search costs),
    (2) Duplicating such records (duplication costs), and
    (3) Reviewing records to determine whether any materials are exempt 
(review costs).
    (c) Types of requesters. (1) There are four types of requesters:
    (i) Commercial use requesters,
    (ii) Educational and non-commercial scientific institutions,
    (iii) Representatives of the news media, and
    (iv) All other requesters.
    (2) Depending upon the type of requester, as set forth in paragraph 
(c)(1) of this section, the charges outlined in paragraph (d) of this 
section may be assessed.
    (d) Types of charges that will be assessed for each type of 
request--(1) Commercial use request. When a requester makes a commercial 
use request, search costs, duplication costs and review costs will be 
assessed in their entirety.
    (2) Educational or non-commercial scientific institution request. 
When an educational or non-commercial scientific institution makes a 
request, only duplication costs will be assessed, excluding charges for 
the first 100 pages.
    (3) Request by representative of news media. When a representative 
of the news media makes a request, only duplication costs will be 
assessed, excluding charges for the first 100 pages.
    (4) All other requesters. Requesters making a request which does not 
fall within paragraph (d)(1), (2), or (3) of this section will be 
charged search costs and duplication costs, except that the first 100 
pages of duplication and the first two hours of search time will be 
furnished without charge. Where computer searches are involved, the 
monetary equivalent of two hours of search time by a professional 
employee will be deducted from the total cost of computer processing 
time.
    (e) Charges for each type of activity--(1) Search costs. (i) When a 
search for records is performed by a clerical employee, a rate of $5.00 
per quarter hour will be applicable. When a search is performed by 
professional or supervisory personnel, a rate of $10.00 per quarter hour 
will be applicable. Components will charge for time spent searching even 
if they do not locate any responsive records or they withhold the 
records located as exempt from disclosure.
    (ii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, except as provided in 
paragraph (e)(4) of this section.
    (2) Duplication costs. The standard copying charge for records in 
black and white paper copy is $0.15 per page. This charge includes the 
operator's time to duplicate the record. When responsive information is 
provided in a format other than 8\1/2\ x 11 or 11 x 14 inch black

[[Page 635]]

and white paper copy, such as computer tapes, disks and color copies, 
the requester may be charged the direct costs of the tape, disk, audio-
visual or whatever medium is used to produce the information, as well as 
the direct cost of duplication, including operator time.
    (3) Review costs. Costs associated with the review of records, as 
defined in Sec.  70.38(e), will be charged for work performed by a 
clerical employee at a rate of $5.00 per quarter hour when applicable. 
When professional or supervisory personnel perform work, a rate of 
$10.00 per quarter hour will be charged, when applicable. Except as 
noted in this paragraph, charges may only be assessed for review the 
first time the records are analyzed to determine the applicability of 
specific exemptions to the particular record or portion of the record. 
Thus a requester would not be charged for review at the administrative 
appeal level with regard to the applicability of an exemption already 
applied at the initial level. When, however, a record has been withheld 
pursuant to an exemption which is subsequently determined not to apply 
and is reviewed again at the appellate level to determine the potential 
applicability of other exemptions, the costs attendant to such 
additional review will be assessed.
    (4) Limitations on charging fees. If a component fails to comply 
with the time limits in which to respond to a request, it shall not 
assess certain fees except:
    (i) If there are unusual circumstances (as that term is defined in 
Sec.  70.25(c)) and the component has provided timely written notice, 
the component is permitted ten additional days to respond to the 
request. After the expiration of the ten additional days, the component 
is no longer permitted to assess search fees or, in the instances of 
requests from requesters described in Sec.  70.38(h) and (i), 
duplication fees except as described in paragraph (e)(4)(ii) of this 
section.
    (ii) If there are unusual circumstances (as that term is defined in 
Sec.  70.25(c)), and more than 5,000 pages of documents are necessary to 
respond to the request, the component may continue to charge assessable 
fees for as long as it takes to process the request, provided that the 
component has provided timely written notice and discussed with the 
requester via telephone, email, or written mail (or made at least three 
good-faith attempts to do so) how the requester could effectively limit 
the scope of the pending request.
    (iii) If a court has determined that exceptional circumstances 
exist, as defined in the FOIA, 5 U.S.C. 552(a)(6)(C) the agency's 
failure to comply with any time limits of the FOIA are excused for the 
length of time provided by the court order.
    (5) Mailing cost. Where responses are sent by mail, no postage 
charge will be made for transmitting by regular mail a single copy of 
the requested record to the requester, or for mailing additional copies 
where the total postage cost does not exceed $5.00. However, where the 
volume of paper or other produced material or the requested method of 
transmittal requested is in excess of $5.00, the transmittal costs will 
be added.
    (f) Aggregating requests for purposes of assessing costs. (1) Where 
a component reasonably believes that a requester or a group of 
requesters acting together is attempting to divide a request into a 
series of requests for the purpose of avoiding fees, the disclosure 
officer may aggregate those requests and charge accordingly.
    (2) Components may presume that multiple requests of this type made 
within a 30-day period have been submitted in order to avoid fees. Where 
requests are separated by a longer period, disclosure officers will 
aggregate them only where a solid basis exists for determining that 
aggregation is warranted under all of the circumstances involved. 
Multiple requests involving unrelated matters will not be aggregated.
    (g) Interest charges. Components will assess interest on an unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the date of the billing until payment 
is received by the component. Components will follow the provisions of 
the Debt Collection Act of 1982 (Pub.

[[Page 636]]

L. 97-365, 96 Stat. 1749), as amended, and its administrative 
procedures, including the use of consumer reporting agencies, collection 
agencies, and offset.
    (h) Authentication of copies--(1) Fees. The FOIA does not require 
certification or attestation under seal of copies of records provided in 
accordance with its provisions. Pursuant to provisions of the general 
user-charger statute, 31 U.S.C. 9701 and Subchapter II of title 29 
U.S.C., the following charges will be made when, upon request, such 
services are rendered by the agency in its discretion:
    (i) For certification of true copies, $10.00 each certification.
    (ii) For attestation under the seal of the Department, $10.00 each 
attestation under seal.
    (2) Authority and form for attestation under seal. Authority is 
hereby given to any officer or officers of the Department of Labor 
designated as authentication officer or officers of the Department to 
sign and issue attestations under the seal of the Department of Labor.
    (i) Transcripts. Fees for transcripts of an agency proceeding, as 
defined in the Administrative Procedure Act, 5 U.S.C. 5521(12) will be 
assessed in accordance with the provisions of this subpart.
    (j) Privacy Act requesters. A request from an individual or on 
behalf of an individual for a record maintained by that individual's 
name or other unique identifier which is contained within a component's 
system of records, will be treated under the fee provisions at 29 CFR 
71.6.



Sec.  70.41  Waiver or reduction of fees.

    (a) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request will be furnished without charge or at a charge 
reduced below that established under Sec.  70.40(e) of this subpart, 
where a component determines, based on all available information, that 
the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the requirement of paragraph (a)(1)(i) of 
this section is met, components will consider the following factors:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government.'' The 
subject of the requested records must concern identifiable operations or 
activities of the federal government, with a connection that is direct 
and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding where nothing new would be 
added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public will be considered. It will be presumed that a 
representative of the news media will satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to the 
public understanding of government operations or activities. The 
public's understanding

[[Page 637]]

of the subject in question must be enhanced by the disclosure to a 
significant extent.
    (3) To determine whether the requirement of paragraph (a)(1)(ii) of 
this section is met, components will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. The component will consider any commercial 
interest of the requester (with reference to the definition of 
``commercial use request'' in Sec.  70.38(f) of this subpart), or of any 
person on whose behalf the requester may be acting, that would be 
furthered by the requested disclosure. Requesters will be given an 
opportunity in the administrative process to provide explanatory 
information regarding this consideration.
    (ii) The primary interest in disclosure: Whether any identified 
commercial interest of the requester is sufficiently large, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. The component 
ordinarily will presume that where a news media requester has satisfied 
the public interest standard, the public interest will be the interest 
primarily served by disclosure to that requester. Disclosure to data 
brokers or others who merely compile and market government information 
for direct economic return will not be presumed to primarily serve the 
public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted only for 
those records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraph (a) of this section, insofar as they apply 
to each request.
    (b) Submission. Requests for a waiver or reduction of fees should be 
made when the request is first submitted to the component 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.
    (c) Appeal rights. Requesters dissatisfied with treatment of fee 
waiver or reduction requests may follow the procedures for appeal under 
Sections 70.22 and 70.23.



Sec.  70.42  Consent to pay fees.

    (a) The Department will not assess or collect fees where the fee to 
be assessed, after deducting any free pages and/or search time, is less 
than $25.00. When making a request, a requester may specify a 
willingness to pay up to a certain amount, e.g., $50.00 or $200.
    (b) No request will be processed if a component reasonably believes 
that the fees are likely to exceed the amount to which the requester has 
originally consented, absent supplemental written consent by the 
requester to proceed after being notified of this determination.
    (c) When a component determines or estimates that the fees to be 
assessed in accordance with this section will exceed $25.00, the 
component shall notify the requester of the actual or estimated amount 
of the fees, including a breakdown of the fees for search, review or 
duplication, unless the requester has indicated a willingness to pay 
fees as high as those anticipated. If only a portion of the fee can be 
estimated readily, the component must advise the requester accordingly. 
Such notice may invite the requester to reformulate the request to 
satisfy his or her needs at a lower cost.
    (d) Components must make available their FOIA contact to assist any 
requester in reformulating a request to meet the requester's needs at a 
lower cost.



Sec.  70.43  Payment of fees.

    (a) De minimis costs. As noted in Sec.  70.42(a) of this subpart, 
the Department has determined it will not assess or collect fees below 
$25.00. In these

[[Page 638]]

cases, the cost of collecting and processing a fee equals or exceeds the 
amount of the fee which would otherwise be assessed. The Department will 
assess fees where the costs to be assessed, after deduction of any free 
pages and/or search time, is $25.00 or higher.
    (b) How payment will be made. Requesters will pay fees assessed by 
check or money order made payable to the Treasury of the United States, 
and sent to the component that is processing the request.
    (c) Advance payments and billing. (1) Prior to beginning to process 
a request, the component will make a preliminary assessment of the 
amount that can properly be charged to the requester for search and 
review time and copying costs. Where a component determines or estimates 
that a total fee to be charged under this section will be more than 
$250.00, the component will require the requester to make an advance 
payment of an amount up to the entire anticipated fee before beginning 
to process the request. The component may waive the advance payment 
where the component receives a satisfactory assurance of full payment 
from a requester who has a history of prompt payment of an amount 
similar to the one anticipated by the request.
    (2) Where a requester has previously failed to pay a properly 
charged FOIA fee to any component of the Department of Labor within 30 
days of the date of billing, a component will require the requester to 
pay the full amount due, plus any applicable interest as provided in 
Sec. 70.40(f) and to make an advance payment of the full amount of any 
anticipated fee, before the component begins to process a new request or 
appeal or continues to process a pending request or appeal from that 
requester.
    (3) For a request other than those described in paragraphs (c)(1) 
and (2) of this section, a component will not require the requester to 
make an advance payment before beginning to process a request. Payment 
owed for work already completed on a request pursuant to consent of the 
requester is not an advance payment and a component may require the 
requester to make a payment for such work prior to releasing any records 
to the requester.
    (d) Time limits to respond extended when advance payments are 
requested. When a component has requested an advance payment of fees in 
accordance with paragraph (c) of this section, the time limits 
prescribed in Sec. 70.25 will only begin to run after the component has 
received the advance payment.



Sec.  70.44  Other rights and services.

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



Sec. Sec.  70.45-70.52  [Reserved]



                  Subpart D_Public Records and Filings



Sec.  70.53  Office of Labor-Management Standards.

    (a) The following documents in the custody of the Office of Labor-
Management Standards are public information available for inspection 
and/or purchase of copies in accordance with paragraphs (b) and (c) of 
this section.
    (1) Data and information contained in any report or other document 
filed pursuant to sections 201, 202, 203, 211, 301 of the Labor-
Management Reporting and Disclosure Act of 1959 (73 Stat. 524-28, 530, 
79 Stat. 888, 73 Stat. 530, 29 U.S.C. 431-433, 441, 461).
    (2) Data and information contained in any report or other document 
filed pursuant to the reporting requirements of 29 CFR part 458, which 
are the regulations implementing the standards of conduct provisions of 
the Civil Service Reform Act of 1978, 5 U.S.C. 7120, and the Foreign 
Service Act of 1980, 22 U.S.C. 4117. The reporting requirements are 
found in 29 CFR 458.3.
    (3) Data and information contained in any report or other document 
filed pursuant to the Congressional Accountability Act of 1995, 2 U.S.C. 
1351, 109 Stat. 19.
    (b) The documents listed in paragraph (a) of this section are 
available from: U.S. Department of Labor, Office of Labor-Management 
Standards, Public Disclosure Room, N-1519, 200 Constitution Avenue NW., 
Washington, DC

[[Page 639]]

20210. Reports filed pursuant to section 201 of the Labor-Management 
Reporting and Disclosure Act of 1959 and pursuant to 29 CFR 458.3 
implementing the Civil Service Reform Act of 1978 and the Foreign 
Service Act of 1980 for the year 2000 and thereafter are also available 
at http://www.union-reports.dol.gov.
    (c) Pursuant to 29 U.S.C. 435(c) which provides that the Secretary 
will by regulation provide for the furnishing of copies of the documents 
listed in paragraph (a) of this section, upon payment of a charge based 
upon the cost of the service, these documents are available at a cost of 
$ .15 per page for record copies furnished. Authentication of copies is 
available in accordance with the fee schedule established in Sec. 70.40. 
In accordance with 5 U.S.C. 552(a)(4)(A)(vi), the provisions for fees, 
fee waivers and fee reductions in subpart C of this part do not 
supersede these charges for these documents.
    (d) Upon request of the Governor of a State for copies of any 
reports or documents filed pursuant to sections 201, 202, 203, or 211 of 
the Labor-Management Reporting and Disclosure Act of 1959 (73 Stat. 524-
528, 79 Stat. 888; 29 U.S.C. 431-433, 441), or for information contained 
therein, which have been filed by any person whose principal place of 
business or headquarters is in such State, the Office of Labor-
Management Standards will:
    (1) Make available without payment of a charge to the State agency 
designated by law or by such Governor, such requested copies of 
information and data, or
    (2) Require the person who filed such reports and documents to 
furnish such copies or information and data directly to the State agency 
thus designated.



Sec.  70.54  Employee Benefits Security Administration.

    (a) The annual financial reports (Form 5500) and attachments/
schedules as filed by employee benefit plans under the Employee 
Retirement Income Security Act (ERISA) are in the custody of the 
Employee Benefits Security Administration (EBSA) at the address 
indicated in paragraph (b) of this section, and the right to inspect and 
copy such reports, as authorized under ERISA, at the fees set forth in 
this part, may be exercised at such office.
    (b) The mailing address for the documents described in this section 
is: U.S. Department of Labor, Employee Benefits Security Administration, 
Public Documents Room, 200 Constitution Avenue NW., Washington, DC 
20210.



               Sec. Appendix A to Part 70--FOIA Components

    The following list identifies the individual agency components of 
the Department of Labor for the purposes of the FOIA. Each component is 
responsible for making records in its custody available for inspection 
and copying, in accordance with the provisions of the FOIA and this 
part. Unless otherwise specified, the mailing addresses for the 
following national office components are listed below. Updated contact 
information for national and regional offices can be found on the DOL 
Web site at http://www.dol.gov/dol/foia.

U.S. Department of Labor
200 Constitution Avenue NW.
Washington, DC 20210.
    1. Office of the Secretary (OSEC).
    2. Office of the Solicitor (SOL).
    3. Office of Administrative Law Judges (ALJ), 800 K Street NW., 
Suite N-400, Washington, DC 20001-8002.
    4. Office of the Assistant Secretary for Administration and 
Management (OASAM).
    5. Office of the Assistant Secretary for Policy (OASP).
    6. Office of the Chief Financial Officer (OCFO).
    7. Office of Congressional and Intergovernmental Affairs (OCIA).
    8. Office of Disability Employment Policy (ODEP).
    9. Office of Federal Contract Compliance Programs (OFCCP).
    10. Office of the Inspector General (OIG).
    11. Office of Labor Management Standards (OLMS).
    12. Office of Public Affairs (OPA).
    13. Office of Workers' Compensation Programs (OWCP).
    14. Bureau of International Labor Affairs (ILAB).
    15. Bureau of Labor Statistics (BLS), Postal Square Building, Room 
4040, 2 Massachusetts Avenue NE., Washington, DC 20212-0001.
    16. Employment and Training Administration (ETA). Job Corps (part of 
ETA).
    17. Mine Safety and Health Administration (MSHA), 201 12th Street, 
South, Arlington, Virginia 22202.
    18. Occupational Safety and Health Administration (OSHA).
    19. Employee Benefits Security Administration (EBSA).

[[Page 640]]

    20. Veterans' Employment and Training Service (VETS).
    21. Employees' Compensation Appeals Board (ECAB).
    22. Administrative Review Board (ARB).
    23. Benefits Review Board (BRB).
    24. Wage and Hour Division (WHD).
    25. Women's Bureau (WB).



                  Sec. Appendix B to Part 70 [Reserved]



PART 71_PROTECTION OF INDIVIDUAL PRIVACY AND ACCESS TO RECORDS 
UNDER THE PRIVACY ACT OF 1974--Table of Contents



                            Subpart A_General

Sec.
71.1 General provisions.
71.2 Request for access to records.
71.3 Responses by components to requests for access to records.
71.4 Form and content of component responses.
71.5 Access to records.
71.6 Fees for access to records.
71.7 Appeals from denials of access.
71.8 Preservation of records.
71.9 Request for correction or amendment of records.
71.10 Certain records not subject to correction.
71.11 Emergency disclosures.
71.12 Use and collection of social security numbers.
71.13 Employee standards of conduct.
71.14 Use of nonpublic information.
71.15 Training.

      Subpart B_Exemption of Records Systems Under the Privacy Act

71.50 General exemptions pursuant to subsection (j) of the Privacy Act.
71.51 Specific exemptions pursuant to subsection (k)(2) of the Privacy 
          Act.
71.52 Specific exemptions pursuant to subsection (k)(5) of the Privacy 
          Act.

Appendix A to Part 71--Responsible Officials

    Authority: 5 U.S.C. 301; 5 U.S.C. 552a as amended; Reorganization 
Plan No. 6 of 1950, 5 U.S.C. Appendix.

    Source: 63 FR 56741, Oct. 22, 1998, unless otherwise noted.



                            Subpart A_General



Sec.  71.1  General provisions.

    (a) Purpose and scope. This part contains the regulations of the 
U.S. Department of Labor implementing the Privacy Act of 1974, 5 U.S.C. 
552a. The regulations apply to all records which are contained in 
systems of records maintained by, or under the control of, the 
Department of Labor and which are retrieved by an individual's name or 
personal identifier. These regulations set forth the procedures by which 
an individual may seek access under the Privacy Act to records 
pertaining to him, may request correction or amendment of such records, 
or may seek an accounting of disclosures of such records by the 
Department. These regulations are applicable to each component of the 
Department.
    (b) Government-wide systems of records. (1) DOL/GOVT-1 (Office of 
Workers' Compensation Programs, Federal Employees' Compensation Act 
File):
    (i) All records, including claim forms, medical, investigative and 
other reports, statements of witnesses, and other papers relating to 
claims for compensation filed under the Federal Employees' Compensation 
Act (as amended and extended), are covered by the government-wide system 
of records entitled DOL/GOVT-1. This system is maintained by and under 
the control of the Employment Standards Administration's Office of 
Workers' Compensation Programs (OWCP), and, as such, all records 
contained in the OWCP claims file, as well as all copies of such 
documents retained and/or maintained by the injured worker's employing 
agency, are official records of the OWCP.
    (ii) The protection, release, inspection and copying of records 
covered by DOL/GOVT-1 shall be accomplished in accordance with the 
rules, guidelines and provisions of this part, as well as with part 70 
of this subtitle, and with the notice of the systems of records and 
routine uses published in the Federal Register. All questions relating 
to access/disclosure, and/or the amendment of FECA records maintained by 
the OWCP or an employing agency, are to be resolved in accordance with 
this part.
    (iii)(A) While an employing agency may establish procedures that an 
injured employee or beneficiary should follow in requesting access to 
documents it maintains, any decision issued in response to such a 
request must

[[Page 641]]

comply with the rules and regulations of the Department of Labor.
    (B) Any administrative appeal taken from a denial issued by the 
employing agency shall be filed with the Solicitor of Labor in 
accordance with Sec. Sec.  71.7 and 71.9 of this part.
    (iv) No agency other than the OWCP has authority to issue 
determinations in response to requests for the correction or amendment 
of records contained in or covered by DOL/GOVT-1. Any request for 
correction or amendment received by an employing agency must be referred 
to the OWCP for review and decision.
    (2) For the government-wide system of records entitled DOL/GOVT-2 
(Job Corps Student Records), a system maintained by and under the 
control of the Employment and Training Administration, the regulations 
of this Department shall govern, including the procedure for requesting 
access to, or amendment of the records, as well as appeals therefrom, 
shall govern.
    (c) Definitions. As used in this subpart, the following terms shall 
have the following meanings:
    (1) Agency has the meaning set forth in 5 U.S.C. 552(f).
    (2) Component means each separate agency, bureau, office, board, 
division, commission, service, or administration of the Department of 
Labor, as well as each agency which possesses records covered by a DOL 
government-wide system of records.
    (3) Individual Data Subject means the individual by whose name or 
identifier the subject record is retrieved.
    (4) Record means any item, collection, or grouping of information 
about an individual which is maintained by any component within a system 
of records and which contains the individual's name, identifying number, 
symbol, or other identifying particular assigned to the individual, such 
as a fingerprint, voiceprint, or photograph.
    (5) Requester means an individual who makes either a request for 
access, a request for correction or amendment, or a request for an 
accounting.
    (6) Routine use has the meaning set forth in 5 U.S.C. 552a(7).
    (7) Statistical record has the meaning set forth in 5 U.S.C. 
552a(6).
    (8) System of records means a group of any records under the control 
of the Department or any component from which information is retrieved 
by the name of an individual or by some identifying number, symbol, or 
other identifying particular assigned to that individual.
    (9) Under the control of means those official records for which the 
agency is officially responsible and either has in its possession or 
exercises dominion over. This excludes those records which, although in 
the physical possession of agency employees and used by them in 
performing official functions, are not, in fact, agency records. 
Uncirculated personal notes, papers and records which are retained or 
discarded at the author's discretion and over which the agency exercises 
no dominion or control (e.g., personal telephone list) are not agency 
records for purposes of this part.
    (10) He, his, and him include ``she'', ``hers'' and ``her''.



Sec.  71.2  Requests for access to records.

    (a) Procedure for making requests for access to records. An 
individual, or legal representative acting on his behalf, may request 
access to a record about himself by appearing in person or by writing to 
the component that maintains the record. (See appendix A to this part 
which lists the components of the Department of Labor and their 
addresses.) A requester in need of guidance in defining his request may 
write to the Assistant Secretary for Administration and Management, U.S. 
Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210-
0002. A request should be addressed to the component that maintains the 
requested record. Both the envelope and the request itself should be 
marked: ``Privacy Act Request.''
    (b) Description of records sought. A request for access to records 
must describe the records sought in sufficient detail to enable 
Department personnel to locate the system of records containing the 
record with a reasonable amount of effort. Whenever possible, a request 
for access should describe the nature of the record sought, the date of 
the record or the period in which the record was compiled, and the name 
or

[[Page 642]]

identifying number of the system of records in which the requester 
believes the record is kept.
    (c) Agreement to pay fees. The filing of a request for access to a 
record under this subpart shall be deemed to constitute an agreement to 
pay all applicable fees charged under Sec.  71.6 up to $25.00. The 
component responsible for responding to the request shall confirm this 
agreement in its letter of acknowledgment to the requester. When filing 
a request, a requester may specify a willingness to pay a greater 
amount, if applicable.
    (d) Verification of identity. Any individual who submits a request 
for access to records must verify his identity in one of the following 
ways:
    (1) Any requester making a request in writing must state in his 
request his full name, and current address. In addition, a requester 
must provide with his request an example of his signature, which shall 
be notarized, or signed as an unsworn declaration under penalty of 
perjury, pursuant to 28 U.S.C. 1746. In order to facilitate the 
identification of the requested records, a requester may also include in 
his request his Social Security number.
    (2) Any requester submitting a request in person may provide to the 
component a form of official photographic identification, such as a 
passport, an identification badge or a driver's license which contains 
the photograph of the requester. If a requester is unable to produce a 
form of photographic identification, he may provide to the component two 
or more acceptable forms of identification bearing his name and address. 
In all cases, sufficient identification must be presented to confirm 
that the requester is the individual data subject.
    (e) Verification of guardianship. The parent, guardian, or 
representative of a minor or the guardian or representative of a person 
judicially determined to be incompetent who submits a request for access 
to the records of the minor or incompetent must establish:
    (1) His identity, as required in paragraph (d) of this section,
    (2) That the requester is the parent, guardian, or representative of 
the subject of the record, which may be proved by providing a copy of 
the subject's birth certificate showing parentage or by providing a 
court order establishing the guardianship, and
    (3) That he seeks to act on behalf of the subject of the record.
    (f) The disclosure officer may waive the requirements set forth in 
paragraphs (d) and (e) of this section when he deems such action to be 
appropriate, and may substitute in lieu thereof, other reasonable means 
of identification.



Sec.  71.3  Responses by components to requests for access to records.

    (a) In general. Except as otherwise provided in this section, the 
component that:
    (1) First receives a request for access to a record, and
    (2) Has possession of the requested record is the component 
ordinarily responsible for responding to the request.
    (b) Authority to grant or deny requests. The head of a component, or 
his designee (i.e. disclosure officer), is authorized to make an initial 
grant or denial of any request for access to a record in the possession 
of that component.
    (c) Processing of requests for access not properly addressed. A 
request for access that is not properly addressed as specified in Sec.  
71.2 shall be forwarded to the Assistant Secretary for Administration 
and Management, who shall forward the request to the appropriate 
component or components for processing. A request not addressed to the 
appropriate component will be deemed not to have been received by the 
Department until the Assistant Secretary for Administration and 
Management has forwarded the request to the appropriate component which 
has the record and that component has received the request. When the 
component receives an improperly addressed request, it shall notify the 
requester of the date on which it received the request. Accordingly, a 
request for access shall be deemed received on the date that it is 
received in the appropriate component.
    (d) Date for determining responsive records. In determining the 
extent to which records are responsive to a request for access, a 
component ordinarily will include only those records within the 
component's possession and

[[Page 643]]

control as of the date of its receipt of the request.
    (e) First party requests. A request for access by the individual 
data subject for his or her own records shall be processed both under 
the Freedom of Information Act (FOIA) and the Privacy Act (PA).



Sec.  71.4  Form and content of component responses.

    (a) Form of notice granting request for access. A request by the 
individual data subject for access to his or her own records shall not 
be denied unless both a Privacy Act exemption and a Freedom of 
Information Act exemption apply to the requested records. A component 
shall make a determination within 30 days to grant or deny a request for 
access in whole or in part. If the request is granted in whole, the 
component shall so notify the requester in writing. The notice shall 
describe the manner in which access to the record will be granted and 
shall inform the requester of any fees to be charged in accordance with 
Sec.  71.6.
    (b) Form of notice denying request for access. A component denying a 
request for access in whole or in part shall so notify the requester in 
writing. The notice, signed by the responsible agency official, shall 
include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reason or reasons for the denial, 
including the Privacy Act and FOIA exemption or exemptions which the 
component has relied upon in denying the request; and
    (3) A statement that the denial may be appealed under Sec.  71.7(a), 
and a description of the requirements of that paragraph.
    (c) Record cannot be located. If no records are found which are 
responsive to the request, the component shall so notify the requester 
in writing. Such notification by the component shall inform the 
requester that, if the requester considers this response to be a denial 
of their request, the requester has a right to appeal to the Solicitor 
of Labor, within ninety days, as set forth in Sec.  71.7.
    (d) Medical records. When an individual requests medical records 
concerning himself, which are not otherwise exempt from disclosure, the 
disclosure officer shall, if deemed necessary because of possible harm 
to the individual, advise the individual that the Department of Labor 
believes that the records should be provided to a physician designated 
in writing by the individual. In addition, the Department shall request 
the individual to designate such a physician. Upon receipt of the 
designation, the disclosure officer will permit the physician to review 
the records or to receive copies of the records by mail, upon proper 
verification of identity.



Sec.  71.5  Access to records.

    (a) Manner of access. A component that has made a determination to 
grant a request for access shall grant the requester access to the 
requested record either by providing the requester with a copy of the 
record, or making the record available for inspection by the requester 
at a reasonable time and place. The component shall charge the requester 
only duplication costs in accordance with the provisions of Sec.  71.6. 
If a component provides access to a record by making the record 
available for inspection by the requester, the manner of such inspection 
shall not unreasonably disrupt the operations of the component.
    (b) Accompanying person. A requester appearing in person to review 
his own records may be accompanied by another individual of his own 
choosing. The requester shall provide the Department with his or her 
written consent to disclose the record to the accompanying person.



Sec.  71.6  Fees for access to records.

    (a) When charged. A component shall charge fees pursuant to 31 
U.S.C. 9701 and 5 U.S.C. 552a(f)(5) for the copying of records unless 
the component, in its discretion, waives or reduces the fees for good 
cause shown. A component shall charge fees at the rate of $0.15 per 
page. In accordance with the provisions of the Freedom of Information 
Act, the first 100 pages of copying shall be furnished without charge. 
For materials other than paper copies, the component may charge the 
direct costs of reproduction, but only if the requester has been 
notified of such costs before they

[[Page 644]]

are incurred. Fees shall not be charged where they would amount, in the 
aggregate, for one request or for a series of related requests, to less 
than $15.00. Notwithstanding any other provision of this paragraph, the 
first copy of an individual's Privacy Act record shall be provided to 
the individual at no cost.
    (b) Notice of estimated fees amounting to between $25 to $250. When 
a component determines or estimates that the fees to be charged under 
this section may amount to between $25 to $250, the component shall 
notify the requester as soon as practicable of the actual or estimated 
amount of the fee, unless the requester has indicated in advance his 
willingness to pay a fee as high as that anticipated.
    (c) Notice of estimated fees in excess of $250. When a component 
determines or estimates that the fees to be charged under this section 
may amount to more than $250, the component shall notify the requester 
as soon as practicable of the actual or estimated amount of the fee, 
unless the requester has indicated in advance his willingness to pay a 
fee as high as that estimated. If the fee is estimated to be in excess 
of $250, then the agency may require payment in advance. (If only a 
portion of the fee can be estimated readily, the component shall advise 
the requester that the estimated fee may be only a portion of the total 
fee.) Where the estimated fee exceeds $250 and a component has so 
notified the requester, the component will be deemed not to have 
received the request for access to records until the requester has paid 
the anticipated fee, in full or in part. A notice to a requester 
pursuant to this paragraph shall offer him the opportunity to confer 
with Department personnel with the object of reformulating his request 
to meet his needs at a lower cost.
    (d) Form of payment. Requesters must pay fees by cash, check or 
money order payable to either the Treasury of the United States, or the 
U.S. Department of Labor. However, the Department shall not require 
advance payment in any case where the fee is under $250, except that 
where a requester has previously failed to pay a fee charged under this 
part, the requester must pay the component or the Department the full 
amount owed and make an advance deposit of the full amount of any 
estimated fee before a component shall be required to process a new or 
pending request for access from that requester.



Sec.  71.7  Appeals from denials of access.

    (a) Appeals to the Solicitor of Labor. When a component denies in 
whole or in part a request for access to records, the requester may 
appeal the denial to the Solicitor of Labor within 90 days of his 
receipt of the notice denying his request. An appeal to the Solicitor of 
Labor shall be made in writing, addressed to the Solicitor of Labor, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC. 
20210-0002. Both the envelope and the letter of appeal itself must be 
clearly marked: ``Privacy Act Appeal.'' An appeal not so addressed and 
marked shall be forwarded to the Office of the Solicitor as soon as it 
is identified as an appeal under the Privacy Act. An appeal that is 
improperly addressed shall be deemed not to have been received by the 
Department until the Office of the Solicitor receives the appeal.
    (b) Form of action on appeal. The disposition of an appeal shall be 
in writing. A written decision affirming in whole or in part the denial 
of a request for access shall include a brief statement of the reason or 
reasons for the affirmation, including each Privacy Act and FOIA 
exemption relied upon and its relation to each record withheld, and a 
statement that judicial review of the denial is available in the U.S. 
District Court for the judicial district in which the requester resides 
or has his principal place of business, the judicial district in which 
the requested records are located, or the District of Columbia. If the 
denial of a request for access is reversed on appeal, the requester 
shall be so notified and the request shall be processed promptly in 
accordance with the decision on appeal.
    (c) Delegation of Authority by the Solicitor of Labor. The Solicitor 
of Labor is authorized to delegate his authority to decide appeals from 
any and all denials of access to other senior attorneys within the 
Office of the Solicitor.

[[Page 645]]



Sec.  71.8  Preservation of records.

    Each component shall preserve all correspondence relating to the 
requests it receives under this subpart, and all records processed 
pursuant to such requests, until such time as the destruction of such 
correspondence and records is authorized pursuant to title 44 of the 
U.S. Code and record schedules approved by the National Archives and 
Records Administration, and otherwise in accordance with retention 
requirements as published in the agency's system of records. Under no 
circumstances shall records be destroyed while they are the subject of a 
pending request for access, appeal, or lawsuit under the Act.



Sec.  71.9  Request for correction or amendment of records.

    (a) How made. An individual may submit a request for correction or 
amendment of a record pertaining to him. The request must be in writing 
and must be addressed to the component that maintains the record. 
(Appendix A of this part lists the components of the Department and 
their addresses.) The request must identify the particular record in 
question, state the correction or amendment sought, and set forth the 
justification for the change. Both the envelope and the request itself 
must be clearly marked: ``Privacy Act Amendment Request.''
    (b) Initial determination. Within 30 working days of receiving a 
request for correction or amendment, a component shall notify the 
requester whether his request will be granted or denied, in whole or in 
part. If the component grants the request in whole or in part, it shall 
send the requester a copy of the amended record, in releasable form, as 
proof of the change. If the component denies the request in whole or in 
part, it shall notify the requester in writing of the denial. The notice 
of denial shall state the reason or reasons for the denial and advise 
the requester of his right to appeal.
    (c) Appeals. When a request for correction or amendment is denied in 
whole or in part, the requester may appeal the denial to the Solicitor 
of Labor within 90 days of his receipt of the notice denying his 
request. An appeal to the Solicitor of Labor shall be made in writing, 
shall set forth the specific item of information sought to be corrected 
or amended, and shall include any documentation said to justify the 
change. An appeal shall be addressed to the Solicitor of Labor, U.S. 
Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210-
0002. Both the envelope and the letter of appeal itself must be clearly 
marked: ``Privacy Act Amendment Appeal.''
    (d) Determination on appeal. The Solicitor of Labor shall decide all 
appeals from denials of requests to correct or amend records. All such 
appeals shall be decided within 30 working days of receipt of the 
appeal, unless there is good cause shown to extend this period. The 
appellant shall be notified if the period for decision has been 
extended.
    (1) If the denial of a request is affirmed on appeal, the requester 
shall be so notified in writing and advised of:
    (i) The reason or reasons the denial has been affirmed,
    (ii) The requester's right to file a Statement of Disagreement, as 
provided in paragraph (f) of this section, and
    (iii) The requester's right to obtain judicial review of the denial 
in the U.S. District Court for the judicial district in which the 
requester resides or has its principal place of business, the judicial 
district in which the record is located, or the District of Columbia.
    (2) If the denial is reversed on appeal, the requester shall be so 
notified and the request for correction or amendment shall be promptly 
remanded to the component that denied the request for processing in 
accordance with the decision on appeal.
    (e) Delegation of Authority by the Solicitor of Labor. The Solicitor 
of Labor is authorized to delegate his or her authority to decide any 
and all appeals from denials of requests to correct or amend records to 
other senior attorneys within the Office of the Solicitor.
    (f) Statements of disagreement. A requester whose request or appeal 
under this section has been denied shall have the right to file a 
Statement of Disagreement with the Solicitor of Labor, U.S. Department 
of Labor, 200 Constitution Avenue, NW, Washington, DC 20210-0002, within 
30 days of receiving

[[Page 646]]

notice of denial. Statements of Disagreement may not exceed one typed 
page per fact disputed. Statements exceeding this limit shall be 
returned to the requester for condensation. Upon receipt of a Statement 
of Disagreement under this section, the agency shall promptly have the 
statement included in the record and shall have the disputed record 
marked so as to indicate that a Statement of Disagreement has been 
filed.
    (g) Notices of correction or amendment or disagreement. Within 30 
working days of the correction or amendment of a record, the component 
that maintains the record shall advise all components or agencies to 
which it previously disclosed the record that the record has been 
amended. Whenever an individual has filed a Statement of Disagreement, a 
component shall append a copy of the Statement to the disputed record 
whenever the record is disclosed. The component may also append to the 
disputed record a written statement giving the component's reasons for 
denying the request to correct or amend the record.



Sec.  71.10  Certain records not subject to correction.

    Certain records are not subject to correction or amendment. These 
include, but are not limited to:
    (a) Transcripts of testimony given under oath or written statements 
made under oath;
    (b) Transcripts or decisions of grand jury, administrative, 
judicial, or quasi-judicial proceedings which constitute the official 
record of such proceedings;
    (c) Records duly exempted from correction pursuant to 5 U.S.C. 
552a(j) or 552a(k) by rulemaking promulgated under the Administrative 
Procedure Act (5 U.S.C. 551 et seq.)



Sec.  71.11  Emergency disclosures.

    If the record of an individual has been disclosed to any person 
under compelling circumstances affecting the health or safety of any 
person, as described in 5 U.S.C. 552a(b)(8), the individual to whom the 
record pertains shall be notified of the disclosure at his last known 
address within 10 working days. The notice of such disclosure shall be 
in writing and shall state the nature of the information disclosed, the 
person or agency to whom it was disclosed, the date of disclosure, and 
the compelling circumstances justifying the disclosure. The officer who 
made or authorized the disclosure shall be responsible for providing 
such notification.



Sec.  71.12  Use and collection of social security numbers.

    (a) Each component unit that requests an individual to disclose his 
social security account number shall provide the individual, in writing, 
with the following information:
    (1) The statute, regulation, Executive Order or other authority 
under which the number is solicited;
    (2) Whether the disclosure is mandatory or voluntary; and
    (3) The consequences, if any, to the individual should he or she 
refuse or fail to disclose the number.
    (b) Neither the Department nor any of its component units shall, in 
the absence of specific federal statutory authority, deny to an 
individual any right, benefit or privilege provided by law solely 
because of such individual's refusal to disclose his social security 
account number.
    (c) The head of each component unit shall ensure that employees 
authorized to collect social security account numbers or tax identifying 
numbers, are aware of the statutory or other basis for collecting such 
information, of the uses to which such numbers may be put, and of the 
consequences, if any, that might follow if a person refuses to disclose 
the requested number.



Sec.  71.13  Employee standards of conduct.

    (a) Each component shall inform its employees of the provisions of 
the Privacy Act, including the Act's civil liability and criminal 
penalty provisions. Each component also shall notify its employees that 
they have a duty to:
    (1) Protect the security of records,
    (2) Ensure the accuracy, relevance, timeliness, and completeness of 
records,
    (3) Avoid the unauthorized disclosure, either verbal or written, of 
records, and

[[Page 647]]

    (4) Ensure that the component maintains no system of records without 
public notice.
    (b) Except to the extent that the Privacy Act permits such 
activities, an employee of the Department of Labor shall:
    (1) Not collect information of a personal nature from individuals 
unless the employee is authorized to collect such information to perform 
a function or discharge a responsibility of the Department;
    (2) Collect from individuals only that information which is 
necessary to the performance of the functions or to the discharge of the 
responsibilities of the Department;
    (3) Collect information about an individual directly from that 
individual, whenever practicable;
    (4) Inform each individual from whom information is collected of:
    (i) The legal authority that authorizes the Department to collect 
such information,
    (ii) The principal purposes for which the Department intends to use 
the information,
    (iii) The routine uses the Department may make of the information, 
and
    (iv) The practical and legal effects upon the individual of not 
furnishing the information;
    (5) Maintain all records which are used by the agency in making any 
determination about any individual with such accuracy, relevance, 
timeliness, and completeness as to ensure fairness to the individual in 
the determination;
    (6) Maintain no record describing how any individual exercises 
rights guaranteed by the First Amendment to the United States 
Constitution, unless:
    (i) The individual has volunteered such information for his own 
benefit,
    (ii) A statute expressly authorizes the Department to collect, 
maintain, use, or disseminate the information, or
    (iii) The individual's beliefs, activities, or membership are 
pertinent to and within the scope of an authorized law enforcement 
activity;
    (7) Notify the head of the component of the existence or development 
of any system of records that has not been disclosed to the public;
    (8) Disclose no record to anyone, for any use, unless authorized by 
the Act;
    (9) Maintain and use records with care to prevent the inadvertent 
disclosure of a record to anyone; and
    (10) Notify the head of the component of any record that contains 
information that the Act or the foregoing provisions of this paragraph 
do not permit the Department to maintain.



Sec.  71.14  Use of nonpublic information.

    (a) Prohibition. (1) An employee shall not engage in a financial 
transaction using nonpublic information, nor allow the improper use of 
nonpublic information to further his own private interest or that of 
another, whether through advice or recommendations, or by knowing 
unauthorized disclosure. See 5 CFR 2635.703.
    (2) Nonpublic information is information that an employee gains by 
reason of Federal employment that he knows or reasonably should know has 
not been made available to the general public. Nonpublic information 
includes information contained in a Privacy Act system of records which 
an individual knew or should have known:
    (i) Is normally exempt from disclosure under Exemptions 6 or 7(C) of 
the Freedom of Information Act, or is otherwise protected from 
disclosure by statute, Executive Order or regulation;
    (ii) Has not actually been disseminated to the general public and is 
not authorized to be made available to the public upon request.
    (b) Sanctions. Any DOL employee who willfully discloses any 
information or records from any file that contains individually-
identifiable information to any person or agency not entitled to receive 
it, and the disclosure of which is prohibited by the Privacy Act or by 
rules or regulations established thereunder, and who, knowing the 
disclosure of the specific material is so prohibited, will be subject to 
disciplinary action, as appropriate.
    (c) Public disclosures by third parties of DOL Privacy Act records. 
When Labor Department records subject to the Privacy Act are disclosed 
to third parties, and as a condition of the disclosure of such records, 
the person or entity to whom the records are furnished is expressly 
prohibited from further disseminating the information, any further 
dissemination of the information

[[Page 648]]

so furnished to such person or entity may be subject to the penalties 
set forth in 18 U.S.C. 641.



Sec.  71.15  Training.

    All DOL systems managers, disclosure officers, and employees with 
responsibilities under the Privacy Act shall periodically attend 
training offered by the Department on the Privacy Act.



      Subpart B_Exemption of Records Systems Under the Privacy Act



Sec.  71.50  General exemptions pursuant to subsection (j) of the Privacy Act.

    (a) The following systems of records are eligible for exemption 
under 5 U.S.C. 552a(j)(2) because they are maintained by a component of 
the agency or subcomponent which performs as its principal function the 
enforcement of criminal laws, and they contain investigatory material 
compiled for criminal law enforcement purposes. Accordingly, these 
systems of records are exempt from the following subsections of 552a of 
title 5 U.S. Code: (c)(3) and (4), (d), (e)(1), (2), and (3), (e)(4)(G), 
(H), and (I), (e)(5) and (8), (f) and (g).
    (1) DOL/ESA-45 (Investigative Files of the Office of Labor-
Management Standards), a system of records maintained by the Office of 
Labor-Management Standards.
    (2) DOL/OIG-1 (General Investigative Files, and Subject Title Index, 
USDOL/OIG), a system of records maintained by the Office of the 
Inspector General (OIG).
    (3) DOL/OIG-2 (Freedom of Information/Privacy Acts Records), a 
system of records maintained by the OIG.
    (4) DOL/OIG-3 (Case Development Records), a system of records 
maintained by the OIG.
    (5) DOL/OIG-5 (Investigative Case Tracking Systems/Audit Information 
Reporting Systems, USDOL/OIG), a system of records maintained by the 
OIG.
    (6) DOL/MSHA-20 (Civil/Criminal Investigations), a system of records 
maintained by the Mine Safety and Health Administration.
    (7) DOL/EBSA-2 (Office of Enforcement Index Cards and Investigation 
Files), a system of records maintained by the Employee Benefits Security 
Administration.
    (b) This exemption applies to the extent that information in these 
systems of records is subject to exemption pursuant to 5 U.S.C. 
552a(j)(2).
    (c) These systems are exempted for the reasons set forth in 
paragraphs (c)(1) through (12) of this section, from the following 
subsections of 5 U.S.C. 552a:
    (1) Subsection (c)(3). The release of the disclosure accounting 
would present a serious impediment to law enforcement by permitting the 
subject of an investigation of an actual or potential criminal violation 
to determine whether he is the subject of investigation, or to obtain 
valuable information concerning the nature of that investigation and the 
information obtained, or to identify witnesses and informants.
    (2) Subsection (c)(4). Since an exemption is being claimed for 
subsection (d) f the Act (Access to Records), this subsection is 
inapplicable to the extent that these systems of records are exempted 
from subsection (d).
    (3) Subsection (d). Access to records contained in these systems 
would inform the subject of an actual or potential criminal 
investigation of the existence of that investigation, of the nature and 
scope of the investigation, of the information and evidence obtained as 
to his or her activities, and of the identity of witnesses or 
informants. Such access would, accordingly, provide information that 
could enable the subject to avoid detection, apprehension, and 
prosecution. This result, therefore, would constitute a serious 
impediment to effective law enforcement not only because it would 
prevent the successful completion of the investigation but also because 
it could endanger the physical safety of witnesses or informants, lead 
to the improper influencing of witnesses, the destruction of evidence, 
or the fabrication of testimony. Amendment of the records would 
interfere with ongoing criminal law enforcement proceedings and imposes 
an impossible administrative burden by requiring criminal investigations 
to be continuously reinvestigated.
    (4) Subsection (e)(1). In the course of criminal and related law 
enforcement

[[Page 649]]

investigations, cases, and matters, the agency will occasionally obtain 
information concerning actual or potential violations of law that may 
not be technically within its statutory or other authority, or it may 
compile information in the course of an investigation which may not be 
relevant to a specific prosecution. In the interests of effective law 
enforcement, it is necessary to retain some or all of such information 
since it can aid in establishing patterns of criminal activity and can 
provide valuable leads for Federal and other law enforcement agencies. 
Moreover, it is difficult to know during the course of an investigation 
what is relevant and necessary. In this connection, facts or evidence 
may not seem relevant at first, but later in the investigation, their 
relevance is borne out.
    (5) Subsection (e)(2). To collect information to the greatest extent 
practicable from the subject individual of a criminal investigation or 
prosecution would present a serious impediment to law enforcement 
because the subject of the investigation or prosecution would be placed 
on notice as to the existence of the investigation and would therefore 
be able to avoid detection or apprehension, improperly influence 
witnesses, destroy evidence, or fabricate testimony.
    (6) Subsection (e)(3). To provide individuals supplying information 
with a form which includes the information required by subsection (e)(3) 
would constitute a serious impediment to law enforcement, i.e., it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (7) Subsections (e)(4)(G) and (H). These subsections are 
inapplicable to the extent that these systems are exempt from the access 
provisions of subsection (d) and the rules provisions of subsection (f).
    (8) Subsection (e)(4)(I). The categories of sources of the records 
in these systems have been published in the Federal Register in broad 
generic terms in the belief that this is all that subsection (e)(4)(I) 
of the Act requires. In the event, however, that this subsection should 
be interpreted to require more detail as to the identity of sources of 
the records in this system, exemption from this provision is necessary 
to protect the confidentiality of the sources of criminal and related 
law enforcement information. Such exemption is further necessary to 
protect the privacy and physical safety of witnesses and informants.
    (9) Subsection (e)(5). In the collection of information for criminal 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. Furthermore, the accuracy of such information can often only be 
determined in a court of law. The restrictions of subsection (e)(5) 
would inhibit the ability of government attorneys in exercising their 
judgment in reporting on information and investigations and impede the 
development of criminal information and related data necessary for 
effective law enforcement.
    (10) Subsection (e)(8). The individual notice requirements of 
subsection (e)(8) could present a serious impediment to law enforcement 
as this could interfere with the ability to issue warrants or subpoenas 
and could reveal investigative techniques, procedures, or evidence.
    (11) Subsection (f). Procedures for notice to an individual pursuant 
to subsection (f)(1) as to existence of records pertaining to the 
individual dealing with an actual or potential criminal, civil, or 
regulatory investigation or prosecution must be exempted because such 
notice to an individual would be detrimental to the successful conduct 
and/or completion of an investigation or case, pending or future. In 
addition, mere notice of the fact of an investigation could inform the 
subject or others that their activities are under investigation or may 
become the subject of an investigation and could enable the subjects to 
avoid detection, to influence witnesses improperly, to destroy evidence, 
or to fabricate testimony. Since an exemption is being claimed for 
subsection (d) of the Act (Access to Records) the rules required 
pursuant to subsections (f)(2) through (5) are inapplicable to these 
systems of records to

[[Page 650]]

the extent that these systems of records are exempted from subsection 
(d).
    (12) Subsection (g). Since an exemption is being claimed for 
subsections (d) (Access to Records) and (f) (Agency Rules) this section 
is inapplicable, and is exempted for the reasons set forth for those 
subsections, to the extent that these systems of records are exempted 
from subsections (d) and (f).

[63 FR 56741, Oct. 22, 1998, as amended at 68 FR 16399, Apr. 3, 2003]



Sec.  71.51  Specific exemptions pursuant to subsection (k)(2) 
of the Privacy Act.

    (a) The following systems of records are eligible for exemption 
under 5 U.S.C. 552a(k)(2) because they contain investigatory material 
compiled for law enforcement purposes other than material within the 
scope of subsection (j)(2) of 5 U.S.C. 552a. Provided however, that if 
any individual is denied any right, privilege or benefit to which he 
would otherwise be entitled by Federal law, or for which he 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. Accordingly the following 
systems of records are exempt from (c)(3), (d)(1), (d)(2), (d)(3), 
(d)(4), (e)(1), (e)(4)(G), (e)(4)(I) and (f) of 5 U.S.C. 552a.
    (1) DOL/GOVT-1 (Office of Workers' Compensation Programs, Federal 
Employees' Compensation Act File), a system of records maintained by the 
Employment Standards Administration (ESA).
    (2) DOL/OASAM-17 (Equal Employment Opportunity Complaint Files), a 
system of records maintained by the Office of the Assistant Secretary 
for Administration and Management (OASAM).
    (3) DOL/OASAM-19 (Negotiated Grievance Procedure and Unfair Labor 
Practice Files), a system of records maintained by OASAM.
    (4) DOL/OASAM-20 (Personnel Investigation Records), a system of 
records maintained by OASAM.
    (5) DOL/OASAM-22 (Civil Rights Center Discrimination Complaint Case 
Files), a system of records maintained by OASAM.
    (6) DOL/OASAM-29 (OASAM Employee Administrative Investigation File), 
a system of records maintained by OASAM.
    (7) DOL/BLS-7 (BLS Employee Conduct Investigation), a system of 
records maintained by the Bureau of Labor Statistics (BLS).
    (8) DOL/ESA-2 (Office of Federal Contract Compliance Programs, 
Complaint Files), a system of records maintained by ESA.
    (9) DOL/ESA-25 (Office of Federal Contract Compliance Programs, 
Management Information Systems (OFCCP/MIS), a system of records 
maintained by ESA.
    (10) DOL/ESA-26 (Office of Workers' Compensation Programs, Longshore 
and Harbor Workers' Compensation Act Investigation Files), a system of 
records maintained by ESA.
    (11) DOL/ESA-27 (Office of Workers' Compensation Programs, Longshore 
Act Claimant Representatives), a system of records maintained by ESA.
    (12) DOL/ESA-28 (Office of Workers' Compensation Programs, 
Physicians and Health Care Providers Excluded under the Longshore Act), 
a system of records maintained by ESA.
    (13) DOL/ESA-29 (Office of Workers' Compensation Programs, 
Physicians and Health Care Providers Excluded under the Federal 
Employees' Compensation Act), a system of records maintained by ESA.
    (14) DOL/ESA-32 (ESA, Complaint and Employee Conduct 
Investigations), a system of records maintained by ESA.
    (15) DOL/ESA-36 (ESA, Wage and Hour Division, MSPA/FLCRA Civil Money 
Penalty Record Files), a system of records maintained by ESA.
    (16) DOL/ESA-40 (ESA, Wage and Hour Division, MSPA/FLCRA Tracer 
List), a system of records maintained by ESA.

[[Page 651]]

    (17) DOL/ESA-41 (ESA, Wage and Hour Division, MSPA/FLCRA Certificate 
Action Record Files), a system of records maintained by ESA.
    (18) DOL/ESA-45 (Investigative Files of the Office of Labor-
Management Standards), a system maintained by the Office of Labor-
Management Standards.
    (19) DOL/ETA-16 (Employment and Training Administration 
Investigatory File), a system of records maintained by the Employment 
and Training Administration (ETA).
    (20) DOL/ETA-22 (ETA Employee Conduct Investigations), a system of 
records maintained by ETA.
    (21) DOL/OIG-1 (General Investigative Files, and Subject Title 
Index, USDOL/OIG), a system of records maintained by the Office of the 
Inspector General (OIG).
    (22) DOL/OIG-2 (Freedom of Information/Privacy Acts Records), a 
system of records maintained by the OIG.
    (23) DOL/OIG-3 (Case Development Records), a system of records 
maintained by OIG.
    (24) DOL/OIG-5 (Investigative Case Tracking Systems/Audit 
Information Reporting Systems, USDOL/OIG), a system of records 
maintained by OIG.
    (25) DOL/MSHA-10 (Discrimination Investigations), a system of 
records maintained by the Mine Safety and Health Administration (MSHA).
    (26) DOL/MSHA-19 (Employee Conduct Investigations), a system of 
records maintained by MSHA.
    (27) DOL/MSHA-20 (Civil/Criminal Investigations), a system of 
records maintained by MSHA.
    (28) DOL/OSHA-1 (Discrimination Complaint File), a system of records 
maintained by the Occupational Safety and Health Administration (OSHA).
    (29) DOL/OSHA-12 (Employee Conduct Investigations), a system of 
records maintained by OSHA.
    (30) DOL/EBSA-2 (Office of Enforcement Index Cards and Investigation 
Files), a system of records maintained by the Employee Benefits Security 
Administration (EBSA).
    (31) DOL/EBSA-7 (EBSA Employee Conduct Investigations), a system of 
records maintained by EBSA.
    (32) DOL/SOL-8 (Special Litigation Files), a system of records 
maintained by the Office of the Solicitor (SOL).
    (33) DOL/SOL-9 (Freedom of Information Act and Privacy Act Appeals 
Files), a system of records maintained by SOL.
    (34) DOL/SOL-11 (Division of Civil Rights and Labor Management 
Defensive Litigation Files), a system of records maintained by SOL.
    (35) DOL/SOL-12 (Third-party Recovery Files), a system of records 
maintained by SOL.
    (36) DOL/SOL-13 (SOL Employee Conduct Investigations), a system of 
records maintained by SOL.
    (37) DOL/SOL-15 (Solicitor's Office Litigation Files), a system of 
records maintained by SOL.
    (38) DOL/VETS-1 (Veterans' Reemployment Complaint File--VETS-1), a 
system of records maintained by the Veterans' Employment and Training 
Service (VETS).
    (39) DOL/VETS-2 (Veterans' Preference Complaint File), a system of 
records maintained by VETS.
    (b) This exemption applies to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (c) The systems of records listed under paragraphs (a)(1) through 
(a)(39) of this section are exempted for the reasons set forth in 
paragraphs (c) (1) through (6) of this section, from the following 
subsections of 5 U.S.C. 552a:
    (1) Subsection (c)(3). The release of the disclosure accounting, for 
disclosures made pursuant to subsection (b) of the Act, including those 
permitted under the routine uses published for these systems of records, 
would enable the subject of an investigation of an actual or potential 
civil case to determine whether he or she is the subject of 
investigation, to obtain valuable information concerning the nature of 
that investigation and the information obtained, and to determine the 
identity of witnesses or informants. Such access to investigative 
information would, accordingly, present a serious impediment to law 
enforcement. In addition, disclosure of the accounting would constitute 
notice to the individual of the existence of a record even though such 
notice requirement under subsection

[[Page 652]]

(f)(1) is specifically exempted for this system of records.
    (2) Subsections (d)(1), (d)(2), (d)(3), and (d)(4). Access to the 
records contained in these systems would inform the subject of an actual 
or potential civil investigation of the existence of that investigation, 
of the nature and scope of the information and evidence obtained as to 
his or her activities, and of the identity of witnesses or informants. 
Such access would, accordingly, provide information that could enable 
the subject to avoid detection. This result, therefore, would constitute 
a serious impediment to effective law enforcement not only because it 
would prevent the successful completion of the investigation but also 
because it could endanger the physical safety of witnesses or 
informants, lead to the improper influencing of witnesses, the 
destruction of evidence, or the fabrication of testimony.
    (3) Subsection (e)(1). The notices for these systems of records 
published in the Federal Register set forth the basic statutory or 
related authority for maintenance of these systems. However, in the 
course of civil and related law enforcement investigations, cases and 
matters, the agency will occasionally obtain information concerning 
actual or potential violations of law that are not strictly or 
technically within its statutory or other authority or may compile 
information in the course of an investigation which may not be relevant 
to a specific case. In the interests of effective law enforcement, it is 
necessary to retain some or all of such information in this system of 
records since it can aid in establishing patterns of compliance and can 
provide valuable leads for Federal and other law enforcement agencies. 
Moreover, it is difficult to know during the course of an investigation 
what is relevant and necessary. In this connection, facts or evidence 
may not seem relevant at first, but later in the investigation, their 
relevance is borne out.
    (4) Subsections (e)(4) (G) and (H). Since an exemption is being 
claimed for subsections (f) (Agency Rules) and (d) (Access to Records) 
of the Act, these subsections are inapplicable to the extent that these 
systems of records are exempted from subsections (f) and (d).
    (5) Subsection (e)(4)(I). The categories of sources of the records 
in these systems have been published in the Federal Register in broad 
generic terms in the belief that this is all that subsection (e)(4)(I) 
of the Act requires. In the event, however, that this subsection should 
be interpreted to require more detail as to the identity of sources of 
the records in this system, exemption from this provision is necessary 
in order to protect the confidentiality of the sources of civil law 
enforcement information. Such exemption is further necessary to protect 
the privacy and physical safety of witnesses and informants.
    (6) Subsection (f). Procedures for notice to an individual pursuant 
to subsection (f)(1) as to existence of records pertaining to the 
individual dealing with an actual or potential criminal, civil, or 
regulatory investigation or prosecution must be exempted because such 
notice to an individual would be detrimental to the successful conduct 
and/or completion of an investigation or case, pending or future. In 
addition, mere notice of the fact of an investigation could inform the 
subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection, to influence witnesses improperly, to destroy evidence, or to 
fabricate testimony. Since an exemption is being claimed for subsection 
(d) of the Act (Access to Records), the rules required pursuant to 
subsections (f)(2) through (5) are inapplicable to these systems of 
records to the extent that these systems of records are exempted from 
subsection (d).

[63 FR 56741, Oct. 22, 1998, as amended at 68 FR 16399, Apr. 3, 2003; 72 
FR 37099, July 9, 2007]



Sec.  71.52  Specific exemptions pursuant to subsection (k)(5) 
of the Privacy Act.

    (a) The following systems of records are eligible for exemption 
under 5 U.S.C. 552a(k)(5) because they contain 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

[[Page 653]]

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. Accordingly, these systems of 
records are exempt from (c)(3), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), 
(e)(4)(G), (e)(4)(I) and (f) of 5 U.S.C. 552a.
    (1) DOL/OASAM-20 (Personnel Investigation Records), a system of 
records maintained by the Office of the Assistant Secretary for 
Administration and Management (OASAM).
    (2) DOL/OIG-1 (General Investigative Files, and Subject Title Index, 
USDOL/OIG), a system of records maintained by the Office of the 
Inspector General (OIG).
    (3) DOL/OIG-2 (Freedom of Information/Privacy Acts Records), a 
system of records maintained by the OIG.
    (4) DOL/OIG-3 (Case Development Records), a system of records 
maintained by the OIG.
    (5) DOL/OIG-5 (Investigative Case Tracking Systems/Audit Information 
Reporting Systems, USDOL/OIG), a system of records maintained by the 
OIG.
    (b) This exemption applies to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
    (c) The systems of records listed under paragraphs (a)(1) through 
(a)(5) of this section are exempted for the reasons set forth in 
paragraphs (c)(1) through (6) of this section, from the following 
subsections of 5 U.S.C. 552a:
    (1) Subsection (c)(3). The release of the disclosure accounting, for 
disclosures made pursuant to subsection (b) of the Act, including those 
permitted under the routine uses published for this system of records, 
would enable the subject of an investigation of an actual or potential 
civil case to determine whether he or she is the subject of 
investigation, to obtain valuable information concerning the nature of 
that investigation and the information obtained, and to determine the 
identity of witnesses or informants. Such access to investigative 
information would, accordingly, present a serious impediment to the 
investigation. In addition, disclosure of the accounting would 
constitute notice to the individual of the existence of a record even 
though such notice requirement under subsection (f)(1) is specifically 
exempted for this system of records.
    (2) Subsections (d)(1), (d)(2), (d)(3), and (d)(4). Access to the 
records contained in these systems would inform the subject of an actual 
or potential investigation of the existence of that investigation, of 
the nature and scope of the information and evidence obtained as to his 
or her activities, and of the identity of witnesses or informants. Such 
access would, accordingly, provide information that could enable the 
subject to avoid detection. This result, therefore, would constitute a 
serious impediment to effective investigation not only because it would 
prevent the successful completion of the investigation but also because 
it could endanger the physical safety of witnesses or informants, lead 
to the improper influencing of witnesses, the destruction of evidence, 
or the fabrication of testimony.
    (3) Subsection (e)(1). The notices for these systems of records 
published in the Federal Register set forth the basic statutory or 
related authority for maintenance of this system. However, in the course 
of civil and related investigations, cases and matters, the agency will 
occasionally obtain information concerning actual or potential 
violations of law that are not strictly or technically within its 
statutory or other authority or may compile information in the course of 
an investigation which may not be relevant to a specific case. In the 
interests of effective investigation, it is necessary to retain some or 
all of such information in these systems of records since it can aid in 
establishing patterns of compliance and can provide valuable leads for 
Federal and other law enforcement agencies. Moreover, it is difficult to 
know during the course of an investigation what is relevant and 
necessary. In this connection, facts or evidence may not seem relevant 
at first, but later in the investigation, their relevance is borne out.

[[Page 654]]

    (4) Subsections (e)(4)(G) and (H). Since an exemption is being 
claimed for subsections (f) (Agency Rules) and (d) (Access to Records) 
of the Act, these subsections are inapplicable to the extent that these 
systems of records are exempted from subsections (f) and (d).
    (5) Subsection (e)(4)(I). The categories of sources of the records 
in these systems have been published in the Federal Register in broad 
generic terms in the belief that this is all that subsection (e)(4)(I) 
of the Act requires. In the event, however, that this subsection should 
be interpreted to require more detail as to the identity of sources of 
the records in this system, exemption from this provision is necessary 
in order to protect the confidentiality of the sources of investigatory 
information. Such exemption is further necessary to protect the privacy 
and physical safety of witnesses and informants.
    (6) Subsection (f). Procedures for notice to an individual pursuant 
to subsection (f)(1) as to existence of records pertaining to the 
individual dealing with an actual or potential investigation must be 
exempted because such notice to an individual would be detrimental to 
the successful conduct and/or completion of an investigation or case, 
pending or future. In addition, mere notice of the fact of an 
investigation could inform the subject or others that their activities 
are under or may become the subject of an investigation and could enable 
the subjects to avoid detection, to influence witnesses improperly, to 
destroy evidence, or to fabricate testimony. Since an exemption is being 
claimed for subsection (d) of the Act (Access to Records), the rules 
required pursuant to subsections (f)(2) through (5) are inapplicable to 
these systems of records to the extent that these systems of records are 
exempted from subsection (d).



            Sec. Appendix A to Part 71--Responsible Officials

    (a)(1) The titles of the responsible officials of the various 
independent agencies in the Department of Labor are listed below. This 
list is provided for information and to assist requesters in locating 
the office most likely to have responsive records. The officials may be 
changed by appropriate designation. Unless otherwise specified, the 
mailing addresses of the officials shall be: U.S. Department of Labor, 
200 Constitution Avenue, NW., Washington, DC 20210-0002. When addressing 
communications to an office or division within a Department of Labor 
agency, include the agency and sub-agency name.

                    Administrative Review Board (ARB)

Chairperson

           Office of the Assistant Secretary for Policy (OASP)

Assistant Secretary for Policy
Deputy Assistant Secretary

                    Bureau of Labor Statistics (BLS)

Commissioner
Associate Commissioner, Office of Administration
The mailing address for responsible officials in the Bureau of Labor 
Statistics is: Rm. 4040--Postal Square Bldg., 2 Massachusetts Ave., NE., 
Washington, DC 20212-0001.

                       Benefits Review Board (BRB)

Chief Administrative Appeals Judge

            Employee Benefits Security Administration (EBSA)

Director, Office of Participant Assistance

              Employees' Compensation Appeals Board (ECAB)

Chairperson

                Employment Standards Administration (ESA)

Assistant Secretary for Employment Standards
Director, Equal Employment Opportunity Unit

            Office of Management, Administration and Planning

Director, Office of Management, Administration and Planning

                Office of Workers' Compensation Programs

Director, Office of Workers' Compensation Programs
Deputy Director, Office of Workers' Compensation Programs
Special Assistant to the Director
Director for Division of Planning, Policy, and Standards
Director for Federal Employees' Compensation
Director for Longshore and Harbor Workers' Compensation
Director for Coal Mine Workers' Compensation
Director for Energy Employees Occupational Illness Compensation

[[Page 655]]

                         Wage and Hour Division

Administrator
Deputy Administrator
Deputy National Office Program Administrator
Director, Office of Enforcement Policy
Deputy Director, Office of Enforcement Policy
Director, Office of Planning and Analysis
Director, Office of Wage Determinations
Director, Office of External Affairs

             Office of Federal Contract Compliance Programs

Deputy Assistant Secretary for Federal Contract Compliance Programs
Deputy Director, Office of Federal Contract Compliance Programs
Director, Division of Policy, Planning and Program Development
Deputy Director, Division of Policy, Planning and Program Development
Director, Division of Program Operations
Deputy Director, Division of Program Operations
Director, Division of Management and Administrative Programs

                  Office of Labor-Management Standards

Deputy Assistant Secretary for Labor-Management Standards

              Employment and Training Administration (ETA)

Assistant Secretary of Labor
Deputy Assistant Secretary, Workforce Investment System
Administrator, Office of Workforce Investment
Administrator, Office of Workforce Security
Administrator, Office of National Response
Director, Division of Trade Adjustment Assistance
Administrator, Office of Field Operations
Regional Administrator, Boston
Regional Administrator, Philadelphia
Regional Administrator, Atlanta
Regional Administrator, Dallas
Regional Administrator, Chicago
Regional Administrator, San Francisco
Deputy Assistant Secretary, Administration & National Activity
Administrator, Office of Foreign Labor Certification
Administrator, Office of Apprenticeship
Regional Director, Office of Apprenticeship, Boston
Regional Director, Office of Apprenticeship, Philadelphia
Regional Director, Office of Apprenticeship, Atlanta
Regional Director, Office of Apprenticeship, Dallas
Regional Director, Office of Apprenticeship, Chicago
Regional Director, Office of Apprenticeship, San Francisco
Administrator, Office of Policy Development & Research
Administrator, Office of Financial & Administrative Management
Director, Office of Financial and Administrative Services
Director, Office of Grants and Contracts Management
Chief, Division of Contract Services
Chief, Division of Federal Assistance
Director, Office of Human Resources
Director, Office of Equal Employment Opportunity
Director, Office of Special Program & Emergency Preparedness
Administrator, Office of Performance & Technology

              Bureau of International Labor Affairs (ILAB)

Deputy Undersecretary, Office of the Deputy Undersecretary

                        Office of Job Corps (OJC)

National Director
Regional Director, Boston
Regional Director, Philadelphia
Regional Director, Atlanta
Regional Director, Chicago
Regional Director, Dallas
Regional Director, San Francisco

              Mine Safety and Health Administration (MSHA)

Director of Office of Standards, Regulations, and Standards
The mailing address for the responsible official in the Mine Safety and 
Health Administration is: 1100 Wilson Boulevard, Arlington, Virginia 
22209.

             Office of the Administrative Law Judges (OALJ)

Chief Administrative Law Judge
Legal Counsel
The mailing address for the Office of Administrative Law Judges is: 
Chief, Office of Administrative Law Judges, 800 K Street, NW., Suite N-
400, Washington, DC 20001-8002.

                  Office of Adjudicatory Services (OAS)

Executive Director

  Office of the Assistant Secretary for Administration and Management 
                                 (OASAM)

Deputy Assistant Secretary for Operations
Deputy Assistant Secretary for Budget and Performance Planning
Deputy Assistant Secretary for Security and Emergency Management
Director, Business Operations Center
Director, Civil Rights Center
Director, Human Resources Center
Director, Information Technology Center
Director, Departmental Budget Center

[[Page 656]]

Director, Center for Program Planning and Results

              Office of the Chief Financial Officer (OCFO)

Chief Financial Officer
Associate Deputy Secretary for Adjudication

      Office of Congressional and Intergovernmental Affairs (OCIA)

Assistant Secretary
Deputy Assistant Secretary

              Office of Disability Employment Policy (ODEP)

Assistant Secretary
Deputy Assistant Secretary
Director, Policy and Research
Director, Operations

                  Office of the Inspector General (OIG)

Disclosure Officer

                     Office of Public Affairs (OPA)

Assistant Secretary
Deputy Assistant Secretary

                 Office of the Secretary of Labor (OSEC)

Secretary of Labor, Attention: Assistant Secretary for Administration 
and Management

                Office of Small Business Programs (OSBP)

Director

                 Office of the Solicitor of Labor (SOL)

Deputy Solicitor

          Occupational Safety and Health Administration (OSHA)

Assistant Secretary
Deputy Assistant Secretary (2)
Director, Office of Communications
Director, Office of Equal Employment Opportunity
Director, Directorate of Administrative Programs
Director, Directorate of Construction
Director, Directorate of Cooperative and State Programs
Director, Directorate of Enforcement Programs
Director, Directorate of Evaluation and Analysis
Director, Directorate of Information Technology
Director, Directorate of Science, Technology and Medicine
Director, Directorate of Standards and Guidance
Director, Directorate of Training and Education
The mailing address for OSHA's Directorate of Training and Education is 
2020 South Arlington Heights Road, Arlington Heights, Illinois 60005-
4102.
Regional Administrator, Boston
Regional Administrator, New York
Regional Administrator, Philadelphia
Regional Administrator, Atlanta
Regional Administrator, Chicago
Regional Administrator, Dallas
Regional Administrator, Kansas City
Regional Administrator, Denver
Regional Administrator, San Francisco
Regional Administrator, Seattle

            Veterans' Employment and Training Service (VETS)

Assistant Secretary
Deputy Assistant Secretary
Director, Office of Agency, Management and Budget

                             Women's Bureau

Director
National Office Coordinator

    (2) The titles of the responsible officials in the regional offices 
of the various independent agencies are listed below. Unless otherwise 
specified, the mailing address for these officials by region, shall be:

                                Region I

U.S. Department of Labor, John F. Kennedy Federal Building, Boston, 
Massachusetts 02203

                                Region II

201 Varick Street, New York, New York 10014

                               Region III

Gateway Building, 3535 Market Street, Philadelphia, Pennsylvania 19104
Curtis Center, 170 South Independence Mall West, Philadelphia, PA 19106-
3305 (BLS only) This also is an OSHA address.

                                Region IV

U.S. Department of Labor, Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, Georgia 30303

                                Region V

Kluczynski Federal Building, 230 South Dearborn Street, Chicago, 
Illinois 60604
1240 East Ninth Street, Room 851, Cleveland, Ohio 44199 (FEC only)

                                Region VI

525 Griffin Square Building, Griffin & Young Streets, Dallas, Texas 
75202

                               Region VII

City Center Square Building, 1100 Main Street, Kansas City, Missouri 
64105-2112 (For BLS only: contact Region VI.)

                               Region VIII

1999 Broadway Street, Denver, Colorado 80202 (For BLS only: contact 
Region VI.)

[[Page 657]]

                                Region IX

San Francisco Federal Building, 90-7th Street, San Francisco, California 
94103

                                Region X

1111 Third Avenue, Seattle, Washington 98101-3212 (For BLS only: contact 
Region IX.)

            Employee Benefits Security Administration (EBSA)

Regional Director or District Supervisor
Regional Director, J.F.K. Federal Bldg., Room 575, Boston, Massachusetts 
02203
Regional Director, 33 Whitehall Street, Suite 1200, New York, NY 10004
Regional Director, The Curtis Center, 170 S. Independence Mall West, 
Suite 870 West, Philadelphia, PA 19106
District Supervisor, 1335 East-West Highway, Suite 200, Silver Spring, 
MD 20910
Regional Director, 61 Forsyth Street, S.W., Room 7B54, Atlanta, Georgia 
30303
District Supervisor, 8040 Peters Road, Building H, Suite 104, 
Plantation, Florida 33324
Regional Director, 1885 Dixie Highway, Suite 210, Ft. Wright, Kentucky 
41011
District Supervisor, 211 West Fort Street, Suite 1310, Detroit, Michigan 
48226-3211
Regional Director, 200 West Adams Street, Suite 1600, Chicago, Illinois 
60606
Regional Director, Two Pershing Square Building, 2300 Main Street, Suite 
1100, Kansas City, MO 64108
District Supervisor, Young Federal Building, 1222 Spruce Street, Room 
6310, St. Louis, MO 63103
Regional Director, 525 Griffin Street, Room 900, Dallas, Texas 75202
Regional Director, 90 7th Street, Suite 11-300, San Francisco, CA 94103
District Director, 1111 Third Avenue, Room 860, Seattle, Washington 
98101-3212
Regional Director, 1055 E. Colorado Boulevard, Suite 200, Pasadena, CA 
91106

                Employment Standards Administration (ESA)

Regional Administrator for Wage and Hour, Regional Director for Federal 
Contract Compliance Programs, Regional Director for the Office of 
Workers' Compensation Programs, District Director, Office of Workers' 
Compensation Programs, Employment Standards Administration

                       Wage and Hour Division, ESA

                            Northeast Region

The Curtis Center, Suite 850, 170 S. Independence Mall West, 
Philadelphia, PA 19106

                            Southeast Region

U.S. Department of Labor, Atlanta Federal Center, Room 7M40, 61 Forsyth 
Street, SW., Atlanta, GA, 30303

                             Midwest Region

230 South Dearborn Street, Suite 530, Chicago, Illinois 60604

                            Southwest Region

525 Griffin Street, Suite 800, Dallas, TX 75202

                             Western Region

71 Stevenson Street, Suite 930, San Francisco, California 94105

           Office of Federal Contract Compliance Programs, ESA

JFK Federal Building, Room E-235, Boston, Massachusetts 02203
201 Varick Street, Room 750, New York, New York 10014
Curtis Center Suite 750 West, 170 S. Independence Mall West, 
Philadelphia, PA 19106
61 Forsyth Street, SW, Suite 7B75, Atlanta, Georgia 30303
Klucynski Federal Building, Room 570, 230 South Dearborn Street, 
Chicago, Illinois 60604
Federal Building, Room 840, 525 South Griffin Street, Dallas, Texas 
75202
71 Stevenson Street, Suite 1700, San Francisco, California 94105-2614

      Office of Workers' Compensation Programs, District Directors

                             National Office

800 North Capitol Street NW., Room 800, Washington, DC 20211 (FECA Only)

                               FAB Offices

800 N. Capitol Street, Room 565, Washington, DC 20211 (EEOIC Only)
400 West Bay Street, Room 722, Jacksonville, FL 32202 (EEOIC Only)
1001 Lakeside Avenue Suite 350, Cleveland, OH 44114 (EEOIC Only)
1999 Broadway, Suite 1120, Denver, CO 80202 (EEOIC Only)
719 Second Avenue, Suite 601, Seattle, WA 98104 (EEOIC Only)

                            Northeast Region

201 Varick Street, Seventh Floor, Room 750, New York, NY 10014 (FECA and 
LHWCA only)
201 Varick Street, Seventh Floor, Room 740, New York, New York 10014 
(FECA and LHWCA only)
John F. Kennedy, Federal Building, Room E-260, Boston, Massachusetts 
02203 (FECA and LHWCA Only)

                           Philadelphia Region

Curtis Center, Suite 780 West, 170 S. Independence Mall West, 
Philadelphia, PA 19106 (FECA only)

[[Page 658]]

Curtis Center, Suite 715 East, 170 S. Independence Mall West, 
Philadelphia, PA 19106 (FECA only)
Penn Traffic Building, 319 Washington Street, Johnstown, Pennsylvania 
15901 (BLBA only)
100 North Wilkes Barre Blvd., Suite 300A, Wilkes-Barre, Pennsylvania 
18702 (BLBA only)
Wellington Square, 1225 South Main Street, Suite 405, Greensburg, 
Pennsylvania 15601 (BLBA only)
Federal Building, 31 Hopkins Plaza, Room 410B, Baltimore, Maryland 21201 
(LHWCA Only)
Federal Building, 200 Granby Mall, Room 212, Norfolk, Virginia 23510 
(LHWCA only)
Federal Building, 500 Quarrier Street, Suite 110, Charleston, West 
Virginia 25301 (BLBA Only)
Federal Building, 425 Juliana Street, Suite 3116, Parkersburg, West 
Virginia 26101 (BLBA Only)

                           Jacksonville Region

400 West Bay Street, Suite 943, Jacksonville, FL 32202 (FECA, EEOIC and 
LHWC)
400 West Bay Street, Room 826, Jacksonville, FL 32202 (FECA only)
164 Main Street, Fifth Floor, Suite 508, Pikeville, Kentucky 41501 (BLBA 
only)
400 West Bay Street, Room 63A, Jacksonville, Florida 32202 (LHWCA only)
400 West Bay Street, Room 722, Jacksonville, Florida 32202 (DEEOIC only)

                             Midwest Region

230 South Dearborn Street, 8th Floor, Room 800, Chicago, Illinois 60604 
(FECA)
1240 East Ninth Street, Room 851, Cleveland, Ohio 44199 (FECA Only)
1160 Dublin Road, Suite 300, Columbus, Ohio 43215 (BLBA Only)
City Center Square, 1100 Main Street, Suite 750, Kansas City, Missouri 
64105 (FECA Only)
North Point Tower, 1001 Lakeside Ave, Suite 350, Cleveland, OH 44114 
(EEOIC Only)

                            Southwest Region

525 South Griffin Street, Room 407, Federal Building, Dallas, Texas 
75202 (FECA and DLHWC)
525 South Griffin Street, Room 100, Federal Building, Dallas, Texas 
75202 (FECA Only)
P.O. Box 30728 New Orleans, Louisiana 70190 (LHWCA Only)
8866 Gulf Freeway, Suite 140, Houston, Texas 77017 (LHWCA Only)
1999 Broadway, Suite 600, Denver, Colorado 80202 (FECA and BLBA Only)
1999 Broadway, Suite 1120, Denver, Colorado 80202 (DEEOIC)

                             Pacific Region

71 Stevenson Street, Room 1705, San Francisco, California 94105 (LHWCA 
and FECA)
71 Stevenson Street, Room 305, San Francisco, California 94105 (LHWCA 
and FECA)
401 E. Ocean Boulevard, Suite 720, Long Beach, California 90802 (LHWCA 
Only)
300 Ala Moana Boulevard, Room 5-135, Honolulu, Hawaii 96850 (LHWCA Only)
1111 Third Avenue, Suite 620, Seattle, Washington 98101 (LHWCA only)
1111 Third Avenue, Suite 650, Seattle, Washington 98101 (FECA only)
719 Second Avenue, Suite 601, Seattle, Washington 98101 (DEEOIC only)

              Employment and Training Administration (ETA)

                                Region I

U.S. Department of Labor, John F. Kennedy Federal Building, Room E-350, 
Boston, Massachusetts 02203

                                Region II

The Curtis Center 170 South Independence Mall West, Suite 825 East, 
Philadelphia, PA 19106-3315

                               Region III

Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Room 6M12, 
Atlanta, Georgia 30303

                                Region IV

A. Maceo Smith Federal Building 525 S. Griffin Street, Room 317, Dallas, 
TX 75202

                                Region V

John Kluczynski Federal Building, 230 South Dearborn Street, Room 628, 
Chicago, Illinois 60604

                                Region VI

71 Stevenson Street, Room 830, San Francisco, California 94119-3767

                           Office of Job Corps

                              Boston Region

John F. Kennedy Federal Building E-350, Boston, Massachusetts 02203

                           Philadelphia Region

The Curtis Center, Suite 815 East, 170 South Independence Mall West, 
Philadelphia, Pennsylvania, 19106

                             Atlanta Region

62 Forsyth Street, Room 6T95, Atlanta, Georgia 30303

[[Page 659]]

                             Chicago Region

Federal Building, 230 South Dearborn Street, Room 676, Chicago, Illinois 
60604

                              Dallas Region

525 Griffin Street, Room 403, Dallas, Texas 75202

                          San Francisco Region

71 Stevenson Street, Suite 1015, San Francisco, California 94105

  Office of the Assistant Secretary for Administration and Management 
                                 (OASAM)

                                Region I

Regional Administrator--John F. Kennedy Federal Building E 215, Boston, 
MA 02203

                                Region II

Regional Administrator--201 Varick Street, Room 815, New York, NY 10014

                               Region III

Regional Administrator--The Curtis Center, Suite 600 East, 170 S. 
Independence Mall West, Philadelphia, PA 19106-3305

                                Region IV

Regional Administrator--Sam Nunn Atlanta Federal Center, 61 Forsyth 
Street, SW., Room 6B65, Atlanta, GA 30303

                                Region V

Regional Administrator--230 South Dearborn Street, 10th Floor, Chicago, 
IL 60604

                                Region VI

Regional Administrator--525 Griffin Street, Room 744, Dallas, TX 75202

                               Region VII

Regional Administrator--1100 Main Street, Suite 850, Kansas City, MO 
64105-2112

                                Region IX

Regional Administrator--71 Stevenson Street, Suite 515, San Francisco, 
CA 94105

                                Region X

Regional Administrator--1111 3rd Avenue, Suite 815, Seattle, WA 98101-
3212

          Occupational Safety and Health Administration (OSHA)

Regional Administrator--John F. Kennedy Federal Building, Room E-340, 
Boston, Massachusetts 02203

                              Area Director

Federal Office Building, 450 Main Street, Room 613, Hartford, 
Connecticut 06103
1057 Broad Street, 4th Floor, Bridgeport, Connecticut 06604
639 Granite Street, 4th Floor, Braintree, Massachusetts 02184
1441 Main Street, Room 550, Springfield, Massachusetts 01103-1493
Valley Office Park, 13 Branch Street, Methuen, Massachusetts 01844
E.S. Muskie Federal Building, 40 Western Avenue, Room G-26, Augusta, 
Maine 04330
202 Harlow Street, Room 240, Bangor, Maine 04401
53 Pleasant Street, Room 3901, Concord, New Hampshire 03301
Federal Office Building, 380 Westminster Mall, Room 543, Providence, 
Rhode Island 02903
Regional Administrator--201 Varick Street, Room 670, New York, New York 
10014

                              Area Director

500 Route 17 South, 2nd Floor, Hasbrouck Heights, New Jersey 07604
Marlton Executive Park, Building 2, 701 Route 73 South, Suite 120, 
Marlton, New Jersey 08053
1030 St. Georges Avenue, Plaza 35, Suite 205, Avenel, New Jersey 07001
299 Cherry Hill Road, Suite 103, Parsippany, New Jersey 07054
201 Varick Street, Room 908, New York, New York 10014
1400 Old Country Road, Suite 208, Westbury, New York 11590
45-17 Marathon Parkway, Little Neck, New York 11362
401 New Karner Road, Suite 300, Albany, New York 12205-3809
3300 Vickery Road, North Syracuse, New York 13212
130 South Elmwood Avenue, Room 500, Buffalo, New York 14202-2465
660 White Plains Road, 4th Floor, Tarrytown, New York 10591-5107
Triple S Building, 1510 F.D. Roosevelt Avenue, Suite 5B, Guaynabo, 
Puerto Rico 00968
Regional Administrator--The Curtis Center--Suite 740 West, 170 South 
Independence Mall West, Philadelphia, PA 19106-3309
919 Market Street, Mellon Bank Building, Suite 900, Wilmington, Delaware 
19801-3319
1099 Winterson Road, Suite 140, Linthicum, Maryland 21090-2218
U.S. Custom House, Room 242, Second & Chestnut Street, Philadelphia, 
Pennsylvania 19106-2902
Federal Building, 1000 Liberty Avenue, Room 1428, Pittsburgh, 
Pennsylvania 15222-4101
1128 State Street, Suite 200, Erie, Pennsylvania 16501
The Stegmaier Building, Suite 410, 7 North Wilkes-Barre Boulevard, 
Wilkes-Barre, Pennsylvania 18702-5241
850 North 5th Street, Allentown, Pennsylvania 18102-1731
Progress Plaza, 49 North Progress Avenue, Harrisburg, Pennsylvania 
17109-3596

[[Page 660]]

Federal Office Building, 200 Granby Street, Room 614, Norfolk, Virginia 
23510-1819
405 Capitol Street, Suite 407, Charleston, West Virginia 25301-1727
Regional Administrator--Sam Nunn Atlanta Federal Center, 61 Forsyth 
Street, SW., Room 6T50, Atlanta, Georgia 30303

                              Area Director

950 22nd Street North, Suite 1050, Birmingham, Alabama 35203
1141 Montlimar Drive, Suite 1006, Mobile, Alabama 36609
8040 Peters Road, Building H-100, Fort Lauderdale, Florida 33324
Ribault Building, Suite 227, 1851 Executive Center Drive, Jacksonville, 
Florida 32207
5807 Breckenridge Parkway, Suite A, Tampa, Florida 33610-4249
2400 Herodian Way, Suite 250, Smyrna, Georgia 30080-2968
450 Mall Boulevard, Suite J, Savannah, Georgia 31406
La Vista Perimeter Office Park, 2183 N. Lake Parkway, Building 7, Suite 
110, Tucker, Georgia 30084-4154
John C. Watts Federal Building, 330 West Broadway, Room 108, Frankfort, 
Kentucky 40601-1922
3780 I-55 North, Suite 210, Jackson, Mississippi 39211-6323
4407 Bland Road, Suite 210, Raleigh, North Carolina 27609
Strom Thurman Federal Building, 1835 Assembly Street, Room 1472, 
Columbia, South Carolina 29201-2453
2002 Richard Jones Road, Suite C-205, Nashville, Tennessee 37215-2809
Regional Administrator--John Kluczynski Federal Building, 230 South 
Dearborn Street, Room 3244, Chicago, Illinois 60604

                              Area Director

1600 167th Street, Suite 9, Calumet City, Illinois 60409
701 Lee Street, Suite 950, Des Plaines, Illinois 60016
365 Smoke Tree Plaza, North Aurora, Illinois 60542
11 Executive Drive, Suite 11, Fairview Heights, Illinois 62208
2918 W. Willow Knolls Road, Peoria, Illinois 61614
46 East Ohio Street, Room 423, Indianapolis, Indiana 46204
315 West Allegan, Room 207, Lansing, Michigan 48933
Federal Office Building, 1240 East 9th Street, Room 899, Cleveland, Ohio 
44199
Federal Office Building, 200 N. High Street, Room 620, Columbus, Ohio 
43215
420 Madison Avenue, Suite 600, Toledo, Ohio 43604
36 Triangle Park Drive, Cincinnati, Ohio 45246
1648 Tri Parkway, Appleton, Wisconsin 54914
Henry S. Reuss Building, Room 1180, 310 West Wisconsin Avenue, 
Milwaukee, Wisconsin 53203
1310 W. Clairemont Avenue, Eau Claire, Wisconsin 54701
4802 East Broadway, Madison, Wisconsin 53716
Regional Administrator--A. Maceo Smith Federal Building, 525 S. Griffin 
Street, Room 602, Dallas, TX 75202

                              Area Director

10810 Executive Center Drive, Danville Building 2, Suite 206, Little 
Rock, Arkansas 72211
9100 Bluebonnet Centre Blvd., Suite 201, Baton Rouge, Louisiana 70809
55 North Robinson, Suite 315, Oklahoma City, Oklahoma 73102-9237
8344 East R.L. Thornton Freeway, Suite 420, Dallas, Texas 75228
La Costa Green Building, 1033 La Posada, Suite 375, Austin, Texas 78752-
3832
Wilson Plaza, 606 N. Carancahua, Suite 700, Corpus Christi, Texas 78476
Federal Office Building, 1205 Texas Avenue, Room 806, Lubbock, Texas 
79401
Houston North Area Office, 507 North Sam Houston Parkway East, Suite 
400, Houston, Texas 77060
17625 El Camino Real, Suite 400, Houston, Texas 77058
8713 Airport Freeway, Suite 302, Fort Worth, Texas 76180-7610
4849 North Mesa Street, Suite 200, El Paso, Texas 79912-5936
Regional Administrator--City Center Square, 1100 Main Street, Suite 800, 
Kansas City, Missouri 64105

                              Area Director

210 Walnut Street, Room 815, Des Moines, Iowa 50309-2015
271 W. 3rd Street North, Room 400, Wichita, Kansas 67202
6200 Connecticut Avenue, Suite 100, Kansas City, Missouri 64120
911 Washington Avenue, Room 420, St. Louis, Missouri 63101
Overland--Wolf Building, 6910 Pacific Street, Room 100, Omaha, Nebraska 
68106
Regional Administrator--1999 Broadway, Suite 1690, Denver, Colorado 
80202

                              Area Director

7935 East Prentice Avenue, Suite 209, Greenwood Village, Colorado 80011-
2714
1391 Speer Boulevard, Suite 210, Denver, Colorado 80204-2552
2900 Fourth Avenue North, Suite 303, Billings, Montana 59101
1640 East Capitol Avenue, Bismarck, North Dakota 58501
Regional Administrator--90 7th Street, Suite 18-100, San Francisco, 
California 94103

[[Page 661]]

Regional Administrator--1111 Third Avenue, Suite 715, Seattle, 
Washington 98101-3212

                              Area Director

222 W. 7th Avenue, Box 22, Anchorage, Alaska 99513
1150 North Curtis Road, Suite 201, Boise, Idaho 83706
1220 Southwest 3rd Avenue, Room 640, Portland, Oregon 97204
505 106th Avenue NE, Suite 302, Belleview, Washington 98004

            Veterans' Employment and Training Service (VETS)

Regional Administrators

                         Boston Regional Office

J.F. Kennedy Federal Building, Government Center, Room E-315, Boston, 
Massachusetts 02203

                      Philadelphia Regional Office

The Curtis Center, Suite 770 West, 170S. Independence Mall West, 
Philadelphia, PA 19106-2205

                         Atlanta Regional Office

Atlanta Federal Center, 61 Forsyth Street, SW., Room 6T85, Atlanta, 
Georgia 30303

                         Chicago Regional Office

230 South Dearborn, Room 1064, Chicago, Illinois 60604

                         Dallas Regional Office

525 Griffin Street, Room 858, Dallas, Texas 75202

                      San Francisco Regional Office

90 Seventh Street Suite 2-600, San Francisco, California 94103

[72 FR 37099, July 9, 2007]



   PART 75_DEPARTMENT OF LABOR REVIEW AND CERTIFICATION PROCEDURES 
   FOR RURAL INDUSTRIALIZATION LOAN AND GRANT PROGRAMS UNDER THE CONSOLIDATED 
   FARM AND RURAL DEVELOPMENT ACT OF 1972--Table of Contents



Sec.
75.1 Introduction.
75.11 Standards for the review of applications.

    Authority: Sec. 118, Pub. L. 92-419, 86 Stat. 663 (7 U.S.C. 1932).



Sec.  75.1  Introduction.

    (a) Section 118 of the Consolidated Farm and Rural Development Act 
authorizes the Rural Development Administration (RDA) of the U.S. 
Department of Agriculture (USDA) to make or guarantee loans to finance 
industrial and business activities in rural areas (broadly defined to 
include any place with a population of less than 50,000), 7 U.S.C. 
1932(d). The Act also permits RDA to make grants to public bodies for 
measures designed to facilitate the development of private business 
enterprises and for pollution control and abatement projects.
    (b) As a prior condition for the approval of such loans, guarantees 
and grants, the Act further specifies that the Secretary of Labor must 
certify to the Secretary of Agriculture within 30 days after referral, 
that the loan or grant is not calculated to or likely to result in the 
transfer from one area to another of any employment or business activity 
provided by operations of the applicant and is not calculated to or 
likely to result in an increase in the production of goods, materials, 
or commodities, or the availability of services or facilities in the 
area, when there is not sufficient demand for such goods, materials, 
commodities, services, or facilities, to employ the efficient capacity 
of existing competitive commercial or industrial enterprises, unless 
such financial or other assistance will not have an adverse effect upon 
existing competitive enterprises in the area. Responsibility within the 
Department of Labor (DOL) for the review and certification process has 
been assigned to the Employment and Training Administration (ETA).
    (c) The following procedures have been established by the Department 
of Labor in consultation with the USDA for the issuance of labor 
certifications under this program. These procedures are designed to 
insure the orderly and expeditious review of the applications by the 
Department of Labor (DOL) within 30 days after they have been received 
from the USDA. It is anticipated that the procedure will permit 
completion of all cases within the 30-day legal

[[Page 662]]

maximum processing period permitted under the law.

[40 FR 4394, Jan. 29, 1975, as amended at 72 FR 37103, July 9, 2007]



Sec.  75.11  Standards for the review of applications.

    (a) Applications to be routinely approved without field review. The 
following types of applications will be routinely approved and certified 
by the Employment and Training Administration (ETA), provided that the 
required information is submitted by the applicant:
    (1) Loans which involve the change of ownership from one person or 
group to another or the refinancing of an existing loan. Provided, That 
such loans will not result in any transfer from one area to another of 
any employment or business activity provided by operations of the 
applicant and are not calculated to or likely to result in an increase 
in the production of goods, materials, or commodities, or the 
availability of services, or facilities, to employ the efficient 
capacity of existing competitive commercial or industrial enterprise. In 
transmitting such applications to ETA, RDA will include:
    (i) A letter of transmittal stating the name and location of the 
applicant and the amount of the loan, and certifying that the loan is 
either for the purpose of financing the sale of the business or for the 
purpose of refinancing a loan and is not calculated to or likely to 
result in the transfer or expansion of employment or operations:
    (ii) Three copies of Form RD 449-22, Certification of Non-
Relocation; and
    (iii) Three copies of Form RD 449-23, Data Information Sheet. ETA 
will issue an affirmative certification on such applications, without 
further review, within 10 working days.
    (2) Loans of less than $100,000 where the loan proceeds are expected 
to result in the employment of not more than five workers. In such 
instances, the RDA transmittal letter will call attention to the fact 
that the application involved falls within this category. This should be 
supported by data in the revised Forms RD 449-22 and 449-23 to be 
forwarded in triplicate to the DOL. For loan applications in this 
category, the RDA will also attach a certification signed by the State 
RDA director indicating that he has reviewed the loan application and 
certifying that such a loan is not calculated to or likely to result in 
the transfer from one area to another of any employment or business 
activity provided by operations of the applicant and is not calculated 
to or likely to result in an increase in the production of goods, 
materials, or commodities, or the availability of services or 
facilities, when there is not sufficient demand for such goods, 
materials, commodities, services, or facilities in the area, to employ 
the efficient capacity of existing competitive commercial or industrial 
enterprises, unless such financial or other assistance will not have an 
adverse effect upon existing competitive enterprises in the area. Unless 
there is other evidence to indicate an adverse effect on unemployment or 
competitive business enterprises, ETA will accept this certificate and 
accompanying forms as the basis for an affirmative certification without 
further review and will so certify within 10 working days after receipt.
    (3) Grants where there are no known current or future occupants. In 
the case of such applications, e.g., a county's proposal to build an 
industrial park, RDA will send a transmittal letter to ETA stating the 
name and location of the applicant, and the amount and purpose of the 
grant, and certifying that there are no known current or future 
occupations. RDA will also forward with the letter a resolution or other 
statement from the local governing body agreeing to a prior review and 
certification by ETA of any person or organization which may occupy all 
or part of the facility within 3 years from the date of the 
certification, to insure that the requirements of the Act are being 
complied with. ETA will, within 10 days after receipt of such 
applications, issue an affirmative certification conditional upon the 
right of review and certification of each potential occupant within the 
3-year period.
    (4) Grants where the occupants are known, and the improvement will 
not result in a transfer or increase in operations or employment by the 
occupants. The RDA transmittal letter shall provide, in addition to the 
information specified in paragraph (a)(3) of

[[Page 663]]

this section, the names of the occupants and a statement that this grant 
is not calculated to or likely to result in a transfer or increase in 
operations or employment. The applicant shall also be required to submit 
the same type of resolution as that specified in paragraph (a)(3) of 
this section. On the receipt of such data, ETA will issue a 
certification on the grant application and will certify the known 
occupants as well. The certification may require, however, that 
additional occupants or a change in occupants within the first 3 years 
after certification is subject to review and a redetermination.
    (b) Applications which will require field or other review. (1) All 
loan and grant applications other than those specified in paragraph (a) 
of this section will be subject to a full review by the ETA prior to the 
issuance of a certification. For each loan application, the RDA shall 
submit to ETA:
    (i) A letter of transmittal stating the name and location of the 
applicant and the amount of the loan;
    (ii) Six copies of the Certificate of Non-Relocation (Form RD 449-
22);
    (iii) Six copies of the Data Information Sheet (Form RD 449-23); and
    (iv) Any supplemental information, including A-95 Clearinghouse 
Reports, which RDA believes may be of value to ETA in evaluating the 
application.

For grant applications, the letter of transmittal shall also provide 
information about the purpose of the grant. Two copies of a resolution 
or other statement of the type specified under paragraph (a)(3) of this 
section shall also be submitted with each grant application.
    (2) Upon receipt of applications, ETA will review the materials for 
completeness and will inform RDA in writing of any missing items within 
2 working days after the date of receipt. It is agreed that in such 
instances the statutory 30-day period will not begin until the file is 
complete. State workforce agencies will be requested, through the ETA 
regional offices, to provide labor market information needed to 
determine whether the loan would result in adverse competitive effect 
upon existing competitive enterprises in the area. Comments will be due 
in the ETA national office 3 weeks after receipt of the request in the 
ETA regional offices.
    (3) To assist in the review process, DOL will publish in the Federal 
Register a weekly listing of applications received (other than those to 
be routinely certified). The listing will include the name and location 
(City and State) of the applicant and the principal product or type of 
business activity. In the case of grant applications, the listing will 
also include the name and principal product or business activity of the 
occupant(s) of the facility for which the grant is being made. All 
interested parties will be afforded a 2-week period from the date of 
publication to comment in writing to ETA. In the event that adverse 
comments are received, the applicant will be sent copies of such 
comments by certified mail, and afforded an opportunity to provide such 
additional information as the applicant deems appropriate within 2 weeks 
from the date of transmittal. The Rural Development Administration will 
also be provided with copies of such adverse comments.
    (4) In some instances, involving particularly complex situations, 
ETA may request the Economic Development Administration (EDA) in the 
Department of Commerce, or other agencies to provide supplemental data. 
The number of such requests will depend upon the extent to which the DOL 
is capable of making resources available to EDA or other agencies to 
perform this function.
    (5) When all the data have been assembled, a determination will be 
made by ETA of whether the requested certifications may be certified or 
denied. RDA will be notified in writing of the determination. If DOL's 
investigation indicates the need for additional information, all 
material will be returned to RDA with instructions indicating the 
additional information needed to make a certification. Continuation of 
the 30-day time limit will begin again when the additional material is 
returned to Labor.
    (6) All denials will be given additional consideration if the 
applicant or the USDA provides additional evidence which they believe 
merits further consideration. If the DOL reaffirms its denial after a 
review of all available facts

[[Page 664]]

and such additional investigation as it may make, such denial shall be 
considered as final.

[40 FR 4394, Jan. 29, 1975, as amended at 72 FR 37103, July 9, 2007]



PART 90_CERTIFICATION OF ELIGIBILITY TO APPLY FOR WORKER 
ADJUSTMENT ASSISTANCE--Table of Contents



                            Subpart A_General

Sec.
90.1 Purpose.
90.2 Definitions.
90.3 Applicability of part.

   Subpart B_Petitions and Determinations of Eligibility To Apply for 
                          Adjustment Assistance

90.11 Petitions.
90.12 Investigation.
90.13 Public hearings.
90.14 Subpoena power.
90.15 [Reserved]
90.16 Determinations and certifications of eligibility to apply for 
          adjustment assistance.
90.17 Termination of certification of eligibility.
90.18 Reconsideration of determinations.
90.19 Judicial review of determinations.

  Subpart C_Initiation and Conduct of Study With Respect to Workers in 
 Industry Which is the Subject of an Investigation for Industry Import 
                                 Relief

90.21 Study.
90.22 Dissemination of program knowledge and assistance to workers.

                      Subpart D_General Provisions

90.31 Filing of documents.
90.32 Availability of information.
90.33 Confidential business information.
90.34 Notice procedures.
90.35 [Reserved]
90.36 Computation of time.

    Authority: 19 U.S.C. 2320; Secretary's Order No. 3-81, 46 FR 31117.

    Source: 42 FR 32772, June 28, 1977, unless otherwise noted.



                            Subpart A_General



Sec.  90.1  Purpose.

    The purpose of this part 90 is to set forth regulations relating to 
the responsibilities vested in the Secretary of Labor by the Trade Act 
of 1974 (Pub. L. 93-618), as amended, concerning petitions and 
determinations of eligibility to apply for worker adjustment assistance. 
Section 248 of the Act directs the Secretary of Labor to prescribe 
regulations which will implement the provisions relating to adjustment 
assistance for workers. This part will provide for the prompt and 
effective disposition of workers' petitions for certification of 
eligibility to apply for adjustment assistance.

[52 FR 23401, June 19, 1987]



Sec.  90.2  Definitions.

    As used in this part, the term:
    Act means the Trade Act of 1974, Public Law 93-618, 88 Stat. 1978, 
2011-2030 (19 U.S.C. 2271-2321, 2395), as amended.
    Appropriate subdivision means an establishment in a multi-
establishment firm which produces the domestic articles in question or a 
distinct part or section of an establishment (whether or not the firm 
has more than one establishment) where the articles are produced. The 
term appropriate subdivision includes auxiliary facilities operated in 
conjunction with (whether or not physically separate from) production 
facilities.
    Certifying officer means an official, including the Director, 
Division of Trade Adjustment Assistance, in the Employment and Training 
Administration, United States Department of Labor, who has been 
delegated responsibility to make determinations and issue certifications 
of eligibility to apply for adjustment assistance, and to perform such 
further duties as may be required by the Secretary or by this part 90.
    Commission means the United States International Trade Commission, 
formerly named the United States Tariff Commission.
    Date of filing means the date on which petitions and other documents 
are received by the Division of Trade Adjustment Assistance, Employment 
and Training Administration, United States Department of Labor, 200 
Constitution Avenue, NW., Washington DC 20210.
    Date of issuance means the date on which a certification of 
eligibility to apply for adjustment assistance is signed by the 
certifying officer.

[[Page 665]]

    Date of the petition means the date thereon, but which in no event 
shall be more than 30 days before the date of filing.
    Director means the Director of the Division of Trade Adjustment 
Assistance, Employment and Training Administration, United States 
Department of Labor, Washington, DC.
    Firm includes an individual proprietorship, partnership, joint 
venture, association, corporation (including a development corporation), 
business trust, cooperative, trustee in bankruptcy, and receiver under 
decree of any court. A firm, together with any predecessor or successor-
in-interest, or together with any affiliated firm controlled or 
substantially beneficially owned by substantially the same persons, may 
be considered a single firm.
    Group means three or more workers in a firm or an appropriate 
subdivision thereof.
    Increased imports means that imports have increased either 
absolutely or relative to domestic production compared to a 
representative base period. The representative base period shall be one 
year consisting of the four quarters immediately preceding the date 
which is twelve months prior to the date of the petition.
    Layoff means a suspension from pay status for lack of work initiated 
by the employer and expected to last for no less than seven (7) 
consecutive calendar days.
    Like or directly competitive means that like articles are those 
which are substantially identical in inherent or intrinsic 
characteristics (i.e., materials from which the articles are made, 
appearance, quality, texture, etc.); and directly competitive articles 
are those which, although not substantially identical in their inherent 
or intrinsic characteristics, are substantially equivalent for 
commercial purposes (i.e., adapted to the same uses and essentially 
interchangeable therefor).

An imported article is directly competitive with a domestic article at 
an earlier or later stage of processing, and a domestic article is 
directly competitive with an imported article at an earlier or later 
stage of processing, if the importation of the article has an economic 
effect on producers of the domestic article comparable to the effect of 
importation of articles in the same stage of processing as the domestic 
article.
    Partial separation means, with respect to an individual who has not 
been totally separated, that:
    (a) The worker's hours of work have been reduced to 80 percent or 
less of the worker's average weekly hours at the firm or appropriate 
subdivision thereof, and
    (b) The worker's wages have been reduced to 80 percent or less of 
the worker's average weekly wage at the firm or appropriate subdivision 
thereof.
    Secretary means the Secretary of Labor, U.S. Department of Labor.
    Significant number or proportion of the workers means that:
    (a) In most cases the total or partial separations, or both, in a 
firm or appropriate subdivision thereof, are the equivalent to a total 
unemployment of five percent (5 percent) of the workers or 50 workers, 
whichever is less; or
    (b) At least three workers in a firm (or appropriate subdivision 
thereof) with a work force of fewer than 50 workers would ordinarily 
have to be affected.
    Threatened to begin means, in the context of impending total or 
partial separations, the date on which it could reasonably be predicted 
that separations were imminent.
    Total separation means the layoff or severance of an individual from 
a firm or an appropriate subdivision thereof.

[42 FR 32772, June 28, 1977, as amended at 52 FR 23401, June 19, 1987; 
72 FR 37103, 37104 July 9, 2007]



Sec.  90.3  Applicability of part.

    This part 90 generally relates to certifications of eligibility made 
under the Act. Subpart B specifically applies to the initiation and 
conduct of worker investigations and the issuance of determinations and 
certifications of eligibility to apply for adjustment assistance. 
Subpart C applies to studies of workers in industries which are the 
subject of investigations for industry import relief. Subpart D contains 
general provisions with respect to filing of documents and public 
availability of documents.

[[Page 666]]



   Subpart B_Petitions and Determinations of Eligibility To Apply for 
                          Adjustment Assistance



Sec.  90.11  Petitions.

    (a) Who may file petitions. A petition under section 221(a) of the 
Act and this subpart B shall be filed by a group of workers for a 
certification of eligibility to apply for adjustment assistance or by 
their certified or recognized union or other duly authorized 
representative.
    (b) Identification of petitioners. Every petition filed with the 
Department shall clearly state the group of workers on whose behalf the 
petition is filed and the name(s) and address(es) of the person(s) by 
whom the petition is filed. Every petition shall be signed by at least 
three individuals of the petitioning group or by an official of a 
certified or recognized union or other duly authorized representative. 
Signing of a petition shall constitute acknowledgement that each signer 
has read the entire petition, that to the best of the signer's knowledge 
and belief the statements therein are true, and that each signer is duly 
authorized to sign such a petition.
    (c) Contents. Petitions may be filed on a U.S. Department of Labor 
form. Copies of the form may be obtained at a local office of a State 
workforce agency or by writing to the Division of Trade Adjustment 
Assistance, Employment and Training Administration, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington DC 20210. Every petition 
shall include:
    (1) The name(s), address(es), and telephone number(s) of the 
petitioner(s);
    (2) The name or a description of the group of workers on whose 
behalf the petition is filed (e.g., all hourly and salaried employees of 
the XYZ plant of ABC corporation);
    (3) The name and address of the workers' firm or appropriate 
subdivision thereof;
    (4) The name, address, telephone number, and title of an official of 
the firm;
    (5) The approximate date(s) on which the total or partial separation 
of a significant number or proportion of the workers in the workers' 
firm or subdivision began and continued, or threatened to begin, and the 
approximate number of workers affected by such actual or threatened 
total or partial separations;
    (6) A statement of reasons for believing that increases of like or 
directly competitive imports contributed importantly to total or partial 
separations and to the decline in the sales or production (or both) of 
the firm or subdivision (e.g., company statements, articles in trade 
association publications, etc.); and
    (7) A description of the articles produced by the workers' firm or 
appropriate subdivision, the production or sales of which are adversely 
affected by increased imports, and a description of the imported 
articles concerned.

If available, the petition also should include information concerning 
the method of manufacture, end uses, and wholesale or retail value of 
the domestic articles produced and the United States tariff provision 
under which the imported articles are classified.
    (d) Number of copies. One (1) signed original and two (2) clear 
copies of the petition shall be filed. The name(s) of the person(s) 
signing the petition shall be typewritten or otherwise clearly 
reproduced.

(Approved by the Office of Management and Budget under control number 
1205-0192)

[42 FR 32772, June 28, 1977, as amended at 49 FR 18295, Apr. 30, 1984; 
52 FR 23401, June 19, 1987; 72 FR 37103, 37104, July 9, 2007]



Sec.  90.12  Investigation.

    Upon receipt of a petition, properly filed and verified, the 
Director of the Division of Trade Adjustment Assistance shall promptly 
publish notice in the Federal Register that the petition has been 
received. The Director shall initiate, or order to be initiated, such 
investigation as he determines to be necessary and appropriate. The 
investigation may include one or more field visits to confirm 
information furnished by the petitioner(s) and to elicit other relevant 
information. In the

[[Page 667]]

course of any investigation, representatives of the Department shall be 
authorized to contact and meet with responsible officials of firms, 
union officials, employees, and any other persons, or organizations, 
both private and public, as may be necessary to marshal all relevant 
facts to make a determination on the petition.

(Approved by the Office of Management and Budget under control numbers 
1205-0197, 1205-0190, 1205-0191)

[52 FR 23401, June 19, 1987, as amended at 72 FR 37104, July 9, 2007]



Sec.  90.13  Public hearings.

    (a) When held. A public hearing shall be held in connection with an 
investigation instituted under Sec.  90.12 whenever, not later than ten 
(10) days after the date of publication in the Federal Register of the 
notice of receipt of the petition, such a hearing is requested in 
writing by:
    (1) The petitioner; or
    (2) Any other person found by the Director to have a substantial 
interest in the proceedings. Such petitioner and other interested 
persons shall be afforded an opportunity to be present, to produce 
evidence, and to be heard.
    (b) Form of request. A request for public hearing shall be filed in 
the same manner as provided for filing of petitions and other documents 
under Sec.  90.31(a). A request by a person other than the petitioner 
shall contain:
    (1) The name, address, and telephone number of the person, 
organization, or group requesting the hearing; and
    (2) A complete statement of the relationship of the person, 
organization, or group requesting the hearing to the petitioner or the 
subject matter of the petition and a statement of the nature of its 
interest in the proceeding.
    (c) Time and place. Public hearings will be held at the time and 
place specified in a notice published in the Federal Register. Such 
notice shall be published at least seven (7) calendar days before the 
scheduled hearing.
    (d) Presiding officer. The Director shall conduct and preside over 
public hearings.
    (e) Order of testimony. Witnesses will testify in the order 
designated by the presiding officer. Each witness, after being duly 
sworn, will proceed with testimony. After testifying, a witness may be 
questioned by the presiding officer or an agent designated by the 
presiding officer. Any person who has entered an appearance in 
accordance with paragraph (j) of this section may direct questions to 
the witness, but only for the purpose of assisting the presiding officer 
in obtaining relevant and material facts with respect to the subject 
matter of the hearing.
    (f) Evidence. Witnesses may produce evidence of a relevant and 
material nature to the subject matter of the hearing.
    (g) Briefs. Briefs of the evidence produced at the hearing and 
arguments thereon may be presented to the presiding officer by parties 
who have entered an appearance. Three (3) copies of such briefs shall be 
filed with the presiding officer within ten (10) days of the completion 
of the hearing.
    (h) Oral argument. The presiding officer shall provide opportunity 
for oral argument after conclusion of the testimony in a hearing. The 
presiding officer will determine in each instance the time to be allowed 
for argument and the allocation thereof.
    (i) Authentication of evidence. Evidence, oral or written, submitted 
at hearings, will upon order of the presiding officer be subject to 
verification from books, papers, and records of the parties submitting 
such evidence and from any other available sources.
    (j) Transcripts. All hearings will be stenographically reported. 
Persons interested in transcripts of the hearings may inspect them at 
the U.S. Department of Labor in Washington, DC, or purchase copies as 
provided in 29 CFR 70.62(c).
    (k) Appearances. The petitioner or any other person showing a 
substantial interest in the proceedings may enter an appearance at a 
hearing, either in person or by a duly authorized representative.

[42 FR 32772, June 28, 1977, as amended at 52 FR 23401, June 19, 1987; 
72 FR 37104, July 9, 2007]



Sec.  90.14  Subpoena power.

    (a) The Director may require, by subpoena, in connection with any 
investigation or hearing, the attendance and

[[Page 668]]

testimony of witnesses and the production of evidence the issuing 
official in his or her discretion deems necessary to make a 
determination.
    (b) If a person refuses to obey a subpoena issued under paragraph 
(a) of this section, the Director may petition the United States 
District Court within the jurisdiction of which the proceeding is being 
conducted requesting an order requiring compliance with such subpoena.
    (c) Witnesses subpoenaed under this section shall be paid the same 
fees and mileage as are paid for like services in the District Court of 
the United States. The witness fees and mileage shall be paid by the 
United States Department of Labor.
    (d) Subpoenas issued under paragraph (a) of this section shall be 
signed by the Director and shall be served either in person by an 
authorized representative of the Department of Labor or by certified 
mail, return receipt requested. The date for compliance shall be not 
earlier than seven (7) calendar days following service of the subpoena.

[42 FR 32772, June 28, 1977, as amended at 52 FR 23401, June 19, 1987; 
72 FR 37104, July 9, 2007]



Sec.  90.15  [Reserved]



Sec.  90.16  Determinations and certifications of eligibility to apply 
for adjustment assistance.

    (a) General. Within 60 days after the date of filing of a petition, 
a certifying officer shall make a determination on the petition. If, 
however, for any reason, a certifying officer has not made a 
determination in 60 days after the date of filing of the petition, the 
certifying officer shall make the determination as soon thereafter as 
possible. If the determination is affirmative, the certifying officer 
shall issue a certification of eligibility as provided in paragraphs 
(b), (c), (d) and (g) of this section. If the determination is negative, 
the certifying officer shall issue a notice of negative determination as 
provided in paragraphs (b) and (f) of this section.
    (b) Requirements for determinations. After reviewing the relevant 
information necessary to make a determination, the certifying officer 
shall make findings of fact concerning whether:
    (1) A significant number or proportion of the workers in such 
workers' firm (or an appropriate subdivision of the firm) have become, 
or are threatened to become, totally or partially separated;
    (2) Sales or production, or both, of such firm or subdivision have 
decreased absolutely; and
    (3) Increases (absolute or relative) of imports of articles like or 
directly competitive with articles produced by such workers' firm or an 
appropriate subdivision thereof contributed importantly to such total or 
partial separation, or threat thereof, and to such decline in sales or 
production. For purposes of this paragraph and part, the term 
contributed importantly means a cause which is important but not 
necessarily more important than any other cause.
    (c) Notice of affirmative determination and certification of 
eligibility. Upon reaching a determination on a petition that a group of 
workers has met all the requirements set forth in section 222 of the Act 
and paragraph (b) of this section, the certifying officer shall issue a 
certification of eligibility to apply for adjustment assistance and 
shall promptly publish in the Federal Register a summary of the 
determination together with the reasons for making such determination 
(with the exception of information which the certifying officer 
determines to be confidential). Such summary shall include the 
certification of eligibility and shall constitute a Notice of 
Determination and Certification of Eligibility.
    (d) Contents of certification of eligibility. The certification 
shall specify in detail:
    (1) The firm or subdivision thereof at which the workers covered by 
the certification have been employed (which need not be limited to the 
unit specified in the petition), and may identify individual workers by 
name; and
    (2) The impact date(s) on which the total or partial separations of 
the workers covered by the certification began or threatened to begin. 
When applicable, the certification shall specify the date(s) after which 
the total or partial separations of the petitioning

[[Page 669]]

group of workers from the firm or subdivision thereof specified in the 
certification are no longer attributable to the conditions set forth in 
paragraph (b) of this section. For purposes of this section, the impact 
date is the earliest date on which any part of the total or partial 
separations involving a significant number or proportion of workers 
began or threatened to begin.
    (e) Exclusions from coverage of a certification of eligibility. A 
certification of eligibility to apply for adjustment assistance shall 
not apply to any worker:
    (1) Whose last total or partial separation from the firm or 
appropriate subdivision occurred more than one (1) year before the date 
of the petition; or
    (2) Whose last total or partial separation from the firm or 
appropriate subdivision occurred before October 3, 1974.
    (f) Notice of negative determination. Upon reaching a determination 
that a group of workers has not met all the requirements set forth in 
section 222 of the Act and paragraph (b) of this section, the certifying 
officer shall promptly publish in the Federal Register a summary of the 
determination together with the reasons for making such determinations 
(with the exception of information which the certifying officer 
determines to be confidential). Such summary shall constitute a Notice 
of Negative Determination.
    (g) Notice of Determinations. A notice of certification may contain 
a notice of negative determination with respect to certain segments of 
workers. Such notice shall constitute a Notice of Determinations.

[42 FR 32772, June 28, 1977, as amended at 52 FR 23402, June 19, 1987]



Sec.  90.17  Termination of certification of eligibility.

    (a) Investigation. Whenever the Director of the Division of Trade 
Adjustment Assistance has reason to believe, with respect to any 
certification of eligibility, that the total or partial separations from 
a firm or appropriate subdivision thereof are no longer attributable to 
the conditions specified in section 222 of the Act and Sec.  90.16(b), 
the Director shall promptly make an investigation. Notice of the 
initiation of the investigation shall be published in the Federal 
Register and shall be transmitted to the group of workers concerned.
    (b) Opportunity for comment and hearing. Within 10 days after 
publication of the notice under paragraph (a) of this section, the group 
of workers or other persons showing a substantial interest in the 
proceedings may request a public hearing or may make written submissions 
to show why the certification should not be terminated. If a hearing is 
requested under this paragraph, such hearing shall be conducted in 
accordance with Sec.  90.13.
    (c) [Reserved]
    (d) Notice of termination. A certifying officer shall determine 
whether or not such certification shall be terminated. Upon reaching a 
determination that the certification of eligibility shall be terminated, 
the certifying officer shall make findings of fact and shall promptly 
have published in the Federal Register a summary of the determination 
and the reasons therefor (with the exception of information which the 
certifying officer determines to be confidential). Such summary shall 
constitute a Notice of Termination. Such termination shall apply only 
with respect to total or partial separations occurring after the 
termination date specified by the certifying officer. The termination 
date specified by the certifying officer shall be not sooner than the 
date on which notice of such termination is published in the Federal 
Register.
    (e) Notice of partial termination. A notice of termination may cover 
only a portion of the group of workers specified in the certification. 
Such notice shall constitute a Notice of Partial Termination.
    (f) Notice of continuation of certification. Upon reaching a 
determination that the certification of eligibility should be continued, 
the certifying officer shall promptly publish in the Federal Register a 
summary of the determination with the reasons therefor. Such summary 
shall constitute a Notice of Continuation of Certification.

[42 FR 32772, June 28, 1977, as amended at 52 FR 23402, June 19, 1987; 
72 FR 37104, July 9, 2007]

[[Page 670]]



Sec.  90.18  Reconsideration of determinations.

    (a) Determinations subject to reconsideration; time for filing. Any 
worker, group of workers, certified or recognized union, or authorized 
representative of such worker or group, aggrieved by a determination 
issued pursuant to the Act and Sec.  90.16 paragraphs (c), (f), and (g), 
or Sec.  90.17(d) may file an application for reconsideration of the 
determination with the Division of Trade Adjustment Assistance, 
Employment and Training Administration, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington DC 20210. All applications must be 
in writing and must be filed no later than thirty (30) days after the 
notice of the determination has been published in the Federal Register.
    (b) Contents of application for reconsideration. An application for 
reconsideration shall include: (1) Name(s), address(es), and telephone 
number of the applicant(s); (2) The name or a description of the group 
of workers on whose behalf the application for reconsideration is filed; 
(3) The name and case number of the determination complained of; and (4) 
A statement of reasons for believing that the determination complained 
of is erroneous. If the application is based, in whole or in part, on 
facts not previously considered in the determination, such facts shall 
be specifically set forth. If the application is based, in whole or in 
part, on an allegation that the determination complained of was based on 
mistake of facts which were previously considered, such mistake of facts 
shall be specifically set forth. If the application is based, in whole 
or in part, on an allegation as to a misinterpretation of facts or of 
the law, such misinterpretation shall be specifically set forth.
    (c) Determination regarding application for reconsideration. Not 
later than fifteen (15) days after receipt of the application for 
reconsideration, the certifying officer shall make and issue a 
determination granting or denying reconsideration. The certifying 
officer may grant an application for reconsideration under the following 
circumstances:
    (1) If it appears on the basis of facts not previously considered 
that the determination complained of was erroneous;
    (2) If it appears that the determination complained of was based on 
mistake in the determination of facts previously considered; or
    (3) If, in the opinion of the certifying officer, a 
misinterpretation of facts or of the law justifies reconsideration of 
the determination.
    (d) Notice of affirmative determination regarding application for 
reconsideration. Upon reaching a determination that an application for 
reconsideration meets the requirements of paragraph (c) of this section, 
the certifying officer shall issue an affirmative determination 
regarding the application and shall promptly publish notice in the 
Federal Register that the application for reconsideration has been 
received and granted. Such notice shall constitute a Notice of 
Affirmative Determination Regarding Application for Reconsideration.
    (e) Notice of negative determination regarding application for 
reconsideration. Upon reaching a determination that an application for 
reconsideration does not meet the requirements of paragraph (c) of this 
section, the certifying officer shall issue a negative determination 
regarding the application and shall promptly publish in the Federal 
Register a summary of the determination, including the reasons therefor. 
Such summary shall constitute a Notice of Negative Determination 
Regarding Application for Reconsideration. A determination issued 
pursuant to this paragraph shall constitute a final determination for 
purposes of judicial review pursuant to section 284 of the Act, 19 
U.S.C. 2395, and Sec.  90.19(a).
    (f) Opportunity for comment. Within ten (10) days after publication 
of a notice under paragraph (d) of this section, the group of workers or 
other persons showing an interest in the proceedings may make written 
submissions to show why the determination under reconsideration should 
or should not be modified.
    (g) Determinations on reconsideration. Not later than forty-five 
(45) days after reaching an Affirmative Determination Regarding 
Application for Reconsideration, the certifying officer shall make

[[Page 671]]

a determination on the reconsideration.
    (h) Notice of revised certification of eligibility and notice of 
revised determination. Upon reaching a determination on reconsideration 
that a group of workers has met all the requirements set forth in 
section 222 of the Act and paragraph (b) of Sec.  90.16, the certifying 
officer shall issue a revised determination concerning certification of 
eligibility to apply for adjustment assistance and shall promptly 
publish in the Federal Register a summary of the revised determination 
together with the reasons for making such revised determination (with 
the exception of information which the certifying officer determines to 
be confidential). Such summary shall include a certification of 
eligibility in accordance with paragraph (d) of Sec.  90.16. The summary 
shall constitute a Notice of Revised Certification of Eligibility when 
the determination under reconsideration was a certification of 
eligibility. The summary shall constitute a Notice of Revised 
Determination when the determination under reconsideration was a 
negative determination or a certification containing a negative 
determination. A determination issued pursuant to this paragraph shall 
constitute a final determination for purposes of judicial review 
pursuant to section 284 of the Act, 19 U.S.C. 2395, and Sec.  90.19(a).
    (i) Notice of negative determination on reconsideration. Upon 
reaching a determination on reconsideration that a group of workers has 
not met all the requirements set forth in section 222 of the Act and 
paragraph (b) of Sec.  90.16, the certifying officer shall issue a 
negative determination on reconsideration and shall promptly publish in 
the Federal Register a summary of the determination together with the 
reasons for making such determination (with the exception of information 
which the certifying officer determines to be confidential). Such 
summary shall constitute a Notice of Negative Determination on 
Reconsideration. A determination issued pursuant to this paragraph shall 
constitute a final determination for purposes of judicial review 
pursuant to section 284 of the Act, 19 U.S.C. 2395, and Sec.  90.19(a).

[42 FR 32772, June 28, 1977, as amended at 52 FR 23402, June 19, 1987; 
72 FR 37103, 37104, July 9, 2007]



Sec.  90.19  Judicial review of determinations.

    (a) General. Pursuant to section 284 of the Act, 19 U.S.C. 2395, any 
worker, group of workers, certified or recognized union, or authorized 
representative of such worker or group, aggrieved by a final 
determination issued pursuant to the Act and Sec.  90.16(c), Sec.  
90.16(f), Sec.  90.16(g), Sec.  90.17(d), Sec.  90.18(e), Sec.  90.18(h) 
or Sec.  90.18(i) may commence a civil action for review of such 
determination with the United States Court of International Trade. The 
party seeking judicial review must file for review in the Court of 
International Trade within sixty (60) days after the notice of 
determination has been published in the Federal Register.
    (b) Certified record of the Secretary. Upon receiving a copy of the 
summons and complaint from the clerk of the Court of International 
Trade, the certifying officer shall promptly certify and file in such 
court the record on which the determination was based. The record shall 
include transcripts of any public hearings, the findings of fact made 
pursuant to Sec.  90.16(b), Sec.  90.18(e), Sec.  90.18(h) or Sec.  
90.18(i), and other documents on which the determination was based.
    (c) Further proceedings. If a case is remanded to the Secretary by 
the Court of International Trade for the taking of further evidence, the 
Director shall direct that further proceedings be conducted in 
accordance with the provisions of subpart B of this part, including the 
taking of further evidence. A certifying officer, after the conduct of 
such further proceedings, may make new or modified findings of fact and 
may modify or affirm the previous determination. Upon the completion of 
such further proceedings, the certifying officer shall certify and file 
in the Court of International Trade the record of such further 
proceedings.
    (d) Substantial evidence. The findings of fact by the certifying 
officer shall be conclusive if the Court of International Trade 
determines that such findings of

[[Page 672]]

fact are supported by substantial evidence.

[52 FR 23402, June 19, 1987, as amended at 72 FR 37104, July 9, 2007]



  Subpart C_Initiation and Conduct of Study With Respect to Workers in 
 Industry Which is the Subject of an Investigation for Industry Import 
                                 Relief



Sec.  90.21  Study.

    (a) Initiation. Upon notification by the Commission, pursuant to 
section 224 of the Act, that the Commission has begun an investigation 
under section 201 with respect to an industry import relief action, the 
Secretary shall direct the Director of the Division of Trade Adjustment 
Assistance to immediately begin a study of
    (1) The number of workers in the domestic industry producing the 
like or directly competitive article(s) who have been or are likely to 
be certified eligible for adjustment assistance; and
    (2) The extent to which the adjustment of such workers to the import 
competition may be facilitated through the use of existing programs.
    (b) Report. The report of the Secretary of the study under section 
224(a) of the Act and paragraph (a) of this section shall be made to the 
President not later than fifteen (15) days after the day on which the 
Commission makes its report under section 201.
    (c) Release of report. Upon making the report of the study to the 
President, the Secretary shall also promptly make the report public 
(with the exception of information which the Secretary determines to be 
confidential) and shall have a summary of it published in the Federal 
Register.

(Information collection requirements in paragraph (a) were approved by 
the Office of Management and Budget under control number 1205-0194)

[42 FR 32772, June 28, 1977, as amended at 49 FR 18295, Apr. 30, 1984; 
72 FR 37104, July 9, 2007]



Sec.  90.22  Dissemination of program knowledge and assistance to workers.

    Whenever the Commission makes an affirmative finding under section 
201(b) of the Act that increased imports are a substantial cause of 
serious injury or threat thereof with respect to an industry, the 
Secretary shall, to the extent feasible, make available to the workers 
in such industry full information about programs which may facilitate 
their adjustment to the import competition. He shall provide assistance 
to such workers in the preparation and processing of petitions and 
applications for program benefits.



                      Subpart D_General Provisions



Sec.  90.31  Filing of documents.

    (a) Where to file; date of filing. Petitions and all other documents 
shall be filed at the Division of Trade Adjustment Assistance, 
Employment and Training Administration, U.S. Department of Labor, 200 
Constitution Avenue, NW., Washington DC 20210. If properly filed, such 
documents shall be deemed filed on the date on which they are actually 
received in the Division of Trade Adjustment Assistance.
    (b) Conformity with rules. Documents filed in support of the 
initiation of an investigation by the Director of the Division of Trade 
Adjustment Assistance shall be considered properly filed if they conform 
with the pertinent rules prescribed in this part 90. The Director may 
accept documents in substantial compliance with the pertinent rules of 
this part provided good and sufficient reason is stated in the document 
for inability to comply fully with the pertinent rules. The Director 
cannot waive full compliance with a rule which is required by the Act.

[42 FR 32772, June 28, 1977, as amended at 52 FR 23403, June 19, 1987; 
72 FR 37103, 37104, July 9, 2007]



Sec.  90.32  Availability of information.

    (a) Information available to the public. Upon request to the 
Director of the Division of Trade Adjustment Assistance, members of the 
public may inspect petitions and other documents filed with the Director 
under the provisions of this part 90, transcripts of testimony taken and 
exhibits submitted at public hearings held under the provisions of this 
part 90, public notices concerning worker assistance under the Act and

[[Page 673]]

other reports and documents issued for general distribution.
    (b) Information not available to the public. Confidential business 
information, defined in Sec.  90.33 of this part, shall not be available 
to the public.

[42 FR 32772, June 28, 1977, as amended at 52 FR 23403, June 19, 1987; 
72 FR 37104, July 9, 2007]



Sec.  90.33  Confidential business information.

    (a) Definition. Confidential business information means trade 
secrets and commercial or financial information which are obtained from 
a person and are privileged or confidential, as set forth in 5 U.S.C. 
552(b) and 29 CFR part 70.
    (b) Identification of information submitted in confidence. Business 
information which is to be treated as confidential shall be submitted on 
separate sheets each clearly marked at the top, ``Business 
Confidential.'' When submitted at hearings, such business information 
shall be offered as a confidential exhibit with a brief description of 
the nature of the information.
    (c) Acceptance of information in confidence. The Director of the 
Division of Trade Adjustment Assistance may refuse to accept in 
confidence any information which he determines is not entitled to 
confidential treatment under this section. In the event of such refusal, 
the person submitting such information shall be notified and shall be 
permitted to withdraw such information.

[42 FR 32772, June 28, 1977, as amended at 72 FR 37104, July 9, 2007]



Sec.  90.34  Notice procedures.

    Formal notice of a certification, negative determination, or 
termination shall be transmitted promptly to the group of workers 
concerned and to all State workforce agencies concerned whenever such 
notices are published in the Federal Register.

[42 FR 32772, June 28, 1977, as amended at 72 FR 37104, July 9, 2007]



Sec.  90.35  [Reserved]



Sec.  90.36  Computation of time.

    (a) The time periods specified in Sec. Sec.  90.13(a), 90.18(a), and 
90.19(a) will be computed by counting the day after publication in the 
Federal Register as one, and by counting each succeeding day, including 
Saturdays, Sundays, and holidays. However, when the final day would fall 
on a Saturday, Sunday or holiday, the time period will terminate at the 
end of the next succeeding Federal business day.
    (b) The 60-day time period specified in section 223(a) of the Act 
will be computed in the same manner as set forth in paragraph (a) of 
this section, except that the day after the date of filing of the 
petition shall be counted as the first day.



PART 93_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
93.100 Conditions on use of funds.
93.105 Definitions.
93.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

93.200 Agency and legislative liaison.
93.205 Professional and technical services.
93.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

93.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

93.400 Penalties.
93.405 Penalty procedures.
93.410 Enforcement.

                          Subpart E_Exemptions

93.500 Secretary of Defense.

                        Subpart F_Agency Reports

93.600 Semi-annual compilation.
93.605 Inspector General Report.

Appendix A to Part 93--Certification Regarding Lobbying
Appendix B to Part 93--Disclosure Form To Report Lobbying

    Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 5 
U.S.C. 301, Reorganization Plan Number 6 of 1950.

[[Page 674]]


    Source: 55 FR 6737 and 6751, 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.  93.100  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.  93.105  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

[[Page 675]]

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.C., including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S.C.;
    (3) A special Government employee as defined in section 202, title 
18, U.S.C.; 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.C. 
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

[[Page 676]]

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.  93.110  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.C.
    (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

[[Page 677]]

if that activity is allowable under either subpart B or C.



                  Subpart B_Activities by Own Employees



Sec.  93.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.  
93.100 (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.  93.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
93.100 (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

[[Page 678]]

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.  93.210  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.  93.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
93.100 (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.  93.110 (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.

[[Page 679]]



                   Subpart D_Penalties and Enforcement



Sec.  93.400  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.  93.405  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. 3803 
(except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar 
as these provisions are not inconsistent with the requirements herein.



Sec.  93.410  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.  93.500  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.  93.600  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

[[Page 680]]

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.  93.605  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 93--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

[[Page 681]]

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.C. 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.C. 
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 682]]



     Sec. Appendix B to Part 93--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC21OC91.005


[[Page 683]]


[GRAPHIC] [TIFF OMITTED] TC21OC91.006


[[Page 684]]


[GRAPHIC] [TIFF OMITTED] TC21OC91.007


[[Page 685]]





PART 94_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
94.100 What does this part do?
94.105 Does this part apply to me?
94.110 Are any of my Federal assistance awards exempt from this part?
94.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

94.200 What must I do to comply with this part?
94.205 What must I include in my drug-free workplace statement?
94.210 To whom must I distribute my drug-free workplace statement?
94.215 What must I include in my drug-free awareness program?
94.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
94.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
94.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

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

  Subpart D_Responsibilities of Department of Labor Awarding Officials

94.400 What are my responsibilities as a Department of Labor awarding 
          official?

           Subpart E_Violations of This Part and Consequences

94.500 How are violations of this part determined for recipients other 
          than individuals?
94.505 How are violations of this part determined for recipients who are 
          individuals?
94.510 What actions will the Federal Government take against a recipient 
          determined to have violated this part?
94.515 Is there any provision for exceptions to those actions?

                          Subpart F_Definitions

94.605 Award.
94.610 Controlled substance.
94.615 Conviction.
94.620 Cooperative agreement.
94.625 Criminal drug statute.
94.630 Debarment.
94.635 Drug-free workplace.
94.640 Employee.
94.645 Federal agency or agency.
94.650 Grant.
94.655 Individual.
94.660 Recipient.
94.665 State.
94.670 Suspension.

    Authority: 41 U.S.C. 701 et seq.

    Source: 68 FR 66599, 66600, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec.  94.100  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.  94.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the Department of Labor; 
or
    (2) A(n) Department of Labor awarding official. (See definitions of 
award and recipient in Sec. Sec.  94.605 and 94.660, 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) Department of Labor awarding    A, D and E.
 official.
------------------------------------------------------------------------


[[Page 686]]



Sec.  94.110  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award that the Secretary of Labor 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.  94.115  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.  94.510(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.  94.200  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.  94.205 through 
94.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec.  94.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec.  94.230).



Sec.  94.205  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.  94.210  To whom must I distribute my drug-free workplace statement?

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



Sec.  94.215  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.  94.220  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.  94.205 and an ongoing awareness program 
as described in Sec.  94.215, you must publish the statement and 
establish the program by the time given in the following table:

[[Page 687]]



------------------------------------------------------------------------
                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 Department of Labor
 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.  94.225  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.  94.205(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.  94.230  How and when must I identify workplaces?

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



        Subpart C_Requirements for Recipients Who Are Individuals



Sec.  94.300  What must I do to comply with this part if I am 
an individual recipient?

    As a condition of receiving a(n) Department of Labor 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

[[Page 688]]

    (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 Department of Labor awarding official or other designee 
for each award that you currently have, unless Sec.  94.301 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.  94.301  [Reserved]



  Subpart D_Responsibilities of Department of Labor Awarding Officials



Sec.  94.400  What are my responsibilities as a(n) Department of Labor 
awarding official?

    As a(n) Department of Labor 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.  94.500  How are violations of this part determined for recipients 
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Secretary of Labor 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.  94.505  How are violations of this part determined for recipients 
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Secretary of Labor 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.  94.510  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.  94.500 or Sec.  94.505, the Department of Labor 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 29 CFR part 98, 
for a period not to exceed five years.



Sec.  94.515  Are there any exceptions to those actions?

    The Secretary of Labor or designee may waive with respect to a 
particular award, in writing, a suspension of payments under an award, 
suspension or termination of an award, or suspension or debarment of a 
recipient if the Secretary of Labor or designee determines that such a 
waiver would be in the public interest. This exception authority cannot 
be delegated to any other official.



                          Subpart F_Definitions



Sec.  94.605  Award.

    Award means an award of financial assistance by the Department of 
Labor 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

[[Page 689]]

the Governmentwide rule 29 CFR part 97 that implements OMB Circular A-
102 (for availability, see 5 CFR 1310.3) and specifies uniform 
administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).



Sec.  94.610  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.  94.615  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.  94.620  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.  94.650), 
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.  94.625  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.  94.630  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.  94.635  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.  94.640  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.  94.645  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

[[Page 690]]

the executive branch (including the Executive Office of the President), 
or any independent regulatory agency.



Sec.  94.650  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.  94.655  Individual.

    Individual means a natural person.



Sec.  94.660  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.  94.665  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.  94.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order 12689. Suspension of a recipient is a distinct and separate action 
from suspension of an award or suspension of payments under an award.



 PART 95_GRANTS AND AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, 
 HOSPITALS, AND OTHER NON-PROFIT ORGANIZATIONS, AND WITH COMMERCIAL 
 ORGANIZATIONS, FOREIGN GOVERNMENTS, ORGANIZATIONS UNDER THE JURISDICTION 
 OF FOREIGN GOVERNMENTS, AND INTERNATIONAL ORGANIZATIONS--Table of Contents



                            Subpart A_General

Sec.
95.1 Purpose.
95.2 Definitions.
95.3 Effect on other issuances.
95.4 Deviations.
95.5 Subawards.

                    Subpart B_Pre-Award Requirements

95.10 Purpose.
95.11 Pre-award policies.
95.12 Forms for applying for Federal assistance.
95.13 Debarment and suspension.
95.14 Special award conditions.
95.15 Metric system of measurement.
95.16 Resource Conservation and Recovery Act.
95.17 Certifications and representations.

                    Subpart C_Post-Award Requirements

                    Financial and Program Management

95.20 Purpose of financial and program management.
95.21 Standards for financial management systems.
95.22 Payment.
95.23 Cost sharing or matching.
95.24 Program income.
95.25 Revision of budget and program plans.
95.26 Non-Federal audits.
95.27 Allowable costs.
95.28 Period of availability of funds.

                           Property Standards

95.30 Purpose of property standards.
95.31 Insurance coverage.
95.32 Real property.
95.33 Federally-owned and exempt property.
95.34 Equipment.
95.35 Supplies and other expendable property.
95.36 Intangible property.

[[Page 691]]

95.37 Property trust relationship.

                          Procurement Standards

95.40 Purpose of procurement standards.
95.41 Recipient responsibilities.
95.42 Codes of conduct.
95.43 Competition.
95.44 Procurement procedures.
95.45 Cost and price analysis.
95.46 Procurement records.
95.47 Contract administration.
95.48 Contract provisions.

                           Reports and Records

95.50 Purpose of reports and records.
95.51 Monitoring and reporting program performance.
95.52 Financial reporting.
95.53 Retention and access requirements for records.

                       Termination and Enforcement

95.60 Purpose of termination and enforcement.
95.61 Termination.
95.62 Enforcement.

                 Subpart D_After-the-Award Requirements

95.70 Purpose.
95.71 Closeout procedures.
95.72 Subsequent adjustments and continuing responsibilities.
95.73 Collection of amounts due.

Appendix A to Part 95--Contract Provisions

    Authority: 5 U.S.C. 301; OMB Circular A-110, as amended, as codified 
at 2 CFR part 215.

    Source: 59 FR 38271, July 27, 1994, unless otherwise noted.



                            Subpart A_General



Sec.  95.1  Purpose.

    This part establishes uniform administrative requirements for 
Federal grants and agreements awarded to institutions of higher 
education, hospitals, other non-profit organizations, commercial 
organizations, foreign governments, organizations under the jurisdiction 
of foreign governments, and international organizations. DOL shall not 
impose additional or inconsistent requirements, except as provided in 
Sec. Sec.  95.4 and 95.14 or unless specifically required by Federal 
statute or executive order. Non-profit and commercial organizations that 
implement Federal programs for the States are also subject to State 
requirements.



Sec.  95.2  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 
DOL 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.

[[Page 692]]

    (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 DOL determines that all 
applicable administrative actions and all required work of the award 
have been completed by the recipient and DOL.
    (h) Commercial organization means any business entity organized 
primarily for profit (even if its ownership is in the hands of a 
nonprofit entity) with a place of business located in or outside the 
United States. The term includes, but is not limited to, an individual, 
partnership, corporation, joint venture, association, or cooperative.
    (i) Contract means a procurement contract under an award or 
subaward, and a procurement subcontract under a recipient's or 
subrecipient's contract.
    (j) Cost sharing or matching means that portion of project or 
program costs not borne by DOL.
    (k) 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 DOL sponsorship ends.
    (l) Disallowed costs means those charges to an award that DOL 
determines to be unallowable, in accordance with the applicable Federal 
cost principles or other terms and conditions contained in the award.
    (m) DOL means the U.S. Department of Labor, including its agencies 
and organizational units.
    (n) Equipment means tangible nonexpendable personal property 
including exempt property charged directly to the award having a useful 
life of more than one year and an acquisition cost of $5,000 or more per 
unit. However, consistent with recipient policy, lower limits may be 
established. Equipment includes, but is not limited to, equipment 
acquired before the publication of these regulations and equipment 
transferred from prior years.
    (o) Excess property means property under the control of DOL that, as 
determined by the Secretary of Labor, is no longer required for its 
needs or the discharge of its responsibilities.
    (p) Exempt property means tangible personal property acquired in 
whole or in part with Federal funds, where DOL has statutory authority 
to vest title in the recipient without further obligation to the Federal 
Government.
    (q) Federal 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.
    (r) Federal awarding grantor agency means the Federal agency that 
provides an award to the recipient.
    (s) Federal funds authorized means the total amount of Federal funds 
obligated by DOL for use by the recipient. This amount may include any 
authorized carryover of unobligated funds from prior funding periods 
when permitted by DOL's regulations or DOL's implementing instructions.
    (t) 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.
    (u) Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    (v) Grant officer means any person authorized to enter into, modify 
or terminate any financial assistance awards and make related 
determinations and findings. DOL grant officers shall be designated by 
name on a ``Certificate of Appointment.''
    (w) 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.
    (x) 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.
    (y) 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

[[Page 693]]

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.
    (z) 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.
    (aa) Prior approval means written approval by an authorized official 
evidencing prior consent.
    (bb) 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.  95.24(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.
    (cc) 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.
    (dd) Project period means the period established in the award 
document during which Federal sponsorship begins and ends.
    (ee) Property means, unless otherwise stated, real property, 
equipment, intangible property and debt instruments.
    (ff) Real property means land, including land improvements, 
structures and appurtenances thereto, but excludes movable machinery and 
equipment. Real property includes, but is not limited to, real property 
acquired before publication of these regulations and real property 
transferred from prior years.
    (gg) Recipient means an organization receiving financial assistance 
directly from DOL 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 also 
includes 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. 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.
    (hh) 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

[[Page 694]]

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.
    (ii) Small awards means a grant or cooperative agreement not 
exceeding the simplified acquisition threshold fixed at 41 U.S.C. Sec.  
403(11) (currently $100,000, subject to adjustment for inflation).
    (jj) 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.
    (kk) 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 includes foreign organizations and international 
organizations (such as agencies of the United Nations).
    (ll) 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.''
    (mm) Suspension means an action by DOL 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 DOL's regulations at 2 CFR part 2998, implementing 
E.O.'s 12549 and 12689, ``Debarment and Suspension.'' See 29 CFR part 
98.
    (nn) Termination means the cancellation of Federal sponsorship, in 
whole or in part, under an agreement at any time prior to the date of 
completion.
    (oo) Third party in-kind contributions means the value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting and specifically identifiable to the project or 
program.
    (pp) 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.
    (qq) Unobligated balance means the portion of the funds authorized 
by DOL that has not been obligated by the recipient and is determined by 
deducting the cumulative obligations from the cumulative funds 
authorized.
    (rr) 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.
    (ss) Working capital advance means a procedure whereby funds are 
advanced to the recipient to cover its estimated disbursement needs for 
a given initial period.

[59 FR 38271, July 27, 1994, as amended at 72 FR 37104, July 9, 2007; 81 
FR 25587, Apr. 29, 2016]



Sec.  95.3  Effect on other issuances.

    For awards subject to this part, all administrative requirements of 
codified program regulations, program manuals, handbooks and other 
nonregulatory materials which are inconsistent with the requirements of 
this part shall be superseded, except to the extent they are required by 
statute, or authorized in accordance with the deviations provision in 
Sec.  95.4.



Sec.  95.4  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

[[Page 695]]

exceptions are not prohibited by statute. However, in the interest of 
maximum grant-wide uniformity, exceptions from the requirements of this 
part shall be permitted only in unusual circumstances. DOL may apply 
more restrictive requirements to a class of recipients when approved by 
OMB. DOL 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 DOL.



Sec.  95.5  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, other non-profit organizations, commercial 
organizations, foreign governments, organizations under the jurisdiction 
of foreign governments, and international 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,'' and codified by DOL at 29 CFR part 97 or its successor.



                    Subpart B_Pre-Award Requirements



Sec.  95.10  Purpose.

    Sections 95.11 through 95.17 prescribe forms and instructions and 
other pre-award matters to be used in applying for Federal awards.



Sec.  95.11  Pre-award policies.

    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.  95.12  Forms for applying for Federal assistance.

    (a) Applicants shall use the SF-424 series or those forms and 
instructions prescribed by DOL.
    (b) 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 DOL or the Catalog of Federal Domestic Assistance. The 
SPOC shall advise the applicant whether the program for which 
application is made has been selected by that State for review.



Sec.  95.13  Debarment and suspension.

    Recipients shall comply with the nonprocurement debarment and 
suspension common rule implementing E.O.'s 12549 and 12689, ``Debarment 
and Suspension'' codified by DOL at 2 CFR part 2998. This common rule 
restricts subawards and contracts with certain parties that are 
debarred, suspended or otherwise excluded from or ineligible for 
participation in Federal assistance programs or activities.

[59 FR 38271, July 27, 1994, as amended at 81 FR 25587, Apr. 29, 2016]



Sec.  95.14  Special award conditions.

    If an applicant or recipient:
    (a) Has a history of poor performance,
    (b) Is not financially stable,
    (c) Has a management system that does not meet the standards 
prescribed in this part,
    (d) Has not conformed to the terms and conditions of a previous 
award, or
    (e) Is not otherwise responsible,

DOL may impose additional requirements as needed, provided that such 
applicant or recipient is notified in writing as to: The nature of the 
additional requirements, the reason why the additional requirements are 
being imposed, the nature of the corrective action needed, the time 
allowed for completing the corrective actions, and the method for 
requesting reconsideration of the additional requirements imposed. Any 
special conditions shall be promptly removed once the conditions that 
prompted them have been corrected.

[[Page 696]]



Sec.  95.15  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. DOL shall follow the provisions of E.O. 12770, ``Metric 
Usage in Federal Government Programs.''



Sec.  95.16  Resource Conservation and Recovery Act.

    Under the Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-
580 codified at 42 U.S.C. 6962), any State agency or agency of a 
political subdivision of a State which is using appropriated Federal 
funds must comply with Section 6002. Section 6002 requires that 
preference be given in procurement programs to the purchase of specific 
products containing recycled materials identified in guidelines 
developed by the Environmental Protection Agency (EPA) (40 CFR parts 
247-254). 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.  95.17  Certifications and representations.

    Unless prohibited by statute or codified regulation, DOL requires 
recipients to submit certifications and representations required by 
statute, executive order, or regulation on an annual basis only, 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.  95.20  Purpose of financial and program management.

    Sections 95.21 through 95.28 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.  95.21  Standards for financial management systems.

    (a) Recipients shall 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.  95.52. Though DOL 
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

[[Page 697]]

should be related to performance and unit cost data.
    (5) Written procedures to minimize the time elapsing between the 
transfer of funds to the recipient from the U.S. Treasury and the 
issuance or redemption of checks, warrants or payments by other means 
for program purposes by the recipient. To the extent that the provisions 
of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, 
payment methods of State agencies, instrumentalities, and fiscal agents 
shall be consistent with CMIA Treasury-State Agreements or the CMIA 
default procedures codified at 31 CFR part 205, ``Withdrawal of Cash 
from the Treasury for Advances under Federal Grant and Other Programs.''
    (6) Written procedures for determining the reasonableness, 
allocability and allowability of costs in accordance with the provisions 
of the applicable Federal cost principles and the terms and conditions 
of the award.
    (7) Accounting records including cost accounting records that are 
supported by source documentation.
    (c) Where the Federal Government guarantees or insures the repayment 
of money borrowed by the recipient, DOL, 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) DOL 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.  95.22  Payment.

    (a) Payment methods shall minimize the time elapsing between the 
transfer of funds from the United States Treasury and the issuance or 
redemption of checks, warrants, or payment by other means by the 
recipients. Payment methods of State agencies or instrumentalities shall 
be consistent with Treasury-State CMIA agreements or default procedures 
codified at 31 CFR part 205.
    (b) Recipients are to be paid in advance, provided they maintain or 
demonstrate the willingness to maintain:
    (1) Written procedures that minimize the time elapsing between the 
transfer of funds and disbursement by the recipient, and
    (2) Financial management systems that meet the standards for fund 
control and accountability as established in Sec.  95.21.

Cash advances to a recipient organization shall be limited to the 
minimum amounts needed and be timed to be in accordance with the actual, 
immediate cash requirements of the recipient organization in carrying 
out the purpose of the approved program or project. The timing and 
amount of cash advances shall be as close as is administratively 
feasible to the actual disbursements by the recipient organization for 
direct program or project costs and the proportionate share of any 
allowable indirect costs.
    (c) Whenever possible, advances shall be consolidated to cover 
anticipated cash needs for all awards made by DOL 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 are authorized to submit requests for advances 
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 
DOL instructions for electronic funds transfer.
    (e) Reimbursement is the preferred method when the requirements in 
paragraph (b) of this section cannot be met. DOL 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

[[Page 698]]

loans, and the Federal assistance constitutes a minor portion of the 
project.
    (1) When the reimbursement method is used, DOL shall make payment 
within 30 days after receipt of the billing, unless the billing is 
improper.
    (2) Recipients are authorized to submit requests for reimbursement 
monthly when electronic funds transfers are not used.
    (f) If a recipient cannot meet the criteria for advance payments and 
DOL has determined that reimbursement is not feasible because the 
recipient lacks sufficient working capital, DOL may provide cash on a 
working capital advance basis. Under this procedure, DOL 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, DOL 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, DOL shall not withhold 
payments for proper charges made by recipients at any time during the 
project period unless paragraphs (h)(1) or (h)(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, DOL 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, DOL 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 paragraph (k)(1), (k)(2), or (k)(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.

In keeping with Electronic Funds Transfer rules, (31 CFR Part 206), 
interest should be remitted to the HHS Payment Management System through 
an electronic medium such as the FEDWIRE Deposit system. Recipients who 
do not have this capability should use a check.
    (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

[[Page 699]]

for administrative expense. State universities and hospitals shall 
comply with CMIA, as it pertains to interest. If an entity subject to 
CMIA uses its own funds to pay pre-award costs for discretionary awards 
without prior written approval from DOL, it waives its right to recover 
the interest under CMIA.
    (m) Except as noted elsewhere in this part, only the following forms 
shall be authorized for the recipients in requesting advances and 
reimbursements. DOL shall not require more than an original and two 
copies of these forms.
    (1) SF-270, Request for Advance or Reimbursement. The SF-270 is the 
standard form for all nonconstruction programs when electronic funds 
transfer or predetermined advance methods are not used. DOL, however, 
has 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. The SF-271 is the standard form to be used for 
requesting reimbursement for construction programs. However, DOL may 
substitute the SF-270 when DOL determines that it provides adequate 
information to meet Federal needs.



Sec.  95.23  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 DOL.
    (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 prior written approval of the grant 
officer.
    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If DOL 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 the value determined under paragraph (c)(1) or paragraph (c)(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 grant officer 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,

[[Page 700]]

office supplies, laboratory supplies or workshop and classroom supplies. 
Value assessed to donated supplies included in the cost sharing or 
matching share shall be reasonable and shall not exceed the fair market 
value of the property at the time of the donation.
    (g) The method used for determining cost sharing or matching for 
donated equipment, buildings and land for which title passes to the 
recipient may differ according to the purpose of the award, if paragraph 
(g)(1) or (g)(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 grant officer 
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.  95.24  Program income.

    (a) Except as provided in paragraph (e) of this section, program 
income earned during the project period shall be retained by the 
recipient and added to funds committed to the project by DOL and 
recipient, and used to further eligible project or program objectives.
    (b) Recipients shall have no obligation to the Federal Government 
regarding program income earned after the end of the project period.
    (c) 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.
    (d) Proceeds from the sale of property are not program income and 
shall be handled in accordance with the requirements of the Property 
Standards (See Sec. Sec.  95.30 through 95.37).
    (e) Unless DOL's 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.  95.25  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 
DOL's requirements. It shall be related to performance for program 
evaluation purposes whenever appropriate.

[[Page 701]]

    (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 
written approvals from the grant officer for one or more of the 
following program or budget changes:
    (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.
    (6) The inclusion, unless waived by the grant officer, of costs that 
require prior approval in accordance with OMB Circular A-21 (codified at 
2 CFR part 220), ``Cost Principles for Institutions of Higher 
Education,'' OMB Circular A-122 (codified at 2 CFR part 230),, ``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, the grant officer may 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 written approval of the grant 
officer. All pre-award costs are incurred at the recipient's risk (i.e., 
the grant officer is under no obligation to reimburse such costs if for 
any reason the recipient does not receive an award or if the award is 
less than anticipated and inadequate to cover such costs).
    (2) Initiate a one-time extension of the expiration date of the 
award of up to 12 months unless one or more of the following conditions 
apply. For one-time extensions, the recipient must notify the grant 
officer 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. The one-time extension may not be initiated 
if:
    (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 grant officer 
provides otherwise in the award or in DOL's regulations, the prior 
written approval requirements described in paragraph (e) are 
automatically waived (i.e., recipients need not obtain such prior 
written approvals) unless one of the conditions included in paragraph 
(e)(2) applies.
    (f) DOL 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 DOL. DOL shall not 
permit a transfer that would cause any Federal appropriation or part 
thereof

[[Page 702]]

to be used for purposes other than those consistent with the original 
intent of the appropriation.
    (g) All other changes to nonconstruction budgets, except for the 
changes described in paragraph (j), do not require prior approval.
    (h) For construction awards, recipients shall request prior written 
approval promptly from the grant officer for budget revisions whenever 
paragraphs (h)(1), (h)(2) or (h)(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.  95.27.
    (i) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (j) When DOL makes an award that provides support for both 
construction and nonconstruction work, DOL may require the recipient to 
request prior written approval before making any fund or budget 
transfers between the two types of work supported.
    (k) For both construction and nonconstruction awards, recipients 
shall notify the grant officer in writing promptly whenever the amount 
of Federal authorized funds is expected to exceed the needs of the 
recipient for the project period by more than $5,000 or five percent of 
the 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 written approval for budget revisions, 
recipients shall use the budget forms that were used in the application.
    (m) Within 30 calendar days from the date of receipt of the request 
for budget revisions, the grant officer 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 grant officer shall inform the recipient in writing of the 
date when the recipient may expect the decision.

[59 FR 38271, July 27, 1994, as amended at 72 FR 37104, July 9, 2007]



Sec.  95.26  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher 
education or other non-profit organizations (including hospitals) shall 
be subject to the audit requirements contained in the Single Audit Act 
Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act Amendments of 1996 (31 
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States, 
Local Governments, and Non-Profit Organizations.''
    (c) For-profit hospitals not covered by the audit provisions of 
revised OMB Circular A-133 shall be subject to the audit requirements of 
the Federal awarding agencies.
    (d) Commercial organizations shall be subject to the audit 
requirements specified by the DOL awarding agency or the prime recipient 
as incorporated into the award document. See 29 CFR part 96.

[59 FR 38271, July 27, 1994, as amended at 62 FR 45939, 45942, Aug. 29, 
1997]



Sec.  95.27  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 (codified at 2 CFR 
part 225), ``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 (codified at 2 
CFR part 230), ``Cost

[[Page 703]]

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 (codified at 2 CFR part 220), 
``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.

[59 FR 38271, July 27, 1994, as amended at 72 FR 37104, July 9, 2007]



Sec.  95.28  Period of availability of funds.

    (a) 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 DOL.
    (b) Where an expenditure period is specified, a grantee may charge 
to the award only the accrued expenditures incurred during the 
expenditure period.

[72 FR 37104, July 9, 2007]

                           Property Standards



Sec.  95.30  Purpose of property standards.

    Sections 95.31 through 95.37 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. Recipients are required to observe these standards under awards 
and no additional requirements shall be imposed, 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.  95.31 through 95.37.



Sec.  95.31  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.  95.32  Real property.

    DOL shall prescribe requirements for recipients concerning the use 
and disposition of real property acquired in whole or in part under 
awards. Unless otherwise provided by statute, such requirements, at a 
minimum, shall contain the following:
    (a) Title to real property shall vest in the recipient subject to 
the condition that the recipient shall use the real property for the 
authorized purpose of the project as long as it is needed and shall not 
encumber the property without approval of DOL.
    (b) The recipient shall obtain prior written approval from the grant 
officer 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 DOL.
    (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 grant officer. The grant officer shall 
issue 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 DOL and pay DOL 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

[[Page 704]]

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.  95.33  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 DOL. Upon completion of the award or when the property is no 
longer needed, the recipient shall report the property to DOL for 
further Federal agency utilization.
    (2) If DOL has no further need for the property, it shall be 
declared excess and reported to the General Services Administration, 
unless DOL 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 DOL.
    (b) Exempt property. When statutory authority exists, DOL 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 DOL considers appropriate. Such property is ``exempt 
property.'' Should DOL not establish conditions, title to exempt 
property upon acquisition shall vest in the recipient without further 
obligation to the Federal Government.



Sec.  95.34  Equipment.

    (a) Title to equipment acquired by a recipient with Federal funds 
shall vest in the recipient, subject to conditions of this section.
    (b) The recipient shall not use equipment acquired with Federal 
funds to provide services to non-Federal outside organizations for a fee 
that is less than private companies charge for equivalent services, 
unless specifically authorized by Federal statute, for as long as the 
Federal Government retains an interest in the equipment.
    (c) The recipient shall use the equipment in the project or program 
for which it was acquired as long as needed, whether or not the project 
or program continues to be supported by Federal funds and shall not 
encumber the property without approval of the grant officer. When no 
longer needed for the original project or program, the recipient shall 
use the equipment in connection with its other federally, sponsored 
activities, in the following order of priority:
    (1) Activities sponsored by the DOL 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 DOL 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 grant 
officer. 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 
written approval of the grant officer.
    (f) The recipient's property management standards for equipment 
acquired

[[Page 705]]

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 DOL 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 grant officer.
    (5) Adequate maintenance procedures shall be implemented to keep the 
equipment in good condition.
    (6) Where the recipient is authorized or required to sell the 
equipment, proper sales procedures shall be established which provide 
for competition to the extent practicable and result in the highest 
possible return.
    (g) When the recipient no longer needs the equipment, the equipment 
may be used for other activities in accordance with the following 
standards. For equipment with a current per unit fair market value of 
$5,000 or more, the recipient may retain the equipment for other uses 
provided that compensation is made to the original DOL agency. 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 DOL. The DOL agency shall determine whether the 
equipment can be used to meet the agency's requirements. If no 
requirement exists within the DOL agency, the availability of the 
equipment shall be reported to the General Services Administration by 
DOL to determine whether a requirement for the equipment exists in other 
Federal agencies. DOL 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 DOL 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

[[Page 706]]

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 awarding agency for 
such costs incurred in its disposition.
    (4) The DOL agency reserves the right to transfer the title to the 
Federal Government or to a third party named by the Federal Government 
when such third party is otherwise eligible under existing statutes. 
Such transfer shall be subject to the following standards:
    (i) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (ii) The DOL 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 DOL fails to issue disposition instructions within the 120 
calendar day period, the recipient shall apply the standards of this 
section, as appropriate.
    (iii) When DOL exercises its right to take title, the equipment 
shall be subject to the provisions for federally-owned equipment.



Sec.  95.35  Supplies and other expendable property.

    (a) Title to supplies and other expendable property shall vest in 
the recipient upon acquisition. If there is a residual inventory of 
unused supplies exceeding $5,000 in total aggregate value upon 
termination or completion of the project or program and the supplies are 
not needed for any other federally-sponsored project or program, the 
recipient shall retain the supplies for use on non-Federal sponsored 
activities or sell them, but shall, in either case, compensate the 
Federal Government for its share. The amount of compensation shall be 
computed in the same manner as for equipment.
    (b) The recipient shall not use supplies acquired with Federal funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute as long as the Federal 
Government retains an interest in the supplies.



Sec.  95.36  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. DOL reserves a royalty-free, nonexclusive and irrevocable 
right to reproduce, publish, or otherwise use the work for Federal 
purposes, and to authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including government-wide regulations issued by 
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) DOL has the right to:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award; and
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d)(1) In addition, in response to a Freedom of Information Act 
(FOIA) request for research data relating to published research findings 
produced under an award that were used by the Federal government in 
developing an agency action that has the force and effect of law, the 
DOL shall request, and the recipient shall provide, within a reasonable 
time, the research data so that they can be made available to the public 
through the procedures established under the FOIA. If the DOL obtains 
the research data solely in response to a FOIA request, the agency may 
charge the requester a reasonable fee equaling the full incremental cost 
of obtaining the research data. This fee should reflect costs incurred 
by the agency, the recipient, and applicable subrecipients. This fee is 
in addition to any fees the

[[Page 707]]

agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).
    (2) The following definitions apply for purposes of this paragraph 
(d):
    (i) Research data is defined as the recorded factual material 
commonly accepted in the scientific community as necessary to validate 
research findings, but not any of the following: preliminary analyses, 
drafts of scientific papers, plans for future research, peer reviews, or 
communications with colleagues. This ``recorded'' material excludes 
physical objects (e.g., laboratory samples). Research data also do not 
include:
    (A) Trade secrets, commercial information, materials necessary to be 
held confidential by a researcher until they are published, or similar 
information which is protected under law; and
    (B) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    (ii) Published is defined as either when:
    (A) Research findings are published in a peer-reviewed scientific or 
technical journal; or
    (B) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect of 
law.
    (iii) Used by the Federal Government in developing an agency action 
that has the force and effect of law is defined as when an agency 
publicly and officially cites the research findings in support of an 
agency action that has the force and effect of law.
    (e) Title to intangible property and debt instruments acquired under 
an award or subaward vests upon acquisition in the recipient. The 
recipient shall use that property for the originally-authorized purpose, 
and the recipient shall not encumber the property without written 
approval of the grant officer. When no longer needed for the originally 
authorized purpose, disposition of the intangible property shall occur 
in accordance with the provisions of Sec.  95.34(g).

[59 FR 38271, July 27, 1994, as amended at 65 FR 14407, 14410, Mar. 16, 
2000]



Sec.  95.37  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. Grant 
officers 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.  95.40  Purpose of procurement standards.

    Sections 95.41 through 95.48 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 DOL upon recipients, unless specifically required by 
Federal statute or executive order or approved by OMB.



Sec.  95.41  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 DOL, 
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.

[[Page 708]]



Sec.  95.42  Codes of conduct.

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



Sec.  95.43  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.  95.44  Procurement procedures.

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

[[Page 709]]

    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange time frames for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.
    (3) Consider in the contract process whether firms competing for 
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority-owned firms and women's business enterprises when a contract is 
too large for one of these firms to handle individually.
    (5) Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration, the Department of 
Commerce's Minority Business Development Agency, and DOL's Office of 
Small Business Programs 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 agencies' implementation of E.O.'s 12549 and 12689, 
``Debarment and Suspension.'' See 2 CFR part 2998.
    (e) Recipients shall, on request, make available to DOL, pre-award 
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 simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently $100,000) 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 simplified 
acquisition threshold, specifies a ``brand name'' product.
    (4) The proposed award over the simplified acquisition 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 
simplified acquisition threshold.

[59 FR 38271, July 27, 1994, as amended at 72 FR 37104, July 9, 2007; 81 
FR 25587, Apr. 29, 2016]



Sec.  95.45  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.  95.46  Procurement records.

    Procurement records and files for purchases in excess of the 
simplified acquisition threshold shall include the following at a 
minimum: (a) basis for contractor selection, (b) justification

[[Page 710]]

for lack of competition when competitive bids or offers are not 
obtained, and (c) basis for award cost or price.

[59 FR 38271, July 27, 1994, as amended at 72 FR 37104, July 9, 2007]



Sec.  95.47  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.  95.48  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and complete agreement, the following provisions in all contracts. 
The following provisions shall also be applied to subcontracts:
    (a) Contracts in excess of the simplified acquisition 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 simplified acquisition 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, DOL may accept 
the bonding policy and requirements of the recipient, provided DOL 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 
simplified acquisition threshold) awarded by recipients shall include a 
provision to the effect that the recipient, DOL, 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 simplified acquisitions, awarded by 
recipients and their contractors shall contain the procurement 
provisions of Appendix A to this part, as applicable.

[59 FR 38271, July 27, 1994, as amended at 72 FR 37104, July 9, 2007]

[[Page 711]]

                           Reports and Records



Sec.  95.50  Purpose of reports and records.

    Sections 95.51 through 95.53 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.  95.51  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.  95.26.
    (b) DOL shall prescribe the frequency with which performance reports 
shall be submitted. Except as provided in paragraph (f) of this section, 
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. DOL 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 DOL 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) DOL may make site visits, as needed.
    (h) DOL shall comply with clearance requirements of 5 CFR part 1320 
when requesting performance data from recipients.

(Approved by the Office of Management and Budget, Approval Number 1225-
0017)



Sec.  95.52  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) Recipients shall 
use the SF-269, SF-269A, or other OMB-approved forms to report the 
status of funds for all nonconstruction projects or programs. DOL 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) DOL shall prescribe whether the report shall be on a cash or an 
accrual basis. If DOL requires accrual information and the recipient's 
accounting records are not normally kept on the accrual basis, the 
recipient shall not convert its accounting system, but shall develop 
such accrual information through best estimates based on an analysis of 
the documentation on hand.
    (iii) DOL shall determine the frequency of the Financial Status 
Report for each project or program, considering the size and complexity 
of the

[[Page 712]]

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) Recipients shall submit to DOL the SF-269, SF-269A, or other 
OMB-approved forms (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 DOL 
upon request of the recipient.
    (2) SF-272, Report of Federal Cash Transactions. (i) When funds are 
advanced to recipients, the recipient shall submit the SF-272 and, when 
necessary, its continuation sheet, SF-272a. DOL shall use this report to 
monitor cash advanced to recipients and to obtain disbursement 
information for each agreement with the recipients.
    (ii) DOL may require forecasts of Federal cash requirements in the 
``Remarks'' section of the report.
    (iii) When practical and deemed necessary, DOL 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 submit not more than the original and two 
copies of the SF-272 15 calendar days following the end of each quarter. 
The DOL agency may require a monthly report from those recipients 
receiving advances totaling $1 million or more per year.
    (v) DOL 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 DOL'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 DOL needs additional information or more frequent reports, 
the following shall be observed.
    (1) When additional information is needed to comply with legislative 
requirements, DOL shall issue instructions to require recipients to 
submit such information under the ``Remarks'' section of the reports.
    (2) When DOL determines that a recipient's accounting system does 
not meet the standards in Sec.  95.21, 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. DOL, 
in obtaining this information, shall comply with report clearance 
requirements of 5 CFR part 1320.
    (3) DOL may shade out any line item on any report if not necessary.
    (4) DOL may accept the identical information from the recipients in 
machine readable format or computer printouts or electronic outputs in 
lieu of prescribed formats.
    (5) DOL may provide computer or electronic outputs to recipients 
when such expedites or contributes to the accuracy of reporting.

(Approved by the Office of Management and Budget, Approval Number 1225-
0017)



Sec.  95.53  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. DOL 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 DOL. 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.

[[Page 713]]

    (2) Records for real property and equipment acquired with Federal 
funds shall be retained for 3 years after final disposition.
    (3) When records are transferred to or maintained by DOL, the 3-year 
retention requirement is not applicable to the recipient.
    (4) Indirect cost rate proposals, cost allocations plans, etc., as 
specified in paragraph (g) of this section.
    (c) Copies of original records may be substituted for the original 
records if authorized by DOL.
    (d) DOL 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, DOL 
may make arrangements for recipients to retain any records that are 
continuously needed for joint use.
    (e) The Federal grantor awarding agency, the Inspector General, the 
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, DOL shall not place restrictions on 
recipients that limit public access to the records of recipients that 
are pertinent to an award, except when DOL 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 DOL.
    (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 DOL 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 DOL 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.

(Approved by the Office of Management and Budget, Approval Number 1225-
0017)

                       Termination and Enforcement



Sec.  95.60  Purpose of termination and enforcement.

    Sections 95.61 and 95.62 set forth uniform suspension, termination 
and enforcement procedures.



Sec.  95.61  Termination.

    (a) Awards may be terminated in whole or in part only if paragraphs 
(a) (1), (a)(2), or (a)(3) of this section apply.
    (1) By grant officers, if a recipient materially fails to comply 
with the terms and conditions of an award.
    (2) By grant officers, 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 grant officer written 
notification setting forth the reasons for such termination, the 
effective date, and, in the case of partial termination, the portion to 
be terminated. However, if the grant officer determines in the case of 
partial termination that the reduced

[[Page 714]]

or modified portion of the grant will not accomplish the purposes for 
which the grant was made, the grant officer 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.  95.71(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.  95.62  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, 
DOL may, in addition to imposing any of the special conditions outlined 
in Sec.  95.14, 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 DOL.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching credit for) all or part of the cost of the activity or action 
not in compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Withhold further awards for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, DOL 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 DOL expressly 
authorizes them in the notice of suspension or termination or 
subsequently. Other recipient costs during suspension or after 
termination which are necessary and not reasonably avoidable are 
allowable if paragraphs (c)(1) and (c)(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 DOL's implementing 
regulations. See Sec.  95.13 and 2 CFR part 2998.

[59 FR 38271, July 27, 1994, as amended at 81 FR 25587, Apr. 29, 2016]



                 Subpart D_After-the-Award Requirements



Sec.  95.70  Purpose.

    Sections 95.71 through 95.73 contain closeout procedures and other 
procedures for subsequent disallowances and adjustments.



Sec.  95.71  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. DOL may 
approve extensions when requested by the recipient.
    (b) Unless DOL authorizes an extension, a recipient shall liquidate 
all obligations and/or accrued expenditures incurred under the award not 
later than 90 calendar days after the funding period or the date of 
completion as specified in the terms and conditions of the award or in 
agency implementing instructions.
    (c) DOL 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 DOL has advanced or paid and

[[Page 715]]

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, DOL 
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.  95.31 through 95.37.
    (g) In the event a final audit has not been performed prior to the 
closeout of an award, DOL retains the right to recover an appropriate 
amount after fully considering the recommendations on disallowed costs 
resulting from the final audit.

[59 FR 38271, July 27, 1994, as amended at 72 FR 37104, July 9, 2007]



Sec.  95.72  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following:
    (1) The right of DOL 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.  95.26.
    (4) Property management requirements in Sec. Sec.  95.31 through 
95.37.
    (5) Records retention as required in Sec.  95.53.
    (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 
DOL and the recipient, provided the responsibilities of the recipient 
referred to in Sec.  95.73(a), including those for property management 
as applicable, are considered and provisions made for continuing 
responsibilities of the recipient, as appropriate.



Sec.  95.73  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, DOL 
may reduce the debt by paragraphs (a)(1), (a)(2), or (a)(3) of this 
section.
    (1) Making an administrative offset against other requests for 
reimbursements.
    (2) Withholding advance payments otherwise due to the recipient.
    (3) Taking other action permitted by statute.
    (b) Except as otherwise provided by law, DOL shall charge interest 
on an overdue debt in accordance with 4 CFR Chapter II, ``Federal Claims 
Collection Standards.''



             Sec. Appendix A to Part 95--Contract Provisions

    All contracts, awarded by a recipient including simplified 
acquisitions, 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 $2000 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. Sec.  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 one is otherwise entitled. The 
recipient shall report all suspected or reported violations to the 
Federal awarding agency.
    3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When 
required by Federal program legislation, all construction contracts 
awarded by the recipients and subrecipients of more than $2000 shall 
include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 
Sec.  276a to a-7) and as supplemented by Department of Labor 
regulations (29 CFR

[[Page 716]]

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. Sec.  
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. Sec.  327-
333), as supplemented by Department of Labor regulations (29 CFR part 
5). Under section 102 of the Act, each contractor shall be required to 
compute the wages of every mechanic and laborer on the basis of a 
standard work week of 40 hours. Work in excess of the standard work week 
is permissible provided that the worker is compensated at a rate of not 
less than 1\1/2\ times the basic rate of pay for all hours worked in 
excess of 40 hours in the work week. Section 107 of the Act is 
applicable to construction work and provides that no laborer or mechanic 
shall be required to work in surroundings or under working conditions 
which are unsanitary, hazardous or dangerous. These requirements do not 
apply to the purchases of supplies or materials or articles ordinarily 
available on the open market, or contracts for transportation or 
transmission of intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental, 
developmental, or research work shall provide for the rights of the 
Federal Government and the recipient in any resulting invention in 
accordance with 37 CFR part 401, ``Rights to Inventions Made by 
Nonprofit Organizations and Small Business Firms Under Government 
Grants, Contracts and Cooperative Agreements,'' and any implementing 
regulations issued by the awarding agency.
    6. Clean Air Act (42 U.S.C. Sec.  7401 et seq.) and the Federal 
Water Pollution Control Act (33 U.S.C. Sec.  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. Sec.  7401 et seq.) and the Federal Water Pollution 
Control Act as amended (33 U.S.C. Sec.  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. Sec.  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. Sec.  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. See 2 CFR part 2998.
    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.'' 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 simplified acquisition 
threshold shall provide the required certification regarding its 
exclusion status and that of its principal employees.

[59 FR 38271, July 27, 1994, as amended at 72 FR 37104, July 9, 2007; 81 
FR 25587, Apr. 29, 2016]



PART 96_AUDIT REQUIREMENTS FOR GRANTS, CONTRACTS, AND OTHER AGREEMENTS--
Table of Contents



Sec.
96.0 Purpose and scope of part.
96.1 Terminology.

     Subpart A_Audits of States, Local Governments, and Non-profit 
                              Organizations

96.11 Purpose and scope of subpart.
96.12 Audit requirements.

Subpart B [Reserved]

          Subpart C_Audits of Entities Not Covered by Subpart A

96.31 Purpose and scope of subpart.

[[Page 717]]

96.32 Audit requirement.

     Subpart D_Access to Records, Audit Standards, and Relation of 
          Organization-wide Audits to Other Audit Requirements

96.41 Access to records.
96.42 Audit standards.
96.43 Relation of organization-wide audits to other audit requirements.

                       Subpart E_Audit Resolution

96.51 Purpose and scope of subpart.
96.52 Pre-resolution phase activities.
96.53 Audit resolution generally.
96.54 Responsibility for subrecipient audits.

                            Subpart F_Appeals

96.61 Purpose and scope of subpart.
96.62 Contracts.
96.63 Federal financial assistance.

    Authority: 31 U.S.C. 7501 et seq. and OMB Circular No. A-133, as 
amended.

    Source: 64 FR 14539, Mar. 25, 1999, unless otherwise noted.



Sec.  96.0  Purpose and scope of part.

    This part identifies the audit requirements for recipients and 
subrecipients of Department of Labor (DOL) awards and contains DOL's 
procedures for the resolution of audits. It applies to all grants and 
contracts and other Federal awards provided by or on behalf of the DOL.



Sec.  96.1  Terminology.

    As used in this part, the terms ``Federal award,'' ``Federal 
financial assistance,'' ``recipient,'' and ``subrecipient'' have the 
same meanings as the definitions in 29 CFR 99.105 of this title.



     Subpart A_Audits of States, Local Governments, and Non-profit 
                              Organizations



Sec.  96.11  Purpose and scope of subpart.

    The regulations in this subpart and in 29 CFR part 99 implement 
Office of Management and Budget (OMB) Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations,'' which was 
issued pursuant to The Single Audit Act Amendments of 1996 (Act). The 
Act builds upon earlier efforts to improve audits of Federal financial 
assistance programs. This subpart establishes uniform audit requirements 
and policy for recipients and subrecipients that receive Federal 
financial assistance from DOL.



Sec.  96.12  Audit requirements.

    (a) Organizations covered by this subpart are responsible for 
arranging for independent audits that meet the requirements of this 
section.
    (b) The audit requirements contained in 29 CFR part 99 shall be 
followed for audits of all fiscal years beginning after June 30, 1996.
    (c) Except as provided in paragraph (d) of this section, the audit 
requirements applicable to earlier fiscal years under regulations and 
award conditions in force when the awards were made shall continue in 
force.
    (d) The Secretary or his/her designee may provide written notice to 
recipients/subrecipients subject to paragraph (c) of this section 
directing them to follow the requirements of 29 CFR 99.320, which 
provides for submission of audit data collection forms and reporting 
packages to a Federal clearinghouse designated by OMB.

Subpart B [Reserved]



          Subpart C_Audits of Entities Not Covered by Subpart A



Sec.  96.31  Purpose and scope of subpart.

    This subpart prescribes the requirement for audits of recipients, 
subrecipients, contractors, and subcontractors that receive funds from 
the DOL and are not covered by subpart A.



Sec.  96.32  Audit requirement.

    The Secretary of Labor is responsible for the survey, audit or 
examination of recipients, subrecipients, contractors, and 
subcontractors covered by this subpart. Such surveys, audits, or 
examinations shall be conducted at the Secretary's discretion.

[[Page 718]]



      Subpart D_Access to Records, Audit Standards and Relation of 
          Organization-wide Audits to Other Audit Requirements



Sec.  96.41  Access to records.

    The Secretary of Labor, the DOL Inspector General, the Comptroller 
General of the United States, or any of their duly authorized 
representatives (including certified public accountants under contract), 
shall have access to any books, documents, papers, and records (manual 
and automated) of the entity receiving funds from DOL and its 
subrecipients/subcontractors for the purpose of making surveys, audits, 
examinations, excerpts, and transcripts.



Sec.  96.42  Audit standards.

    Surveys, audits, and examinations will conform to the Government 
auditing standards, issued by the Comptroller General of the United 
States, and guides issued by the Secretary. For purposes of meeting 
audit requirements under subparts A and C, only the standards for 
financial and compliance audits need apply.



Sec.  96.43  Relation of organization-wide audits to other audit requirements.

    To the extent that audits conducted in accordance with subpart A 
provide DOL officials with the information needed to carry out their 
responsibilities under Federal law or DOL regulations, the Secretary 
shall rely upon and use the information. Additional audit efforts are 
not precluded, but such efforts must build upon the organization-wide 
audit and not duplicate it. The provisions of subpart A do not authorize 
a covered entity, after having complied with those requirements, to 
constrain, in any manner, the Secretary from carrying out additional 
surveys, audits, or examinations as deemed necessary.



                       Subpart E_Audit Resolution



Sec.  96.51  Purpose and scope of subpart.

    This subpart prescribes standards for resolution of audit findings, 
including, but not limited to, questioned costs and administrative 
deficiencies, identified as a result of the audit of grant agreements, 
contracts, and other agreements awarded by or on behalf of DOL. In cases 
where these standards conflict with statutes or other DOL regulations, 
the latter shall be controlling. The DOL Office of Inspector General 
(OIG) is available to assist agencies in the audit resolution process.



Sec.  96.52  Pre-resolution phase activities.

    (a) Submission of reports. Recipients and subrecipients of DOL funds 
that are audited in accordance with the requirements of subpart A shall 
comply in all respects with the report submission requirements of 29 CFR 
part 99. Failure to submit a complete audit package will result in the 
return of the submitted package by the Clearinghouse, which will assign 
a delinquency classification until the completed package is submitted.
    (b) Quality control. The Office of Inspector General, in conjunction 
with other Federal agencies, will implement an audit quality program 
which may include random, planned, or directed reviews of audits 
submitted in compliance with OMB Circular A-133. When audits are found 
not to be performed in compliance with the requirements, the OIG may 
share the findings with the auditor, the auditee, and the funding 
agencies, and may work with the local licensing authorities to achieve 
corrective action.



Sec.  96.53  Audit resolution generally.

    The DOL official(s) responsible for audit resolution shall promptly 
evaluate findings and recommendations reported by auditors and the 
corrective action plan developed by the recipient to determine proper 
actions in response to audit findings and recommendations. The process 
of audit resolution includes at a minimum an initial determination, an 
informal resolution period, and a final determination.
    (a) Initial determination. After the conclusion of any comment 
period for audits provided the recipient/contractor, the responsible DOL 
official(s) shall make an initial determination on the allowability of 
questioned costs or activities, administrative or systemic findings, and 
the corrective actions outlined by the recipient. Such determination 
shall be based on applicable

[[Page 719]]

statutes, regulations, administrative directives, or terms and 
conditions of the grant/contract award instrument.
    (b) Informal resolution. The recipient/contractor shall have a 
reasonable period of time (as determined by the DOL official(s) 
responsible for audit resolution) from the date of issuance of the 
initial determination to informally resolve those matters in which the 
recipient/contractor disagrees with the decisions of the responsible DOL 
official(s).
    (c) Final determination. After the conclusion of the informal 
resolution period, the responsible DOL official(s) shall issue a final 
determination that:
    (1) As appropriate, indicate that efforts to informally resolve 
matters contained in the initial determination have either been 
successful or unsuccessful;
    (2) Lists those matters upon which the parties continue to disagree;
    (3) Lists any modifications to the factual findings and conclusions 
set forth in the initial determination;
    (4) Lists any sanctions and required corrective actions; and
    (5) Sets forth any appeal rights.
    (d) Time limit. Insofar as possible, the requirements of this 
section should be met within 180 days of the date the final approved 
audit report is received by the DOL official(s) responsible for audit 
resolution.



Sec.  96.54  Responsibility for subrecipient audits.

    Recipients of Federal assistance from DOL are responsible for 
ensuring that subrecipient organizations who expend $300,000 or more in 
a fiscal year or $500,000 for fiscal years ending after December 31, 
2003 are audited and that any audit findings are resolved in accordance 
with this part. The recipient shall:
    (a) Determine whether appropriate audit requirements outlined in 
subpart A have been met;
    (b) Determine whether the subrecipient spent Federal assistance 
funds provided in accordance with applicable laws and regulations;
    (c) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instances of non-compliance 
with Federal law and regulations;
    (d) Consider whether subrecipient audits necessitate adjustment of 
the recipient's own records; and
    (e) Require that each subrecipient permit independent auditors to 
have access to the records and financial statements necessary to comply 
with this part.

[64 FR 14539, Mar. 25, 1999, as amended at 72 FR 37104, July 9, 2007]



                            Subpart F_Appeals



Sec.  96.61  Purpose and scope of subpart.

    (a) The purpose of this subpart is to set forth procedures by which 
recipients and contractors may appeal final determinations by the DOL 
officials responsible for audit resolution as a result of audits.
    (b) Subrecipients and subcontractors shall have only such appeal 
rights as may exist in subgrants or subcontracts with the respective 
recipients or contractors.



Sec.  96.62  Contracts.

    (a) For the purpose of this subpart, the term ``contract'' includes 
all agreements described in sec. 602(a) of the Contract Disputes Act 
(Applicability of Law--Executive agency contracts) (41 U.S.C. 602(a)).
    (b) Upon a contractor's receipt of the DOL contracting officer's 
final determination as a result of an audit, the contractor may appeal 
the final determination to the DOL Board of Contract Appeals, pursuant 
to 41 CFR part 29-60 and 48 CFR part 2933 or pursue such other remedies 
as may be available under the Contract Disputes Act.



Sec.  96.63  Federal financial assistance.

    The DOL grantor agencies shall determine which of the two appeal 
options set forth in paragraphs (a) and (b) of this section the 
recipient may use to appeal the final determination of the grant 
officer. All awards within the same Federal financial assistance program 
shall follow the same appeal procedure.
    (a) Appeal to the head of the grantor agency, or his/her designee, 
for which the audit was conducted.

[[Page 720]]

    (1) Jurisdiction. (i) Request for hearing. Within 21 days of receipt 
of the grant officer's final determination, the recipient may transmit, 
by certified mail, return receipt requested, a request for hearing to 
the head of the grantor agency, or his/her designee, as noted in the 
final determination. A copy must also be sent to the grant officer who 
signed the final determination.
    (ii) Statement of issues. The request for a hearing shall be 
accompanied by a copy of the final determination, if issued, and shall 
specifically state those portions of the final determination upon which 
review is requested. Those portions of the final determination not 
specified for review shall be considered resolved and not subject to 
further review.
    (iii) Failure to request review. When no timely request for a 
hearing is made, the final determination shall constitute final action 
by the Secretary of Labor and shall not be subject to further review.
    (2) Conduct of hearings. The grantor agency shall establish 
procedures for the conduct of hearings by the head of the grantor 
agency, or his/her designee.
    (3) Decision of the head of the grantor agency, or his/her designee. 
The head of the grantor agency, or his/her designee, should render a 
written decision no later than 90 days after the closing of the record. 
This decision constitutes final action of the Secretary.
    (b) Appeal to the DOL Office of Administrative Law Judges--(1) 
Jurisdiction--(i) Request for hearing. Within 21 days of receipt of the 
grant officer's final determination, the recipient may transmit by 
certified mail, return receipt requested, a request for hearing to the 
Chief Administrative Law Judge, United States Department of Labor, 800 K 
Street NW, Suite 400, Washington, DC 20001, with a copy to the grant 
officer who signed the final determination. The Chief Administrative Law 
Judge shall designate an administrative law judge to hear the appeal.
    (ii) Statement of issues. The request for a hearing shall be 
accompanied by a copy of the final determination, if issued, and shall 
specifically state those portions of the final determination upon which 
review is requested. Those portions of the final determination not 
specified for review shall be considered resolved and not subject to 
further review.
    (iii) Failure to request review. When no timely request for a 
hearing is made, the final determination shall constitute final action 
by the Secretary and shall not be subject to further review.
    (2) Conduct of hearings. The DOL Rules of Practice and Procedure for 
Administrative Hearings Before the Office of Administrative Law Judges, 
set forth at 29 CFR part 18, shall govern the conduct of hearings under 
paragraph (b) of this section.
    (3) Decision of the administrative law judge. The administrative law 
judge should render a written decision no later than 90 days after the 
closing of the record.
    (4) Filing exceptions to decision. The decision of the 
administrative law judge shall constitute final action by the Secretary 
of Labor, unless, within 21 days after receipt of the decision of the 
administrative law judge, a party dissatisfied with the decision or any 
part thereof has filed exceptions with the Administrative Review Board 
(the Board), specifically identifying the procedure or finding of fact, 
law, or policy with which exception is taken. Any exceptions not 
specifically urged shall be deemed to have been waived. Thereafter, the 
decision of the administrative law judge shall become the decision of 
the Secretary, unless the Board, within 30 days of such filing, has 
notified the parties that the case has been accepted for review.
    (5) Review by the Administrative Review Board. Any case accepted for 
review by the Administrative Review Boardshall be decided within 180 
days of such acceptance. If not so decided, the decision of the 
administrative law judge shall become the final decision of the 
Secretary.

[64 FR 14539, Mar. 25, 1999, as amended at 72 FR 37104, July 9, 2007]

[[Page 721]]



PART 97_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE 
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents



                            Subpart A_General

Sec.
97.1 Purpose and scope of this part.
97.2 Scope of subpart.
97.3 Definitions.
97.4 Applicability.
97.5 Effect on other issuances.
97.6 Additions and exceptions.

                    Subpart B_Pre-Award Requirements

97.10 Forms for applying for grants.
97.11 State plans.
97.12 Special grant or subgrant conditions for ``high-risk'' grantees.

                    Subpart C_Post-Award Requirements

                        Financial Administration

97.20 Standards for financial management systems.
97.21 Payment.
97.22 Allowable costs.
97.23 Period of availability of funds.
97.24 Matching or cost sharing.
97.25 Program income.
97.26 Non-Federal audit.

                    Changes, Property, and Subawards

97.30 Changes.
97.31 Real property.
97.32 Equipment.
97.33 Supplies.
97.34 Copyrights.
97.35 Subawards to debarred and suspended parties.
97.36 Procurement.
97.37 Subgrants.

               Reports, Records Retention, and Enforcement

97.40 Monitoring and reporting program performance.
97.41 Financial reporting.
97.42 Retention and access requirements for records.
97.43 Enforcement.
97.44 Termination for convenience.

                 Subpart D_After-the-Grant Requirements

97.50 Closeout.
97.51 Later disallowances and adjustments.
97.52 Collection of amounts due.

Subpart E--Entitlement [Reserved]

    Authority: 5 U.S.C. 301; OMB Circular A-102.

    Source: 53 FR 8069, 8087, Mar. 11, 1988, unless otherwise noted.



                            Subpart A_General



Sec.  97.1  Purpose and scope of this part.

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



Sec.  97.2  Scope of subpart.

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



Sec.  97.3  Definitions.

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

[[Page 722]]

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

[[Page 723]]

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

[[Page 724]]

fraudulently, or was otherwise illegal or invalid from inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec.  97.4  Applicability.

    (a) General. Subparts A-D of this part apply to all grants and 
subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec.  97.6, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under title V, subtitle D, chapter 2, 
Section 583--the Secretary's discretionary grant program) and titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and part C of title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Temporary Assistance for Needy Families (title IV-A of the Act, 
not including the Work Incentive Program (WIN) authorized by section 
402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L.

[[Page 725]]

96-422, 94 Stat. 1809), for cash assistance, medical assistance, and 
supplemental security income benefits to refugees and entrants and the 
administrative costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Department of Veterans Affairs' State Home 
Per Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec.  97.4(a)(3) through (8) are subject to subpart E.

[53 FR 8069, 8087, Mar. 11, 1988, as amended at 72 FR 37104, July 9, 
2007]



Sec.  97.5  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec.  97.6.



Sec.  97.6  Additions and exceptions.

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.
    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.



                    Subpart B_Pre-Award Requirements



Sec.  97.10  Forms for applying for grants.

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



Sec.  97.11  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive Order.

[[Page 726]]

    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.



Sec.  97.12  Special grant or subgrant conditions for ``high-risk'' grantees.

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



                    Subpart C_Post-Award Requirements

                        Financial Administration



Sec.  97.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.

[[Page 727]]

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



Sec.  97.21  Payment.

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

[[Page 728]]

grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for its actual cash disbursements. The working 
capital advance method of payment shall not be used by grantees or 
subgrantees if the reason for using such method is the unwillingness or 
inability of the grantee to provide timely advances to the subgrantee to 
meet the subgrantee's actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions or
    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec.  97.43(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.



Sec.  97.22  Allowable costs.

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

------------------------------------------------------------------------
          For the costs of a--               Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal            OMB Circular A-87 (as codified
 government.                              at 2 CFR part 225).

[[Page 729]]

 
Private nonprofit organization other     OMB Circular A-122 (as codified
 than an (1) institution of higher        at 2 CFR part 230).
 education, (2) hospital, or (3)
 organization named in OMB Circular A-
 122 (as codified at 2 CFR part 230) as
 not subject to that circular.
Educational institutions...............  OMB Circular A-21 (as codified
                                          at 2 CFR part 220).
For-profit organization other than a     48 CFR part 31. Contract Cost
 hospital and an organization named in    Principles and Procedures, or
 OMB Circular A-122 (as codified at 2     uniform cost accounting
 CFR part 230) as not subject to that     standards that comply with
 circular.                                cost principles acceptable to
                                          the Federal agency.
------------------------------------------------------------------------


[53 FR 8069, 8087, Mar. 11, 1988, as amended at 72 FR 37104, July 9, 
2007]



Sec.  97.23  Period of availability of funds.

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



Sec.  97.24  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec.  97.25, shall not count towards satisfying a 
cost sharing or matching requirement unless they are expressly permitted 
in the terms of the assistance agreement. (This use of general program 
income is described in Sec.  97.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on

[[Page 730]]

third party in-kind contributions was derived. To the extent feasible, 
volunteer services will be supported by the same methods that the 
organization uses to support the allocability of regular personnel 
costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services 
are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired

[[Page 731]]

with Federal funds, only the non-federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec.  97.22, in the same way as depreciation or 
use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.



Sec.  97.25  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. During the grant period is the time between the 
effective date of the award and the ending date of the award reflected 
in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec.  97.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec.  97.31 
and 97.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program

[[Page 732]]

income in excess of any limits stipulated shall also be deducted from 
outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.



Sec.  97.26  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, expends $300,000 or more (or 
$500,000 or more for fiscal years ending after December 31, 2003 or such 
other amount as specified by OMB) in Federal awards in a fiscal year, 
shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing goods and services to State and local 
governments are not required to have a single audit performed. State and 
local governments should use their own procedures to ensure that the 
contractor has complied with laws and regulations affecting the 
expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110 (as codified at 2 CFR part 215), or through 
other means (e.g., program reviews) if the subgrantee has not had such 
an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec.  97.36 
shall be followed.

[53 FR 8069, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45942, Aug. 
29, 1997; 72 FR 37105, July 9, 2007]

                    Changes, Property, and Subawards



Sec.  97.30  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless

[[Page 733]]

waived by the awarding agency, certain types of post-award changes in 
budgets and projects shall require the prior written approval of the 
awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec.  97.22) contain requirements for prior approval of certain types of 
costs. Except where waived, those requirements apply to all grants and 
subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec.  97.36 but does not apply to the procurement of equipment, 
supplies, and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec.  97.22) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec.  97.31  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a

[[Page 734]]

grant or subgrant will vest upon acquisition in the grantee or 
subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency. The amount due to the awarding agency will be calculated by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling and fixing-up expenses. If the grant 
is still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.



Sec.  97.32  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec.  97.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place

[[Page 735]]

will, as a minimum, meet the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third part 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow Sec.  97.32(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec.  97.33  Supplies.

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

[[Page 736]]



Sec.  97.34  Copyrights.

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



Sec.  97.35  Subawards to debarred and suspended parties.

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



Sec.  97.36  Procurement.

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

[[Page 737]]

use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec.  97.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services,

[[Page 738]]

geographic location may be a selection criteria provided its application 
leaves an appropriate number of qualified firms, given the nature and 
size of the project, to compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures are those relatively 
simple and informal procurement methods for securing services, supplies, 
or other property that do not cost more than the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000, subject 
to adjustment for inflation). If small purchase procedures are used, 
price or rate quotations shall be obtained from an adequate number of 
qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in Sec.  97.36(d)(2)(i) apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive

[[Page 739]]

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

[[Page 740]]

procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec.  97.22). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the

[[Page 741]]

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

[[Page 742]]

    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8069, Mar. 11, 1988, as amended at 60 FR 19639, 19643, Apr. 19, 
1995; 72 FR 37105, July 9, 2007]



Sec.  97.37  Subgrants.

    (a) States. States shall follow state law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec.  97.42 is 
placed in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 97.10;
    (2) Section 97.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec.  97.21; and
    (4) Section 97.50.

               Reports, Records Retention, and Enforcement



Sec.  97.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.

[[Page 743]]

    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.
    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.



Sec.  97.41  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a)(2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extend required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that

[[Page 744]]

the Federal agency finds unnecessary for its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec.  97.41(e)(2)(iii) of this section.
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction

[[Page 745]]

grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec.  97.41(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs. (1) Grants that support construction activities paid by 
reimbursement method.
    (i) Requests for reimbursement under construction grants will be 
submitted on Standard Form 271, Outlay Report and Request for 
Reimbursement for Construction Programs. Federal agencies may, however, 
prescribe the Request for Advance or Reimbursement form, specified in 
Sec.  97.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec.  97.41(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance.
    (i) When a construction grant is paid by letter of credit, 
electronic funds transfer or Treasury check advances, the grantee will 
report its outlays to the Federal agency using Standard Form 271, Outlay 
Report and Request for Reimbursement for Construction Programs. The 
Federal agency will provide any necessary special instruction. However, 
frequency and due date shall be governed by Sec.  97.41(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in Sec.  97.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec.  97.41(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec.  97.41(b)(2).



Sec.  97.42  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec.  97.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its

[[Page 746]]

final expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records owned and 
possessed by the grantee unless required by Federal, State, or local 
law, grantees and subgrantees are not required to permit public access 
to their records.

[53 FR 8069, 8087, Mar. 11, 1988, as amended at 72 FR 37105, July 9, 
2007]



Sec.  97.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee

[[Page 747]]

resulting from obligations incurred by the grantee or subgrantee during 
a suspension or after termination of an award are not allowable unless 
the awarding agency expressly authorizes them in the notice of 
suspension or termination or subsequently. Other grantee or subgrantee 
costs during suspension or after termination which are necessary and not 
reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancell- able, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec.  97.35).



Sec.  97.44  Termination for convenience.

    Except as provided in Sec.  97.43 awards may be terminated in whole 
or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the case of 
partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of the award will 
not accomplish the purposes for which the award was made, the awarding 
agency may terminate the award in its entirety under either Sec.  97.43 
or paragraph (a) of this section.



                 Subpart D_After-The-Grant Requirements



Sec.  97.50  Closeout.

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

In accordance with Sec.  97.32(f), a grantee must submit an inventory of 
all federally owned property (as distinct from property acquired with 
grant funds) for which it is accountable and request disposition 
instructions from the Federal agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.



Sec.  97.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;

[[Page 748]]

    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec.  97.42;
    (d) Property management requirements in Sec. Sec.  97.31 and 97.32; 
and
    (e) Audit requirements in Sec.  97.26.



Sec.  97.52  Collection of amounts due.

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

Subpart E--Entitlement [Reserved]



PART 99_AUDITS OF STATES, LOCAL GOVERNMENTS, AND NON-PROFIT ORGANIZATIONS--
Table of Contents



                            Subpart A_General

Sec.
99.100 Purpose.
99.105 Definitions.

                            Subpart B_Audits

99.200 Audit requirements.
99.205 Basis for determining Federal awards expended.
99.210 Subrecipient and vendor determinations.
99.215 Relation to other audit requirements.
99.220 Frequency of audits.
99.225 Sanctions.
99.230 Audit costs.
99.235 Program-specific audits.

                           Subpart C_Auditees

99.300 Auditee responsibilities.
99.305 Auditor selection.
99.310 Financial statements.
99.315 Audit findings follow-up.
99.320 Report submission.

          Subpart D_Federal Agencies and Pass-through Entities

99.400 Responsibilities.
99.405 Management decision.

                           Subpart E_Auditors

99.500 Scope of audit.
99.505 Audit reporting.
99.510 Audit findings.
99.515 Audit working papers.
99.520 Major program determination.
99.525 Criteria for Federal program risk.
99.530 Criteria for a low-risk auditee.

    Authority: Public Law 104-156, 110 Stat. 1396 (31 U.S.C. 7500 et 
seq.) and OMB Circular A-133, as amended.

    Source: 64 FR 14541, Mar. 25, 1999, unless otherwise noted.



                            Subpart A_General



Sec.  99.100  Purpose.

    This part sets forth standards for obtaining consistency and 
uniformity among Federal agencies for the audit of non-Federal entities 
expending Federal awards.



Sec.  99.105  Definitions.

    Audit finding means deficiencies which the auditor is required by 
Sec.  99.510(a) to report in the schedule of findings and questioned 
costs.
    Auditee means any non-Federal entity that expends Federal awards 
which must be audited under this part.
    Auditor means an auditor that is a public accountant or a Federal, 
State, or local government audit organization, which meets the general 
standards specified in generally accepted government auditing standards 
(GAGAS). The term auditor does not include internal auditors of non-
profit organizations.
    CFDA number means the number assigned to a Federal program in the 
Catalog of Federal Domestic Assistance (CFDA).
    Cluster of programs means a grouping of closely related programs 
that share common compliance requirements. The

[[Page 749]]

types of clusters of programs are research and development (R&D), 
student financial aid (SFA), and other clusters. ``Other clusters'' are 
as defined by the Office of Management and Budget (OMB) in the 
compliance supplement or as designated by a State for Federal awards the 
State provides to its subrecipients that meet the definition of a 
cluster of programs. When designating an ``other cluster,'' a State 
shall identify the Federal awards included in the cluster and advise the 
subrecipients of compliance requirements applicable to the cluster, 
consistent with Sec.  99.400(d)(1) and Sec.  99.400(d)(2), respectively. 
A cluster of programs shall be considered as one program for determining 
major programs, as described in Sec.  99.520, and, with the exception of 
R&D as described in Sec.  99.200(c), whether a program-specific audit 
may be elected.
    Cognizant agency for audit means the Federal agency designated to 
carry out the responsibilities described in Sec.  99.400(a).
    Compliance supplement refers to the Circular A-133 Compliance 
Supplement, included as Appendix B to Circular A-133, or such documents 
as OMB or its designee may issue to replace it. This document is 
available from the Government Printing Office, Superintendent of 
Documents, Washington, DC 20402-9325.
    Corrective action means action taken by the auditee that:
    (1) Corrects identified deficiencies,
    (2) Produces recommended improvements, or
    (3) Demonstrates that audit findings are either invalid or do not 
warrant auditee action.
    Federal agency has the same meaning as the term agency in Section 
551(1) of title 5, United States Code.
    Federal award means Federal financial assistance and Federal cost-
reimbursement contracts that non-Federal entities receive directly from 
Federal awarding agencies or indirectly from pass-through entities. It 
does not include procurement contracts, under grants or contracts, used 
to buy goods or services from vendors. Any audits of such vendors shall 
be covered by the terms and conditions of the contract. Contracts to 
operate Federal Government-owned, contractor-operated (GOCOs) facilities 
are excluded from the requirements of this part.
    Federal awarding agency means the Federal agency that provides an 
award directly to the recipient.
    Federal financial assistance means assistance that non-Federal 
entities receive or administer in the form of grants, loans, loan 
guarantees, property (including donated surplus property), cooperative 
agreements, interest subsidies, insurance, food commodities, direct 
appropriations, and other assistance, but does not include amounts 
received as reimbursement for services rendered to individuals as 
described in Sec.  99.205(h) and Sec.  99.205(i).
    Federal program means: (1) All Federal awards to a non-Federal 
entity assigned a single number in the CFDA. (When no CFDA number is 
assigned, all Federal awards from the same agency made for the same 
purpose should be combined and considered one program.)
    (2) Notwithstanding paragraph (1) of this definition, a cluster of 
programs. The types of clusters of programs are:
    (i) Research and development (R&D);
    (ii) Student financial aid (SFA); and
    (iii) ``Other clusters'' as described in the definition of cluster 
of programs in this section.
    GAGAS means generally accepted government auditing standards issued 
by the Comptroller General of the United States, which are applicable to 
financial audits.
    Generally accepted accounting principles has the meaning specified 
in generally accepted auditing standards issued by the American 
Institute of Certified Public Accountants (AICPA).
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaskan Native village or 
regional or village corporation (as defined in, or established under, 
the Alaskan Native Claims Settlement Act) that is recognized by the 
United States as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.
    Internal control means a process, effected by an entity's management 
and other personnel, designed to provide reasonable assurance regarding 
the achievement of objectives in the following categories:

[[Page 750]]

    (1) Effectiveness and efficiency of operations;
    (2) Reliability of financial reporting; and
    (3) Compliance with applicable laws and regulations.
    Internal control pertaining to the compliance requirements for 
Federal programs (Internal control over Federal programs) means a 
process--effected by an entity's management and other personnel--
designed to provide reasonable assurance regarding the achievement of 
the following objectives for Federal programs:
    (1) Transactions are properly recorded and accounted for to:
    (i) Permit the preparation of reliable financial statements and 
Federal reports;
    (ii) Maintain accountability over assets; and
    (iii) Demonstrate compliance with laws, regulations, and other 
compliance requirements;
    (2) Transactions are executed in compliance with:
    (i) Laws, regulations, and the provisions of contracts or grant 
agreements that could have a direct and material effect on a Federal 
program; and
    (ii) Any other laws and regulations that are identified in the 
compliance supplement; and
    (3) Funds, property, and other assets are safeguarded against loss 
from unauthorized use or disposition.
    Loan means a Federal loan or loan guarantee received or administered 
by a non-Federal entity.
    Local government means any unit of local government within a State, 
including a county, borough, municipality, city, town, township, parish, 
local public authority, special district, school district, intrastate 
district, council of governments, and any other instrumentality of local 
government.
    Major program means a Federal program determined by the auditor to 
be a major program in accordance with Sec.  99.520 or a program 
identified as a major program by a Federal agency or pass-through entity 
in accordance with Sec.  99.215(c).
    Management decision means the evaluation by the Federal awarding 
agency or pass-through entity of the audit findings and corrective 
action plan and the issuance of a written decision as to what corrective 
action is necessary.
    Non-Federal entity means a State, local government, or non-profit 
organization.
    Non-profit organization means:
    (1) Any corporation, trust, association, cooperative, or other 
organization that:
    (i) Is operated primarily for scientific, educational, service, 
charitable, or similar purposes in the public interest;
    (ii) Is not organized primarily for profit; and
    (iii) Uses its net proceeds to maintain, improve, or expand its 
operations; and
    (2) The term non-profit organization includes non-profit 
institutions of higher education and hospitals.
    OMB means the Executive Office of the President, Office of 
Management and Budget.
    Oversight agency for audit means the Federal awarding agency that 
provides the predominant amount of direct funding to a recipient not 
assigned a cognizant agency for audit. When there is no direct funding, 
the Federal agency with the predominant indirect funding shall assume 
the oversight responsibilities. The duties of the oversight agency for 
audit are described in Sec.  99.400(b).
    Pass-through entity means a non-Federal entity that provides a 
Federal award to a subrecipient to carry out a Federal program.
    Program-specific audit means an audit of one Federal program as 
provided for in Sec.  99.200(c) and Sec.  99.235.
    Questioned cost means a cost that is questioned by the auditor 
because of an audit finding:
    (1) Which resulted from a violation or possible violation of a 
provision of a law, regulation, contract, grant, cooperative agreement, 
or other agreement or document governing the use of Federal funds, 
including funds used to match Federal funds;
    (2) Where the costs, at the time of the audit, are not supported by 
adequate documentation; or
    (3) Where the costs incurred appear unreasonable and do not reflect 
the actions a prudent person would take in the circumstances.

[[Page 751]]

    Recipient means a non-Federal entity that expends Federal awards 
received directly from a Federal awarding agency to carry out a Federal 
program.
    Research and development (R&D) means all research activities, both 
basic and applied, and all development activities that are performed by 
a non-Federal entity. Research is defined as a systematic study directed 
toward fuller scientific knowledge or understanding of the subject 
studied. 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. 
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.
    Single audit means an audit which includes both the entity's 
financial statements and the Federal awards as described in Sec.  
99.500.
    State means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, and 
the Trust Territory of the Pacific Islands, any instrumentality thereof, 
any multi-State, regional, or interstate entity which has governmental 
functions, and any Indian tribe as defined in this section.
    Student Financial Aid (SFA) includes those programs of general 
student assistance, such as those authorized by Title IV of the Higher 
Education Act of 1965, as amended, (20 U.S.C. 1070 et seq.), which is 
administered by the U.S. Department of Education, and similar programs 
provided by other Federal agencies. It does not include programs which 
provide fellowships or similar Federal awards to students on a 
competitive basis, or for specified studies or research.
    Subrecipient means a non-Federal entity that expends Federal awards 
received from a pass-through entity to carry out a Federal program, but 
does not include an individual that is a beneficiary of such a program. 
A subrecipient may also be a recipient of other Federal awards directly 
from a Federal awarding agency. Guidance on distinguishing between a 
subrecipient and a vendor is provided in Sec.  99.210.
    Types of compliance requirements refers to the types of compliance 
requirements listed in the compliance supplement. Examples include: 
activities allowed or unallowed; allowable costs/cost principles; cash 
management; eligibility; matching, level of effort, earmarking; and, 
reporting.
    Vendor means a dealer, distributor, merchant, or other seller 
providing goods or services that are required for the conduct of a 
Federal program. These goods or services may be for an organization's 
own use or for the use of beneficiaries of the Federal program. 
Additional guidance on distinguishing between a subrecipient and a 
vendor is provided in Sec.  99.210.



                            Subpart B_Audits



Sec.  99.200  Audit requirements.

    (a) Audit required. Non-Federal entities that expend $300,000 or 
more in a year in Federal awards (or $500,000 for fiscal years ending 
after December 31, 2003) shall have a single or program-specific audit 
conducted for that year in accordance with the provisions of this part. 
Guidance on determining Federal awards expended is provided in Sec.  
99.205.
    (b) Single audit. Non-Federal entities that expend $300,000 or more 
in a year in Federal awards (or $500,000 for fiscal years ending after 
December 31, 2003) shall have a single audit conducted in accordance 
with Sec.  99.500 except when they elect to have a program-specific 
audit conducted in accordance with paragraph (c) of this section.
    (c) Program-specific audit election. When an auditee expends Federal 
awards under only one Federal program (excluding R&D) and the Federal 
program's laws, regulations, or grant agreements do not require a 
financial statement audit of the auditee, the auditee may elect to have 
a program-specific audit conducted in accordance with Sec.  99.235. A 
program-specific audit may not be elected for R&D unless all of the 
Federal awards expended were

[[Page 752]]

received from the same Federal agency, or the same Federal agency and 
the same pass-through entity, and that Federal agency, or pass-through 
entity in the case of a subrecipient, approves in advance a program-
specific audit.
    (d) Exemption when Federal awards expended are less than $300,000 
(or $500,000 for fiscal years ending after December 31, 2003). Non-
Federal entities that expend less than $300,000 a year in Federal awards 
(or $500,000 for fiscal years ending after December 31, 2003) are exempt 
from Federal audit requirements for that year, except as noted in Sec.  
99.215(a), but records must be available for review or audit by 
appropriate officials of the Federal agency, pass-through entity, and 
Government Accountability Office (GAO).
    (e) Federally Funded Research and Development Centers (FFRDC). 
Management of an auditee that owns or operates a FFRDC may elect to 
treat the FFRDC as a separate entity for purposes of this part.

[64 FR 14541, Mar. 25, 1999, as amended at 72 FR 37105, July 9, 2007]



Sec.  99.205  Basis for determining Federal awards expended.

    (a) Determining Federal awards expended. The determination of when 
an award is expended should be based on when the activity related to the 
award occurs. Generally, the activity pertains to events that require 
the non-Federal entity to comply with laws, regulations, and the 
provisions of contracts or grant agreements, such as: expenditure/
expense transactions associated with grants, cost-reimbursement 
contracts, cooperative agreements, and direct appropriations; the 
disbursement of funds passed through to subrecipients; the use of loan 
proceeds under loan and loan guarantee programs; the receipt of 
property; the receipt of surplus property; the receipt or use of program 
income; the distribution or consumption of food commodities; the 
disbursement of amounts entitling the non-Federal entity to an interest 
subsidy; and, the period when insurance is in force.
    (b) Loan and loan guarantees (loans). Since the Federal Government 
is at risk for loans until the debt is repaid, the following guidelines 
shall be used to calculate the value of Federal awards expended under 
loan programs, except as noted in paragraphs (c) and (d) of this 
section:
    (1) Value of new loans made or received during the fiscal year; plus
    (2) Balance of loans from previous years for which the Federal 
Government imposes continuing compliance requirements; plus
    (3) Any interest subsidy, cash, or administrative cost allowance 
received.
    (c) Loan and loan guarantees (loans) at institutions of higher 
education. When loans are made to students of an institution of higher 
education but the institution does not make the loans, then only the 
value of loans made during the year shall be considered Federal awards 
expended in that year. The balance of loans for previous years is not 
included as Federal awards expended because the lender accounts for the 
prior balances.
    (d) Prior loan and loan guarantees (loans). Loans, the proceeds of 
which were received and expended in prior-years, are not considered 
Federal awards expended under this part when the laws, regulations, and 
the provisions of contracts or grant agreements pertaining to such loans 
impose no continuing compliance requirements other than to repay the 
loans.
    (e) Endowment funds. The cumulative balance of Federal awards for 
endowment funds which are federally restricted are considered awards 
expended in each year in which the funds are still restricted.
    (f) Free rent. Free rent received by itself is not considered a 
Federal award expended under this part. However, free rent received as 
part of an award to carry out a Federal program shall be included in 
determining Federal awards expended and subject to audit under this 
part.
    (g) Valuing non-cash assistance. Federal non-cash assistance, such 
as free rent, food stamps, food commodities, donated property, or 
donated surplus property, shall be valued at fair market value at the 
time of receipt or the assessed value provided by the Federal agency.
    (h) Medicare. Medicare payments to a non-Federal entity for 
providing patient care services to Medicare eligible

[[Page 753]]

individuals are not considered Federal awards expended under this part.
    (i) Medicaid. Medicaid payments to a subrecipient for providing 
patient care services to Medicaid eligible individuals are not 
considered Federal awards expended under this part unless a State 
requires the funds to be treated as Federal awards expended because 
reimbursement is on a cost-reimbursement basis.
    (j) Certain loans provided by the National Credit Union 
Administration. For purposes of this part, loans made from the National 
Credit Union Share Insurance Fund and the Central Liquidity Facility 
that are funded by contributions from insured institutions are not 
considered Federal awards expended.



Sec.  99.210  Subrecipient and vendor determinations.

    (a) General. An auditee may be a recipient, a subrecipient, and a 
vendor. Federal awards expended as a recipient or a subrecipient would 
be subject to audit under this part. The payments received for goods or 
services provided as a vendor would not be considered Federal awards. 
The guidance in paragraphs (b) and (c) of this section should be 
considered in determining whether payments constitute a Federal award or 
a payment for goods and services.
    (b) Federal award. Characteristics indicative of a Federal award 
received by a subrecipient are when the organization:
    (1) Determines who is eligible to receive what Federal financial 
assistance;
    (2) Has its performance measured against whether the objectives of 
the Federal program are met;
    (3) Has responsibility for programmatic decision making;
    (4) Has responsibility for adherence to applicable Federal program 
compliance requirements; and
    (5) Uses the Federal funds to carry out a program of the 
organization as compared to providing goods or services for a program of 
the pass-through entity.
    (c) Payment for goods and services. Characteristics indicative of a 
payment for goods and services received by a vendor are when the 
organization:
    (1) Provides the goods and services within normal business 
operations;
    (2) Provides similar goods or services to many different purchasers;
    (3) Operates in a competitive environment;
    (4) Provides goods or services that are ancillary to the operation 
of the Federal program; and
    (5) Is not subject to compliance requirements of the Federal 
program.
    (d) Use of judgment in making determination. There may be unusual 
circumstances or exceptions to the listed characteristics. In making the 
determination of whether a subrecipient or vendor relationship exists, 
the substance of the relationship is more important than the form of the 
agreement. It is not expected that all of the characteristics will be 
present and judgment should be used in determining whether an entity is 
a subrecipient or vendor.
    (e) For-profit subrecipient. Since this part does not apply to for-
profit subrecipients, the pass-through entity is responsible for 
establishing requirements, as necessary, to ensure compliance by for-
profit subrecipients. The contract with the for-profit subrecipient 
should describe applicable compliance requirements and the for-profit 
subrecipient's compliance responsibility. Methods to ensure compliance 
for Federal awards made to for-profit subrecipients may include pre-
award audits, monitoring during the contract, and post-award audits.
    (f) Compliance responsibility for vendors. In most cases, the 
auditee's compliance responsibility for vendors is only to ensure that 
the procurement, receipt, and payment for goods and services comply with 
laws, regulations, and the provisions of contracts or grant agreements. 
Program compliance requirements normally do not pass through to vendors. 
However, the auditee is responsible for ensuring compliance for vendor 
transactions which are structured such that the vendor is responsible 
for program compliance or the vendor's records must be reviewed to 
determine program compliance. Also, when these vendor transactions 
relate to a major program, the scope of the audit shall include 
determining whether these transactions are

[[Page 754]]

in compliance with laws, regulations, and the provisions of contracts or 
grant agreements.



Sec.  99.215  Relation to other audit requirements.

    (a) Audit under this part in lieu of other audits. An audit made in 
accordance with this part shall be in lieu of any financial audit 
required under individual Federal awards. To the extent this audit meets 
a Federal agency's needs, it shall rely upon and use such audits. The 
provisions of this part neither limit the authority of Federal agencies, 
including their Inspectors General, or GAO to conduct or arrange for 
additional audits (e.g., financial audits, performance audits, 
evaluations, inspections, or reviews) nor authorize any auditee to 
constrain Federal agencies from carrying out additional audits. Any 
additional audits shall be planned and performed in such a way as to 
build upon work performed by other auditors.
    (b) Federal agency to pay for additional audits. A Federal agency 
that conducts or contracts for additional audits shall, consistent with 
other applicable laws and regulations, arrange for funding the full cost 
of such additional audits.
    (c) Request for a program to be audited as a major program. A 
Federal agency may request an auditee to have a particular Federal 
program audited as a major program in lieu of the Federal agency 
conducting or arranging for the additional audits. To allow for 
planning, such requests should be made at least 180 days prior to the 
end of the fiscal year to be audited. The auditee, after consultation 
with its auditor, should promptly respond to such request by informing 
the Federal agency whether the program would otherwise be audited as a 
major program using the risk-based audit approach described in Sec.  
99.520 and, if not, the estimated incremental cost. The Federal agency 
shall then promptly confirm to the auditee whether it wants the program 
audited as a major program. If the program is to be audited as a major 
program based upon this Federal agency request, and the Federal agency 
agrees to pay the full incremental costs, then the auditee shall have 
the program audited as a major program. A pass-through entity may use 
the provisions of this paragraph for a subrecipient.



Sec.  99.220  Frequency of audits.

    Except for the provisions for biennial audits provided in paragraphs 
(a) and (b) of this section, audits required by this part shall be 
performed annually. Any biennial audit shall cover both years within the 
biennial period.
    (a) A State or local government that is required by constitution or 
statute, in effect on January 1, 1987, to undergo its audits less 
frequently than annually, is permitted to undergo its audits pursuant to 
this part biennially. This requirement must still be in effect for the 
biennial period under audit.
    (b) Any non-profit organization that had biennial audits for all 
biennial periods ending between July 1, 1992, and January 1, 1995, is 
permitted to undergo its audits pursuant to this part biennially.



Sec.  99.225  Sanctions.

    No audit costs may be charged to Federal awards when audits required 
by this part have not been made or have been made but not in accordance 
with this part. In cases of continued inability or unwillingness to have 
an audit conducted in accordance with this part, Federal agencies and 
pass-through entities shall take appropriate action using sanctions such 
as:
    (a) Withholding a percentage of Federal awards until the audit is 
completed satisfactorily;
    (b) Withholding or disallowing overhead costs;
    (c) Suspending Federal awards until the audit is conducted; or
    (d) Terminating the Federal award.



Sec.  99.230  Audit costs.

    (a) Allowable costs. Unless prohibited by law, the cost of audits 
made in accordance with the provisions of this part are allowable 
charges to Federal awards. The charges may be considered a direct cost 
or an allocated indirect cost, as determined in accordance with the 
provisions of applicable OMB cost principles circulars, the Federal 
Acquisition Regulation (FAR)(48 CFR parts 30 and 31), or other 
applicable cost principles or regulations.

[[Page 755]]

    (b) Unallowable costs. A non-Federal entity shall not charge the 
following to a Federal award:
    (1) The cost of any audit under the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501 et seq.) not conducted in accordance with this 
part.
    (2) The cost of auditing a non-Federal entity which has Federal 
awards expended of less than $300,000 per year (or $500,000 for fiscal 
years ending after December 31, 2003) and is thereby exempted under 
Sec.  99.200(d) from having an audit conducted under this part. However, 
this does not prohibit a pass-through entity from charging Federal 
awards for the cost of limited scope audits to monitor its subrecipients 
in accordance with Sec.  99.400(d)(3), provided the subrecipient does 
not have a single audit. For purposes of this part, limited scope audits 
only include agreed-upon procedures engagements conducted in accordance 
with either the AICPA's generally accepted auditing standards or 
attestation standards, that are paid for and arranged by a pass-through 
entity and address only one or more of the following types of compliance 
requirements: activities allowed or unallowed; allowable costs/cost 
principles; eligibility; matching; level of effort; earmarking; and, 
reporting.

[64 FR 14541, Mar. 25, 1999, as amended at 72 FR 37105, July 9, 2007]



Sec.  99.235  Program-specific audits.

    (a) Program-specific audit guide available. In many cases, a 
program-specific audit guide will be available to provide specific 
guidance to the auditor with respect to internal control, compliance 
requirements, suggested audit procedures, and audit reporting 
requirements. The auditor should contact the Office of Inspector General 
of the Federal agency to determine whether such a guide is available. 
When a current program-specific audit guide is available, the auditor 
shall follow GAGAS and the guide when performing a program-specific 
audit.
    (b) Program-specific audit guide not available. (1) When a program-
specific audit guide is not available, the auditee and auditor shall 
have basically the same responsibilities for the Federal program as they 
would have for an audit of a major program in a single audit.
    (2) The auditee shall prepare the financial statement(s) for the 
Federal program that includes, at a minimum, a schedule of expenditures 
of Federal awards for the program and notes that describe the 
significant accounting policies used in preparing the schedule, a 
summary schedule of prior audit findings consistent with the 
requirements of Sec.  99.315(b), and a corrective action plan consistent 
with the requirements of Sec.  99.315(c).
    (3) The auditor shall:
    (i) Perform an audit of the financial statement(s) for the Federal 
program in accordance with GAGAS;
    (ii) Obtain an understanding of internal control and perform tests 
of internal control over the Federal program consistent with the 
requirements of Sec.  99.500(c) for a major program;
    (iii) Perform procedures to determine whether the auditee has 
complied with laws, regulations, and the provisions of contracts or 
grant agreements that could have a direct and material effect on the 
Federal program consistent with the requirements of Sec.  99.500(d) for 
a major program; and
    (iv) Follow up on prior audit findings, perform procedures to assess 
the reasonableness of the summary schedule of prior audit findings 
prepared by the auditee, and report, as a current year audit finding, 
when the auditor concludes that the summary schedule of prior audit 
findings materially misrepresents the status of any prior audit finding 
in accordance with the requirements of Sec.  99.500(e).
    (4) The auditor's report(s) may be in the form of either combined or 
separate reports and may be organized differently from the manner 
presented in this section. The auditor's report(s) shall state that the 
audit was conducted in accordance with this part and include the 
following:
    (i) An opinion (or disclaimer of opinion) as to whether the 
financial statement(s) of the Federal program is presented fairly in all 
material respects in conformity with the stated accounting policies;
    (ii) A report on internal control related to the Federal program, 
which

[[Page 756]]

shall describe the scope of testing of internal control and the results 
of the tests;
    (iii) A report on compliance which includes an opinion (or 
disclaimer of opinion) as to whether the auditee complied with laws, 
regulations, and the provisions of contracts or grant agreements which 
could have a direct and material effect on the Federal program; and
    (iv) A schedule of findings and questioned costs for the Federal 
program that includes a summary of the auditor's results relative to the 
Federal program in a format consistent with Sec.  99.505(d)(1), and 
findings and questioned costs consistent with the requirements of Sec.  
99.505(d)(3).
    (c) Report submission for program-specific audits. (1) The audit 
shall be completed and the reporting required by paragraph (c)(2) or 
(c)(3) of this section submitted within the earlier of 30 days after 
receipt of the auditor's report(s), or nine months after the end of the 
audit period, unless a longer period is agreed to in advance by the 
Federal agency that provided the funding or a different period is 
specified in a program-specific audit guide. (However, for fiscal years 
beginning on or before June 30, 1998, the audit shall be completed and 
the required reporting shall be submitted within the earlier of 30 days 
after receipt of the auditor's report(s), or 13 months after the end of 
the audit period, unless a different period is specified in a program-
specific audit guide.) Unless restricted by law or regulation, the 
auditee shall make report copies available for public inspection.
    (2) When a program-specific audit guide is available, the auditee 
shall submit to the Federal clearinghouse designated by the OMB, the 
data collection form prepared in accordance with Sec.  99.320(b), as 
applicable to a program-specific audit, and the reporting required by 
the program-specific audit guide to be retained as an archival copy. 
Also, the auditee shall submit to the Federal awarding agency or pass-
through entity the reporting required by the program-specific audit 
guide.
    (3) When a program-specific audit guide is not available, the 
reporting package for a program-specific audit shall consist of the 
financial statement(s) of the Federal program, a summary schedule of 
prior audit findings, and a corrective action plan as described in 
paragraph (b)(2) of this section, and the auditor's report(s) described 
in paragraph (b)(4) of this section. The data collection form prepared 
in accordance with Sec.  99.320(b), as applicable to a program-specific 
audit, and one copy of this reporting package shall be submitted to the 
Federal clearinghouse designated by the OMB to be retained as an 
archival copy. Also, when the schedule of findings and questioned costs 
disclosed audit findings or the summary schedule of prior audit findings 
reported the status of any audit findings, the auditee shall submit one 
copy of the reporting package to the Federal clearinghouse on behalf of 
the Federal awarding agency, or directly to the pass-through entity in 
the case of a subrecipient. Instead of submitting the reporting package 
to the pass-through entity, when a subrecipient is not required to 
submit a reporting package to the pass-through entity, the subrecipient 
shall provide written notification to the pass-through entity, 
consistent with the requirements of Sec.  99.320(e)(2). A subrecipient 
may submit a copy of the reporting package to the pass-through entity to 
comply with this notification requirement.
    (d) Other sections of this part may apply. Program-specific audits 
are subject to Sec. Sec.  99.100 through 99.215(b), Sec. Sec.  99.220 
through 99.230, Sec. Sec.  99.300 through 99.305, Sec.  99.315, 
Sec. Sec.  99.320(f) through 99.320(j), Sec. Sec.  99.400 through 
99.405, Sec. Sec.  99.510 through ;99.515, and other referenced 
provisions of this part unless contrary to the provisions of this 
section, a program-specific audit guide, or program laws and 
regulations.



                           Subpart C_Auditees



Sec.  99.300  Auditee responsibilities.

    The auditee shall:
    (a) Identify, in its accounts, all Federal awards received and 
expended and the Federal programs under which they were received. 
Federal program and award identification shall include, as applicable, 
the CFDA title and number, award number and year, name of the

[[Page 757]]

Federal agency, and name of the pass-through entity.
    (b) Maintain internal control over Federal programs that provides 
reasonable assurance that the auditee is managing Federal awards in 
compliance with laws, regulations, and the provisions of contracts or 
grant agreements that could have a material effect on each of its 
Federal programs.
    (c) Comply with laws, regulations, and the provisions of contracts 
or grant agreements related to each of its Federal programs.
    (d) Prepare appropriate financial statements, including the schedule 
of expenditures of Federal awards in accordance with Sec.  99.310.
    (e) Ensure that the audits required by this part are properly 
performed and submitted when due. When extensions to the report 
submission due date required by Sec.  99.320(a) are granted by the 
cognizant or oversight agency for audit, promptly notify the Federal 
clearinghouse designated by OMB and each pass-through entity providing 
Federal awards of the extension.
    (f) Follow up and take corrective action on audit findings, 
including preparation of a summary schedule of prior audit findings and 
a corrective action plan in accordance with Sec.  99.315(b) and Sec.  
99.315(c), respectively.



Sec.  99.305  Auditor selection.

    (a) Auditor procurement. In procuring audit services, auditees shall 
follow the procurement standards prescribed by OMB Circular A-102, 
``Grants and Cooperative Agreements with State and Local Governments;'' 
29 CFR part 97, ``Uniform Administrative Requirements for Grants and 
Cooperative Agreements to State and Local Governments;'' OMB Circular A-
110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals and Other Non-Profit 
Organizations;'' (codified at 2 CFR part 215); or the FAR (48 CFR part 
42), as applicable. (OMB Circulars are available on-line at http://
www.whitehouse.gov/omb/circulars/index.html.) Whenever possible, 
auditees shall make positive efforts to utilize small businesses, 
minority-owned firms, and women's business enterprises, in procuring 
audit services as stated in OMB Circular A-102, OMB Circular A-110 (2 
CFR part 215), or the FAR (48 CFR part 42), as applicable. In requesting 
proposals for audit services, the objectives and scope of the audit 
should be made clear. Factors to be considered in evaluating each 
proposal for audit services include the responsiveness to the request 
for proposal, relevant experience, availability of staff with 
professional qualifications and technical abilities, the results of 
external quality control reviews, and price.
    (b) Restriction on auditor preparing indirect cost proposals. An 
auditor who prepares the indirect cost proposal or cost allocation plan 
may not also be selected to perform the audit required by this part when 
the indirect costs recovered by the auditee during the prior year 
exceeded $1 million. This restriction applies to the base year used in 
the preparation of the indirect cost proposal or cost allocation plan 
and any subsequent years in which the resulting indirect cost agreement 
or cost allocation plan is used to recover costs. To minimize any 
disruption in existing contracts for audit services, this paragraph 
applies to audits of fiscal years beginning after June 30, 1998.
    (c) Use of Federal auditors. Federal auditors may perform all or 
part of the work required under this part if they comply fully with the 
requirements of this part.

[64 FR 14541, Mar. 25, 1999, as amended at 72 FR 37105, July 9, 2007]



Sec.  99.310  Financial statements.

    (a) Financial statements. The auditee shall prepare financial 
statements that reflect its financial position, results of operations or 
changes in net assets, and, where appropriate, cash flows for the fiscal 
year audited. The financial statements shall be for the same 
organizational unit and fiscal year that is chosen to meet the 
requirements of this part. However, organization-wide financial 
statements may also include departments, agencies, and other 
organizational units that have separate audits in accordance with Sec.  
99.500(a) and prepare separate financial statements.
    (b) Schedule of expenditures of Federal awards. The auditee shall 
also prepare a schedule of expenditures of Federal

[[Page 758]]

awards for the period covered by the auditee's financial statements. 
While not required, the auditee may choose to provide information 
requested by Federal awarding agencies and pass-through entities to make 
the schedule easier to use. For example, when a Federal program has 
multiple award years, the auditee may list the amount of Federal awards 
expended for each award year separately. At a minimum, the schedule 
shall:
    (1) List individual Federal programs by Federal agency. For Federal 
programs included in a cluster of programs, list individual Federal 
programs within a cluster of programs. For R&D, total Federal awards 
expended shall be shown either by individual award or by Federal agency 
and major subdivision within the Federal agency. For example, the 
National Institutes of Health is a major subdivision in the Department 
of Health and Human Services.
    (2) For Federal awards received as a subrecipient, the name of the 
pass-through entity and identifying number assigned by the pass-through 
entity shall be included.
    (3) Provide total Federal awards expended for each individual 
Federal program and the CFDA number or other identifying number when the 
CFDA information is not available.
    (4) Include notes that describe the significant accounting policies 
used in preparing the schedule.
    (5) To the extent practical, pass-through entities should identify 
in the schedule the total amount provided to subrecipients from each 
Federal program.
    (6) Include, in either the schedule or a note to the schedule, the 
value of the Federal awards expended in the form of non-cash assistance, 
the amount of insurance in effect during the year, and loans or loan 
guarantees outstanding at year end. While not required, it is preferable 
to present this information in the schedule.



Sec.  99.315  Audit findings follow-up.

    (a) General. The auditee is responsible for follow-up and corrective 
action on all audit findings. As part of this responsibility, the 
auditee shall prepare a summary schedule of prior audit findings. The 
auditee shall also prepare a corrective action plan for current year 
audit findings. The summary schedule of prior audit findings and the 
corrective action plan shall include the reference numbers the auditor 
assigns to audit findings under Sec.  99.510(c). Since the summary 
schedule may include audit findings from multiple years, it shall 
include the fiscal year in which the finding initially occurred.
    (b) Summary schedule of prior audit findings. The summary schedule 
of prior audit findings shall report the status of all audit findings 
included in the prior audit's schedule of findings and questioned costs 
relative to Federal awards. The summary schedule shall also include 
audit findings reported in the prior audit's summary schedule of prior 
audit findings except audit findings listed as corrected in accordance 
with paragraph (b)(1) of this section, or no longer valid or not 
warranting further action in accordance with paragraph (b)(4) of this 
section.
    (1) When audit findings were fully corrected, the summary schedule 
need only list the audit findings and state that corrective action was 
taken.
    (2) When audit findings were not corrected or were only partially 
corrected, the summary schedule shall describe the planned corrective 
action as well as any partial corrective action taken.
    (3) When corrective action taken is significantly different from 
corrective action previously reported in a corrective action plan or in 
the Federal agency's or pass-through entity's management decision, the 
summary schedule shall provide an explanation.
    (4) When the auditee believes the audit findings are no longer valid 
or do not warrant further action, the reasons for this position shall be 
described in the summary schedule. A valid reason for considering an 
audit finding as not warranting further action is that all of the 
following have occurred:
    (i) Two years have passed since the audit report in which the 
finding occurred was submitted to the Federal clearinghouse;
    (ii) The Federal agency or pass-through entity is not currently 
following up with the auditee on the audit finding; and

[[Page 759]]

    (iii) A management decision was not issued.
    (c) Corrective action plan. At the completion of the audit, the 
auditee shall prepare a corrective action plan to address each audit 
finding included in the current year auditor's reports. The corrective 
action plan shall provide the name(s) of the contact person(s) 
responsible for corrective action, the corrective action planned, and 
the anticipated completion date. If the auditee does not agree with the 
audit findings or believes corrective action is not required, then the 
corrective action plan shall include an explanation and specific 
reasons.



Sec.  99.320  Report submission.

    (a) General. The audit shall be completed and the data collection 
form described in paragraph (b) of this section and reporting package 
described in paragraph (c) of this section shall be submitted within the 
earlier of 30 days after receipt of the auditor's report(s), or nine 
months after the end of the audit period, unless a longer period is 
agreed to in advance by the cognizant or oversight agency for audit. 
(However, for fiscal years beginning on or before June 30, 1998, the 
audit shall be completed and the data collection form and reporting 
package shall be submitted within the earlier of 30 days after receipt 
of the auditor's report(s), or 13 months after the end of the audit 
period.) Unless restricted by law or regulation, the auditee shall make 
copies available for public inspection.
    (b) Data collection. (1) The auditee shall submit a data collection 
form which states whether the audit was completed in accordance with 
this part and provides information about the auditee, its Federal 
programs, and the results of the audit. The form shall be approved by 
OMB, available from the Federal clearinghouse designated by OMB, and 
include data elements similar to those presented in this paragraph. A 
senior level representative of the auditee (e.g., State controller, 
director of finance, chief executive officer, or chief financial 
officer) shall sign a statement to be included as part of the form 
certifying that: the auditee complied with the requirements of this 
part, the form was prepared in accordance with this part (and the 
instructions accompanying the form), and the information included in the 
form, in its entirety, are accurate and complete.
    (2) The data collection form shall include the following data 
elements:
    (i) The type of report the auditor issued on the financial 
statements of the auditee (i.e., unqualified opinion, qualified opinion, 
adverse opinion, or disclaimer of opinion).
    (ii) Where applicable, a statement that reportable conditions in 
internal control were disclosed by the audit of the financial statements 
and whether any such conditions were material weaknesses.
    (iii) A statement as to whether the audit disclosed any 
noncompliance which is material to the financial statements of the 
auditee.
    (iv) Where applicable, a statement that reportable conditions in 
internal control over major programs were disclosed by the audit and 
whether any such conditions were material weaknesses.
    (v) The type of report the auditor issued on compliance for major 
programs (i.e., unqualified opinion, qualified opinion, adverse opinion, 
or disclaimer of opinion).
    (vi) A list of the Federal awarding agencies which will receive a 
copy of the reporting package pursuant to Sec.  99.320(d)(2).
    (vii) A yes or no statement as to whether the auditee qualified as a 
low-risk auditee under Sec.  99.530.
    (viii) The dollar threshold used to distinguish between Type A and 
Type B programs as defined in Sec.  99.520(b).
    (ix) The Catalog of Federal Domestic Assistance (CFDA) number for 
each Federal program, as applicable.
    (x) The name of each Federal program and identification of each 
major program. Individual programs within a cluster of programs should 
be listed in the same level of detail as they are listed in the schedule 
of expenditures of Federal awards.
    (xi) The amount of expenditures in the schedule of expenditures of 
Federal awards associated with each Federal program.
    (xii) For each Federal program, a yes or no statement as to whether 
there

[[Page 760]]

are audit findings in each of the following types of compliance 
requirements and the total amount of any questioned costs:
    (A) Activities allowed or unallowed.
    (B) Allowable costs/cost principles.
    (C) Cash management.
    (D) Davis-Bacon Act.
    (E) Eligibility.
    (F) Equipment and real property management.
    (G) Matching, level of effort, earmarking.
    (H) Period of availability of Federal funds.
    (I) Procurement and suspension and debarment.
    (J) Program income.
    (K) Real property acquisition and relocation assistance.
    (L) Reporting.
    (M) Subrecipient monitoring.
    (N) Special tests and provisions.
    (xiii) Auditee Name, Employer Identification Number(s), Name and 
Title of Certifying Official, Telephone Number, Signature, and Date.
    (xiv) Auditor Name, Name and Title of Contact Person, Auditor 
Address, Auditor Telephone Number, Signature, and Date.
    (xv) Whether the auditee has either a cognizant or oversight agency 
for audit.
    (xvi) The name of the cognizant or oversight agency for audit 
determined in accordance with Sec.  99.400(a) and Sec.  99.400(b), 
respectively.
    (3) Using the information included in the reporting package 
described in paragraph (c) of this section, the auditor shall complete 
the applicable sections of the form. The auditor shall sign a statement 
to be included as part of the data collection form that indicates, at a 
minimum, the source of the information included in the form, the 
auditor's responsibility for the information, that the form is not a 
substitute for the reporting package described in paragraph (c) of this 
section, and that the content of the form is limited to the data 
elements prescribed by OMB.
    (c) Reporting package. The reporting package shall include the:
    (1) Financial statements and schedule of expenditures of Federal 
awards discussed in Sec.  99.310(a) and Sec.  99.310(b), respectively;
    (2) Summary schedule of prior audit findings discussed in Sec.  
99.315(b);
    (3) Auditor's report(s) discussed in Sec.  99.505; and
    (4) Corrective action plan discussed in Sec.  99.315(c).
    (d) Submission to clearinghouse. All auditees shall submit to the 
Federal clearinghouse designated by OMB the data collection form 
described in paragraph (b) of this section and one copy of the reporting 
package described in paragraph (c) of this section for:
    (1) The Federal clearinghouse to retain as an archival copy; and
    (2) Each Federal awarding agency when the schedule of findings and 
questioned costs disclosed audit findings relating to Federal awards 
that the Federal awarding agency provided directly or the summary 
schedule of prior audit findings reported the status of any audit 
findings relating to Federal awards that the Federal awarding agency 
provided directly.
    (e) Additional submission by subrecipients. (1) In addition to the 
requirements discussed in paragraph (d) of this section, auditees that 
are also subrecipients shall submit to each pass-through entity one copy 
of the reporting package described in paragraph (c) of this section for 
each pass-through entity when the schedule of findings and questioned 
costs disclosed audit findings relating to Federal awards that the pass-
through entity provided or the summary schedule of prior audit findings 
reported the status of any audit findings relating to Federal awards 
that the pass-through entity provided.
    (2) Instead of submitting the reporting package to a pass-through 
entity, when a subrecipient is not required to submit a reporting 
package to a pass-through entity pursuant to paragraph (e)(1) of this 
section, the subrecipient shall provide written notification to the 
pass-through entity that: an audit of the subrecipient was conducted in 
accordance with this part (including the period covered by the audit and 
the name, amount, and CFDA number of the Federal award(s) provided by 
the pass-through entity); the schedule of findings and questioned costs 
disclosed

[[Page 761]]

no audit findings relating to the Federal award(s) that the pass-through 
entity provided; and, the summary schedule of prior audit findings did 
not report on the status of any audit findings relating to the Federal 
award(s) that the pass-through entity provided. A subrecipient may 
submit a copy of the reporting package described in paragraph (c) of 
this section to a pass-through entity to comply with this notification 
requirement.
    (f) Requests for report copies. In response to requests by a Federal 
agency or pass-through entity, auditees shall submit the appropriate 
copies of the reporting package described in paragraph (c) of this 
section and, if requested, a copy of any management letters issued by 
the auditor.
    (g) Report retention requirements. Auditees shall keep one copy of 
the data collection form described in paragraph (b) of this section and 
one copy of the reporting package described in paragraph (c) of this 
section on file for three years from the date of submission to the 
Federal clearinghouse designated by OMB. Pass-through entities shall 
keep subrecipients' submissions on file for three years from date of 
receipt.
    (h) Clearinghouse responsibilities. The Federal clearinghouse 
designated by OMB shall distribute the reporting packages received in 
accordance with paragraph (d)(2) of this section and Sec.  99.235(c)(3) 
to applicable Federal awarding agencies, maintain a data base of 
completed audits, provide appropriate information to Federal agencies, 
and follow up with known auditees which have not submitted the required 
data collection forms and reporting packages.
    (i) Clearinghouse address. The address of the Federal clearinghouse 
currently designated by OMB is: Federal Audit Clearinghouse, Bureau of 
the Census, 1201 E. 10th Street, Jeffersonville, IN 47132.
    (j) Electronic filing. Nothing in this part shall preclude 
electronic submissions to the Federal clearinghouse in such manner as 
may be approved by OMB. With OMB approval, the Federal clearinghouse may 
pilot test methods of electronic submissions.



          Subpart D_Federal Agencies and Pass-through Entities



Sec.  99.400  Responsibilities.

    (a) Cognizant agency for audit responsibilities. Recipients 
expending more than $25 million a year in Federal awards shall have a 
cognizant agency for audit. The designated cognizant agency for audit 
shall be the Federal awarding agency that provides the predominant 
amount of direct funding to a recipient unless OMB makes a specific 
cognizant agency for audit assignment. To provide for continuity of 
cognizance, the determination of the predominant amount of direct 
funding shall be based upon direct Federal awards expended in the 
recipient's fiscal years ending in 1995, 2000, 2005, and every fifth 
year thereafter. For example, audit cognizance for periods ending in 
1997 through 2000 will be determined based on Federal awards expended in 
1995. (However, for States and local governments that expend more than 
$25 million a year in Federal awards and have previously assigned 
cognizant agencies for audit, the requirements of this paragraph are not 
applicable until fiscal years beginning after June 30, 2000.) 
Notwithstanding the manner in which audit cognizance is determined, a 
Federal awarding agency with cognizance for an auditee may reassign 
cognizance to another Federal awarding agency which provides substantial 
direct funding and agrees to be the cognizant agency for audit. Within 
30 days after any reassignment, both the old and the new cognizant 
agency for audit shall notify the auditee, and, if known, the auditor of 
the reassignment. The cognizant agency for audit shall:
    (1) Provide technical audit advice and liaison to auditees and 
auditors.
    (2) Consider auditee requests for extensions to the report 
submission due date required by Sec.  99.320(a). The cognizant agency 
for audit may grant extensions for good cause.
    (3) Obtain or conduct quality control reviews of selected audits 
made by non-Federal auditors, and provide the results, when appropriate, 
to other interested organizations.
    (4) Promptly inform other affected Federal agencies and appropriate 
Federal law enforcement officials of any

[[Page 762]]

direct reporting by the auditee or its auditor of irregularities or 
illegal acts, as required by GAGAS or laws and regulations.
    (5) Advise the auditor and, where appropriate, the auditee of any 
deficiencies found in the audits when the deficiencies require 
corrective action by the auditor. When advised of deficiencies, the 
auditee shall work with the auditor to take corrective action. If 
corrective action is not taken, the cognizant agency for audit shall 
notify the auditor, the auditee, and applicable Federal awarding 
agencies and pass-through entities of the facts and make recommendations 
for follow-up action. Major inadequacies or repetitive substandard 
performance by auditors shall be referred to appropriate State licensing 
agencies and professional bodies for disciplinary action.
    (6) Coordinate, to the extent practical, audits or reviews made by 
or for Federal agencies that are in addition to the audits made pursuant 
to this part, so that the additional audits or reviews build upon audits 
performed in accordance with this part.
    (7) Coordinate a management decision for audit findings that affect 
the Federal programs of more than one agency.
    (8) Coordinate the audit work and reporting responsibilities among 
auditors to achieve the most cost-effective audit.
    (9) For biennial audits permitted under Sec.  99.220, consider 
auditee requests to qualify as a low-risk auditee under Sec.  99.530(a).
    (b) Oversight agency for audit responsibilities. An auditee which 
does not have a designated cognizant agency for audit will be under the 
general oversight of the Federal agency determined in accordance with 
Sec.  99.105. The oversight agency for audit:
    (1) Shall provide technical advice to auditees and auditors as 
requested.
    (2) May assume all or some of the responsibilities normally 
performed by a cognizant agency for audit.
    (c) Federal awarding agency responsibilities. The Federal awarding 
agency shall perform the following for the Federal awards it makes:
    (1) Identify Federal awards made by informing each recipient of the 
CFDA title and number, award name and number, award year, and if the 
award is for R&D. When some of this information is not available, the 
Federal agency shall provide information necessary to clearly describe 
the Federal award.
    (2) Advise recipients of requirements imposed on them by Federal 
laws, regulations, and the provisions of contracts or grant agreements.
    (3) Ensure that audits are completed and reports are received in a 
timely manner and in accordance with the requirements of this part.
    (4) Provide technical advice and counsel to auditees and auditors as 
requested.
    (5) Issue a management decision on audit findings within six months 
after receipt of the audit report and ensure that the recipient takes 
appropriate and timely corrective action.
    (6) Assign a person responsible for providing annual updates of the 
compliance supplement to OMB.
    (d) Pass-through entity responsibilities. A pass-through entity 
shall perform the following for the Federal awards it makes:
    (1) Identify Federal awards made by informing each subrecipient of 
CFDA title and number, award name and number, award year, if the award 
is R&D, and name of Federal agency. When some of this information is not 
available, the pass-through entity shall provide the best information 
available to describe the Federal award.
    (2) Advise subrecipients of requirements imposed on them by Federal 
laws, regulations, and the provisions of contracts or grant agreements 
as well as any supplemental requirements imposed by the pass-through 
entity.
    (3) Monitor the activities of subrecipients as necessary to ensure 
that Federal awards are used for authorized purposes in compliance with 
laws, regulations, and the provisions of contracts or grant agreements 
and that performance goals are achieved.
    (4) Ensure that subrecipients expending $300,000 (or $500,000 for 
fiscal years ending after December 31, 2003) or more in Federal awards 
during the subrecipient's fiscal year have met the audit requirements of 
this part for that fiscal year.

[[Page 763]]

    (5) Issue a management decision on audit findings within six months 
after receipt of the subrecipient's audit report and ensure that the 
subrecipient takes appropriate and timely corrective action.
    (6) Consider whether subrecipient audits necessitate adjustment of 
the pass-through entity's own records.
    (7) Require each subrecipient to permit the pass-through entity and 
auditors to have access to the records and financial statements as 
necessary for the pass-through entity to comply with this part.

[64 FR 14541, Mar. 25, 1999, as amended at 72 FR 37105, July 9, 2007]



Sec.  99.405  Management decision.

    (a) General. The management decision shall clearly state whether or 
not the audit finding is sustained, the reasons for the decision, and 
the expected auditee action to repay disallowed costs, make financial 
adjustments, or take other action. If the auditee has not completed 
corrective action, a timetable for follow-up should be given. Prior to 
issuing the management decision, the Federal agency or pass-through 
entity may request additional information or documentation from the 
auditee, including a request for auditor assurance related to the 
documentation, as a way of mitigating disallowed costs. The management 
decision should describe any appeal process available to the auditee.
    (b) Federal agency. As provided in Sec.  99.400(a)(7), the cognizant 
agency for audit shall be responsible for coordinating a management 
decision for audit findings that affect the programs of more than one 
Federal agency. As provided in Sec.  99.400(c)(5), a Federal awarding 
agency is responsible for issuing a management decision for findings 
that relate to Federal awards it makes to recipients. Alternate 
arrangements may be made on a case-by-case basis by agreement among the 
Federal agencies concerned.
    (c) Pass-through entity. As provided in Sec.  99.400(d)(5), the 
pass-through entity shall be responsible for making the management 
decision for audit findings that relate to Federal awards it makes to 
subrecipients.
    (d) Time requirements. The entity responsible for making the 
management decision shall do so within six months of receipt of the 
audit report. Corrective action should be initiated within six months 
after receipt of the audit report and proceed as rapidly as possible.
    (e) Reference numbers. Management decisions shall include the 
reference numbers the auditor assigned to each audit finding in 
accordance with Sec.  99.510(c).



                           Subpart E_Auditors



Sec.  99.500  Scope of audit.

    (a) General. The audit shall be conducted in accordance with GAGAS. 
The audit shall cover the entire operations of the auditee; or, at the 
option of the auditee, such audit shall include a series of audits that 
cover departments, agencies, and other organizational units which 
expended or otherwise administered Federal awards during such fiscal 
year, provided that each such audit shall encompass the financial 
statements and schedule of expenditures of Federal awards for each such 
department, agency, and other organizational unit, which shall be 
considered to be a non-Federal entity. The financial statements and 
schedule of expenditures of Federal awards shall be for the same fiscal 
year.
    (b) Financial statements. The auditor shall determine whether the 
financial statements of the auditee are presented fairly in all material 
respects in conformity with generally accepted accounting principles. 
The auditor shall also determine whether the schedule of expenditures of 
Federal awards is presented fairly in all material respects in relation 
to the auditee's financial statements taken as a whole.
    (c) Internal control. (1) In addition to the requirements of GAGAS, 
the auditor shall perform procedures to obtain an understanding of 
internal control over Federal programs sufficient to plan the audit to 
support a low assessed level of control risk for major programs.
    (2) Except as provided in paragraph (c)(3) of this section, the 
auditor shall:
    (i) Plan the testing of internal control over major programs to 
support a

[[Page 764]]

low assessed level of control risk for the assertions relevant to the 
compliance requirements for each major program; and
    (ii) Perform testing of internal control as planned in paragraph 
(c)(2)(i) of this section.
    (3) When internal control over some or all of the compliance 
requirements for a major program are likely to be ineffective in 
preventing or detecting noncompliance, the planning and performing of 
testing described in paragraph (c)(2) of this section are not required 
for those compliance requirements. However, the auditor shall report a 
reportable condition (including whether any such condition is a material 
weakness) in accordance with Sec.  99.510, assess the related control 
risk at the maximum, and consider whether additional compliance tests 
are required because of ineffective internal control.
    (d) Compliance. (1) In addition to the requirements of GAGAS, the 
auditor shall determine whether the auditee has complied with laws, 
regulations, and the provisions of contracts or grant agreements that 
may have a direct and material effect on each of its major programs.
    (2) The principal compliance requirements applicable to most Federal 
programs and the compliance requirements of the largest Federal programs 
are included in the compliance supplement.
    (3) For the compliance requirements related to Federal programs 
contained in the compliance supplement, an audit of these compliance 
requirements will meet the requirements of this part. Where there have 
been changes to the compliance requirements and the changes are not 
reflected in the compliance supplement, the auditor shall determine the 
current compliance requirements and modify the audit procedures 
accordingly. For those Federal programs not covered in the compliance 
supplement, the auditor should use the types of compliance requirements 
contained in the compliance supplement as guidance for identifying the 
types of compliance requirements to test, and determine the requirements 
governing the Federal program by reviewing the provisions of contracts 
and grant agreements and the laws and regulations referred to in such 
contracts and grant agreements.
    (4) The compliance testing shall include tests of transactions and 
such other auditing procedures necessary to provide the auditor 
sufficient evidence to support an opinion on compliance.
    (e) Audit follow-up. The auditor shall follow-up on prior audit 
findings; perform procedures to assess the reasonableness of the summary 
schedule of prior audit findings prepared by the auditee in accordance 
with Sec.  99.315(b); and report, as a current year audit finding, when 
the auditor concludes that the summary schedule of prior audit findings 
materially misrepresents the status of any prior audit finding. The 
auditor shall perform audit follow-up procedures regardless of whether a 
prior audit finding relates to a major program in the current year.
    (f) Data collection form. As required in Sec.  99.320(b)(3), the 
auditor shall complete and sign specified sections of the data 
collection form.



Sec.  99.505  Audit reporting.

    The auditor's report(s) may be in the form of either combined or 
separate reports and may be organized differently from the manner 
presented in this section. The auditor's report(s) shall state that the 
audit was conducted in accordance with this part and include the 
following:
    (a) An opinion (or disclaimer of opinion) as to whether the 
financial statements are presented fairly in all material respects in 
conformity with generally accepted accounting principles and an opinion 
(or disclaimer of opinion) as to whether the schedule of expenditures of 
Federal awards is presented fairly in all material respects in relation 
to the financial statements taken as a whole.
    (b) A report on internal control related to the financial statements 
and major programs. This report shall describe the scope of testing of 
internal control and the results of the tests, and, where applicable, 
refer to the separate schedule of findings and questioned costs 
described in paragraph (d) of this section.

[[Page 765]]

    (c) A report on compliance with laws, regulations, and the 
provisions of contracts or grant agreements, noncompliance with which 
could have a material effect on the financial statements. This report 
shall also include an opinion (or disclaimer of opinion) as to whether 
the auditee complied with laws, regulations, and the provisions of 
contracts or grant agreements which could have a direct and material 
effect on each major program, and, where applicable, refer to the 
separate schedule of findings and questioned costs described in 
paragraph (d) of this section.
    (d) A schedule of findings and questioned costs which shall include 
the following three components:
    (1) A summary of the auditor's results which shall include:
    (i) The type of report the auditor issued on the financial 
statements of the auditee (i.e., unqualified opinion, qualified opinion, 
adverse opinion, or disclaimer of opinion);
    (ii) Where applicable, a statement that reportable conditions in 
internal control were disclosed by the audit of the financial statements 
and whether any such conditions were material weaknesses;
    (iii) A statement as to whether the audit disclosed any 
noncompliance which is material to the financial statements of the 
auditee;
    (iv) Where applicable, a statement that reportable conditions in 
internal control over major programs were disclosed by the audit and 
whether any such conditions were material weaknesses;
    (v) The type of report the auditor issued on compliance for major 
programs (i.e., unqualified opinion, qualified opinion, adverse opinion, 
or disclaimer of opinion);
    (vi) A statement as to whether the audit disclosed any audit 
findings which the auditor is required to report under Sec.  99.510(a);
    (vii) An identification of major programs;
    (viii) The dollar threshold used to distinguish between Type A and 
Type B programs, as described in Sec.  99.520(b); and
    (ix) A statement as to whether the auditee qualified as a low-risk 
auditee under Sec.  99.530.
    (2) Findings relating to the financial statements which are required 
to be reported in accordance with GAGAS.
    (3) Findings and questioned costs for Federal awards which shall 
include audit findings as defined in Sec.  99.510(a).
    (i) Audit findings (e.g., internal control findings, compliance 
findings, questioned costs, or fraud) which relate to the same issue 
should be presented as a single audit finding. Where practical, audit 
findings should be organized by Federal agency or pass-through entity.
    (ii) Audit findings which relate to both the financial statements 
and Federal awards, as reported under paragraphs (d)(2) and (d)(3) of 
this section, respectively, should be reported in both sections of the 
schedule. However, the reporting in one section of the schedule may be 
in summary form with a reference to a detailed reporting in the other 
section of the schedule.



Sec.  99.510  Audit findings.

    (a) Audit findings reported. The auditor shall report the following 
as audit findings in a schedule of findings and questioned costs:
    (1) Reportable conditions in internal control over major programs. 
The auditor's determination of whether a deficiency in internal control 
is a reportable condition for the purpose of reporting an audit finding 
is in relation to a type of compliance requirement for a major program 
or an audit objective identified in the compliance supplement. The 
auditor shall identify reportable conditions which are individually or 
cumulatively material weaknesses.
    (2) Material noncompliance with the provisions of laws, regulations, 
contracts, or grant agreements related to a major program. The auditor's 
determination of whether a noncompliance with the provisions of laws, 
regulations, contracts, or grant agreements is material for the purpose 
of reporting an audit finding is in relation to a type of compliance 
requirement for a major program or an audit objective identified in the 
compliance supplement.
    (3) Known questioned costs which are greater than $10,000 for a type 
of compliance requirement for a major program. Known questioned costs 
are

[[Page 766]]

those specifically identified by the auditor. In evaluating the effect 
of questioned costs on the opinion on compliance, the auditor considers 
the best estimate of total costs questioned (likely questioned costs), 
not just the questioned costs specifically identified (known questioned 
costs). The auditor shall also report known questioned costs when likely 
questioned costs are greater than $10,000 for a type of compliance 
requirement for a major program. In reporting questioned costs, the 
auditor shall include information to provide proper perspective for 
judging the prevalence and consequences of the questioned costs.
    (4) Known questioned costs which are greater than $10,000 for a 
Federal program which is not audited as a major program. Except for 
audit follow-up, the auditor is not required under this part to perform 
audit procedures for such a Federal program; therefore, the auditor will 
normally not find questioned costs for a program which is not audited as 
a major program. However, if the auditor does become aware of questioned 
costs for a Federal program which is not audited as a major program 
(e.g., as part of audit follow-up or other audit procedures) and the 
known questioned costs are greater than $10,000, then the auditor shall 
report this as an audit finding.
    (5) The circumstances concerning why the auditor's report on 
compliance for major programs is other than an unqualified opinion, 
unless such circumstances are otherwise reported as audit findings in 
the schedule of findings and questioned costs for Federal awards.
    (6) Known fraud affecting a Federal award, unless such fraud is 
otherwise reported as an audit finding in the schedule of findings and 
questioned costs for Federal awards. This paragraph does not require the 
auditor to make an additional reporting when the auditor confirms that 
the fraud was reported outside of the auditor's reports under the direct 
reporting requirements of GAGAS.
    (7) Instances where the results of audit follow-up procedures 
disclosed that the summary schedule of prior audit findings prepared by 
the auditee in accordance with Sec.  99.315(b) materially misrepresents 
the status of any prior audit finding.
    (b) Audit finding detail. Audit findings shall be presented in 
sufficient detail for the auditee to prepare a corrective action plan 
and take corrective action and for Federal agencies and pass-through 
entities to arrive at a management decision. The following specific 
information shall be included, as applicable, in audit findings:
    (1) Federal program and specific Federal award identification 
including the CFDA title and number, Federal award number and year, name 
of Federal agency, and name of the applicable pass-through entity. When 
information, such as the CFDA title and number or Federal award number, 
is not available, the auditor shall provide the best information 
available to describe the Federal award.
    (2) The criteria or specific requirement upon which the audit 
finding is based, including statutory, regulatory, or other citation.
    (3) The condition found, including facts that support the deficiency 
identified in the audit finding.
    (4) Identification of questioned costs and how they were computed.
    (5) Information to provide proper perspective for judging the 
prevalence and consequences of the audit findings, such as whether the 
audit findings represent an isolated instance or a systemic problem. 
Where appropriate, instances identified shall be related to the universe 
and the number of cases examined and be quantified in terms of dollar 
value.
    (6) The possible asserted effect to provide sufficient information 
to the auditee and Federal agency, or pass-through entity in the case of 
a subrecipient, to permit them to determine the cause and effect to 
facilitate prompt and proper corrective action.
    (7) Recommendations to prevent future occurrences of the deficiency 
identified in the audit finding.
    (8) Views of responsible officials of the auditee when there is 
disagreement with the audit findings, to the extent practical.
    (c) Reference numbers. Each audit finding in the schedule of 
findings and

[[Page 767]]

questioned costs shall include a reference number to allow for easy 
referencing of the audit findings during follow-up.



Sec.  99.515  Audit working papers.

    (a) Retention of working papers. The auditor shall retain working 
papers and reports for a minimum of three years after the date of 
issuance of the auditor's report(s) to the auditee, unless the auditor 
is notified in writing by the cognizant agency for audit, oversight 
agency for audit, or pass-through entity to extend the retention period. 
When the auditor is aware that the Federal awarding agency, pass-through 
entity, or auditee is contesting an audit finding, the auditor shall 
contact the parties contesting the audit finding for guidance prior to 
destruction of the working papers and reports.
    (b) Access to working papers. Audit working papers shall be made 
available upon request to the cognizant or oversight agency for audit or 
its designee, a Federal agency providing direct or indirect funding, or 
GAO at the completion of the audit, as part of a quality review, to 
resolve audit findings, or to carry out oversight responsibilities 
consistent with the purposes of this part. Access to working papers 
includes the right of Federal agencies to obtain copies of working 
papers, as is reasonable and necessary.



Sec.  99.520  Major program determination.

    (a) General. The auditor shall use a risk-based approach to 
determine which Federal programs are major programs. This risk-based 
approach shall include consideration of: Current and prior audit 
experience, oversight by Federal agencies and pass-through entities, and 
the inherent risk of the Federal program. The process in paragraphs (b) 
through (i) of this section shall be followed.
    (b) Step 1. (1) The auditor shall identify the larger Federal 
programs, which shall be labeled Type A programs. Type A programs are 
defined as Federal programs with Federal awards expended during the 
audit period exceeding the larger of:
    (i) $300,000 (or $500,000 for fiscal years ending after December 31, 
2003) or three percent (.03) of total Federal awards expended in the 
case of an auditee for which total Federal awards expended equal or 
exceed $300,000 but are less than or equal to $100 million.
    (ii) $3 million or three-tenths of one percent (.003) of total 
Federal awards expended in the case of an auditee for which total 
Federal awards expended exceed $100 million but are less than or equal 
to $10 billion.
    (iii) $30 million or 15 hundredths of one percent (.0015) of total 
Federal awards expended in the case of an auditee for which total 
Federal awards expended exceed $10 billion.
    (2) Federal programs not labeled Type A under paragraph (b)(1) of 
this section shall be labeled Type B programs.
    (3) The inclusion of large loan and loan guarantees (loans) should 
not result in the exclusion of other programs as Type A programs. When a 
Federal program providing loans significantly affects the number or size 
of Type A programs, the auditor shall consider this Federal program as a 
Type A program and exclude its values in determining other Type A 
programs.
    (4) For biennial audits permitted under Sec.  99.220, the 
determination of Type A and Type B programs shall be based upon the 
Federal awards expended during the two-year period.
    (c) Step 2. (1) The auditor shall identify Type A programs which are 
low-risk. For a Type A program to be considered low-risk, it shall have 
been audited as a major program in at least one of the two most recent 
audit periods (in the most recent audit period in the case of a biennial 
audit), and, in the most recent audit period, it shall have had no audit 
findings under Sec.  99.510(a). However, the auditor may use judgment 
and consider that audit findings from questioned costs under Sec.  
99.510(a)(3) and Sec.  99.510(a)(4), fraud under Sec.  99.510(a)(6), and 
audit follow-up for the summary schedule of prior audit findings under 
Sec.  99.510(a)(7) do not preclude the Type A program from being low-
risk. The auditor shall consider: the criteria in Sec.  99.525(c), Sec.  
99.525(d)(1), Sec.  99.525(d)(2), and Sec.  99.525(d)(3); the results of 
audit follow-up; whether any changes in personnel or systems affecting a 
Type A program

[[Page 768]]

have significantly increased risk; and apply professional judgment in 
determining whether a Type A program is low-risk.
    (2) Notwithstanding paragraph (c)(1) of this section, OMB may 
approve a Federal awarding agency's request that a Type A program at 
certain recipients may not be considered low-risk. For example, it may 
be necessary for a large Type A program to be audited as major each year 
at particular recipients to allow the Federal agency to comply with the 
Government Management Reform Act of 1994 (31 U.S.C. 3515). The Federal 
agency shall notify the recipient and, if known, the auditor at least 
180 days prior to the end of the fiscal year to be audited of OMB's 
approval.
    (d) Step 3. (1) The auditor shall identify Type B programs which are 
high-risk using professional judgment and the criteria in Sec.  99.525. 
However, should the auditor select Option 2 under Step 4 (paragraph 
(e)(2)(i)(B) of this section), the auditor is not required to identify 
more high-risk Type B programs than the number of low-risk Type A 
programs. Except for known reportable conditions in internal control or 
compliance problems as discussed in Sec.  99.525(b)(1), Sec.  
99.525(b)(2), and Sec.  99.525(c)(1), a single criteria in Sec.  99.525 
would seldom cause a Type B program to be considered high-risk.
    (2) The auditor is not expected to perform risk assessments on 
relatively small Federal programs. Therefore, the auditor is only 
required to perform risk assessments on Type B programs that exceed the 
larger of:
    (i) $100,000 or three-tenths of one percent (.003) of total Federal 
awards expended when the auditee has less than or equal to $100 million 
in total Federal awards expended.
    (ii) $300,000 (or $500,000 for fiscal years ending after December 
31, 2003) or three-hundredths of one percent (.0003) of total Federal 
awards expended when the auditee has more than $100 million in total 
Federal awards expended.
    (e) Step 4. At a minimum, the auditor shall audit all of the 
following as major programs:
    (1) All Type A programs, except the auditor may exclude any Type A 
programs identified as low-risk under Step 2 (paragraph (c)(1) of this 
section).
    (2)(i) High-risk Type B programs as identified under either of the 
following two options:
    (A) Option 1. At least one half of the Type B programs identified as 
high-risk under Step 3 (paragraph (d) of this section), except this 
paragraph (e)(2)(i)(A) does not require the auditor to audit more high-
risk Type B programs than the number of low-risk Type A programs 
identified as low-risk under Step 2.
    (B) Option 2. One high-risk Type B program for each Type A program 
identified as low-risk under Step 2.
    (ii) When identifying which high-risk Type B programs to audit as 
major under either Option 1 or 2 in paragraph (e)(2)(i)(A) or (B), the 
auditor is encouraged to use an approach which provides an opportunity 
for different high-risk Type B programs to be audited as major over a 
period of time.
    (3) Such additional programs as may be necessary to comply with the 
percentage of coverage rule discussed in paragraph (f) of this section. 
This paragraph (e)(3) may require the auditor to audit more programs as 
major than the number of Type A programs.
    (f) Percentage of coverage rule. The auditor shall audit as major 
programs Federal programs with Federal awards expended that, in the 
aggregate, encompass at least 50 percent of total Federal awards 
expended. If the auditee meets the criteria in Sec.  99.530 for a low-
risk auditee, the auditor need only audit as major programs Federal 
programs with Federal awards expended that, in the aggregate, encompass 
at least 25 percent of total Federal awards expended.
    (g) Documentation of risk. The auditor shall document in the working 
papers the risk analysis process used in determining major programs.
    (h) Auditor's judgment. When the major program determination was 
performed and documented in accordance with this part, the auditor's 
judgment in applying the risk-based approach to determine major programs 
shall be presumed correct. Challenges by Federal agencies and pass-
through entities shall only be for clearly improper use of the guidance 
in this part. However, Federal agencies and pass-through entities may 
provide auditors guidance

[[Page 769]]

about the risk of a particular Federal program and the auditor shall 
consider this guidance in determining major programs in audits not yet 
completed.
    (i) Deviation from use of risk criteria. For first-year audits, the 
auditor may elect to determine major programs as all Type A programs 
plus any Type B programs as necessary to meet the percentage of coverage 
rule discussed in paragraph (f) of this section. Under this option, the 
auditor would not be required to perform the procedures discussed in 
paragraphs (c), (d), and (e) of this section.
    (1) A first-year audit is the first year the entity is audited under 
this part or the first year of a change of auditors.
    (2) To ensure that a frequent change of auditors would not preclude 
audit of high-risk Type B programs, this election for first-year audits 
may not be used by an auditee more than once in every three years.

[64 FR 14541, Mar. 25, 1999, as amended at 72 FR 37105, July 9, 2007]



Sec.  99.525  Criteria for Federal program risk.

    (a) General. The auditor's determination should be based on an 
overall evaluation of the risk of noncompliance occurring which could be 
material to the Federal program. The auditor shall use auditor judgment 
and consider criteria, such as described in paragraphs (b), (c), and (d) 
of this section, to identify risk in Federal programs. Also, as part of 
the risk analysis, the auditor may wish to discuss a particular Federal 
program with auditee management and the Federal agency or pass-through 
entity.
    (b) Current and prior audit experience. (1) Weaknesses in internal 
control over Federal programs would indicate higher risk. Consideration 
should be given to the control environment over Federal programs and 
such factors as the expectation of management's adherence to applicable 
laws and regulations and the provisions of contracts and grant 
agreements and the competence and experience of personnel who administer 
the Federal programs.
    (i) A Federal program administered under multiple internal control 
structures may have higher risk. When assessing risk in a large single 
audit, the auditor shall consider whether weaknesses are isolated in a 
single operating unit (e.g., one college campus) or pervasive throughout 
the entity.
    (ii) When significant parts of a Federal program are passed through 
to subrecipients, a weak system for monitoring subrecipients would 
indicate higher risk.
    (iii) The extent to which computer processing is used to administer 
Federal programs, as well as the complexity of that processing, should 
be considered by the auditor in assessing risk. New and recently 
modified computer systems may also indicate risk.
    (2) Prior audit findings would indicate higher risk, particularly 
when the situations identified in the audit findings could have a 
significant impact on a Federal program or have not been corrected.
    (3) Federal programs not recently audited as major programs may be 
of higher risk than Federal programs recently audited as major programs 
without audit findings.
    (c) Oversight exercised by Federal agencies and pass-through 
entities. (1) Oversight exercised by Federal agencies or pass-through 
entities could indicate risk. For example, recent monitoring or other 
reviews performed by an oversight entity which disclosed no significant 
problems would indicate lower risk. However, monitoring which disclosed 
significant problems would indicate higher risk.
    (2) Federal agencies, with the concurrence of OMB, may identify 
Federal programs which are higher risk. The OMB plans to provide this 
identification in the compliance supplement.
    (d) Inherent risk of the Federal program. (1) The nature of a 
Federal program may indicate risk. Consideration should be given to the 
complexity of the program and the extent to which the Federal program 
contracts for goods and services. For example, Federal programs that 
disburse funds through third party contracts or have eligibility 
criteria may be of higher risk. Federal programs primarily involving 
staff payroll costs may have a high-risk for time and effort reporting, 
but otherwise be at low-risk.
    (2) The phase of a Federal program in its life cycle at the Federal 
agency may indicate risk. For example, a new

[[Page 770]]

Federal program with new or interim regulations may have higher risk 
than an established program with time-tested regulations. Also, 
significant changes in Federal programs, laws, regulations, or the 
provisions of contracts or grant agreements may increase risk.
    (3) The phase of a Federal program in its life cycle at the auditee 
may indicate risk. For example, during the first and last years that an 
auditee participates in a Federal program, the risk may be higher due to 
start-up or closeout of program activities and staff.
    (4) Type B programs with larger Federal awards expended would be of 
higher risk than programs with substantially smaller Federal awards 
expended.



Sec.  99.530  Criteria for a low-risk auditee.

    An auditee which meets all of the following conditions for each of 
the preceding two years (or, in the case of biennial audits, preceding 
two audit periods) shall qualify as a low-risk auditee and be eligible 
for reduced audit coverage in accordance with Sec.  99.520:
    (a) Single audits were performed on an annual basis in accordance 
with the provisions of this part. A non-Federal entity that has biennial 
audits does not qualify as a low-risk auditee, unless agreed to in 
advance by the cognizant or oversight agency for audit.
    (b) The auditor's opinions on the financial statements and the 
schedule of expenditures of Federal awards were unqualified. However, 
the cognizant or oversight agency for audit may judge that an opinion 
qualification does not affect the management of Federal awards and 
provide a waiver.
    (c) There were no deficiencies in internal control which were 
identified as material weaknesses under the requirements of GAGAS. 
However, the cognizant or oversight agency for audit may judge that any 
identified material weaknesses do not affect the management of Federal 
awards and provide a waiver.
    (d) None of the Federal programs had audit findings from any of the 
following in either of the preceding two years (or, in the case of 
biennial audits, preceding two audit periods) in which they were 
classified as Type A programs:
    (1) Internal control deficiencies which were identified as material 
weaknesses;
    (2) Noncompliance with the provisions of laws, regulations, 
contracts, or grant agreements which have a material effect on the Type 
A program; or
    (3) Known or likely questioned costs that exceed five percent of the 
total Federal awards expended for a Type A program during the year.

[[Page 771]]



                              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 773]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2018)

                      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--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    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)
         X  Department of the Treasury (Parts 1000--1099)
        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  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 774]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       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)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

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

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   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)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         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)
       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)

[[Page 775]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    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)

[[Page 776]]

     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)
    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)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         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)

[[Page 777]]

         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
       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)

[[Page 778]]

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 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)

[[Page 779]]

      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)

               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)

[[Page 780]]

        XI  National Technical Information Service, 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) [Reserved]

                    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) [Reserved]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)

[[Page 781]]

       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)

                       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)

[[Page 782]]

        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       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) [Reserved]
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)

[[Page 783]]

      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       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--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Parts 900--999)
        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)

[[Page 784]]

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  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)

[[Page 785]]

        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 Investment Security, 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)
         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, Department 
                of Defense (Parts 200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)

[[Page 786]]

        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 Career, Technical and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        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  (Parts 1100--1199) [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             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  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

[[Page 787]]

           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)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)

          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]

[[Page 788]]

            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)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   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)

[[Page 789]]

       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)
        IX  Denali Commission (Parts 900--999)
         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  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      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)

[[Page 790]]

        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]

[[Page 791]]

        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)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (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)

[[Page 792]]

        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 793]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2018)

                                                  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     5, 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 of                        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
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          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 794]]

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 of                               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
Career, Technical, and Adult Education, Office    34, IV
     of
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, XIII
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 of                           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, XI; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
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
Defense Contract Audit Agency                     32, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I

[[Page 795]]

  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
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
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
  Career, Technical, and Adult Education, Office  34, IV
       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
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 Policy, National Commission for        1, IV
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
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III

[[Page 796]]

  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 of                          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
Forest Service                                    36, II

[[Page 797]]

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
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
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, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  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; 5, XXXVI; 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
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V

[[Page 798]]

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 of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  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
  Safety and Enforcement Bureau, Bureau of        30, II
  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 of                            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
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 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
  Federal Acquisition Regulation                  48, 29

[[Page 799]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VII
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
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
Military Compensation and Retirement              5, XCIX
     Modernization Commission
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, VI
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           2, XXXVI; 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 Geospatial-Intelligence Agency           32, I
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 of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 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
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25

[[Page 800]]

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, V
     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 of                               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
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; 5, IV; 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
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II

[[Page 801]]

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 of                              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
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
  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
  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 of                           2, X;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
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   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
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII

[[Page 802]]

World Agricultural Outlook Board                  7, XXXVIII

[[Page 803]]



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, 2013 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.

                                  2013

                   (No regulations published in 2013)

                                  2014

29 CFR
                                                                   79 FR
                                                                    Page
Subtitle A
10 Added...........................................................60721

                                  2015

29 CFR
                                                                   80 FR
                                                                    Page
Subtitle A
18.10--18.95 (Subpart A) Revised...................................28785
18.32 (c) correctly revised........................................37539
18.33 (e) correctly revised........................................37539
18.51 (d)(1) and (3) introductory text correctly revised...........37539
18.53 (b) correctly revised........................................37540
20 Authority citation revised......................................60799
20.201--20.215 (Subpart F) Added; interim..........................60799
38 Added...........................................................43876

                                  2016

29 CFR
                                                                   81 FR
                                                                    Page
Subtitle A
2 Authority citation revised.......................................19421
2.31 (a) and (f) revised...........................................19422
2.32 (b) introductory text and (c) revised.........................19422
2.33 (a), (b)(1), (3) introductory text and (c) revised............19422
2.34 Redesignated as 2.36; new 2.34 added..........................19423
2.35 Redesignated as 2.37; new 2.35 added..........................19423
2.36 Redesignated as 2.38; new 2.36 redesignated from 2.34.........19423
2.37 Redesignated from 2.35........................................19423
2.38 Redesignated from 2.36........................................19423
2.39 Added.........................................................19423
2 Appendixes A and B added.........................................19423
5 Authority citation revised.......................................43450
5.5 (b)(2) amended.................................................43450
5.8 (a) amended....................................................43450
13 Added...........................................................67709
20 Regulation at 80 FR 60799 confirmed.............................74921
20.201--20.215 (Subpart F) Regulation at 80 FR 60799 confirmed.....74921
29.5 (b)(21) revised...............................................92107
29.7 (j) revised; (l) added........................................92107
29.8 (b)(1)(i) revised.............................................92108
29.14 (a) revised..................................................92108
30 Revised.........................................................92108
38 Revised.........................................................87211
    Regulation at 81 FR 87211 eff. date corrected to 1-3-17........88110
95.2 (mm) amended..................................................25587
    Regulation at 81 FR 25587 eff. date confirmed..................67091
95.13 Amended......................................................25587

[[Page 804]]

    Regulation at 81 FR 25587 eff. date confirmed..................67091
95.44 (d) amended..................................................25587
    Regulation at 81 FR 25587 eff. date confirmed..................67091
95.62 (d) amended..................................................25587
    Regulation at 81 FR 25587 eff. date confirmed..................67091
95 Appendix A amended..............................................25587
    Regulation at 81 FR 25587 eff. date confirmed..................67091
98 Removed.........................................................25587
    Regulation at 81 FR 25587 eff. date confirmed..................67091

                                  2017

29 CFR
                                                                   82 FR
                                                                    Page
Subtitle A
1.2 (c) revised.....................................................2223
1.5 (b)(1) revised..................................................2223
3 Authority citation revised........................................2224
3.3 (b) revised.....................................................2224
3.4 OMB number......................................................2224
4 Authority citation revised........................................2224
4.1a (b) and (c) revised............................................2224
4.3 (e) revised.....................................................2224
4.5 (a)(1) revised..................................................2224
4.6 (b)(2)(ii), (3) and (r) table revised; (g)(1) amended...........2224
4.10 (b)(1)(i) introductory text revised............................2225
4.11 (b)(1) introductory text amended...............................2225
4.12 (c)(1) revised.................................................2225
4.101 (g) revised...................................................2225
4.191 (d) revised...................................................2225
5.2 (b) revised.....................................................2225
5.5 Suspension lifted; (a)(1)(i) and (ii)(B) revised................2225
    (c) table revised...............................................2226
5.12 (c) and (d)(3)(i) revised......................................2226
5.13 Revised........................................................2226
5.15 OMB number.....................................................2226
6.2 (a) revised.....................................................2226
21 Added; eff. 1-19-18..............................................7271
70 Revised..........................................................7671

                                  2018

   (Regulations published from January 1, 2018, through July 1, 2018)

29 CFR
                                                                   83 FR
                                                                    Page
Subtitle A
5.5 (b)(2) amended....................................................12
5.8 (a) amended.......................................................12
21 Regulation at 82 FR 7259, 7271 eff. date delayed to 7-19-18......2885
21.101 (l)(3) and (4) revised; eff. 7-19-18.........................2892
    (l)(1) heading and (5) added; (l)(2), (3), and (4) revised; 
eff. 7-19-18.......................................................28515


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