[Title 45 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2019 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 45
Public Welfare
________________________
Parts 500 to 1199
Revised as of October 1, 2019
Containing a codification of documents of general
applicability and future effect
As of October 1, 2019
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Publishing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Publishing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P U B L I S H I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 45:
SUBTITLE B--Regulations Relating to Public Welfare
(Continued)
Chapter V--Foreign Claims Settlement Commission of
the United States, Department of Justice 5
Chapter VI--National Science Foundation 39
Chapter VII--Commission on Civil Rights 241
Chapter VIII--Office of Personnel Management 283
Chapter IX--Denali Commission 303
Chapter X--Office of Community Services,
Administration for Children and Families, Department
of Health and Human Services 315
Chapter XI--National Foundation on the Arts and the
Humanities 323
Finding Aids:
Table of CFR Titles and Chapters........................ 523
Alphabetical List of Agencies Appearing in the CFR...... 543
List of CFR Sections Affected........................... 553
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 45 CFR 500.1 refers
to title 45, part 500,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2019), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
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 dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
SALES
The Government Publishing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2104, 24 hours a day. For payment by check,
write to: US Government Publishing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
States, Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format via www.govinfo.gov. For
more information, contact the GPO Customer Contact Center, U.S.
Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-
free). E-mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) website for public
law numbers, Federal Register finding aids, and related information.
Connect to NARA's website at www.archives.gov/federal-register.
The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
October 1, 2019
[[Page ix]]
THIS TITLE
Title 45--Public Welfare is composed of five volumes. The parts in
these volumes are arranged in the following order: Parts 1-139, 140-199,
200-499, 500-1199, and 1200 to end. Volumes one and two (parts 1-139 and
parts 140-199) contain all current regulations issued under subtitle A--
Department of Health and Human Services. Volume three (parts 200-499)
contains all current regulations issued under subtitle B--Regulations
Relating to Public Welfare, chapter II--Office of Family Assistance
(Assistance Programs), Administration for Children and Families,
Department of Health and Human Services, chapter III--Office of Child
Support Enforcement (Child Support Enforcement Program), Administration
for Children and Families, Department of Health and Human Services, and
chapter IV--Office of Refugee Resettlement, Administration for Children
and Families, Department of Health and Human Services. Volume four
(parts 500-1199) contains all current regulations issued under chapter
V--Foreign Claims Settlement Commission of the United States, Department
of Justice, chapter VI--National Science Foundation, chapter VII--
Commission on Civil Rights, chapter VIII--Office of Personnel
Management, chapter IX--Denali Commission, chapter X--Office of
Community Services, Administration for Children and Families, Department
of Health and Human Services, and chapter XI--National Foundation on the
Arts and the Humanities. Volume five (part 1200 to end) contains all
current regulations issued under chapter XII--Corporation for National
and Community Service, chapter XIII--Administration for Children and
Families, Department of Health and Human Services, chapter XVI--Legal
Services Corporation, chapter XVII--National Commission on Libraries and
Information Science, chapter XVIII--Harry S. Truman Scholarship
Foundation, chapter XXI--Commission of Fine Arts, chapter XXIII--Arctic
Research Commission, chapter XXIV--James Madison Memorial Fellowship
Foundation, and chapter XXV--Corporation for National and Community
Service. The contents of these volumes represent all of the current
regulations codified under this title of the CFR as of October 1, 2019.
For this volume, Ann Worley 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 45--PUBLIC WELFARE
(This book contains parts 500 to 1199)
--------------------------------------------------------------------
SUBTITLE B--Regulations Relating to Public Welfare (Continued)
Part
chapter v--Foreign Claims Settlement Commission of the
United States, Department of Justice...................... 500
chapter vi--National Science Foundation..................... 601
chapter vii--Commission on Civil Rights..................... 701
chapter viii--Office of Personnel Management [Reserved]
chapter ix--Denali Commission............................... 900
chapter x--Office of Community Services, Administration for
Children and Families, Department of Health and Human
Services.................................................. 1080
chapter xi--National Foundation on the Arts and the
Humanities................................................ 1100
[[Page 3]]
Subtitle B--Regulations Relating to Public Welfare (Continued)
[[Page 5]]
CHAPTER V--FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES,
DEPARTMENT OF JUSTICE
--------------------------------------------------------------------
SUBCHAPTER A--RULES OF PRACTICE
Part Page
500 Appearance and practice..................... 7
501 Subpoenas, depositions, and oaths........... 8
502 Public information-Freedom of Information
Act..................................... 11
503 Privacy Act and Government in the Sunshine
Regulations............................. 17
SUBCHAPTER B--RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER TITLE
I OF THE WAR CLAIMS ACT OF 1948, AS AMENDED
504 Filing of claims and procedures therefor.... 25
505 Provisions of general application........... 26
506 Eligibility requirements for compensation... 27
507 Payment..................................... 30
508 Hearings.................................... 30
SUBCHAPTER C--RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE
INTERNATIONAL CLAIMS SETTLEMENT ACT OF 1949, AS AMENDED, AND RELATED
ACTS
509 Filing of claims and procedures therefor.... 33
SUBCHAPTER D--RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE
GUAM WORLD WAR II LOYALTY RECOGNITION ACT
510 Filing of claims and procedures therefor.... 37
511-599
[Reserved]
[[Page 7]]
SUBCHAPTER A_RULES OF PRACTICE
PART 500_APPEARANCE AND PRACTICE--Table of Contents
Sec.
500.1 Appearance and representation.
500.2 Notice of entry or withdrawal of counsel in claims.
500.3 Fees.
500.4 Suspension of attorneys.
500.5 Standards of Conduct.
500.6 Disqualification of former employees.
Authority: Sec. 2, Pub. L. 896, 80th Cong., 62 Stat. 1240, as
amended (50 U.S.C. App. 2001); sec. 3, Pub. L. 455, 81st Cong., 64 Stat.
12, as amended (22 U.S.C. 1622); 18 U.S.C. 207; Sec.1705(a)(2), Pub. L.
114-328, 114th Cong., 130 Stat. 2644.
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 500.1 Appearance and representation.
(a) An individual may appear in his or her own behalf, or may be
represented by an attorney at law admitted to practice in any State or
Territory of the United States, or the District of Columbia.
(b) A member of a partnership may represent the partnership.
(c) A bona fide officer of a corporation, trust or association may
represent the corporation, trust or association.
(d) An officer or employee of the United States Department of
Justice, when designated by the Attorney General of the United States,
may represent the United States in a claim proceeding.
(e) In cases falling within the purview of subchapter B of this
chapter, persons designated by veterans', service, and other
organizations to appear before the Commission in a representative
capacity on behalf of claimants will be deemed duly authorized to
practice before the Commission if the designating organization has
received a letter of accreditation from the Commission. Petitions for
accreditation must be in writing, executed by duly authorized officer or
officers, and addressed to the Foreign Claims Settlement Commission of
the United States, Washington, DC 20579. Upon receipt of a petition
setting forth pertinent facts as to the organization's history, purpose,
number of posts or chapters and their locations, approximate number of
paid-up memberships, statements that the organization will not charge
any fee for services rendered by its designees in behalf of claimants
and that it will not refuse on the grounds of non-membership to
represent any claimant who applies for representation if the claimant
has an apparently valid claim, accompanied by a copy of the
organization's constitution, or charter, by-laws, and its latest
financial statement, the Commission in its discretion will consider and
in appropriate cases issue or deny letters of accreditation.
(f) A claimant may not be represented before the Commission except
as authorized in paragraphs (a) through (e) of this section.
Sec. 500.2 Notice of entry or withdrawal of counsel in claims.
(a) Counsel entering an appearance in a claim originally filed by a
claimant in the claimant's own behalf, or upon request for a
substitution of attorneys, will be required to file an authorization
signed by the claimant.
(b) When counsel seeks to withdraw from the prosecution of a claim,
he or she will be required to demonstrate that the client (claimant) has
been duly notified.
(c) When a claimant advises the Commission that counsel no longer
represents that claimant, a copy of the Commission's acknowledgment will
be forwarded to that counsel.
Sec. 500.3 Fees.
(a) The amount of attorney's fees that may be charged in connection
with claims falling within the purview of title I of the International
Claims Settlement Act of 1949, as amended (22 U.S.C. Sec. 1621-1627),
is governed by the provisions of 22 U.S.C.1623(f).
(b) The amount of attorney's fees that may be charged in connection
with claims falling within the purview of subchapter B of this chapter
is governed by the provisions of section 10 of
[[Page 8]]
the War Claims Act of 1948, as amended (50 U.S.C. App. 2009).
(c) The amount of attorney's fees that may be charged in connection
with claims falling within the purview of subchapter D of this chapter
is governed by the provisions of section 1705(b)(6) of the National
Defense Authorization Act for Fiscal Year 2017, Title XVII, Guam World
War II Loyalty Recognition Act, Public Law 114-328.
[66 FR 49844, Oct. 1, 2001, as amended at 82 FR 16126, Apr. 3, 2017]
Sec. 500.4 Suspension of attorneys.
(a) The Commission may disqualify, or deny, temporarily or
permanently, the privilege of appearing or practicing before it in any
way to any person who is found after a hearing in the matter--
(1) Not to possess the requisite qualifications to represent others
before the Commission; or
(2) To be lacking in character or integrity or to have engaged in
unethical or improper professional conduct; or
(3) To have violated sections 10 and 214 of the War Claims Act of
1948, as amended, section 4(f) of the International Claims Settlement
Act of 1949, as amended, or section 1705(b)(6) of the National Defense
Authorization Act for Fiscal Year 2017, Title XVII, Guam World War II
Loyalty Recognition Act.
(b) Contemptuous or contumacious conduct at any hearing will be
ground for exclusion from that hearing and for summary suspension
without a hearing for the duration of the hearing.
[66 FR 49844, Oct. 1, 2001, as amended at 82 FR 16126, Apr. 3, 2017]
Sec. 500.5 Standards of Conduct.
The conduct of the members, officers and employees of the
Commission, including its special Government employees, is governed by
the Standards of Ethical Conduct for Employees of the Executive Branch
set forth in 5 CFR part 2635 and the Supplemental Standards of Conduct
for Employees of the Department of Justice set forth in 5 CFR part 3801.
Sec. 500.6 Disqualification of former employees.
The provisions of 18 U.S.C. 207 shall govern the post-employment
appearance of former Commission members, officers, and employees,
including special Government employees, in the capacity of agent,
attorney or representative on behalf of claimants before the Commission.
PART 501_SUBPOENAS, DEPOSITIONS, AND OATHS--Table of Contents
Sec.
501.1 Extent of authority.
501.2 Subpoenas.
501.3 Service of process.
501.4 Witnesses.
501.5 Depositions.
501.6 Documentary evidence.
501.7 Time.
Authority: Sec. 2, Pub. L. 896, 80th Cong., 62 Stat. 1240, as
amended (50 U.S.C. App. 2001); sec. 3, Pub. L. 455, 81st Cong., 64 Stat.
12, as amended (22 U.S.C. 1622).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 501.1 Extent of authority.
(a) Subpoenas, oaths and affirmations. The issuance of subpoenas,
the administration of oaths and affirmations, the taking of affidavits,
the conduct of investigations, and the examination of witnesses by the
Commission and its members, officers and employees is governed by the
provisions of 22 U.S.C. 1623(c) and 50 U.S.C. App. 2001(c).
(b) Certification. The Commission or any member thereof may, for the
purpose of a hearing, examination, or investigation, certify the
correctness of any papers, documents, and other matters pertaining to
the administration of any laws relating to the functions of the
Commission.
Sec. 501.2 Subpoenas.
(a) Issuance. A member of the Commission or a designated employee
may, on the member or employee's own volition or upon written
application by any party and upon a showing of general relevance and
reasonable scope of the evidence sought, issue subpoenas requiring
persons to appear and testify or to appear and produce documents.
Applications for issuance of subpoenas for production of documents shall
specify the books, records, correspondence, or other documents sought.
The subpoena will show on its face the
[[Page 9]]
name and address of the party at whose request the subpoena was issued.
(b) Deposit for costs. The Commission or designated employee, before
issuing any subpoena in response to any application by an interested
party, may require a deposit in an amount adequate to cover fees and
mileage involved.
(c) Motion to quash. If any person subpoenaed does not intend to
comply with the subpoena, that person must, within 15 days after the
date of service of the subpoena, petition in writing to quash the
subpoena. The basis for the motion must be stated in detail. Any party
desiring to file an answer to a motion to quash must file the answer not
later than 15 days after the filing of the motion. The Commission will
rule on the motion to quash, duly recognizing any answer thereto filed.
The motion, answer, and any ruling thereon will become part of the
official record.
(d) Appeal from interlocutory order. An appeal may be taken to the
Commission by the interested parties from the denial of a motion to
quash or from the refusal to issue a subpoena for the production of
documentary evidence.
(e) Order of court upon failure to comply. Upon the failure or
refusal of any person to comply with a subpoena, the Commission may
invoke the aid of the United States District Court within the
jurisdiction of which the hearing, examination or investigation is being
conducted, or wherein that person resides or transacts business, as
provided in 22 U.S.C. 1623(c).
Sec. 501.3 Service of process.
(a) By whom served. The Commission will serve all orders, notices
and other papers issued by it, together with any other papers which it
is required by law to serve.
(b) Kinds of service. Subpoenas, orders, rulings, and other
processes of the Commission may be served by delivering in person, by
registered or certified mail, by overnight express delivery service, by
first class mail, by telegraph, or by publication.
(c) Personal service. Service by delivering in person may be
accomplished by:
(1) Delivering a copy of the document to the person to be served, to
a member of the partnership to be served, to an executive officer or a
director of the corporation to be served, or to a person competent to
accept service; or
(2) By leaving a copy thereof at the residence, principal office or
place of business of the person, partnership, or corporation.
(3) Proof of service. The return receipt for the order, other
process or supporting papers, or the verification by the person serving,
setting forth the manner of service, will be proof of the service of the
document.
(4) Service upon attorney or agent. When any party has appeared by
an authorized attorney or agent, service upon the party's attorney or
agent will be deemed service upon the party.
(d) Service by registered mail or certified mail. Service by
registered mail or certified mail will be regarded as complete on the
date the return post office receipt for the orders, notices and other
papers is received by the Commission.
(e) Service by overnight express delivery service or by first class
mail. Service by overnight express delivery service or first class mail
will be regarded as complete upon deposit, respectively, in the delivery
service's package receptacle or in the United States mail properly
stamped and addressed.
(f) Service by telegraph. Service by telegraph will be regarded as
complete when deposited with a telegraph company properly addressed and
with charges prepaid.
(g) Service by publication. Service by publication is completed when
due notice has been given in the publication for the time and in the
manner provided by law or rule.
(h) Date of service. The date of service is the day upon which the
document is deposited in the United States mail or delivered in person,
as the case may be.
(i) Filing with Commission. Papers required to be filed with the
Commission will be deemed filed upon actual receipt by the Commission
accompanied by proof of service upon parties required to be served. Upon
the actual receipt, the filing will be deemed complete as of the date of
deposit in the mail or with the telegraph company as provided in
paragraphs (e) and (f) of this section.
[[Page 10]]
Sec. 501.4 Witnesses.
(a) Examination of witnesses. Witnesses must appear in person and be
examined orally under oath, except that for good cause shown, testimony
may be taken by deposition.
(b) Witness fees and mileage. Witnesses summoned by the Commission
on its own behalf or on behalf of a claimant or interested party will be
paid the same fees and mileage that are allowed and paid witnesses in
the District Courts of the United States. Witness fees and mileage will
be paid by the Commission or by the party at whose request the witness
appears.
(c) Transcript of testimony. Every person required to attend and
testify will be entitled, upon payment of prescribed costs, to receive a
copy of the recording of the testimony or a transcript of the recording.
Every person required to submit documents or other evidence will be
entitled to retain a copy thereof.
Sec. 501.5 Depositions.
(a) Application to take. (1) An application to take a deposition
must be in writing setting forth the reason why the deposition should be
taken, the name and address of the witness, the matters concerning which
it is expected the witness will testify, and the time and place proposed
for the taking of the deposition, together with the name and address of
the person before whom it is desired that the deposition be taken. If
the deposition is being offered in connection with a hearing or
examination, the application for deposition must be made to the
Commission at least 15 days prior to the proposed date of such hearing
or examination.
(2) Application to take a deposition may be made during a hearing or
examination, or subsequent to a hearing or examination, only where it is
shown for good cause that the facts as set forth in the application to
take the deposition were not within the knowledge of the person signing
the application prior to the time of the hearing or examination.
(3) The Commission or its representative will, upon receipt of the
application and a showing of good cause, make and cause to be served
upon the parties an order which will specify the name of the witness
whose deposition is to be taken, the time, the place, and where
practicable the designation of the officer before whom the witness is to
testify. The officer may or may not be the one specified in the
application. The order will be served upon all parties at least 10 days
prior to the date of the taking of the deposition.
(b) Who may take. The deposition may be taken before the designated
officer or, if none is designated, before any officer authorized to
administer oaths by the laws of the United States. If the examination is
held in a foreign country, it may be taken before a secretary of an
embassy or legation, consul-general, consul, vice consul, or consular
agent of the United States.
(c) Examination and certification of testimony. At the time and
place specified in the Commission's order, the officer taking the
deposition will permit the witness to be examined and cross-examined
under oath by all parties appearing, and the testimony will be reduced
to writing by, or under the direction of, the presiding officer. All
objections to questions or evidence will be deemed waived unless made in
accordance with paragraph (d) of this section. The officer will not have
power to rule upon any objections but will note them upon the
deposition. The testimony must be subscribed by the witness in the
presence of the officer who will attach a certificate stating that the
witness was duly sworn, that the deposition is a true record of the
testimony and exhibits given by the witness and that the officer is not
counsel or attorney to any of the interested parties. The officer will
immediately seal and deliver an original and two copies of the
transcript, together with the officer's certificate, by registered mail
to the Foreign Claims Settlement Commission, Washington, DC 20579 or, if
applicable, to the designated Commission field office.
(d) Admissibility in evidence. The deposition will be admissible in
evidence, subject to such objections to the questions and answers as
were noted at the time of taking the deposition, or within ten (10) days
after the return thereof, and would be valid were the witness personally
present at the hearing.
[[Page 11]]
(e) Errors and irregularities. All errors or irregularities
occurring will be deemed waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness after
the defect is, or with due diligence might have been, ascertained.
(f) Scope of use. The deposition of a witness, if relevant, may be
used if the Commission finds:
(1) That the witness has died since the deposition was taken; or
(2) That the witness is at a distance greater than 100 miles radius
of Washington, DC, the designated field office or the designated place
of the hearing; or
(3) That the witness is unable to attend because of other good cause
shown.
(g) Interrogatories and cross-interrogatories. Depositions may also
be taken and submitted on written interrogatories in substantially the
same manner as depositions taken by oral examination. When a deposition
is taken upon interrogatories and cross-interrogatories, none of the
parties may be present or represented, and no person, other than the
witness, the person's representative or attorney, a stenographic
reporter and the presiding officer, may be present at the examination of
the witness, which fact will be certified by the officer, who will read
the interrogatories and cross-interrogatories to the witness in their
order and reduce the testimony to writing in the witness's own words.
(h) Fees. A witness whose deposition is taken pursuant to the
regulations in this part, and the officer taking the deposition, will be
entitled to the same fees and mileage allowed and paid for like service
in the United States District Court for the district in which the
deposition is taken. Such fees will be paid by the Commission or by the
party at whose request the deposition is being taken.
Sec. 501.6 Documentary evidence.
Documentary evidence may consist of books, records, correspondence
or other documents pertinent to any hearing, examination, or
investigation within the jurisdiction of the Commission. The application
for the issuance of subpoenas for production of documents must specify
the books, records, correspondence or other documents sought. The
production of documentary evidence will not be required at any place
other than the witness's place of business. The production of such
documents will not be required at any place if, prior to the return date
specified in the subpoena, the person either has furnished the issuer of
the subpoena with a properly certified copy of the documents or has
entered into a stipulation as to the information contained in the
documents.
Sec. 501.7 Time.
(a) Computation. In computing any period of time prescribed or
allowed by the regulations, by order of the Commission, or by any
applicable statute, the day 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 legal holiday, in which event the period runs until
the end of the next day that is neither a Saturday, Sunday nor a
holiday. When the period of time prescribed or allowed is less than 7
days, intermediate Saturdays, Sundays and holidays will be excluded in
the computation.
(b) Enlargement. When by the regulations in this chapter, or by a
notice given thereunder or by order of the Commission, an act is
required or allowed to be done at or within a specific time, the
Commission for good cause shown may, at any time in its discretion:
(1) With or without motion, notice, or previous order or
(2) Upon motion, permit the act to be done after the expiration of
the specified period.
PART 502_PUBLIC INFORMATION-FREEDOM OF INFORMATION ACT--Table of Contents
Sec.
502.1 Organization and authority--Foreign Claims Settlement Commission.
502.2 Material to be published in the Federal Register pursuant to the
Freedom of Information Act.
502.3 Effect of nonpublication.
502.4 Incorporation by reference.
502.5 Records generally available.
[[Page 12]]
502.6 Current index.
502.7 Additional documents and records generally available for
inspection and copying.
502.8 Documents on-line.
502.9 Effect of noncompliance.
502.10 Availability of records.
502.11 Actions on requests.
502.12 Appeals.
502.13 Exemptions.
502.14 Fees for services.
Authority: 5 U.S.C. 552.
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 502.1 Organization and authority--Foreign Claims Settlement Commission.
(a) The Foreign Claims Settlement Commission of the United States
(``the Commission'') is an independent agency of the Federal Government
created by Reorganization Plan No. 1 of 1954 (68 Stat. 1279) effective
July 1, 1954. The Commission was transferred to the Department of
Justice as an independent agency within that department as of October 1,
1980, under the terms of Public Law 96-209, approved March 14, 1980 (94
Stat. 96, 22 U.S.C. 1622a). Its duties and authority are defined in the
International Claims Settlement Act of 1949, as amended (64 Stat. 12, 22
U.S.C. 1621-1645o) and the War Claims Act of 1948 (62 Stat. 1240, 50
U.S.C. App. 2001-2017p).
(b) The Commission has jurisdiction to determine the validity and
amount of claims of United States nationals against foreign governments
for compensation for losses and injuries sustained by those nationals,
pursuant to programs authorized under either of the cited Acts. Funds
for payment of claims are derived from international settlement
agreements or through liquidation of foreign assets in the United States
by the Department of Justice or Treasury, or from public funds when
provided by the Congress.
(c) The Chair and the two part-time members of the Commission are
appointed by the President with the advice and consent of the Senate to
serve for 3-year terms of office as provided in 22 U.S.C. 1622c(c).
(d) All functions of the Commission are vested in the Chair with
respect to the internal management of the affairs of the Commission,
including but not limited to:
(1) The appointment of Commission employees;
(2) The direction of Commission employees and the supervision of
their official duties;
(3) The distribution of business among employees and organizational
units within the Commission;
(4) The preparation of budget estimates; and
(5) The use and expenditures of Commission funds appropriated for
expenses of administration.
(e) Requests for records must be made in writing by mail or
presented in person to the Administrative Officer, Foreign Claims
Settlement Commission, Washington, DC 20579.
(f) The offices of the Commission are located at 600 E Street NW
(Bicentennial Building), Room 6002, Washington, DC.
Sec. 502.2 Material to be published in the Federal Register
pursuant to the Freedom of Information Act.
The Commission will separately state and concurrently publish the
following materials in the Federal Register for the guidance of the
public:
(a) Descriptions of its central and field organization and the
established places at which, the officers from whom, and the methods
whereby, the public may secure information, make submittals or requests,
or obtain decisions.
(b) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available.
(c) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations.
(d) Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency.
(e) Every amendment, revision, or repeal of the foregoing.
Sec. 502.3 Effect of nonpublication.
Except to the extent that a person has actual and timely notice of
the
[[Page 13]]
terms thereof, no person will in any manner be required to resort to, or
be adversely affected by, any matter required to be published in the
Federal Register and not so published.
Sec. 502.4 Incorporation by reference.
For purposes of this part, matter which is reasonably available to
the class of persons affected thereby will be deemed published in the
Federal Register when incorporated by reference therein with the
approval of the Director of the Federal Register.
Sec. 502.5 Records generally available.
The Commission will make promptly available to any member of the
public the following documents:
(a) Proposed and Final Decisions (including dissenting opinions) and
all orders made with respect thereto, except when exempted from public
disclosure by statute;
(b) Statements of policy and interpretations which have been adopted
by the Commission which have not been published in the Federal Register;
and
(c) A current index, which will be updated at least quarterly,
covering the foregoing material adopted, issued or promulgated after
July 4, 1967. Publication of an index is deemed both unnecessary and
impractical. However, copies of the index are available upon request for
a fee of the direct cost of duplication.
Sec. 502.6 Current index.
The Commission will maintain and make available for public
inspection and copying, current indexes providing identifying
information for the public as to any matter issued, adopted, or
promulgated after July 4, 1967, as required by 5 U.S.C. 552(a)(2).
Sec. 502.7 Additional documents and records generally available
for inspection and copying.
The following types of documents are also available for inspection
and copying in the offices of the Commission:
(a) Rules of practice and procedure.
(b) Annual report of the Commission to the Congress of the United
States.
(c) Bound volumes of Commission decisions.
(d) International Claims Settlement Act of 1949, with amendments;
the War Claims Act of 1948, with amendments; and related Acts.
(e) Claims agreements with foreign governments effecting the
settlement of claims under the jurisdiction of the Commission.
(f) Press releases and other miscellaneous material concerning
Commission operations.
(g) Indexes of claims filed in the various claims programs
administered by the Commission.
Sec. 502.8 Documents on-line.
Commission documents available in electronic format may be accessed
via the Commission's World Wide Web site, the address of which is http:/
/www.usdoj.gov/fcsc.
Sec. 502.9 Effect of non-compliance.
No decision, statement of policy, interpretation, or staff manual or
instruction that affects any member of the public will be relied upon,
used, or cited as precedent by the Commission against any private party
unless it has been indexed and either made available or published as
provided by this part, or unless that private party has actual and
timely notice of the terms thereof.
Sec. 502.10 Availability of records.
(a) Each person desiring access to a record covered by this part
must comply with the following provisions:
(1) A written request must be made for the record.
(2) Such request must indicate that it is being made under the
Freedom of Information Act.
(3) The envelope in which the request is sent must be prominently
marked with the letters ``FOIA.''
(4) The request must be addressed to the appropriate official or
employee of the Commission as set forth in paragraph (c) of this
section.
(5) The foregoing requirements must be complied with whether the
request is mailed or hand-delivered to the Commission.
(b) If the requirements of paragraph (a) of this section are not
met, the twenty-day time limit described in Sec. 502.10(a) will not
begin to run until the request has been identified by an
[[Page 14]]
official or employee of the Commission as a request under the Freedom of
Information Act and has been received by the appropriate official or
employee of the Commission.
(c) Each person desiring access to a record covered in this part
that is located in the Commission, or to obtain a copy of such a record,
must make a written request to the Administrative Officer, Foreign
Claims Settlement Commission, 600 E Street NW, Room 6002, Washington, DC
20579.
(d) Each request should reasonably describe the particular record
requested. The request should specify the subject matter, the date when
it was made and the person or office that made it. If the description is
insufficient, the official or employee handling the request may notify
the person making the request and, to the extent possible, indicate the
additional data required.
(e) Each record made available under this section is available for
inspection and copying during regular working hours. Original documents
may be copied but may not be released from custody.
(f) Authority to administer this part in connection with Commission
records is delegated to the Administrative Officer or the Commission
employee acting in that official's capacity.
Sec. 502.11 Actions on requests.
(a) The Administrative Officer or any employee acting in that
official's capacity will determine within twenty days (excepting
Saturdays, Sundays, and legal public holidays) after the receipt of any
a request whether to comply with the request. Upon receipt of a request
for a Commission record which is available, the Administrative Officer
or other employee will notify the requester as to the time the record is
available, and will promptly make the record available after advising
the requester of the applicable fees under Sec. 502.13. The person
making the request will be notified immediately after any adverse
determination, the reasons for making the adverse determination and the
right of the person to appeal.
(b) Any denial of a request for a record will be written and signed
by the Administrative Officer or other employee, including a statement
of the reason for denial. That statement will contain, as applicable:
(1) A reference to the specific exemption under the Freedom of
Information Act authorizing the withholding of a record, and to the
extent consistent with the purpose of the exemption, an explanation of
how the exemption applies to the record withheld.
(2) If a record requested does not exist, or has been legally
disposed of, the requester will be so notified.
(c) In unusual circumstances, the time limit prescribed in paragraph
(a) of this section may be extended by written notice to the person
making the request setting forth the reasons for the extension and the
date on which a determination is expected to be dispatched. No extension
notice will specify a date that would result in an extension for more
than twenty working days. As used in this paragraph, ``unusual
circumstances'' means, but only to the extent reasonably necessary to
the proper processing of the particular request--
(1) The need to search for and collect the requested records from
other establishments that are separate from the office processing the
request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(3) The need for consultation, which will be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
Sec. 502.12 Appeals.
(a) Any person to whom a record has not been made available within
the time limits established by paragraph (b) of Sec. 502.11, and any
person who has been given an adverse determination pursuant to paragraph
(b) of Sec. 503.10 of this chapter, that a requested record will not be
disclosed, may apply to the Office of Information and Privacy, U.S.
Department of Justice, Washington,
[[Page 15]]
DC 20530, for reconsideration of the request. The person making such a
request will also be notified of the provisions for judicial review
provided in 5 U.S.C. 552(a)(4).
(b) Each application for reconsideration must be made in writing
within sixty days from the date of receipt of the original denial and
must include all information and arguments relied upon by the person
making the request. The application must indicate that it is an appeal
from a denial of a request made under the Freedom of Information Act.
The envelope in which the application is sent must be prominently marked
with the letters ``FOIA.'' If these requirements are not met, the twenty
day limit described in Sec. 502.10 will not begin to run until the
application has been identified as an application under the Freedom of
Information Act and has been received by the Office of Information and
Privacy of the Department of Justice.
(c) Whenever it is to be determined necessary, the person making the
request may be required to furnish additional information, or proof of
factual allegations and other proceedings appropriate in the
circumstances may be ordered.
(d) The decision not to disclose a record under this part is
considered to be a withholding for the purposes of 5 U.S.C. 552(a)(3).
Sec. 502.13 Exemptions.
In the event any document or record requested hereunder should
contain material which is exempt from disclosure under this section, any
reasonably segregable portion of the record will, notwithstanding that
fact, and to the extent feasible, be provided to any person requesting
it, after deletion of the portions which are exempt under this section.
Documents or records determined to be exempt from disclosure hereunder
may nonetheless be provided upon request in the event it is determined
that the provision of the document would not violate the public interest
or the right of any person to whom the information may pertain, and the
disclosure is not prohibited by law or Executive Order. The following
categories of records are exempt from disclosure under the provisions of
5 U.S.C. 552(b):
(a) Records which are specifically required by Executive Order to be
kept secret in the interest of national defense or foreign policy and
are in fact properly classified pursuant to such Executive Order. This
exception may apply to records in the custody of the Commission which
have been transmitted to the Commission by another agency which has
designated the record as nonpublic under Executive Order.
(b) Records related solely to the internal personnel rules and
practices of the Commission.
(c) Records specifically exempted from disclosure by statute.
(d) Information given in confidence. This includes information
obtained by or given to the Commission which constitutes confidential
commercial or financial information, privileged information, or other
information which was given to the Commission in confidence or would not
customarily be released by the person from whom it was obtained.
(e) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a private party in litigation with the
Commission. Such communications include inter-agency memoranda, drafts,
staff memoranda transmitted to the Commission, written communications
between the Commission and its staff regarding the preparation of
Commission decisions, other documents received or generated in the
process of issuing a decision or regulation, and reports and other work
papers of staff attorneys, accountants, and investigators.
(f) Personnel and medical files and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy.
(g) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(1) Could reasonably be expected to interfere with enforcement
proceedings;
(2) Would deprive a person of a right to a fair trial or an
impartial adjudication;
[[Page 16]]
(3) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(4) Could reasonably be expected to disclose the identity of a
confidential source, including a state, local or foreign agency or
authority or any private institution which furnished information on a
confidential basis and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful security intelligence
investigation, information furnished by a confidential source;
(5) Would disclose techniques and procedures for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law; or
(6) Could reasonably be expected to endanger the life or physical
safety of any individual.
Sec. 502.14 Fees for services.
The following provisions shall apply in the assessment and
collection of fees for services rendered in processing requests for
disclosure of Commission records under this part.
(a) Fee for duplication of records: $0.15 per page.
(b) Search and review fees:
(1) Searches for records by clerical personnel--$3.00 per quarter
hour, including time spent searching for and copying any record.
(2) Search for and review of records by professional and supervisory
personnel--$6.00 per quarter hour spent searching for any record or
reviewing a record to determine whether it may be disclosed, including
time spent in copying any record.
(c) Certification and validation fee: $1.00 for each certification,
validation or authentication of a copy of any record.
(d) Imposition of fees:
(1) Commercial use requests--Where a request appears to seek
disclosure of records for a commercial use, the requester shall be
charged for the time spent by Commission personnel in searching for the
requested record and in reviewing the record to determine whether it
should be disclosed, and for the cost of each page of duplication.
Commercial use is defined as a use or purpose that furthers the
commercial, trade or profit interests of the requester or the person on
whose behalf the request is made. The request also must reasonably
identify the records sought.
(2) Requests from representatives of news media--Where a request
seeks disclosure of records to a representative of the news media, the
requester shall be charged only for the actual duplication cost of the
records and only to the extent that the number of duplications exceeds
100 pages; provided, however, that the request must reasonably describe
the records sought, and it must appear that the records are for use by
the requester in such person's capacity as a news media representative.
``Representative of the news media'' refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that is
about current events or that would be of current interest to the public.
A ``freelance'' journalist not actually employed by a news organization
shall be eligible for inclusion under this category if the person can
demonstrate a solid basis for expecting publication by a news
organization.
(3) Requests from educational and non-commercial scientific
institutions--Where a request seeks disclosure of records to an
educational or non-commercial scientific institution, the requester
shall be charged only for the actual duplication cost of the records and
only to the extent that the number of duplications exceeds 100 pages;
provided, however, that the request must reasonably describe the records
sought and it must appear that the records are to be used by the
requester in furtherance of its educational or non-commercial scientific
research programs. ``Educational institution'' refers to a preschool, a
public or private elementary or secondary school, or an institution of
undergraduate, graduate, professional or vocational education, which
operates a program or programs of scholarly research. ``Non-commercial
scientific institution'' refers to an institution that is not operated
on a ``commercial'' basis, within the meaning of paragraph (d)(1) of
this section
[[Page 17]]
and which is operated solely for the purpose of conducting scientific
research, the results of which are not intended to promote any
particular product or industry.
(4) All other requests--Where a request seeks disclosure of records
to a person or entity other than one coming within paragraphs (d) (1),
(2) and (3) of this section, the requester shall be charged the full
cost of search and duplication. However, the first two hours of search
time and the first 100 pages of duplication shall be furnished without
charge.
(e) Aggregating of requests. If there exists a solid basis for
concluding that a requester or group of requesters has submitted a
series of partial requests for disclosure of records in an attempt to
evade assessment of fees, the requests may be aggregated so as to
constitute a single request, with fees charged accordingly.
(f) Unsuccessful searches. Except as provided in paragraph (d) of
this section, the cost of searching for a requested record shall be
charged even if the search fails to locate the record or it is
determined that the record is exempt from disclosure.
(g) Interest. In the event a requester fails to remit payment of
fees charged for processing a request under this part within 30 days
from the date those fees were billed, interest on the fees may be
assessed beginning on the 31st day after the billing date, to be
calculated at the rate prescribed in 31 U.S.C. 3717.
(h) Advance payments. (1) If, but only if, it is estimated or
determined that processing of a request for disclosure of records will
result in a charge of fees of more than $250.00, the requester may be
required to pay the fees in advance in order to obtain completion of the
processing.
(2) If a requester has previously failed to make timely payment
(i.e., within 30 days of billing date) of fees charged under this part,
the requester may be required to pay those fees and interest accrued
thereon, and to make an advance payment of the full amount of estimated
fees chargeable in connection with any pending or new request, in order
to obtain processing of the pending or new request.
(3) With regard to any request coming within paragraphs (h) (1) and
(2) of this section, the administrative time limits set forth in
Sec. Sec. 502.11 and 502.12 of this part will begin to run only after
the requisite fee payments have been received.
(i) Non-payment. In the event of non-payment of billed charges for
disclosure of records, the provisions of the Debt Collection Act of 1982
(Pub. L. 97-365), including disclosure to consumer credit reporting
agencies and referral to collection agencies, may be utilized to obtain
payment.
(j) Waiver or reduction of charges. Fees otherwise chargeable in
connection with a request for disclosure of a record shall be waived or
reduced where--
(1) It is determined that disclosure is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not primarily
in the commercial interest of the requester; or
(2) It is determined that the cost of collection would be equal to
or exceed the amount of those fees. No charges shall be assessed if the
fees amount to $8.00 or less.
PART 503_PRIVACY ACT AND GOVERNMENT IN THE SUNSHINE REGULATIONS--
Table of Contents
Subpart A_Privacy Act Regulations
Sec.
503.1 Definitions--Privacy Act.
503.2 General policies--Privacy Act.
503.3 Conditions of disclosure.
503.4 Accounting of certain disclosures.
503.5 Access to records or information.
503.6 Determination of requests for access to records.
503.7 Amendment of a record.
503.8 Appeals from denial of requests for amendment to records.
503.9 Fees.
503.10 Exemptions.
503.11 Reports.
503.12 Notices.
Subpart B_Government in the Sunshine Regulations
503.20 Definitions.
503.21 Notice of public observation.
503.22 Scope of application.
503.23 Open meetings.
[[Page 18]]
503.24 Grounds for closing a meeting.
503.25 Announcement of meetings.
503.26 Procedures for closing of meetings.
503.27 Reconsideration of opening or closing, or rescheduling a meeting.
503.28 Record of closed meetings, or closed portion of a meeting.
503.29 Requests for information.
Authority: 5 U.S.C. 552a(f).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Subpart A_Privacy Act Regulations
Sec. 503.1 Definitions--Privacy Act.
For the purpose of this part:
Agency includes any executive department, military department,
government corporation, government controlled corporation, or other
establishment in the executive branch of the government (including the
Executive Office of the President) or any independent regulatory agency.
The Foreign Claims Settlement Commission (``Commission'') is an agency
within the meaning of the term.
Individual means a citizen of the United States or an alien lawfully
admitted for permanent residence.
Maintain includes maintain, collect, use or disseminate.
Record means any item, collection, or grouping of information about
an individual that is maintained by an agency, including, but not
limited to, an individual's education, financial transactions, medical
history, and criminal or employment history, and that contains an
individual's name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as a finger or
voice print or a photograph.
Routine use means, with respect to the disclosure of a record, the
use of that record for a purpose which is compatible with the purpose
for which it was collected.
Statistical record means a record in a system of records maintained
for statistical research or reporting purposes only and not used in
whole or in part in making any determination about an identifiable
individual except as provided by section 13 U.S.C. 8.
System of records means a group of any records under the control of
any agency from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual.
Sec. 503.2 General policies--Privacy Act.
The Commission will protect the privacy of an individual identified
in any information or record systems which it maintains. Accordingly,
its officials and employees, except as otherwise provided by law or
regulation, will:
(a) Permit an individual to determine what records pertaining to
that individual are collected, maintained, used or disseminated by the
Commission.
(b) Permit an individual to prevent a record pertaining to that
individual obtained by the Commission for a particular purpose from
being used or made available for another purpose without the
individual's consent.
(c) Permit an individual to gain access to information pertaining to
that individual in Commission records, to have a copy made of all or any
portion thereof, and to correct or amend those records.
(d) Collect, maintain, use, or disseminate any record of
identifiable personal information in a manner that assures that the
Commission's action is for a necessary and lawful purpose, that the
information is current and accurate for its intended use, and that
adequate safeguards are provided to prevent misuse of the information.
(e) Permit exemptions from record requirements provided under the
Privacy Act only where an important public policy use for the exemption
has been determined in accordance with specific statutory authority.
Sec. 503.3 Conditions of disclosure.
The Commission will not disclose any record contained in a system of
records by any means of communication to any person or any other agency
except by written request of or prior written consent of the individual
to whom the record pertains unless the disclosure is:
(a) To those officers and employees of the Commission who have a
need for the record in the performance of their duties;
(b) Required under the Freedom of Information Act, 5 U.S.C. 552;
[[Page 19]]
(c) For a routine use;
(d) To the Bureau of Census for purposes of planning or carrying out
a census or survey or related activity under the provisions of Title 13,
United States Code;
(e) To a recipient who has provided the Commission with adequate
advance assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(f) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government or for evaluation to
determine whether the record has that value;
(g) To another agency or to an instrumentality of any government
jurisdiction within or under control of the United States for a civil or
criminal law enforcement activity authorized by law, provided the head
of the agency or instrumentality has made a prior written request to the
Commission, specifying the particular record and the law enforcement
activity for which it is sought;
(h) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if, upon disclosure,
notification is transmitted to the last known address of the individual;
(i) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of the joint committee;
(j) To the Comptroller General, or any of that official's authorized
representatives, in the course of the performance of the duties of the
General Accounting Office; or
(k) Pursuant to the order of a court of competent jurisdiction.
Sec. 503.4 Accounting of certain disclosures.
(a) Except for disclosures under Sec. 503.3(a) and (b) of this
part, the Administrative Officer will keep an accurate accounting of
each disclosure of a record to any person or to another agency made
under Sec. 503.3(c), (d), (e), (f), (g), (h), (i), (j), and (k) of this
part.
(b) Except for a disclosure made to another agency or to an
instrumentality of any governmental jurisdiction under Sec. 503.3(g) of
this part, the Administrative Officer will make the accounting as
required under paragraph (a) of this section available to any individual
upon written request made in accordance with Sec. 503.5.
(c) The Administrative Officer will inform any person or other
agency about any correction or notation of dispute made in accordance
with Sec. 503.7 of this part of any record that has been disclosed to
the person or agency if an accounting of the disclosure was made.
(d) An accounting of disclosures of records within this section will
consist of the date, nature, the purpose of each disclosure of a record
to any person or to another agency, and the name and address of the
person or agency to whom the disclosure is made.
(e) This accounting shall be retained for 5 years or the life of the
record, whichever is longer, after the disclosure for which the
accounting is made.
Sec. 503.5 Access to records or information.
(a) Upon request in person or by mail, any individual will be
informed whether or not a system of records maintained by the Commission
contains a record or information pertaining to that individual.
(b) Any individual requesting access to a record or information in
person must appear in person at the offices of the Foreign Claims
Settlement Commission, 600 E Street, NW., Room 6002, Washington, DC,
between the hours of 9 a.m. and 5:30 p.m., Monday through Friday, and
(1) Provide information sufficient to identify the record, e.g., the
individual's own name, claim and decision number, date and place of
birth, etc.;
(2) Provide identification sufficient to verify the individual's
identity, e.g., driver's license, identification or Medicare card; and
(3) Any individual requesting access to records or information
pertaining to himself or herself may be accompanied by a person of the
individual's own choosing while reviewing the records or
[[Page 20]]
information. If an individual elects to be so accompanied, advance
notification of the election will be required along with a written
statement authorizing disclosure and discussion of the record in the
presence of the accompanying person at any time, including the time
access is granted.
(c) Any individual making a request for access to records or
information pertaining to himself or herself by mail must address the
request to the Administrative Officer (Privacy Officer), Foreign Claims
Settlement Commission, 600 E Street, NW., Room 6002, Washington, DC
20579, and must provide information acceptable to the Administrative
Officer to verify the individual's identity.
(d) Responses to requests under this section normally will be made
within ten (10) days of receipt (excluding Saturdays, Sundays, and legal
holidays). If it is not possible to respond to requests within that
period, an acknowledgment will be sent to the individual within ten (10)
days of receipt of the request (excluding Saturdays, Sundays, and legal
holidays).
Sec. 503.6 Determination of requests for access to records.
(a) Upon request made in accordance with Sec. 503.5, the
Administrative Officer will:
(1) Determine whether or not the request will be granted;
(2) Make that determination and provide notification within a
reasonable period of time after receipt of the request.
(b) If access to a record is denied because information has been
compiled by the Commission in reasonable anticipation of a civil or
criminal action or proceeding, the Administrative Officer will notify
the individual of that determination and the reason therefor.
(c) If access to the record is granted, the individual making the
request must notify the Administrative Officer whether the record
requested is to be copied and mailed to the individual.
(d) If a record is to be made available for personal inspection, the
individual must arrange with the Administrative Officer a mutually
agreeable time and place for inspection of the record.
Sec. 503.7 Amendment of a record.
(a) Any individual may request amendment of a record pertaining to
himself or herself according to the procedure in paragraph (b) of this
section, except in the case of records described under paragraph (d) of
this section.
(b) After inspection by an individual of a record pertaining to
himself or herself, the individual may file a written request, presented
in person or by mail, with the Administrative Officer, for an amendment
to a record. The request must specify the particular portions of the
record to be amended, the desired amendments and the reasons therefor.
(c) Not later than ten (10) days (excluding Saturdays, Sundays, and
legal holidays) after the receipt of a request made in accordance with
this section to amend a record in whole or in part, the Administrative
Officer will:
(1) Make any correction of any portion of the record which the
individual believes is not accurate, relevant, timely or complete and
thereafter inform the individual of such correction; or
(2) Inform the individual, by certified mail return receipt
requested, of the refusal to amend the record, setting forth the reasons
therefor, and notify the individual of the right to appeal that
determination as provided under Sec. 503.8 of this part.
(d) The provisions for amending records do not apply to evidence
presented in the course of Commission proceedings in the adjudication of
claims, nor do they permit collateral attack upon what has already been
subject to final agency action in the adjudication of claims in programs
previously completed by the Commission pursuant to statutory time
limitations.
Sec. 503.8 Appeals from denial of requests for amendment to records.
(a) An individual whose request for amendment of a record pertaining
to the individual is denied may request a review of that determination.
The request must be addressed to the Chair of the Commission, and must
specify the reasons for which the refusal to amend is challenged.
[[Page 21]]
(b) If on appeal the refusal to amend the record is upheld, the
Commission will permit the individual to file a statement setting forth
the reasons for disagreement with the determination. The statement must
also be submitted within 30 days of receipt of the denial. The statement
will be included in the system of records in which the disputed record
is maintained and will be marked so as to indicate:
(1) That a statement of disagreement has been filed, and
(2) Where in the system of records the statement may be found.
Sec. 503.9 Fees.
Fees to be charged, if any, to any individual for making copies of
that individual's record excluding the cost of any search for and review
of the record will be as follows:
(a) Photocopy reproductions: each copy $0.15.
(b) Where the Commission undertakes to perform for a requester, or
any other person, services which are clearly not required to be
performed under the Privacy Act, either voluntarily or because those
services are required by some other law, the question of charging fees
for those services will be determined by the official or designee
authorized to release the information, under the Federal user charge
statute, 31 U.S.C. 583a, any other applicable law, and the provisions of
Sec. 502.13 of part 502 of this chapter.
Sec. 503.10 Exemptions.
No system of records maintained by the Foreign Claims Settlement
Commission is exempt from the provisions of 5 U.S.C. 552a as permitted
under certain conditions by 5 U.S.C. 552a(j) and (k). However, the Chair
of the Commission reserves the right to promulgate rules in accordance
with the requirements of 5 U.S.C. 553(b)(1), (2) and (3), and 5 U.S.C.
553(c) and (e) to exempt any system of records maintained by the
Commission in accordance with the provisions of 5 U.S.C. 552a(k).
Sec. 503.11 Reports.
(a) The Administrative Officer or designee will provide adequate
advance notice to Congress and the Office of Management and Budget of
any proposal to establish or alter any Commission system of records, as
required by 5 U.S.C. 552a(o).
(b) If at any time a system of records maintained by the Commission
is determined to be exempt from the application of 5 U.S.C. 552a in
accordance with the provisions of 5 U.S.C. 552a(j) and (k), the number
of records contained in such system will be separately listed and
reported to the Office of Management and Budget.
Sec. 503.12 Notices.
The Commission will publish in the Federal Register at least
annually a notice of the existence and character of the systems of
records which it maintains. Such notice will include:
(a) The name and location of each system;
(b) The categories of individuals on whom the records are maintained
in each system;
(c) The categories of records maintained in each system;
(d) Each routine use of the records contained in each system
including the categories of users and the purpose of each use;
(e) The policies and practices of the Commission regarding storage,
retrievability, access controls, retention, and disposal of the records;
(f) The title and business address of the agency official who is
responsible for each system of records;
(g) Commission procedures whereby an individual can be notified if a
system of records contains a record pertaining to that individual;
(h) Commission procedures whereby an individual can be notified how
to gain access to any record pertaining to that individual contained in
a system of records, and how to contest its content, and
(i) The categories of sources of records in each system.
Subpart B_Government in the Sunshine Regulations
Authority: 5 U.S.C. 552b.
Sec. 503.20 Definitions.
For purposes of this part: Closed meeting and closed portion of a
meeting mean, respectively, a meeting or that part of
[[Page 22]]
a meeting designated as provided in Sec. 503.27 as closed to the public
by reason of one or more of the closure provisions listed in Sec.
503.24.
Commission means the Foreign Claims Settlement Commission, which is
a collegial body that functions as a unit composed of three individual
members, appointed by the President with the advice and consent of the
Senate.
Meeting means the deliberations of at least two (quorum) members of
the Commission where such deliberations determine or result in joint
conduct or disposition of official Commission business.
Member means any one of the three members of the Commission.
Open meeting means a meeting or portion of a meeting which is not a
closed meeting or a closed portion of a meeting.
Public observation means the right of any member of the public to
attend and observe, but not participate or interfere in any way, in an
open meeting of the Commission within the limits of reasonable and
comfortable accommodations made available for such purpose by the
Commission.
Sec. 503.21 Notice of public observation.
(a) A member of the public is not required to give advance notice of
an intention to exercise the right of public observation of an open
meeting of the Commission. However, in order to permit the Commission to
determine the amount of space and number of seats which must be made
available to accommodate individuals who desire to exercise the right of
public observation, those individuals are requested to give notice to
the Commission at least two business days before the start of the open
meeting of the intention to exercise that right.
(b) Notice of intention to exercise the right of public observation
may be given in writing, in person, or by telephone to the official
designated in Sec. 503.29.
(c) Individuals who have not given advance notice of intention to
exercise the right of public observation will not be permitted to attend
and observe the open meeting of the Commission if the available space
and seating are necessary to accommodate individuals who gave advance
notice of such intention.
Sec. 503.22 Scope of application.
The provisions of this part 503, Sec. Sec. 503.20 through 503.29,
apply to meetings of the Commission, and do not apply to conferences or
other gatherings of employees of the Commission who meet or join with
others, except at meetings of the Commission to deliberate on or conduct
official agency business.
Sec. 503.23 Open meetings.
Every meeting of the Commission will be open to public observation
except as provided in Sec. 503.24.
Sec. 503.24 Grounds for closing a meeting.
(a) Except in a case where the Commission determines otherwise, a
meeting or portion of a meeting may be closed to public observation
where the Commission determines that the meeting or portion of the
meeting is likely to:
(1) Disclose matters that are:
(i) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interests of national defense
or foreign policy and
(ii) In fact properly classified pursuant to such Executive order;
(2) Relate solely to the internal personnel rules and practices of
the Commission;
(3) Disclose matters specifically exempted from disclosure by
statute (other than 5 U.S.C. 552) provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Disclose trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
(5) Involve accusing any person of a crime, or formally censuring
any person;
(6) Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy;
[[Page 23]]
(7) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of the records or
information would:
(i) Interfere with enforcement proceedings,
(ii) Deprive a person of a right to a fair trial or an impartial
adjudication,
(iii) Constitute an unwarranted invasion of personal privacy,
(iv) Disclose the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source,
(v) Disclose investigative techniques and procedures, or
(vi) Endanger the life or physical safety of law enforcement
personnel;
(8) Disclose information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of the Commission;
(9) Disclose information the premature disclosure of which would be
likely to significantly frustrate implementation of a proposed action of
the Commission, provided the Commission has not already disclosed to the
public the content or nature of its proposed action, or is not required
by law to make the disclosure on its own initiative prior to taking
final action on the proposal; or
(10) Specifically concern the Commission's issuance of a subpoena or
the Commission's participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitration,
or the initiation, conduct, or disposition by the Commission of a
particular case of formal agency adjudication pursuant to the procedures
in 5 U.S.C. 554, or otherwise involve a determination on the record
after opportunity for a hearing.
(b) If the Commission determines that the public interest would
require that a meeting to be open, it may nevertheless so hold.
Sec. 503.25 Announcement of meetings.
(a) The Commission meets in its offices at 600 E Street, NW,
Washington, DC, from time to time as announced by timely notice
published in the Federal Register.
(b) At the earliest practicable time, which is estimated to be not
later than eight days before the beginning of a meeting of the
Commission, the Commission will make available for public inspection in
its offices, and, if requested, will furnish by telephone or in writing,
a notice of the subject matter of the meeting, except to the extent that
the information is exempt from disclosure under the provisions of Sec.
503.24.
Sec. 503.26 Procedures for closing of meetings.
(a) The closing of a meeting will occur when:
(1) A majority of the membership of the Commission votes to take
that action. A separate vote of the Commission members will be taken
with respect to each Commission meeting, a portion or portions of which
are proposed to be closed to the public pursuant to Sec. 503.24, or
with respect to any information which is proposed withheld under Sec.
503.24. A single vote may be taken with respect to a series of meetings,
a portion or portions of which are proposed to be closed to the public,
or with respect to any information concerning that series of meetings,
so long as each meeting in the series involves the same particular
matters and is scheduled to be held no more than thirty days after the
initial meeting in the series. The vote of each Commission member
participating in the voting will be recorded and no proxies will be
allowed.
(2) Whenever any person whose interests may be directly affected by
a portion of a meeting requests that the Commission close that portion
to the public for any of the reasons referred to in Sec. 503.24(e),
(f), or (g), the Commission, upon request of any one of its Commission
members, will take a recorded vote, whether to close that portion of the
meeting.
(b) Within one day of any vote taken, the Commission will make
publicly available a written copy of the voting
[[Page 24]]
reflecting the vote of each member on the question and a full written
explanation of its action closing the entire or portion of the meeting
together with a list of all persons expected to attend the meeting and
their affiliation.
(c) The Commission will announce the time, place and subject matter
of the meeting at least eight days before the meeting.
(d) For every closed meeting, before the meeting is closed, the
Commission's Chair will publicly certify that the meeting may be closed
to the public, and will state each relevant closure provision. A copy of
the certification, together with a statement setting forth the time and
place of the meeting, and the persons present, will be retained by the
Commission.
Sec. 503.27 Reconsideration of opening or closing,
or rescheduling a meeting.
The time or place of a Commission meeting may be changed following
the public announcement only if the Commission publicly announces such
changes at the earliest practicable time. The subject matter of a
meeting, or the determination of the Commission to open or close a
meeting, or portion of a meeting, to the public, may be changed
following the public announcement only if a majority of the Commission
members determines by a recorded vote that Commission business so
requires and that no earlier announcement of the changes was possible,
and the Commission publicly announces the changes and the vote of each
member upon the changes at the earliest practicable time.
Sec. 503.28 Record of closed meetings, or closed portion of a meeting.
(a) The Commission will maintain a complete transcript or electronic
recording adequate to record fully the proceedings of each closed
meeting or closed portion of a meeting, except that in the case of a
meeting or portion of a meeting closed to the public pursuant to Sec.
503.24(d), (h), or (j), the Commission will maintain either a transcript
or recording, or a detailed set of minutes.
(b) Any minutes so maintained will fully and clearly describe all
matters discussed and shall provide a full and accurate summary of any
actions taken, and the reasons therefor, including a description of each
of the views expressed on any item and the record of any rollcall vote.
All documents considered in connection with any action will be
identified in the minutes.
(c) The Commission will promptly make available to the public, in
its offices, the transcript, electronic recording, or minutes, of the
discussion of any item on the agenda of a closed meeting, or closed
portion of a meeting, except for the item or items of discussion which
the Commission determines to contain information which may be withheld
under Sec. 503.24. Copies of the transcript or minutes, or a
transcription of the recording, disclosing the identity of each speaker,
will be furnished to any person at the actual cost of duplication or
transcription.
(d) The Commission will maintain a complete verbatim copy of the
transcript, a complete copy of the minutes, or a complete electronic
recording of each closed meeting or closed portion of a meeting for a
period of two years after the date of the closed meeting or closed
portion of a meeting.
(e) All actions required or permitted by this section to be
undertaken by the Commission will be by or under the authority of the
Chair of the Commission.
Sec. 503.29 Requests for information.
Requests to the Commission for information about the time, place,
and subject matter of a meeting, whether it or any portions thereof are
closed to the public, and any requests for copies of the transcript or
minutes or of a transcript of an electronic recording of a closed
meeting, or closed portion of a meeting, to the extent not exempt from
disclosure by the provisions of Sec. 503.24, must be addressed to the
Administrative Officer, Foreign Claims Settlement Commission, 600 E
Street, NW, Room 6002, Washington, DC 20579, telephone (202) 616-6975.
[[Page 25]]
SUBCHAPTER B_RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER TITLE
I OF THE WAR CLAIMS ACT OF 1948, AS AMENDED
PART 504_FILING OF CLAIMS AND PROCEDURES THEREFOR--Table of Contents
Sec.
504.1 Claim defined.
504.2 Time within which claims may be filed.
504.3 Official claim forms.
504.4 Place of filing claims.
504.5 Documents to accompany forms.
504.6 Receipt of claims.
Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C.
App. 2001).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 504.1 Claim defined.
(a) This subchapter is included solely in order to provide for the
adjudication of any additional claims that may arise on behalf of
survivors of deceased civilians and military veterans who had been
listed as missing during the Vietnam conflict but were subsequently
determined to have been interned, in hiding, or captured by a hostile
force in Southeast Asia (see Sec. 504.2(a)(3) and (b)(3)). The
Commission no longer has authority to receive or consider any other
types of claims based on the internment of civilians or the maltreatment
of military servicemen held as prisoners of war by forces hostile to the
United States.
(b) A properly completed and executed application made on an
official form provided by the Foreign Claims Settlement Commission for
such purpose constitutes a claim and will be processed under the laws
administered by the Commission.
(c) Any communication, letter, note, or memorandum from a claimant,
or the claimant's duly authorized representative, or a person acting as
next friend of a claimant who is not legally competent, setting forth
sufficient facts to apprise the Commission of an interest to apply under
the provisions of sections 5(i) and 6(f) of the Act, will be deemed to
be an informal claim. Where an informal claim is received and an
official form is forwarded for completion and execution by the
applicant, that official form will be considered as evidence necessary
to complete the initial claim, and unless that official form is received
within thirty (30) days from the date it was transmitted for execution,
if the claimant resides in the continental United States, or forty-five
(45) days if outside the continental United States, the claim may be
disallowed.
Sec. 504.2 Time within which claims may be filed.
(a) Claims of individuals entitled to benefits under section 5(i) of
the War Claims Act of 1948, as added by Public Law 91-289, will be
accepted by the Commission during the period beginning June 24, 1970,
and ending:
(1) June 24, 1973, inclusive;
(2) 3 years from the date the civilian American citizen by whom the
claim is filed returned to the jurisdiction of the United States; or
(3) 3 years from the date upon which the Commission, at the request
of a potentially eligible survivor, makes a determination that the
civilian American citizen has actually died or may be presumed to be
dead, in the case of any civilian American citizen who has not returned
to the jurisdiction of the United States, whichever of the preceding
dates last occurs.
(b) Claims of individuals entitled to benefits under section 6(f) of
the War Claims Act of 1948, as added by Public Law 91-289, will be
accepted by the Commission during the period beginning June 24, 1970,
and ending:
(1) June 24, 1973, inclusive;
(2) 3 years from the date the prisoner of war by whom the claim is
filed returned to the jurisdiction of the Armed Forces of the United
States; or
(3) 3 years from the date the Department of Defense makes a
determination that the prisoner of war has actually died or is presumed
to be dead, in the case of any prisoner of war who has not returned to
the jurisdiction of the Armed Forces of the United States,
[[Page 26]]
whichever of the preceding dates last occurs.
Sec. 504.3 Official claim forms.
Official forms are provided for use in the preparation of claims for
submission to the Commission for processing. Claim forms are available
at the Washington offices of the Commission and through other offices as
the Commission may designate. The official claim form for all claims
under section 5(i) and 6(f) has been designated FCSC Form 289,
``Application for Compensation for Members of the Armed Forces of the
United States Held as Prisoner of War in Vietnam; for Persons Assigned
to Duty on board the `U.S.S. Pueblo' Captured by Military Forces of
North Korea; for Civilian American Citizens Captured or Who Went into
Hiding to Avoid Capture or Internment in Southeast Asia During the
Vietnam Conflict and, in Case of Death of any Such Person, for Their
Survivors.''
Sec. 504.4 Place of filing claims.
Claims must be mailed or delivered in person to the Foreign Claims
Settlement Commission, 600 E Street, NW, Room 6002, Washington, DC
20579.
Sec. 504.5 Documents to accompany forms.
All claims filed pursuant to sections 5(a) and 6(f) of the Act must
be accompanied by evidentiary documents, instruments, and records as
outlined in the instruction sheet attached to the claim form.
Sec. 504.6 Receipt of claims.
(a) Claims deemed received. A claim will be deemed to have been
received by the Commission on the date postmarked, if mailed, or if
delivery is made in person, on the date of delivery at the offices of
the Commission in Washington, DC.
(b) Claims developed. In the event that a claim has been
insufficiently prepared so as to preclude processing thereof, the
Commission may request the claimant to furnish whatever supplemental
evidence, including the completion and execution of an official claim
form, as may be essential to the processing of the claim. In case the
evidence or official claim form requested is not returned within the
time which may be designated by the Commission, the claim may be deemed
to have been abandoned and may be disallowed.
PART 505_PROVISIONS OF GENERAL APPLICATION--Table of Contents
Sec.
505.1 Persons eligible to file claims.
505.2 Persons under legal disability.
505.3 Definitions applicable under the Act.
Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C.
App. 2001).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 505.1 Persons eligible to file claims.
Persons eligible to file claims with the Commission under the
provisions of sections 5(i) and 6(f) of the War Claims Act of 1948, as
amended, are:
(a) Civilian American citizens captured and held in Southeast Asia
or their eligible survivors, under the provisions of section 5(i) of the
Act; and
(b) Members of the Armed Forces of the United States held as
prisoners of war during the Vietnam conflict or their eligible
survivors, under section 6(f) of the Act.
Sec. 505.2 Persons under legal disability.
(a) Claims may be submitted on behalf of persons who, being
otherwise eligible to make claims under the provisions of sections 5(i)
and 6(f), are incompetent or otherwise under any legal disability, by
the natural or legal guardian, committee, conservator, curator, or any
other person, including the spouse of the claimant, whom the Commission
determines is charged with the care of the claimant.
(b) Upon the death of any individual for whom an award has been
made, the Commission may consider the initial application filed by or in
behalf of the decedent as a formal claim for the purpose of reissuing
the award to the next eligible survivor in the order of preference as
set forth under sections 5(i) and 6(d)(4) of the Act.
Sec. 505.3 Definitions applicable under the Act.
Child means:
(1) A natural or adopted son or daughter of a deceased prisoner of
war
[[Page 27]]
or a deceased civilian prisoner of war or a deceased American citizen
including any posthumous son or daughter of such deceased person.
(2) Any son or daughter of a deceased person born out of wedlock
will be deemed to be a child of the deceased for the purpose of this
Act, if:
(i) Legitimated by a subsequent marriage of the parents,
(ii) Recognized as a child of the deceased by his or her admission,
or
(iii) So declared by an order or decree of any court of competent
jurisdiction.
Husband means the surviving male spouse of a deceased prisoner of
war or of a deceased civilian American citizen who was married to the
deceased at the time of her death by a marriage valid under the
applicable law of the place entered into.
Natural guardian means father and mother who shall be deemed to be
the natural guardians of the person of their minor children. If either
dies or is incapable of action, the natural guardianship of the person
shall devolve upon the other. In the event of death or incapacity of
both parents, then the blood relative, paternal or maternal, standing in
loco parentis to the minor shall be deemed the natural guardian.
Parent means:
(1)(i) The natural or adoptive father or mother of a deceased
prisoner of war, or any other individual standing in loco parentis to
the deceased person for a period of not less than 1 year immediately
preceding the date of that person's entry into active service and during
at least 1 year of the person's minority. Not more than one mother or
one father as defined shall be recognized in any case. An individual
will not be recognized as standing in loco parentis if the natural
parents or adoptive parents are living, unless there is affirmative
evidence of abandonment and renunciation of parental duties and
obligations by the natural or adoptive parent or parents prior to entry
into active service by the deceased prisoner or war;
(ii) An award in the full amount allowable had the deceased prisoner
of war survived may be made to only one parent when it is shown that the
other parent has died or if there is affirmative evidence of abandonment
and renunciation of parental duties and obligations by the other parent.
(2) The father of an illegitimate child will not be recognized as
such for purposes of the Act unless evidence establishes that:
(i) He has legitimated the child by subsequent marriage with the
mother;
(ii) Recognized the child as his by written admission prior to
enlistment of the deceased in the armed forces or entry into an overseas
duty status; or
(iii) Prior to death of the child he has been declared by decree of
a court of competent jurisdiction to be the father.
Widow means the surviving female spouse of a deceased prisoner of
war or a deceased civilian American citizen who was married to the
deceased at the time of his death by marriage valid under the applicable
law of the place where entered into.
PART 506_ELIGIBILITY REQUIREMENTS FOR COMPENSATION--Table of Contents
Subpart A_Civilian American Citizens
Sec.
506.1 ``Civilian American citizen'' defined.
506.2 Other definitions.
506.3 Rate of benefits payable.
506.4 Survivors entitled to award of detention benefits.
506.5 Persons not eligible to award of civilian detention benefits.
Subpart B_Prisoners of War
506.10 ``Vietnam conflict'' defined.
506.11 ``Prisoner of war'' defined.
506.12 Membership in the Armed Forces of the United States;
establishment of.
506.13 ``Armed Forces of the United States'' defined.
506.14 ``Force hostile to the United States'' defined.
506.15 Geneva Convention of August 12, 1949.
506.16 Failure to meet the conditions and requirements prescribed under
the Geneva Convention of August 12, 1949.
506.17 Rate of and basis for award of compensation.
506.18 Entitlement of survivors to award in case of death of prisoner of
war.
506.19 Members of the Armed Forces of the United States precluded from
receiving award of compensation.
Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C.
App. 2001).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
[[Page 28]]
Subpart A_Civilian American Citizens
Sec. 506.1 ``Civilian American citizen'' defined.
Civilian American citizen means any person who, being then a citizen
of the United States, was captured in Southeast Asia during the Vietnam
conflict by any force hostile to the United States, or who went into
hiding in Southeast Asia in order to avoid capture or internment by any
such hostile force.
Sec. 506.2 Other definitions.
Calendar month means the period of time between a designated day of
any given month and the date preceding a similarly designated day of the
following month.
Citizen of the United States means a person who under applicable law
acquired citizenship of the United States by birth, by naturalization,
or by derivation.
Dependent husband means the surviving male spouse of a deceased
civilian American citizen who was married to the deceased at the time of
her death by a marriage valid under the applicable law of the place
where entered into.
Force hostile to the United States means any organization or force
in Southeast Asia, or any agent or employee thereof, engaged in any
military or civil activities designed to further the prosecution of its
armed conflict against the Armed Forces of the United States during the
Vietnam conflict.
Southeast Asia means, but is not necessarily restricted to, the
areas of Vietnam, Laos, and Cambodia.
Went into hiding means the action taken by a civilian American
citizen when that person initiated a course of conduct consistent with
an intention to evade capture or detention by a hostile force in
Southeast Asia.
Sec. 506.3 Rate of benefits payable.
Detention benefits awarded to a civilian American citizen will be
paid at the rate of $150 for each calendar month of internment or during
the period in which that civilian American citizen went into hiding to
avoid capture and internment by a hostile force. Awards shall take
account of fractional parts of a calendar month.
Sec. 506.4 Survivors entitled to award of detention benefits.
In case of death of a civilian American citizen who would have been
entitled to detention benefits under the War Claims Act of 1948, as
amended, benefits will be awarded, if claim is made, only to the
following persons:
(a) Widow or husband if there is no child or children of the
deceased;
(b) Widow or dependent husband and child or children of the
deceased, one-half to the widow or dependent husband and the other half
to the child or children in equal shares;
(c) The child or children of the deceased in equal shares if there
is no widow or dependent husband, if otherwise qualified.
Sec. 506.5 Persons not eligible to award of civilian detention benefits.
An individual is disqualified as a ``civilian American citizen''
under the Act, and thus is precluded from receiving an award of
detention benefits, if that person:
(a) Voluntarily, knowingly, and without duress, gave aid to or
collaborated with or in any manner served the detaining hostile force;
or
(b) While detained, was a regularly appointed, enrolled, enlisted,
or inducted member of the Armed Forces of the United States.
Subpart B_Prisoners of War
Sec. 506.10 ``Vietnam conflict'' defined.
Vietnam conflict refers to the period beginning February 28, 1961,
and ending on a date to be determined by Presidential proclamation or
concurrent resolution of the Congress. (For purposes of determining
eligibility for certain veterans' benefits, the President has proclaimed
the date of May 7, 1975, to be the ending date of the ``Vietnam era''
(Presidential Proclamation No. 4373, 38 U.S.C. 101 note). In addition,
Congress has set May 7, 1975, as the ending date of the ``Vietnam
conflict'' for purposes of payment of interest on missing military
service members' deposits in the United States Treasury under 10 U.S.C.
1035. However, neither
[[Page 29]]
the President nor the Congress has set an ending date for the Vietnam
conflict for purposes of determining eligibility for compensation under
50 U.S.C. App. 2004 and 2005.)
Sec. 506.11 ``Prisoner of war'' defined.
Prisoner of war means any regularly appointed, enrolled, enlisted or
inducted member of the Armed Forces of the United States who was held by
any force hostile to the United States for any period of time during the
Vietnam conflict.
Sec. 506.12 Membership in the Armed Forces of the United States;
establishment of.
Regular appointment, enrollment, enlistment or induction in the
Armed Forces of the United States must be established by certification
obtained from the Department of Defense.
Sec. 506.13 ``Armed Forces of the United States'' defined.
Armed Forces of the United States means the United States Air Force,
Army, Navy, Marine Corps and Coast Guard, and commissioned officers of
the U.S. Public Health Service who were detailed for active duty with
the Armed Forces of the United States.
Sec. 506.14 ``Force hostile to the United States'' defined.
Force hostile to the United States means any organization or force
in Southeast Asia, or any agent or employee thereof, engaged in any
military or civil activities designed to further the prosecution of its
armed conflict against the Armed Forces of the United States during the
Vietnam conflict.
Sec. 506.15 Geneva Convention of August 12, 1949.
The Geneva Convention of August 12, 1949, as identified in section
6(f) of the War Claims Act of 1948, as amended, is the ``Geneva
Convention Relative to the Treatment of Prisoners of War of August 12,
1949'' which is included under the ``Geneva Convention of August 12,
1949, for the Protection of War Victims,'' entered into by the United
States and other governments, including the former government in North
Vietnam which acceded to it on June 28, 1957.
Sec. 506.16 Failure to meet the conditions and requirements prescribed
under the Geneva Convention of August 12, 1949.
For the purpose of this part, obligations under the Geneva
Convention of August 12, 1949, consist of the responsibility assumed by
the contracting parties thereto with respect to prisoners of war within
the meaning of the Convention, to comply with and to fully observe the
provisions of the Convention, and particularly those articles relating
to food rations of prisoners of war, humane treatment, protection, and
labor of prisoners of war, and the failure to abide by the conditions
and requirements established in such Convention by any hostile force
with which the Armed Forces of the United States were engaged in armed
conflict.
Sec. 506.17 Rate of and basis for award of compensation.
(a) Compensation allowed a prisoner of war during the Vietnam
conflict under section 6(f)(2) of the War Claims Act of 1948, as
amended, will be paid at the rate of $2 per day for each day on which
that person was held as prisoner of war and on which the hostile force,
or its agents, failed to furnish the quantity and quality of food
prescribed for prisoners of war under the Geneva Convention of August
12, 1949.
(b) Compensation allowed a prisoner of war during the Vietnam
conflict under section 6(f)(3) of the Act, will be paid at the rate of
$3 per day for each day on which that person was held as a prisoner of
war and on which the hostile force failed to meet the conditions and
requirements under the provisions of the Geneva Convention of August 12,
1949 relating to labor of prisoners of war or for inhumane treatment by
the hostile force by which such person was held.
(c) Compensation under paragraphs (a) and (b) of this section will
be paid to the prisoner of war or qualified applicant on a lump-sum
basis at a total rate of $5 per day for each day the prisoner of war was
entitled to compensation.
[[Page 30]]
Sec. 506.18 Entitlement of survivors to award in case of death
of prisoner of war.
In case of death of a prisoner of war who would have been entitled
to an award of compensation under section 6(f) (2) and (3) of the War
Claims Act of 1948, as amended, the compensation will be awarded, if
claim is made, only to the following persons:
(a) Widow or husband if there is no child or children of the
deceased;
(b) Widow or husband and child or children of the deceased, one-half
to the widow or husband and the other half to the child or children of
the deceased in equal shares;
(c) Child or children of the deceased (in equal shares) if there is
no widow or husband; and
(d) Parents (in equal shares) if there is no widow, husband or
child.
Sec. 506.19 Members of the Armed Forces of the United States precluded
from receiving award of compensation.
Any member of the Armed Forces of the United States, who at any
time, voluntarily, knowingly, and without duress gave aid to or
collaborated with, or in any manner served any force hostile to the
United States, is precluded from receiving an award of compensation
based on that member's capture and internment.
PART 507_PAYMENT--Table of Contents
Sec.
507.1 Payments under the War Claims Act of 1948, as amended by Pub. L.
91-289.
507.2 Payments to persons under legal disability.
507.3 Reissuance of awards.
Authority: Sec. 2, Pub. L. 80-896, as amended (50 U.S.C. App. 2001).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 507.1 Payments under the War Claims Act of 1948,
as amended by Public Law 91-289.
(a) Upon a determination by the Commission as to the amount and
validity of each claim filed pursuant to section 5(i) and 6(f) of the
War Claims Act of 1948, as amended, any award made thereunder will be
certified by the Commission to the Secretary of the Treasury for payment
out of funds appropriated for this purpose, in favor of the civilian
internee or prisoner of war found entitled thereto.
(b) Awards made to survivors of deceased civilian internees or
prisoners of war will be certified to the Secretary of the Treasury for
payment to the individual member or members of the class or classes of
survivors entitled to receive compensation in the full amount of the
share to which each survivor is entitled, and if applicable, under the
procedure set forth in Sec. 507.3, except that as to persons under
legal disability, payment will be made as specified in Sec. 507.2.
Sec. 507.2 Payments to persons under legal disability.
Any awards or any part of an award payable under sections 5(i) and
6(f) of the Act to any person under legal disability may, in the
discretion of the Commission, be certified for payment for the use of
the claimant, to the natural or legal guardian, committee, conservator
or curator, or if there is no natural or legal guardian, committee,
conservator or curator, then, in the discretion of the Commission, to
any person, including the spouse of such person, or the Chief Officer of
the hospital in which the claimant may be a patient, whom the Commission
may determine is charged with the care of the claimant. In the case of a
minor, any part of the amount payable may, in the discretion of the
Commission, be certified for payment to that minor.
Sec. 507.3 Reissuance of awards.
Upon the death of any claimant entitled to payment of an award, the
Commission will cause the award to be canceled and the amount of the
award will be redistributed to the survivors of the same class or to
members of the next class of eligible survivors, if appropriate, in the
order of preference as set forth under the Act.
PART 508_HEARINGS--Table of Contents
Sec.
508.1 Basis for hearing.
508.2 Request for hearing.
508.3 Notification to claimant.
508.4 Failure to file request for hearing.
[[Page 31]]
508.5 Purpose of hearing.
508.6 Resume of hearing, preparation of.
508.7 Action by the Commission.
508.8 Application of other regulations.
Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C.
App. 2001).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 508.1 Basis for hearing.
Any claimant whose application is denied or is approved for less
than the full allowable amount of his or her claim will be entitled to a
hearing before the Commission or its representative with respect to that
claim. Hearings may also be held on the Commission's own motion.
Sec. 508.2 Request for hearing.
Within 30 days after the Commission's notice of denial of a claim,
or approval for a lesser amount than claimed, has been posted by the
Commission, the claimant, if a hearing is desired, must notify the
Commission in writing, and must set forth in full the reasons for
requesting the hearing, including any statement of law or facts upon
which the claimant relies.
Sec. 508.3 Notification to claimant.
Upon receipt of such a request, the Commission will schedule a
hearing and notify the claimant as to the date and place the hearing is
to be held. No later than 10 days prior to the scheduled hearing date,
the claimant must submit all documents, briefs, or other additional
evidence relevant to his or her appeal.
Sec. 508.4 Failure to file request for hearing.
The failure to file a request for a hearing within the period
specified in Sec. 509.2 of this chapter will be deemed to constitute a
waiver of right to a hearing and the decision of the Commission will
constitute a full and final disposition of the case.
Sec. 508.5 Purpose of hearing.
(a) Hearings will be conducted by the Commission, its designee or
designees. Oral testimony and documentary evidence, including
depositions that may have been taken as provided by statute and the
rules of practice, may be offered in evidence on claimant's behalf or by
counsel for the Commission designated by it to represent the public
interest opposed to the allowance of an unjust or unfounded claim or
portion thereof, and either may cross-examine as to evidence offered
through witnesses on behalf of the other. Objections to the admission of
any such evidence will be ruled upon by the presiding officer.
(b) Hearings may be stenographically recorded either at the request
of the claimant or at the discretion of the Commission. A claimant
making such a request must notify the Commission at least 10 days prior
to the hearing date. When a stenographic record of a hearing is ordered
at the claimant's request, the cost of such reporting and transcription
may be charged to the claimant.
(c) Such hearings will be open to the public.
Sec. 508.6 R[eacute]sum[eacute] of hearing, preparation of.
Following each hearing, the hearing officer will prepare a
r[eacute]sum[eacute] of the hearing, specifying the issues on which the
hearing was based, and including a list of documents and contents and
other items relative to the issues that were introduced as evidence. A
brief analysis of oral testimony will also be prepared and included in
the r[eacute]sum[eacute] of each hearing not stenographically reported.
Sec. 508.7 Action by the Commission.
After the conclusion of the hearing and a review of the
r[eacute]sum[eacute], the Commission may affirm, modify, or reverse its
former action with respect to the claim, including a denial or reduction
in the amount of the award theretofore approved. All findings of the
Commission concerning the persons to whom compensation is payable, and
the amounts thereof, are conclusive and not reviewable by any court.
Sec. 508.8 Application of other regulations.
To the extent they are not inconsistent with the regulations set
forth under provisions of this subchapter,
[[Page 32]]
the other regulations of the Commission will also be applicable to the
claims filed hereunder.
[[Page 33]]
SUBCHAPTER C_RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE
INTERNATIONAL CLAIMS SETTLEMENT ACT OF 1949, AS AMENDED, AND RELATED
ACTS
PART 509_FILING OF CLAIMS AND PROCEDURES THEREFOR--Table of Contents
Sec.
509.1 Time for filing.
509.2 Form, content and filing of claims.
509.3 Exhibits and documents in support of claim.
509.4 Acknowledgment and numbering.
509.5 Procedure for determination of claims.
509.6 Hearings.
509.7 Presettlement conference.
Authority: Sec. 3, Pub. L. 455, 81st Cong., as amended (22 U.S.C.
1622).
Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.
Sec. 509.1 Time for filing.
Claims must be filed as specified by the Commission by duly
promulgated notice published in the Federal Register, or as specified in
legislation passed by Congress, as applicable.
Sec. 509.2 Form, content and filing of claims.
(a) Unless otherwise specified by law, or by regulations published
in the Federal Register, claims must be filed on official forms, which
will be provided by the Commission upon request in writing addressed to
the Commission at its office at 600 E Street, NW, Suite 6002,
Washington, DC 20579. Each form must include all of the information
called for in it and must be completed and signed in accordance with the
instructions accompanying the form.
(b) Notice to the Foreign Claims Settlement Commission, the
Department of State, or any other governmental office or agency of an
intention to file a claim against a foreign government, prior to the
enactment of the statute authorizing a claims program, prior to a
referral of claims to the Commission by the Secretary for pre-
adjudication, or prior to the effective date of a lump-sum claims
settlement agreement, will not be considered as a timely filing of a
claim under the statute, referral, or agreement.
(c) Any initial written indication of an intention to file a claim
received within 30 days prior to the expiration of the filing period
thereof will be considered as a timely filing of a claim if formalized
within 30 days after the expiration of the filing period.
Sec. 509.3 Exhibits and documents in support of claim.
(a) Original documents. If available, all exhibits and documents
must be filed with and at the same time as the claim, and must, wherever
possible, be in the form of original documents, or copies or originals
certified as such by their public or other official custodian.
(b) Documents in a foreign language. Each copy of a document,
exhibit or paper filed, which is written or printed in a language other
than English, must be accompanied by an English translation thereof duly
verified under oath by its translator to be a true and accurate
translation thereof, together with the name and address of the
translator.
(c) Preparation of papers. All claims, briefs, and memoranda filed
shall be typewritten or printed and, if typewritten, must be on business
letter (8\1/2\ x 11) size paper.
Sec. 509.4 Acknowledgment and numbering.
The Commission will acknowledge the receipt of a claim in writing
and will notify the claimant of the claim number assigned to it, which
number must be used on all further correspondence and papers filed with
regard to the claim.
Sec. 509.5 Procedure for determination of claims.
(a) The Commission may on its own motion order a hearing upon any
claim, specifying the questions to which the hearing shall be limited.
(b) Without previous hearing, the Commission or a designated member
of the staff may issue a Proposed Decision in determination of a claim.
This Proposed Decision will set forth findings of
[[Page 34]]
fact and conclusions of law on the relevant elements of the claim, to
the extent that evidence and information relevant to such elements is
before the Commission. The claimant will have the burden of proof in
submitting evidence and information sufficient to establish the elements
necessary for a determination of the validity and amount of his or her
claim.
(c) The Proposed Decision will be delivered to the claimant or the
claimant's attorney of record in person or by mail. Delivery by mail
will be deemed completed 5 days after the mailing of the Proposed
Decision addressed to the last known address of the claimant or the
claimant's attorney of record. A copy of the Proposed Decision will be
available for public inspection at the offices of the Commission, except
in cases where public disclosure of the names of claimants is barred by
statute.
(d) It will be the policy of the Commission to post on a bulletin
board and on its World Wide Web site (http://www.usdoj.gov/fcsc), any
information of general interest to claimants before the Commission.
(e) When the Proposed Decision denies a claim in whole or in part,
the claimant may file notice of objection to the denial within 15 days
of delivery of the decision. If the claimant wishes to appear at an oral
hearing before the Commission to present his or her objection, the
claimant must request the oral hearing at the time of submission of his
or her objection, stating the reasons for objection, and may request a
hearing on the claim, specifying whether for the taking of evidence or
for oral argument on the legal issues which are the subject of the
objection.
(f) Copies of objections to or requests for hearings on Proposed
Decisions will be available for public inspection at the Commission's
offices.
(g) Upon the expiration of 30 days after delivery to the claimant or
claimant's attorney, if no objection under this section has in the
meantime been filed, a staff Proposed Decision, upon approval by the
Commission, will become the Commission's final determination and
decision on the claim. A Proposed Decision issued by the Commission will
become final 30 days after delivery to the claimant or the claimant's
attorney without further order or decision by the Commission.
(h) If an objection has in the meantime been filed, but no hearing
requested, the Commission may, after due consideration thereof:
(1) Issue a Final Decision affirming or modifying its Proposed
Decision,
(2) Issue an Amended Proposed Decision, or
(3) On its own motion order hearing thereon, indicating whether for
the taking of evidence on specified questions or for the hearing of oral
arguments.
(i) After the conclusion of a hearing, upon the expiration of any
time allowed by the Commission for further submissions, the Commission
may proceed to issue a Final Decision in determination of the claim.
(j)(1) In case an individual claimant dies prior to the issuance of
the Final Decision, that person's legal representative will be
substituted as party claimant. However, upon failure of a representative
to qualify for substitution, the Commission may issue its decision in
the name of the estate of the deceased and, in case of an award, certify
the award in the same manner to the Secretary of the Treasury for
payment, if the payment of the award is provided for by statute.
(2) Notice of the Commission's action under this paragraph will be
forwarded to the claimant's attorney of record, or if the claimant is
not represented by an attorney, the notice will be addressed to the
estate of the claimant at the last known place of residence.
(3) The term legal representative as applied in this paragraph
means, in general, the administrator or executor, heir(s), next of kin,
or descendant(s).
(k) After the date of filing with the Commission no claim may be
amended to reflect the assignment thereof by the claimant to any other
person or entity except as otherwise provided by statute.
(l) At any time after a final Decision has been issued on a claim,
or a Proposed Decision has been entered as the Final Decision on a
claim, but not later than 60 days before the completion date of the
Commission's affairs in connection with the program under
[[Page 35]]
which such claim is filed, a petition to reopen on the ground of newly
discovered evidence may be filed. No such petition will be entertained
unless it appears therein that the newly discovered evidence came to the
knowledge of the party filing the petition subsequent to the date of
issuance of the Final Decision or the date on which the Proposed
Decision was entered as the Final Decision; that it was not for want of
due diligence that the evidence did not come sooner to the claimant's
knowledge; and that the evidence is material, and not merely cumulative,
and that reconsideration of the matter on the basis of that evidence
would produce a different decision. The petition must include a
statement of the facts which the petitioner expects to prove, the name
and address of each witness, the identity of documents, and the reasons
for failure to make earlier submission of the evidence.
Sec. 509.6 Hearings.
(a) Hearings, whether upon the Commission's own motion or upon
request of claimant, will be held upon not less than fifteen days'
notice of the time and place thereof.
(b) The hearings will be open to the public unless otherwise
requested by claimant and ordered by the Commission, or when required by
law.
(c) The hearings will be conducted by the Commission, its designee
or designees. Oral testimony and documentary evidence, including
depositions that may have been taken as provided by statute and the
rules of practices, may be offered in evidence on the claimant's behalf
or by counsel for the Commission designated by it to represent the
public interest opposed to the allowance of any unjust or unfounded
claim or portion thereof; and either may cross-examine as to evidence
offered through witnesses on behalf of the other. Objections to the
admission of any such evidence will be ruled upon by the presiding
officer.
(d) The hearings will be conducted as non-adversarial proceedings.
However, the claimant will be the moving party, and will have the burden
of proof on all issues involved in the determination of his or her
claim.
(e) Hearings may be stenographically reported or electronically
recorded, either at the request of the claimant or upon the discretion
of the Commission. A claimant making such a request must notify the
Commission at least ten (10) days prior to the hearing date. When a
stenographic record or transcript of a hearing is ordered at the
claimant's request, the cost of the reporting and transcription will be
charged to the claimant.
(f) The following rules of procedure will apply in the conduct of
hearings held by the Commission for presentation of objections to
Proposed Decisions:
(1) Presentation of objections to Proposed Decisions. (i) Objections
should focus either on the presentation of new evidence, or on the
presentation of arguments demonstrating that, in the claimant's view,
the Commission erred in considering the evidence previously submitted.
Restatements of facts, evidence or materials already established in the
record should be avoided.
(ii) The Chief Counsel of the Commission or designated staff
attorney will first introduce the objecting claimant and any witnesses
to the Commission, and will then present a brief summary of the case,
together with reasons supporting the decision as issued.
(iii) The objecting claimant and all witnesses will be sworn.
(iv) The objecting claimant, or the claimant's attorney, will then
present the claimant's objections to the Commission, specifically
setting forth the basis for the claimant's disagreement with the
Proposed Decision, and the reasons supporting the claimant's contention
that a more favorable decision should be rendered. Claimants will
normally be limited to fifteen (15) minutes for their presentation of
objections, but may request additional time if needed.
(v) Following presentation of the claimant's objection, the Chief
Counsel or designated staff attorney will be allotted an equivalent
amount of time to question the claimant and the claimant's witnesses
with respect to the testimony and other evidence presented in support of
the objection.
(vi) The objecting claimant or the claimant's attorney, and the
Chief
[[Page 36]]
Counsel or designated staff attorney, will then be allotted up to five
(5) minutes each for follow-up or rebuttal.
(vii) The Chair and Commissioners may direct questions to the
objecting claimant and the claimant's attorney, and to the Chief Counsel
or designated staff attorney, at any time during the proceedings
described in the foregoing.
(viii) The foregoing provisions may be modified at the discretion of
the Chair as circumstances may require.
(ix) At the conclusion, the Chair will inform the participants that
the Commission will take the matter under advisement, and that a written
Final Decision disposing of the objection will issue in due course.
(2) Submission to Questioning/Conduct of Proceedings (i)
Presentation of the claimant's objection by the objecting claimant or
the claimant's attorney, and of follow-up and rebuttal by the claimant
or the claimant's attorney and by the Chief Counsel or designated staff
attorney, must be directed to the Commission. Verbal exchanges between
the objecting claimant or the claimant's attorney, and the Chief Counsel
or designated staff attorney, will be limited to questions and answers
during the questioning phase of the proceeding described in paragraph
(f)(1)(v) of this section, unless otherwise necessary for clarification
or exchange of documents.
(ii) Professional conduct and courtesies of the kind normally
accorded in appellate judicial proceedings must be observed in all
appearances and proceedings before the Commission.
Sec. 509.7 Presettlement conference.
The Commission on its own motion or initiative, or upon the
application of a claimant for good cause shown, may direct that a
presettlement conference be held with respect to any issue involved in a
claim.
[[Page 37]]
SUBCHAPTER D_RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE
GUAM WORLD WAR II LOYALTY RECOGNITION ACT
PART 510_FILING OF CLAIMS AND PROCEDURES THEREFOR--Table of Contents
Sec.
510.1 Definitions.
510.2 Time for filing.
510.3 Applicability of administrative provisions concerning claims under
the International Claims Settlement Act of 1949.
Authority: Sec.1705(a)(2), Pub. L. 114-328, 114th Cong., 130 Stat.
2644.
Source: 82 FR 16126, Apr. 3, 2017, unless otherwise noted.
Sec. 510.1 Definitions.
For purposes of this subchapter:
Personal injury means a discernible injury (such as disfigurement,
scarring, or burns) that is more serious than a superficial injury.
Severe personal injury means loss of a limb, dismemberment,
paralysis, or any injury of a similar type or that is comparable in
severity.
Sec. 510.2 Time for filing.
Claims for payments under the Guam World War II Loyalty Recognition
Act, Title XVII, Public Law 114-328 (the ``Act''), must be filed not
later than one year after the date on which the Commission publishes the
notice described in section 1705(b)(2)(B) of the Act.
Sec. 510.3 Applicability of administrative provisions concerning claims
under the International Claims Settlement Act of 1949.
To the extent they are not inconsistent with the provisions of the
Act, the following provisions of subchapter C of this chapter shall be
applicable to claims under this subchapter: Sec. Sec. 509.2, 509.3,
509.4, 509.5, and 509.6.
PARTS 511 599 [RESERVED]
[[Page 39]]
CHAPTER VI--NATIONAL SCIENCE FOUNDATION
--------------------------------------------------------------------
Part Page
600
[Reserved]
601 Classification and declassification of
national security information........... 41
604 New restrictions on lobbying................ 43
605 Nondiscrimination on the basis of handicap
in programs or activities receiving
Federal financial assistance............ 55
606 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the National
Science Foundation...................... 71
607 Salary offset............................... 77
608 Claims collection and administrative offset. 81
611 Nondiscrimination in federally-assisted
programs of the National Science
Foundation--effectuation of title VI of
the Civil Rights Act of 1964............ 85
612 Availability of records and information..... 95
613 Privacy Act regulations..................... 108
614 Government in the Sunshine Act regulations
of the National Science Board........... 112
615 Testimony and production of records......... 115
617 Nondiscrimination on the basis of age in
programs or activities receiving Federal
financial assistance from NSF........... 117
618 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 121
630 Governmentwide requirements for drug-free
workplace (financial assistance)........ 138
640 Compliance with the National Environmental
Policy Act.............................. 143
641 Environmental assessment procedures for
proposed National Science Foundation
actions in Antarctica................... 147
650 Patents..................................... 152
[[Page 40]]
660 Intergovernmental review of the National
Science Foundation programs and
activities.............................. 161
670 Conservation of Antarctic animals and plants 164
671 Waste regulation............................ 177
672 Enforcement and hearing procedures.......... 184
673 Antarctic non-governmental expeditions...... 197
674 Antarctic meteorites........................ 198
675 Medical clearance process for deployment to
Antarctica.............................. 200
680 National Science Foundation Rules of
Practice................................ 201
681 Program Fraud Civil Remedies Act regulations 204
689 Research misconduct......................... 217
690 Protection of human subjects................ 222
691-699
[Reserved]
[[Page 41]]
PART 600 [RESERVED]
PART 601_CLASSIFICATION AND DECLASSIFICATION OF NATIONAL SECURITY INFORMATION--
Table of Contents
Sec.
601.1 Purpose.
601.2 Classification authority.
601.3 Security program.
601.4 Classification Review Committee.
601.5 Derivative classification.
601.6 Downgrading and declassification.
601.7 Mandatory declassification review.
601.8 Access to classified materials.
601.9 Access by historical researchers and former Presidential
appointees.
Authority: E.O. 12958, 3 CFR, 1995 Comp. p. 333.
Source: 47 FR 57284, Dec. 23, 1983, unless otherwise noted.
Sec. 601.1 Purpose.
Pursuant to Executive Order 12958 and Information Security Oversight
Office Directive No. 1, the National Science Foundation [Foundation]
issues the following regulations. The regulations identify the
information to be protected, prescribe classification, declassification,
downgrading, and safeguarding procedures to be followed, and establish a
monitoring system to ensure the regulations' effectiveness.
[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]
Sec. 601.2 Classification authority.
The Foundation does not have original classification authority under
Executive Order 12958. In any instance where a Foundation employee
develops information that appears to warrant classification because of
its national security character, the material will be afforded
protection and sent to the Division of Administrative Services (DAS).
Upon determination that classification is warranted, DAS will submit
such material to the agency that has appropriate subject matter interest
and classification authority.
[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]
Sec. 601.3 Security program.
The Director, Division of Administrative Services, is responsible
for conducting a security program that ensures effective implementation
of Executive Order 12958, to include:
(a) Maintaining active training and orientation programs for
employees concerned with classified information or material.
(b) Encouraging Foundation personnel to challenge those
classification decisions they believe to be improper.
(c) Issuing directives that ensure classified information is used,
processed, stored, reproduced and transmitted only under conditions that
will provide adequate protection and prevent access by unauthorized
persons.
(d) Recommending to the Director appropriate administrative action
to correct abuse or violation of any provision of these regulations,
including notification by warning letters, formal reprimand, and to the
extent permitted by law, suspension without pay and removal.
[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]
Sec. 601.4 Classification Review Committee.
The Security Officer (Information) chairs the Foundation's
Classification Review Committee which has authority to act on all
suggestions and complaints with respect to the Foundation's
administration of the regulations. The Assistant Directors and the Heads
of other offices reporting to the Director serve as members of the
Committee. All suggestions and complaints including those regarding
overclassification, failure to classify, or delay in declassifying not
otherwise resolved, shall be referred to the Committee for resolution.
The Committee shall establish procedures to review and act within 30
days upon all appeals regarding requests for declassification. The
Committee is authorized to overrule previous determinations in whole or
in part when in its judgment, continued protection is no longer
required. If the Committee determines that continued classification is
required under the criteria of the Executive Order, it shall promptly so
notify the requester and advise him that he may file an application for
review with the Foundation. In addition, the Committee shall review all
appeals of requests for records
[[Page 42]]
under section 552 of title 5 U.S.C. (Freedom of Information Act) when
the proposed denial is based on their continued classification under
Executive Order 12958.
[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]
Sec. 601.5 Derivative classification.
Distinct from ``original'' classification is the determination that
information is in substance the same as information currently
classified, because of incorporating, paraphrasing, restating or
generating in new form information that is already classified, and
marking the newly developed material consistent with the marking of the
source information. Persons who only reproduce, extract, or summarize
classified information, or who only apply classification markings
derived from source material or as directed by a classification guide,
need not possess original classification authority.
(a) If a person who applies derivative classification markings
believes that the paraphrasing, restating, or summarizing of classified
information has changed the level of or removed the basis for
classification, that person must consult for a determination an
appropriate official of the originating agency or office of origin who
has the authority to upgrade, downgrade, or declassify the information.
(b) The person who applies derivative classification markings shall
observe and respect original classification decisions; and carry forward
to any newly created documents any assigned authorized markings. The
declassification date or event that provides the longest period of
classification shall be used for documents classified on the basis of
multiple sources.
Sec. 601.6 Downgrading and declassification.
Executive Order 12958 prescribes a uniform system for classifying,
declassifying, and safeguarding national security information.
(a) Information shall be declassified or downgraded as soon as
national security considerations permit. The National Science Foundation
shall coordinate their review of classified information with other
agencies that have a direct interests in the subject matter. Information
that continues to meet the classification requirements prescribed by
Section 1.3 despite the passage of time will continue to be protected in
accordance with Executive Order 12958.
(b) Foundation documents may be declassified or downgraded by the
official who authorized the original classification, if that official is
still serving in the same position; the originator's successor; a
supervisory official of either; or officials delegated such authority in
writing by the Director.
(c) The Director shall conduct internal systematic review programs
for classified information originated by the Foundation contained in
records determined by the Archivist to be permanently valuable but that
have not been accessioned into the National Archives of the United
States.
(d) The Archivist of the United States shall, in accordance with
procedures and timeframes prescribed in the Information Security
Oversight Office's directives implementing Executive Order 12958,
systematically review for declassification or downgrading, classified
records accessioned into the National Archives of the United States.
Such information shall be reviewed by the Archivist for declassification
or downgrading in accordance with systematic review guidelines that
shall be provided by the head of the agency that originated the
information, or in the case of foreign government information, by the
Director of Information Security Oversight Office in consultation with
interested agency heads.
[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]
Sec. 601.7 Mandatory declassification review.
(a) The Division of Administrative Services is hereby designated as
the office to which members of the public or Departments may direct
requests for mandatory review for declassification under this provision.
In the case of documents originally classified by the Foundation, this
office shall, in turn, assign the request to the appropriate office for
action within 60 days. In each instance, receipt of the request will be
acknowledged in writing immediately
[[Page 43]]
by the office that has been assigned action. A request for
classification review must reasonably describe the document.
(b) Whenever a request is deficient in its description of the record
sought, the requester should be asked to provide additional identifying
information to the extent possible. Whenever a request does not
reasonably describe the information sought, the requester shall be
notified that unless additional information is provided or the scope of
the request is narrowed, no further action will be undertaken. Upon a
determination that the requested material no longer warrants
classification, it shall be declassified and made promptly available to
the requester, if not otherwise exempt from disclosure under 5 U.S.C.
552(b) (Freedom of Information Act) or other provision of law. If the
information may not be released in whole or in part the requester shall
be given a brief statement as to the reasons for denial, a notice of the
right to appeal the determination of the Classification Review
Committee, and a notice that such an appeal must be filed with the
Foundation within 60 days in order to be considered.
(c) When the request relates to a document given derivative
classification by the Foundation or originated by another agency, the
request and the document will be forwarded to the originator of the
source document, and the requestor notified of such referral.
(d) Employees presently cleared for access to classified information
are encouraged to challenge classification in cases where there is
reasonable cause to believe that information is classified
unnecessarily, improperly, or for an inappropriate period of time. Such
challenges should be brought to the attention of the Security Officer
(Information) who will act thereon within 30 days, informing the
challenger of actions taken. Requests for confidentiality will be
honored.
Sec. 601.8 Access to classified materials.
No person may be given access to classified information unless that
person has been determined to be trustworthy and unless access is
essential to the accomplishment of lawful and authorized Government
purposes.
Sec. 601.9 Access by historical researchers
and former Presidential appointees.
The requirement in Sec. 601.8 that access to classified information
may be granted only as is essential to the accomplishment of lawful and
authorized Government purposes may be waived for persons who are engaged
in historical research projects, or previously have occupied
policymaking positions to which they were appointed by the President,
provided they execute written agreements to safeguard the information
and written consent to the Foundation's review of their notes and
manuscripts solely for the purpose of determining that no classified
information is disclosed. A precondition to any such access is the
favorable completion of an appropriate investigative inquiry.
PART 604_NEW RESTRICTIONS ON LOBBYING--Table of Contents
Subpart A_General
Sec.
604.100 Conditions on use of funds.
604.105 Definitions.
604.110 Certification and disclosure.
Subpart B_Activities by Own Employees
604.200 Agency and legislative liaison.
604.205 Professional and technical services.
604.210 Reporting.
Subpart C_Activities by Other Than Own Employees
604.300 Professional and technical services.
Subpart D_Penalties and Enforcement
604.400 Penalties.
604.405 Penalty procedures.
604.410 Enforcement.
Subpart E_Exemptions
604.500 Secretary of Defense.
Subpart F_Agency Reports
604.600 Semi-annual compilation.
604.605 Inspector General report.
Appendix A to Part 604--Certification Regarding Lobbying
Appendix B to Part 604--Disclosure Form To Report Lobbying
Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 42 U.S.C.
1870.
[[Page 44]]
Source: 55 FR 6737, 6754, 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. 604.100 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. 604.105 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 45]]
appropriation made by law to any person. The term does not include
technical assistance which provides services instead of money, or other
assistance in the form of revenue sharing, loans, loan guarantees, loan
insurance, interest subsidies, insurance, or direct United States cash
assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the 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 46]]
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. 604.110 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
paragraph (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; 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
paragraph (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 paragraph
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23,
1989, but not made before that date, certifications shall be required at
award or commitment, covering activities occurring between December 23,
1989, and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
[[Page 47]]
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
Subpart B_Activities by Own Employees
Sec. 604.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec.
604.100 (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. 604.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
604.100 (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
[[Page 48]]
his or her client's proposal, but generally advocate one proposal over
another are not allowable under this section because the lawyer is not
providing professional legal services. Similarly, communications with
the intent to influence made by an engineer providing an engineering
analysis prior to the preparation or submission of a bid or proposal are
not allowable under this section since the engineer is providing
technical services but not directly in the preparation, submission or
negotiation of a covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
Sec. 604.210 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. 604.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
604.100 (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. 604.110 (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.
[[Page 49]]
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
Subpart D_Penalties and Enforcement
Sec. 604.400 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. 604.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
Sec. 604.410 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. 604.500 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. 604.600 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.
[[Page 50]]
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no later than with the compilations due on May 31, 1991.
OMB shall provide detailed specifications in a memorandum to these
agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 604.605 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 604--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
[[Page 51]]
agreement, the undersigned shall complete and submit Standard Form-LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required statement shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
[[Page 52]]
Sec. Appendix B to Part 604--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC01JA91.007
[[Page 53]]
[GRAPHIC] [TIFF OMITTED] TC01JA91.008
[[Page 54]]
[GRAPHIC] [TIFF OMITTED] TC01JA91.009
[[Page 55]]
PART 605_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A_General Provisions
Sec.
605.0 Adoption of HHS regulations.
605.1 Purpose.
605.2 Application.
605.3 Definitions.
605.4 Discrimination prohibited.
605.5 Assurances required.
605.6 Remedial action, voluntary action, and self-evaluation.
605.7 Designation of responsible employee and adoption of grievance
procedures.
605.8 Notice.
605.9 Administrative requirements for small recipients.
605.10 Effect of state or local law or other requirements and effect of
employment opportunities.
Subpart B_Employment Practices
605.11 Discrimination prohibited.
605.12 Reasonable accommodation.
605.13 Employment criteria.
605.14 Preemployment inquiries.
605.15-605.20 [Reserved]
Subpart C_Accessibility
605.21 Discrimination prohibited.
605.22 Existing facilities.
605.23 New construction.
605.24-605.30 [Reserved]
Subpart D_Preschool, Elementary, and Secondary Education
605.31 Application of this subpart.
605.32 Location and notification.
605.33 Free appropriate public education.
605.34 Educational setting.
605.35 Evaluation and placement.
605.36 Procedural safeguards.
605.37 Nonacademic services.
605.38 Preschool and adult education.
605.39 Private education.
605.40 [Reserved]
Subpart E_Postsecondary Education
605.41 Application of this subpart.
605.42 Admissions and recruitment.
605.43 Treatment of students; general.
605.44 Academic adjustments.
605.45 Housing.
605.46 Financial and employment assistance to students.
605.47 Nonacademic services.
605.48-605.50 [Reserved]
Subpart F_Health, Welfare, and Social Services
605.51 Application of this subpart.
605.52 Health, welfare, and other social services.
605.53 Drug and alcohol addicts.
605.54 Education of institutionalized persons.
605.55-605.60 [Reserved]
Subpart G_Procedures
605.61 Procedures.
605.62-605.90 [Reserved]
Authority: 29 U.S.C. 794.
Source: 47 FR 8573, Mar. 1, 1982, unless otherwise noted.
Subpart A_General Provisions
Sec. 605.0 Adoption of HHS regulations.
The regulations of the Department of Health and Human Services on
Nondiscrimination on the Basis of Handicap, 45 CFR part 84, including
any amendments thereto, have been adopted almost in their entirety to
programs or activities receiving Federal financial assistance from the
National Science Foundation. The few changes in the Foundation's rules
include a newly added sub-paragraph (5) to paragraph (k) of Sec. 605.3;
and modifications in paragraph (j), Sec. 605.3; paragraph (a) of Sec.
605.5; paragraph (b) of Sec. 605.46; and Sec. 605.61. Paragraph (c) of
Sec. 605.5 has been removed, and ``qualified handicapped persons'' has
been substituted for ``handicapped persons'' wherever that phrase
appears in Sec. 605.4(b)(5) and in subpart C (Sec. Sec. 605.21 through
605.23). The date for compliance with Sec. 605.33(d) has been changed.
[47 FR 8573, Mar. 1, 1982, as amended at 61 FR 51021, Sept. 30, 1996; 68
FR 51381, Aug. 26, 2003]
Sec. 605.1 Purpose.
The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973, which is designed to eliminate
discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance.
Sec. 605.2 Application.
This part applies to each recipient of Federal financial assistance
from the National Science Foundation and to
[[Page 56]]
each program or activity that receives such assistance.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.3 Definitions.
As used in this part, the term:
(a) 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, 29 U.S.C. 794.
(b) Section 504 means section 504 of the Act.
(c) Education of the Handicapped Act means that statute as amended
by the Education for all Handicapped Children Act of 1975, Public Law
94-142, 20 U.S.C. 1401 et seq.
(d) Foundation means the National Science Foundation.
(e) Director means the Director of the National Science Foundation.
(f) 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 is extended directly or
through another recipient, including any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of the
assistance.
(g) Applicant for assistance means one who submits an application,
request, or plan required to be approved by a Foundation official or by
a recipient as a condition to becoming a recipient.
(h) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guaranty), or any other arrangement by which the Foundation 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 such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(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.
(i) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property.
(j) Handicapped person--(1) Handicapped persons means any person in
the United States who (i) has a physical or mental impairment which
substantially limits one or more major life activities, (ii) has a
record of such an impairment, or (iii) is regarded as having such an
impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) 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, genito-urinary; hemic
and lymphatic; skin; and endocrine; or (B) any mental or psychological
disorder, such as mental retardation, organic brain syndrome, emotional
or mental illness, and specific learning disabilities.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(iii) 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.
(iv) Is regarded as having an impairment means (A) has a physical or
mental impairment that does not subtantially limit major life activities
but that is treated by a recipient as constituting such a limitation;
(B) 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 (C) has none of the impairments defined in paragraph
(j)(2)(i) of this section but is treated by a recipient as having such
an impairment.
(k) Qualified handicapped person means:
[[Page 57]]
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question;
(2) With respect to public preschool elementary, secondary, or adult
educational services, a handicapped person (i) of an age during which
nonhandicapped persons are provided such services, (ii) of any age
during which it is mandatory under state law to provide such services to
handicapped persons, or (iii) to whom a state is required to provide a
free appropriate public education under section 612 of the Education of
the Handicapped Act; and
(3) With respect to postsecondary and vocational education services,
a handicapped person who meets the academic and technical standards
requisite to admission or participation in the recipient's education
program or activity;
(4) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(5) With respect to scientific and technical experimentation,
observation, or field work a person who meets the academic, scientific
and technical standards for participation and any reasonable physical
qualifications for participation. Physical qualifications are not
``reasonable,'' however, if they can be obviated without unreasonable
burden by modifying facilities or aid, benefits, or services or by
providing auxiliary aids. In determining whether the burdens are
unreasonable, factors such as cost, risks, or sacrifice of legitimate
objectives may be considered. In exceptional cases psychological
qualifications may be considered `reasonable physical qualifications'
under this paragraph. Nothing in this provision or these regulations
requires reversal of scientific judgments on research, including choice
of experiments, protocols for experiments, location of observing sites,
or the like that are considered necessary to any line of scientific
inquiry by the research scientists involved.
(l) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (j) of this section.
(m) Program or activity means all of the operations of any entity
described in paragraphs (m)(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 (m)(1), (2), or (3) of this section.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 605.4 Discrimination prohibited.
(a) General. No qualified handicapped person shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity which receives Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
any aid, benefit, or service, may not, directly or
[[Page 58]]
through contractual, licensing, or other arrangements, on the basis of
handicap:
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons unless such
action is necessary to provide qualified handicapped persons with aid,
benefits, or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
person by providing significant assistance to an agency, organization,
or person that discriminates on the basis of handicap in providing any
aid, benefit, or service to beneficiaries of the recipient's program or
activity;
(vi) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving an aid, benefit, or service.
(2) For purposes of this part, aids, benefits, and services, to be
equally effective, are not required to produce the identical result or
level of achievement for handicapped and nonhandicapped persons, but
must afford handicapped persons equal opportunity to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement, in the most integrated setting appropriate to the person's
needs.
(3) Despite the existence of separate or different aid, benefits, or
services provided in accordance with this part, a recipient may not deny
a qualified handicapped person the opportunity to participate in such
programs or activities that are not separate or different.
(4) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration (i) that
have the effect of subjecting qualified handicapped persons to
discrimination on the basis of 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 persons, 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 qualified handicapped persons from, denying them the
benefits of, or otherwise subjecting them to discrimination under any
program or activity that receives Federal financial assistance or (ii)
that have the purpose or effect of defeating or substantially impairing
the accomplishment of the objectives of the program or activity with
respect to qualified handicapped persons.
(6) As used in this section, the aid, benefit, or service provided
under a program or activity receiving Federal financial assistance
includes any aid, benefit, or service provided in or through a facility
that has been constructed, expanded, altered, leased or rented, or
otherwise acquired, in whole or in part, with Federal financial
assistance.
(c) Aid, benefits, or services limited by Federal law. The exclusion
of nonhandicapped persons from aid, benefits, or services limited by
Federal statute or executive order to handicapped persons or the
exclusion of a specific class of handicapped persons from aid, benefits,
or services limited by Federal statute or executive order to a different
class of handicapped persons is not prohibited by this part.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
[[Page 59]]
Sec. 605.5 Assurances required.
(a) Assurances. Recipients of Federal financial assistance to which
this part applies will assure NSF, in a manner specified by the
Director, that the programs or activities will be operated in compliance
with this part.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended in the form of real property or to provide 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 for which Federal financial assistance is extended or for
another 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.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.6 Remedial action, voluntary action, and self-evaluation.
(a) Remedial action. (1) If the Director finds that a recipient has
discriminated against persons on the basis of handicap in violation of
section 504 or this part, the recipient shall take such remedial action
as the Director 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 Director, where appropriate, may require either or
both recipients to take remedial action.
(3) The Director 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
persons who are no longer participants in the recipient's program or
activity but who were participants in the program when such
discrimination occurred or (ii) with respect to handicapped persons who
would have been participants in the program or activity had the
discrimination not occurred.
(b) Voluntary action. A recipient may take steps, in addition to any
action that is required by this part, to overcome the effects of
conditions that resulted in limited participation in the recipient's
program or activity by qualified handicapped persons.
(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, including
handicapped persons or organizations representing handicapped persons,
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, including
handicapped persons or organizations representing handicapped persons,
any policies and practices that do not meet the requirements of this
part; and
(iii) Take, after consultation with interested persons, including
handicapped persons or organizations representing handicapped persons,
appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and
practices.
(2) A recipient that employs fifteen or more persons 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 Director upon request: (i) A list
of the interested person consulted (ii) a description of areas examined
and any problems identified, and (iii) a description of any
modifications made and any remedial steps taken.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.7 Designation of responsible employee and adoption
of grievance procedures.
(a) Designation of responsible employee. A recipient that employs
fifteen or
[[Page 60]]
more persons shall designate at least one person to coordinate its
efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient that employs
fifteen or more persons shall adopt grievance procedures that
incorporate appropriate due process standards and that provide for the
prompt and equitable resolution of complaints alleging any action
prohibited by this part. Such procedures need not be established with
respect to complaints from applicants for employment or from applicants
for admission to postsecondary educational institutions.
Sec. 605.8 Notice.
(a) A recipient that employs fifteen or more persons shall take
appropriate initial and continuing steps to notify participants,
beneficiaries, applications, and employees, including those with
impaired vision or hearing, and unions or professional organizations
holding collective bargaining or professional agreements with the
recipient that it does not discriminate on the basis of handicap in
violation of section 504 and this part. The notification shall state,
where appropriate, that the recipient does not discriminate in admission
or access to, or treatment or employment in, its programs or activities.
The notification shall also include an identification of the responsible
employee designated pursuant to Sec. 605.7(a). A recipient shall make
the initial notification 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
publication, 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.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.9 Administrative requirements for small recipients.
The Director may require any recipient with fewer than fifteen
employees, or any class of such recipients, to comply with Sec. Sec.
605.7 and 605.8, in whole or in part, when the Director finds a
violation of this part or finds that such compliance will not
significantly impair the ability of the recipient or class or recipients
to provide benefits or services.
Sec. 605.10 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 persons to receive
services or to 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 persons than for
nonhandicapped persons.
Subpart B_Employment Practices
Sec. 605.11 Discrimination prohibited.
(a) General. (1) No qualified handicapped person shall, on the basis
of handicap, be subjected to discrimination in employment under any
program or activity to which this part applies.
(2) A recipient that receives assistance under the Education of the
Handicapped Act shall take positive steps to employ and advance in
employment qualified handicapped persons in programs or activities
assisted under that Act.
(3) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur and
may not
[[Page 61]]
limit, segregate, or classify applicants or employees in any way that
adversely affects their opportunities or status because of handicap.
(4) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees 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 applications 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 virtue 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) A recipient's obligation to comply with this subpart is not
affected by any inconsistent term of any collective bargaining agreement
to which it is a party.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.12 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program or activity.
(b) Reasonable accommodation may include: (1) Making facilities used
by employees readily accessible to and usable by handicapped persons,
and (2) job restructuring, part-time or modified work schedules,
acquisition or modification or equipment or devices, the provision of
readers or interpreters, and other similar actions.
(c) 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 number of employees, 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
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for the denial
is the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.13 Employment criteria.
(a) A recipient may not make use of any employment test or other
selection criterion that screens out or tends to screen out handicapped
persons or any class of handicapped persons unless: (1) The test score
or other selection criterion, as used by the recipient, is shown to be
job-related for the position in question, and (2) alternative job-
related tests or criteria that do not screen out or tend to screen out
as many handicapped persons are not shown by the Director to be
available.
[[Page 62]]
(b) A recipient shall select and administer tests concerning
employment so as best to ensure that, when administered to an applicant
or employee who has a handicap that impairs sensory, manual, or speaking
skills, the test results accurately reflect the applicant's or
employee's job skills, aptitude, or whatever other factor the test
purports to measure, rather than reflecting the applicant's or
employee's impaired sensory, manual, or speaking skills (except where
those skills are the factors that the test purports to measure).
Sec. 605.14 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a preemployment medical examination or may not
make preemployment inquiry of an applicant as to whether the applicant
is a handicapped person or as to the nature or 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 pursuant to Sec. 605.6(a), when a
recipient is taking voluntary action to overcome the effects of
conditions that resulted in limited participation in its federally
assisted program or activity pursuant to Sec. 605.6(b), or when a
recipient is taking affirmative action pursuant to section 503 of the
Act, the recipient may invite applicants for employment to indicate
whether and to what extent they are handicapped, Provided, That:
(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; and
(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 or employee to any adverse treatment, and
that it will be used only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty,
Provided, That: (1) All entering employees are subjected to such an
examination regardless of handicap, and (2) the results of such an
examination are used only in accordance with the requirements of this
part.
(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) Supervisors and managers may be informed regarding restrictions
on the work or duties of handicapped persons and regarding necessary
accommodations;
(2) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(3) Government officials investigating compliance with the Act shall
be provided relevant information upon request.
Sec. Sec. 605.15-605.20 [Reserved]
Subpart C_Accessibility
Sec. 605.21 Discrimination prohibited.
No qualified handicapped person shall, because a recipient's
facilities are inaccessible to or unusable by handicapped persons, be
denied the benefits of, be excluded from participation in, or otherwise
be subjected to discrimination under any program or activity to which
this part applies.
Sec. 605.22 Existing facilities.
(a) Accessibility. 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 persons.
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 persons.
(b) Methods. A recipient may comply with the requirements of
paragraph (a)
[[Page 63]]
of this section 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 health,
welfare, or other social services at alternate accessible sites,
alteration of existing facilities and construction of new facilities in
conformance with the requirements of Sec. 605.23, or any other methods
that result in making its program or activity accessible to qualified
handicapped persons. A recipient is not required to make structural
changes in existing facilities where other methods are effective in
achieving compliance with paragraph (a) of this section. In choosing
among available methods for meeting the requirement of paragraph (a) of
this section, a recipient shall give priority to those methods that
serve qualified handicapped persons in the most integrated setting
appropriate.
(c) Small health, welfare, or other social service providers. If a
recipient with fewer than fifteen employees that provides health,
welfare, or other social services finds, after consultation with a
qualified handicapped person seeking its services, that there is no
method of complying with paragraph (a) of this section other than making
a significant alteration in its existing facilities, the recipient may,
as an alternative, refer the qualified handicapped person to other
providers of those services that are accessible.
(d) Time period. A recipient shall comply with the requirement of
paragraph (a) of this section within sixty 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 event as expeditiously as
possible.
(e) Transition plan. In the event that structural changes to
facilities are necessary to meet the requirement of paragraph (a) of
this section, 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
persons or organizations representing qualified handicapped persons. 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 persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full accessibility under paragraph (a) of this section and, if the time
period of the transition plan is longer than one year, identify the
steps of 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 usuable
by qualified handicapped persons.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.23 New construction.
(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
persons, 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
persons.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as
[[Page 64]]
of January 18, 1991, design, construction, or alteration of buildings in
conformance with sections 3-8 of the Uniform Federal Accessibility
Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) shall be deemed
to comply with the requirements of this section with respect to those
buildings. Departures from particular technical and scoping requirements
of UFAS by the use of other methods are permitted where substantially
equivalent or greater access to and usability of the building is
provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[47 FR 8573, Mar. 1, 1982, as amended at 55 FR 52138, 52142, Dec. 19,
1990]
Sec. Sec. 605.24-605.30 [Reserved]
Subpart D_Preschool, Elementary, and Secondary Education
Sec. 605.31 Application of this subpart.
Subpart D applies to preschool, elementary, secondary, and adult
education programs or activities that receive or benefit from Federal
financial assistance and to recipients that operate, or that receive
Federal financial assistance for the operation of, such programs or
activities.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.32 Location and notification.
A recipient that operates a public elementary or secondary education
program shall annually:
(a) Undertake to identify and locate every qualified handicapped
person residing in the recipient's jurisdiction who is not receiving a
public education; and
(b) Take appropriate steps to notify handicapped persons and their
parents or guardians or the recipient's duty under this subpart.
Sec. 605.33 Free appropriate public education.
(a) General. A recipient that operates a public elementary or
secondary education program shall provide a free appropriate public
education to each qualified handicapped person who is in the recipient's
jurisdiction, regardless of the nature or severity of the person's
handicap.
(b) Appropriate education. (1) For the purpose of this subpart, the
provision of an appropriate education is the provision of regular or
special education and related aids and services that (i) are designed to
meet individual educational needs of handicapped persons as adequately
as the needs of nonhandicapped persons are met and (ii) are based upon
adherence to procedures that satisfy the requirements of Sec. Sec.
605.34, 605.35 and 605.36.
(2) Implementation of an Individualized Education Program developed
in accordance with the Education of the Handicapped Act is one means of
meeting the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a handicapped person or refer such person
for aid, benefits, or services other than those that it operates or
provides as its means of carrying out the requirements of this subpart.
If so, the recipient remains responsible for ensuring that the
requirements of this subpart are met with respect to any handicapped
person so placed or referred.
(c) Free education--(1) General. For the purpose of this section,
the provision of a free education is the provision of educational and
related services without cost to the handicapped person or to his or her
parents or guardian, except for those fees that are imposed on non-
handicapped persons or their parents or guardian. It may consist either
of the provision of free services or, if a recipient places a
handicapped person or refers such person for aid, benefits, or services
not operated or provided by the recipient as its means of carrying out
the requirements of this subpart, of
[[Page 65]]
payment for the costs of the aid, benefits, or services. Funds available
from any public or private agency may be used to meet the requirements
of this subpart. Nothing in this section shall be construed to relieve
an insurer or similar third party from an otherwise valid obligation to
provide or pay for services provided to a handicapped person.
(2) Transportation. If a recipient places a handicapped person or
refers such person for aid, benefits, or services not operated or
provided by the recipient as its means of carrying out the requirements
of this subpart, the recipient shall ensure that adequate transportation
to and from the aid, benefits, or services is provided at no greater
cost than would be incurred by the person or his or her parents or
guardian if the person were placed in the program operated by the
recipient.
(3) Residential placement. If a public or private residential
placement is necessary to provide a free appropriate public education to
a handicapped person because of his or her handicap, the placement,
including non-medical care and room and board, shall be provided at no
cost to the person or his or her parents or guardian.
(4) Placement of handicapped persons by parents. If a recipient has
made available, in conformance with the requirements of this section and
Sec. 605.34, a free appropriate public education to a handicapped
person and the person's parents or guardian chooses to place the person
in a private school, the recipient is not required to pay for the
person's education in the private school. Disagreements between a parent
or guardian and a recipient regarding whether the recipient has made a
free appropriate public education available or otherwise regarding the
question of financial responsibility are subject to the due process
procedures of Sec. 605.36.
(d) Compliance. A recipient may not exclude any qualified
handicapped person from a public elementary or secondary education after
the effective date of this part. A recipient that is not, on the
effective date of this regulation, in full compliance with the other
requirements of the preceding paragraphs of this section shall meet such
requirements at the earliest practicable time and in no event later than
July 1, 1983.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.34 Educational setting.
(a) Academic setting. A recipient to which this subpart applies
shall educate, or shall provide for the education of, each qualified
handicapped person in its jurisdiction with persons who are not
handicapped to the maximum extent appropriate to the needs of the
handicapped person. A recipient shall place a handicapped person in the
regular educational environment operated by the recipient unless it is
demonstrated by the recipient that the education of the person in the
regular environment with the use of supplementary aids and services
cannot be achieved satisfactorily. Whenever a recipient places a person
in a setting other than the regular educational environment pursuant to
this paragraph, it shall take into account the proximity of the
alternate setting to the person's home.
(b) Nonacademic settings. In providing or arranging for the
provision of nonacademic and extracurricular services and activities,
including meals, recess periods, and the services and activities set
forth in Sec. 605.37(a)(2), a recipient shall ensure that handicapped
persons participate with nonhandicapped persons in such activities and
services to the maximum extent appropriate to the needs of the
handicapped person in question.
(c) Comparable facilities. If a recipient, in compliance with
paragraph (a) of this section, operates a facility that is identifiable
as being for handicapped persons, the recipient shall ensure that the
facility and the services and activities provided therein are comparable
to the other facilities, services, and activities of the recipient.
Sec. 605.35 Evaluation and placement.
(a) Preplacement evaluation. A recipient that operates a public
elementary or secondary education program or activity shall conduct an
evaluation in accordance with the requirements of paragraph (b) of this
section of any person who, because of handicap, needs or
[[Page 66]]
is believed to need special education or related services before taking
any action with respect to the initial placement of the person in
regular or special education and any subsequent significant change in
placement.
(b) Evaluation procedures. A recipient to which this subpart applies
shall establish standards and procedures for the evaluation and
placement of persons who, because of handicap, need or are believed to
need special education or related services which ensure that:
(1) Tests and other evaluation materials have been validated for the
specific purpose for which they are used and are administered by trained
personnel in conformance with the instructions provided by their
producer;
(2) Tests and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those which are
designed to provide a single general intelligence quotient; and
(3) Tests are selected and administered so as best to ensure that,
when a test is administered to a student with impaired sensory, manual,
or speaking skills, the test results accurately reflect the student's
aptitude or achievement level or whatever other factor the test purports
to measure, rather than reflecting the student's impaired sensory,
manual, or speaking skills (except where those skills are the factors
that the test purports to measure).
(c) Placement procedures. In interpreting evaluation data and in
making placement decisions, a recipient shall (1) draw upon information
from a variety of sources, including aptitude and achievement tests,
teacher recommendations, physical condition, social or cultural
background, and adaptive behavior, (2) establish procedures to ensure
that information obtained from all such sources is documented and
carefully considered, (3) ensure that the placement decision is made by
a group of persons, including persons knowledgeable about the child, the
meaning of the evaluation data, and the placement options, and (4)
ensure that the placement decision is made in conformity with Sec.
605.34.
(d) Reevaluation. A recipient to which this section applies shall
establish procedures, in accordance with paragraph (b) of this section,
for periodic reevaluation of students who have been provided special
education and related services. A reevaluation procedure consistent with
the Education for the Handicapped Act is one means of meeting this
requirement.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.36 Procedural safeguards.
A recipient that operates a public elementary or secondary education
program shall establish and implement, with respect to actions regarding
the identification, evaluation, or educational placement of persons who,
because of handicap, need or are believed to need special instruction or
related services, a system of procedural safeguards that includes
notice, an opportunity for the parents or guardian of the person to
examine relevant records, an impartial hearing with opportunity for
participation by the person's parents or guardian and representation by
counsel, and a review procedure. Compliance with the procedural
safeguards of section 615 of the Education of the Handicapped Act is one
means of meeting this requirement.
Sec. 605.37 Nonacademic services.
(a) General. (1) A recipient to which this subpart applies shall
provide nonacademic and extracurricular services and activities in such
manner as is necessary to afford handicapped students an equal
opportunity for participation in such services and activities.
(2) Nonacademic and extracurricular services and activities may
include counseling services, physical recreational athletics,
transportation, health services, recreational activities, special
interest groups or clubs sponsored by the recipients, referrals to
agencies which provide assistance to handicapped persons, and employment
of students, including both employment by the recipient and assistance
in making available outside employment.
(b) Counseling services. A recipient to which this subpart applies
that provides personal, academic, or vocational counseling, guidance, or
placement services to its students shall provide these services without
discrimination on the basis of handicap. The recipient
[[Page 67]]
shall ensure that qualified handicapped students are not counseled
toward more restrictive career objectives than are nonhandicapped
students with similar interests and abilities.
(c) Physical education and athletics. (1) In providing physical
education courses and athletics and similar aid, benefits, or services
to any of its students, a recipient to which this subpart applies may
not discriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors interscholastic,
club, or intramural athletics shall provide to qualified handicapped
students an equal opportunity for participation.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different from those
offered to nonhandicapped students only if separation or differentiation
is consistent with the requirements of Sec. 605.34 and only if no
qualified handicapped student is denied the opportunity to compete for
teams or to participate in courses that are not separate or different.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.38 Preschool and adult education.
A recipient to which this subpart applies that provides preschool
education or day care or adult education may not, on the basis of
handicap, exclude qualified handicapped persons and shall take into
account the needs of such persons in determining the aid, benefits, or
services to be provided.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.39 Private education.
(a) A recipient that provides private elementary or secondary
education may not, on the basis of handicap, exclude a qualified
handicapped person if the person can, with minor adjustments, be
provided an appropriate education, as defined in Sec. 605.33(b)(1),
within that recipient's program or activity.
(b) A recipient to which this section applies may not charge more
for the provision of an appropriate education to handicapped persons
than to nonhandicapped persons except to the extent that any additional
charge is justified by a substantial increase in cost to the recipient.
(c) A recipient to which this section applies that provides special
education shall do so in accordance with the provisions of Sec. Sec.
605.35 and 605.36. Each recipient to which this section applies is
subject to the provisions of Sec. Sec. 605.34, 605.37 and 605.38.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.40 [Reserved]
Subpart E_Postsecondary Education
Sec. 605.41 Application of this subpart.
Subpart E applies to postsecondary education programs or activities,
including postsecondary vocational education programs or activities,
that receive Federal financial assistance and to recipients that
operate, or that receive Federal financial assistance for the operation
of, such programs or activities.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.42 Admissions and recruitment.
(a) General. Qualified handicapped persons may not, on the basis of
handicap, be denied admission or be subjected to discrimination in
admission or recruitment by a recipient to which this subpart applies.
(b) Admissions. In administering its admission policies, a recipient
to which this subpart applies:
(1) May not apply limitations upon the number or proportion of
handicapped persons who may be admitted;
(2) May not make use of any test or criterion for admission that has
a disproportionate, adverse effect on handicapped persons or any class
of handicapped persons unless (i) the test or criterion, as used by the
recipient, has been validated as a predictor of success in the education
program or activity in question and (ii) alternate tests or criteria
that have a less disproportionate, adverse effect are not shown by the
Director to be available.
[[Page 68]]
(3) Shall assure itself that (i) admissions tests are selected and
administered so as best to ensure that, when a test is administered to
an applicant who has a handicap that impairs sensory, manual, or
speaking skills, the test results accurately reflect the applicant's
aptitude or achievement level 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); (ii) admissions tests that are
designed for persons with impaired sensory, manual, or speaking skills
are offered as often and in as timely a manner as are other admissions
tests; and (iii) admissions tests are administered in facilities that,
on the whole, are accessible to handicapped persons; and
(4) Except as provided in paragraph (c) of this section, may not
make preadmission inquiry as to whether an applicant for admission is a
handicapped person but, after admission, may make inquiries on a
confidential basis as to handicaps that may require accommodation.
(c) Preadmission inquiry exception. When a recipient is taking
remedial action to correct the effects of past discrimination pursuant
to Sec. 605.6(a) or when a recipient is taking voluntary action to
overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity pursuant to
Sec. 605.6(6), the recipient may invite applicants for admission to
indicate whether and to what extent they are handicapped, Provided,
That:
(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 action
efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential, that
refusal to provide it will not subject the applicant to any adverse
treatment, and that it will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph (b)(2) of this
section, a recipient may base prediction equations on first year grades,
but shall conduct periodic validity studies against the criterion of
overall success in the education program or activity in question in
order to monitor the general validity of the test scores.
Sec. 605.43 Treatment of students; general.
(a) No qualified handicapped student shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any academic,
research, occupational training, housing, health insurance, counseling,
financial aid, physical education, athletics, recreation,
transportation, other extracurricular, or other postsecondary education
aid, benefits, or services to which this subpart applies.
(b) A recipient to which this subpart applies that considers
participation by students in education programs or activities not
operated wholly by the recipient as part of, or equivalent to, an
education program or activity operated by the recipient shall assure
itself that the other education program or activity, as a whole,
provides an equal opportunity for the participation of qualified
handicapped persons.
(c) A recipient to which this subpart applies may not, on the basis
of handicap, exclude any qualified handicapped student from any course,
course of study, or other part of its education program or activity.
(d) A recipient to which this subpart applies shall operate its
program or activity in the most integrated setting appropriate.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.44 Academic adjustments.
(a) Academic requirements. A recipient to which this subpart applies
shall make such modifications to its academic requirements as are
necessary to ensure that such requirements do not discriminate or have
the effect of discriminating, on the basis of handicap,
[[Page 69]]
against a qualified handicapped applicant or student. Academic
requirements that the recipient can demonstrate are essential to the
instruction being pursued by such student or to any directly related
licensing requirement will not be regarded as discriminatory within the
meaning of this section. Modifications may include changes in the length
of time permitted for the completion of degree requirements,
substitution of specific courses required for the completion of degree
requirements, and adaptation of the manner in which specific courses are
conducted.
(b) Other rules. A recipient to which this subpart applies may not
impose upon handicapped students other rules, such as the prohibition of
tape recorders in classrooms or of dog guides in campus buildings, that
have the effect of limiting the participation of handicapped students in
the recipient's education program or activity.
(c) Course examinations. In its course examinations or other
procedures for evaluating students' academic achievement, a recipient to
which this subpart applies shall provide such methods for evaluating the
achievement of students who have a handicap that impairs sensory,
manual, or speaking skills as will best ensure that the results of the
evaluation represents the student's achievement in the course, rather
than reflecting the student's impaired sensory, manual, or speaking
skills (except where such skills are the factors that the test purports
to measure).
(d) Auxiliary aids. (1) A recipient to which this subpart applies
shall take such steps as are necessary to ensure that no handicapped
student is denied the benefits of, excluded from participation in, or
otherwise subjected to discrimination under the education program or
activity operated by the recipient because of the absence of educational
auxiliary aids for students with impaired sensory, manual, or speaking
skills.
(2) Auxiliary aids may include taped texts, interpreters or other
effective methods of making orally delivered materials available to
students with hearing impairments, readers in libraries for students
with visual impairments, classroom equipment adapted for use by students
with manual impairments, and other similar services and actions.
Recipients need not provide attendents, individually prescribed devices,
readers for personal use or study, or other devices or services of a
personal nature.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.45 Housing.
(a) Housing provided by the recipient. A recipient that provides
housing to its nonhandicapped students shall provide comparable,
convenient, and accessible housing to handicapped students at the same
cost as to others. At the end of the transition period provided for in
subpart C, such housing shall be available in sufficient quantity and
variety so that the scope of handicapped students' choice of living
accommodations is, as a whole, comparable to that of nonhandicapped
students.
(b) Other housing. A recipient that assists any agency,
organization, or person in making housing available to any of its
students shall take such action as may be necessary to assure itself
that such housing is, as a whole, made available in a manner that does
not result in discrimination on the basis of handicap.
Sec. 605.46 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial
assistance to qualified handicapped persons, a recipient to which this
subpart applies may not (i), on the basis of handicap, provide less
assistance than is provided to nonhandicapped persons, limit eligibility
for assistance, or otherwise discriminate or (ii) assist any entity or
person that provides assistance to any of the recipient's students in a
manner that discriminates against qualified handicapped persons on the
basis of handicap.
(2) A recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established under wills, trusts, bequests, or similar legal instruments
that require awards to be made on the basis of factors that discriminate
or have the effect of discriminating on the basis of handicap
[[Page 70]]
only if the overall effect of the award of scholarships, fellowships,
and other forms of financial assistance is not discriminatory on the
basis of handicap.
(b) Assistance in making available outside employment. A recipient
that helps its students to obtain employment shall assure itself that
the employment opportunities it helps to make available to students are,
as a whole, made available in a manner that would not violate subpart B
if they were provided by the recipient.
(c) Employment of students by recipients. A recipient that employs
any of its students may not do so in a manner that violates subpart B.
Sec. 605.47 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical
education courses and athletics and similar aid, benefits, or services
to any of its students, a recipient to which this subpart applies may
not discriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors intercollegiate,
club, or intramural athletics shall provide to qualified handicapped
students an equal opportunity for participation in these activities.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different only if
separation or differentiation is consistent with the requirements of
Sec. 605.43(d) and only if no qualified handicapped student is denied
the opportunity to compete for teams or to participate in courses that
are not separate or different.
(b) Counseling and placement services. A recipient to which this
subpart applies that provides personal, academic, or vocational
counseling, guidance, or placement services to its students shall
provide these services without discrimination on the basis of handicap.
The recipient shall ensure that qualified handicapped students are not
counseled toward more restrictive career objectives than are
nonhandicapped students with similar interests and abilities. This
requirement does not preclude a recipient from providing factual
information about licensing and certification requirements that may
present obstacles to handicapped persons in their pursuit of particular
careers.
(c) Social organizations. A recipient that provides significant
assistance to fraternities, sororities, or similar organizations shall
assure itself that the membership practices of such organizations do not
permit discrimination otherwise prohibited by this subpart.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. Sec. 605.48-605.50 [Reserved]
Subpart F_Health, Welfare, and Social Services
Sec. 605.51 Application of this subpart.
Subpart F applies to health, welfare, and other social service
programs or activities that receive Federal financial assistance and to
recipients that operate, or that receive Federal financial assistance
for the operation of, such programs or activities.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. 605.52 Health, welfare, and other social services.
(a) General. In providing health, welfare, or other social services
or benefits, a recipient may not, on the basis of handicap:
(1) Deny a qualified handicapped person these benefits or services;
(2) Afford a qualified handicapped person an opportunity to receive
benefits or services that is not equal to that offered nonhandicapped
persons;
(3) Provide a qualified handicapped person which benefits or
services that are not as effective (as defined in Sec. 605.4(b)) as the
benefits or services provided to others;
(4) Provide benefits or services in a manner that limits or has the
effect of limiting the participation of qualified handicapped persons;
or
(5) Provide different or separate benefits or services to
handicapped persons except where necessary provide qualified handicapped
persons with benefits and services that are as effective as those
provided to others.
(b) Notice. A recipient that provides notice concerning benefits or
services or written material concerning waivers
[[Page 71]]
of rights or consent to treatment shall take such steps as are necessary
to ensure that qualified handicapped persons, including those with
impaired sensory or speaking skills, are not denied effective notice
because of their handicap.
(c) Emergency treatment for the hearing impaired. A recipient
hospital that provides health services or benefits shall establish a
procedure for effective communication with persons with impaired hearing
for the purpose of providing emergency health care.
(d) Auxiliary aids. (1) A recipient to which this subpart applies
that employs fifteen or more persons shall provide appropriate auxiliary
aids to persons with impaired sensory, manual, or speaking skills, where
necessary to afford such persons an equal opportunity to benefit from
the service in question.
(2) The Director may require recipients with fewer than fifteen
employees to provide auxiliary aids where the provision of aids would
not significantly impair the ability of the recipient to provide its
benefits or services.
(3) For the purpose of this paragraph, auxiliary aids may include
brailled and taped material, interpreters, and other aids for persons
with impaired hearing or vision.
Sec. 605.53 Drug and alcohol addicts.
A recipient to which this subpart applies that operates a general
hospital or outpatient facility may not discriminate in admission or
treatment against a drug or alcohol abuser or alcoholic who is suffering
from a medical condition, because of the person's drug or alcohol abuse
or alcoholism.
Sec. 605.54 Education of institutionalized persons.
A recipient to which this subpart applies and that operates or
supervises a program or activity that provides aid, benefits, or
services for persons who are institutionalized because of handicap shall
ensure that each qualified handicapped person, as defined in Sec.
605.3(k)(2), in its program or activity is provided an appropriate
education, as defined in Sec. 605.33(b). Nothing in this section shall
be interpreted as altering in any way the obligations of recipients
under subpart D.
[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]
Sec. Sec. 605.55-605.60 [Reserved]
Subpart G_Procedures
Sec. 605.61 Procedures.
The procedural provisions applicable to title VI of the Civil Rights
Act of 1964 apply to this part. These procedures are found in Sec. Sec.
611.6 through 611.10 of this title (45 CFR). In the event that the
Department of Education or the Department of Health and Human Services
conducts a hearing under this part on behalf of NSF, the provisions of
45 CFR 84.61 shall also apply except that the Director of NSF or his
designee shall also be ``the responsible Department official'' for
purposes of 45 CFR 81.102 and 81.121 and ``the reviewing authority'' for
purposes of 45 CFR 81.103, 81.104, and 81.105. Also, in such cases, the
Director of NSF rather than the Secretary of HHS or Education shall
conduct the review provided for in 45 CFR 81.106.
Sec. Sec. 605.62-605.90 [Reserved]
PART 606_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL SCIENCE FOUNDATION--
Table of Contents
Sec.
606.1 Purpose.
606.2 Application.
606.3 Definitions.
606.4-606.9 [Reserved]
606.10 Self-evaluation.
606.11 Notice.
606.12-606.29 [Reserved]
606.30 General prohibitions against discrimination.
606.31-606.39 [Reserved]
606.40 Employment.
606.41-606.49 [Reserved]
606.50 Program accessibility: Discrimination prohibited.
606.51 Program accessibility: Existing facilities.
606.52 Program accessibility: New construction and alterations.
606.53-606.59 [Reserved]
606.60 Communications.
[[Page 72]]
606.61-606.69 [Reserved]
606.70 Complaint procedures.
606.71-606.99 [Reserved]
Authority: 29 U.S.C. 794.
Source: 54 FR 4791, Jan. 31, 1989, unless otherwise noted.
Sec. 606.1 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. 606.2 Application.
This part applies to all programs or activities conducted by the
Foundation, except for programs or activities conducted outside the
United States that do not involve individuals with handicaps in the
United States. Programs and activities receiving Federal financial
assistance from the Foundation are covered by 45 CFR part 605.
Sec. 606.3 Definitions.
For purposes of this part, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the Foundation. For example, auxiliary aids
useful for persons with impaired vision include readers, Brailled
materials, audio recordings, and other similar services and devices.
Auxiliary aids useful for persons with impaired hearing include
telephone handset amplifiers, telephones compatible with hearing aids,
telecommunication devices for deaf persons (TDD's), interpreters, note
takers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the Foundation's alleged
discriminatory action in sufficient detail to inform the Foundation of
the nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Foundation means the National Science Foundation.
Individual with handicaps means any person in the United States who
has a physical or mental impairment that substantially limits one or
more major life activities, has a record of such an impairment, or is
regarded as having such an impairment. As used in this definition, the
phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
[[Page 73]]
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the Foundation 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 Foundation as having such an
impairment.
Qualified individual with handicaps means--
(1) With respect to any Foundation program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
Foundation can demonstrate would result in a fundamental alteration in
its nature;
(2) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(3) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this part by Sec. 606.40.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810);
and the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat.
28). As used in this part, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
Sec. Sec. 606.4-606.9 [Reserved]
Sec. 606.10 Self-evaluation.
(a) The Foundation shall, within one year of the effective date of
this part, evaluate its current policies and practices, and the effects
thereof, that do not or may not meet the requirements of this part, and,
to the extent modification of any such policies and practices is
required, the Foundation shall proceed to make the necessary
modifications.
(b) The Foundation shall provide an opportunity to interested
persons, including individuals with handicaps or organizations
representing individuals with handicaps, to participate in the self-
evaluation process by submitting comments (both oral and written).
(c) The Foundation 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 who made comments;
(2) A description of areas examined and any problems identified; and
(3) A description of any modifications made.
Sec. 606.11 Notice.
The Foundation 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 Foundation and make such
information available to them in such manner as the Director of the
Foundation finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this regulation.
Sec. Sec. 606.12-606.29 [Reserved]
Sec. 606.30 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 Foundation.
[[Page 74]]
(b)(1) The Foundation, in providing any aid, benefit, or service,
may not, directly or through contractual, licensing, or other
arrangements, on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards; 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 Foundation may not deny a qualified individual with
handicaps the opportunity to participate in programs or activities that
are not separate or different, despite the existence of permissibly
separate or different programs or activities.
(3) The Foundation 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 Foundation may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude qualified individuals with handicaps from, deny them the
benefits of, or otherwise subject them to discrimination under any
program or activity conducted by the Foundation; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The Foundation, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this part.
(d) The Foundation shall administer programs and activities in the
most integrated setting appropriate to the needs of qualified
individuals with handicaps.
Sec. Sec. 606.31-606.39 [Reserved]
Sec. 606.40 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 Foundation. The definitions, requirements,
and procedures of section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791), as established by the Equal Employment Opportunity
Commission in 29 CFR part 1613, shall apply to employment in federally
conducted programs or activities.
Sec. Sec. 606.41-606.49 [Reserved]
Sec. 606.50 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 606.51, no qualified
individual with handicaps shall, because the Foundation's facilities are
inaccessible to or
[[Page 75]]
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
Foundation.
Sec. 606.51 Program accessibility: Existing facilities.
(a) General. The Foundation shall operate each program or activity
so that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the Foundation to make each of its existing
facilities accessible to and usable by individuals with handicaps; or
(2) Require the Foundation to take any action that it can
demonstrate would result in a fundamental alteration in the nature of a
program or activity or in undue financial and administrative burdens. In
those circumstances where Foundation personnel believe that the proposed
action would fundamentally alter the program or activity or would result
in undue financial and administrative burdens, the Foundation has the
initial burden of establishing that compliance with Sec. 606.51(a)
would result in such alteration or burdens. The decision that compliance
would result in such alteration or burdens must be made by the
Foundation Director or his or her designee after considering all
Foundation resources available for use in the funding and operation of
the conducted program or activity, and must be accompanied by a written
statement of the reasons for reaching that conclusion. If an action
would result in such an alteration or burdens, the Foundation shall take
any other action that would not result in such an alteration or such
burdens but would nevertheless ensure that individuals with handicaps
receive the benefits and services of the program or activity.
(b) Methods. The Foundation 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 Foundation is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The Foundation, in
making alterations to existing buildings, shall meet accessibility
requirements to the extent compelled by the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations
implementing it. In choosing among available methods for meeting the
requirements of this section, the Foundation shall give priority to
those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(c) Time period for compliance. The Foundation shall comply with the
obligations established under this section within 60 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.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
Foundation 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 Foundation shall provide an opportunity to
interested persons, including individuals with handicaps or
organizations representing individuals with handicaps, to participate in
the development of the transition plan by submitting comments (both oral
and written). A copy of the transition plan shall be made available for
public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the Foundation'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;
[[Page 76]]
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of transition plan
is longer than one year, identify steps that will be taken during each
year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 606.52 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the Foundation shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Sec. Sec. 606.53-606.59 [Reserved]
Sec. 606.60 Communications.
(a) The Foundation shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The Foundation 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 Foundation.
(i) In determining what type of auxiliary aid is necessary, the
Foundation shall give primary consideration to the requests of the
individual with handicaps.
(ii) The Foundation need not provide individually prescribed
devices, readers for personal use or study, or other devices of a
personal nature.
(2) Where the Foundation communicates with applicants and
beneficiaries by telephone, telecommunications devices for deaf persons
(TDD's) or equally effective telecommunication systems shall be used to
communicate with persons with impaired hearing.
(b) The Foundation 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 Foundation shall provide signage at a primary entrance to
each of its inaccessible facilities, directing users to a location at
which they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the Foundation to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where Foundation personnel believe that
the proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the
Foundation has the initial burden of establishing that compliance with
Sec. 606.60 would result in such alteration or burdens. The decision
that compliance would result in such alteration or burdens must be made
by the Foundation Director or his or her designee after considering all
Foundation resources available for use in the funding and operation of
the conducted program or activity and must be accompanied by a written
statement of the reasons for reaching that conclusion. If an action
required to comply with this section would result in such an alteration
or such burdens, the Foundation shall take any other action that would
not result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with handicaps
receive the benefits and services of the program or activity.
Sec. Sec. 606.61-606.69 [Reserved]
Sec. 606.70 Complaint procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the Foundation.
(b) The Foundation shall process complaints alleging violations of
section 504 with respect to employment
[[Page 77]]
according to the procedures established by the Equal Employment
Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of
the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The Director, Office of Equal Opportunity Programs (OEOP), shall
coordinate implementation of this section.
(d) Persons wishing to submit complaints should submit complete
complaints (see Sec. 606.03) to the Office of Equal Opportunity
Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington,
VA 22230. In accordance with the procedures outlined below, the
Foundation will accept all complete complaints and will either undertake
to investigate them if they are within the jurisdiction of the
Foundation and submitted within 180 days of the alleged acts of
discrimination or in the case of complaints not within the jurisdiction
of the Foundation, it shall promptly notify the complainant and shall
make reasonable efforts to refer the complaint to the appropriate
government entity. Complete complaints submitted after the 180 day time
limit may also be acted upon at the discretion of the Foundation if good
cause for the delay in submission is found.
(e) The Foundation shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or a facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(f) Within 180 days of the receipt of a complete complaint, the
Director, Office of Equal Opportunity Programs (OEOP), or his or her
designee or delegate, will investigate the complaint and shall notify
the complainant of the results of the investigation in a letter
containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of a right to appeal to the Director of the Foundation.
(g)(1) A complainant may appeal findings of fact, conclusions of
law, or remedies to the Director of the Foundation. Such appeals must be
in writing and must state fully the basis for the appeal, proposed
alternative findings of fact, conclusions of law, or remedies. They must
be sent (as evidenced by an appropriate postmark or other satisfactory
evidence) within 90 days after the date of receipt from the Foundation
of the letter described in paragraph (f) of this section. The Foundation
may extend this time for good cause.
(2) The Director shall notify the complainant of the results of the
appeal within 30 days of the receipt of the appeal. If the Director
determines that additional information is needed from the complainant,
the Director shall have 30 days from the date such additional
information is received from the complainant to make a determination on
the appeal.
(h) The time limits for sending a letter to the complainant in
paragraph (f) and for deciding an appeal in paragraph (g)(2) of this
section may be extended with the permission of the Assistant Attorney
General.
[54 FR 4791, Jan. 31, 1989, as amended at 59 FR 37437, July 22, 1994]
Sec. Sec. 606.71-606.99 [Reserved]
PART 607_SALARY OFFSET--Table of Contents
Sec.
607.1 Purpose and scope.
607.2 Definitions.
607.3 Applicability.
607.4 Notice requirements before offset.
607.5 Hearing.
607.6 Written decision.
607.7 Coordinating offset with another Federal agency.
607.8 Procedures for salary offset.
607.9 Refunds.
607.10 Statute of limitations.
607.11 Non-waiver of rights.
607.12 Interest, penalties, and administrative costs.
Authority: 5 U.S.C. 5514; E.O. 12107, 3 CFR, 1978 Comp., p. 264; 5
CFR part 550, subpart K.
Source: 58 FR 68769, Dec. 29, 1993, unless otherwise noted.
Sec. 607.1 Purpose and scope.
(a) This part provides procedures for the collection by
administrative offset of a federal employee's salary without his or her
consent to satisfy certain
[[Page 78]]
debts owed to the Federal government. This part applies to all Federal
employees who owe debts to the National Science Foundation (NSF) and to
current employees of NSF who owe debts to other Federal agencies. This
part does not apply when the employee consents to recovery from his or
her current pay account.
(b) This part does not apply to debts or claims arising under:
(1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et
seq.;
(2) The Social Security Act, 42 U.S.C. 301 et seq.;
(3) The tariff laws of the United States; or
(4) Any case where a collection of a debt by salary offset is
explicitly provided for or prohibited by another statute.
(c) This part does not apply to any adjustment to pay arising out of
an employee's selection of coverage or a change in coverage under a
Federal benefits program requiring periodic deductions from pay if the
amount to be recovered was accumulated over four pay periods or less.
(d) This part does not preclude the compromise, suspension, or
termination of collection action where appropriate under the standards
implementing the Federal Claims Collection Act, 31 U.S.C. 3711 et seq.,
and 4 CFR parts 101 through 105.
(e) This part does not preclude an employee from requesting waiver
of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 716,
or in any way questioning the amount or validity of the debt by
submitting a subsequent claim to the General Accounting Office. This
part does not preclude an employee from requesting a waiver pursuant to
other statutory provisions applicable to the particular debt being
collected.
(f) Matters not addressed in this part should be reviewed in
accordance with the Federal Claims Collection Standards at 4 CFR 101.1
et seq.
Sec. 607.2 Definitions.
For the purposes of this part the following definitions will apply:
Agency means an executive agency as defined at 5 U.S.C. 105,
including the U.S. Postal Service and the U.S. Postal Rate Commission; a
military department as defined at 5 U.S.C. 102; an agency or court in
the judicial branch; an agency of the legislative branch, including the
U.S. Senate and House of Representatives; and other independent
establishments that are entities of the Federal government.
Certification means a written debt claim received from a creditor
agency which requests the paying agency to offset the salary of an
employee.
Chief Financial Officer means the Chief Financial Officer of NSF or
such other official of NSF who is designated by the Chief Financial
Officer to determine whether an employee is indebted to the United
States and to take action to collect such debts.
Creditor agency means an agency of the Federal Government to which
the debt is owed.
Debt means an amount owed by a Federal employee to the United States
from sources which include loans insured or guaranteed by the United
States and all other amounts due the United States from fees, leases,
rents, royalties, services, sales of real or personal property,
overpayments, penalties, damages, interests, fines, forfeitures (except
those arising under the Uniform Code of Military Justice), and all other
similar sources.
Disposable pay means the amount that remains from an employee's
Federal pay after required deductions for social security, Federal,
State or local income tax, health insurance premiums, retirement
contributions, life insurance premiums, Federal employment taxes, and
any other deductions that are required to be withheld by law.
Hearing official means an individual responsible for conducting a
hearing with respect to the existence or amount of a debt claimed, or
the repayment schedule of a debt, and who renders a decision on the
basis of such hearing. A hearing official may not be under the
supervision or control of the Chief Financial Officer or of persons
having supervision or control over the Chief Financial Officer.
NSF means the National Science Foundation.
Paying agency means the agency that employs the individual who owes
the
[[Page 79]]
debt and authorizes the payment of his or her current pay.
Salary offset means an administrative offset to collect a debt
pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially
established pay intervals from the current pay account of an employee
without his or her consent.
Sec. 607.3 Applicability.
The regulations in this part are to be followed when:
(a) NSF is owed a debt by an individual who is a current employee of
the NSF; or
(b) NSF is owed a debt by an individual currently employed by
another Federal agency; or
(c) NSF employs an individual who owes a debt to another Federal
agency.
Sec. 607.4 Notice requirements before offset.
(a) Salary offset shall not be made against an employee's pay unless
the employee is provided with written notice signed by the Chief
Financial Officer of the debt at least 30 days before salary offset
commences.
(b) The written notice shall contain:
(1) A statement that the debt is owed and an explanation of its
nature and amount;
(2) The agency's intention to collect the debt by deducting from the
employee's current disposable pay account;
(3) The amount, frequency, proposed beginning date, and duration of
the intended deduction(s);
(4) An explanation of interest, penalties, and administrative
charges, including a statement that such charges will be assessed unless
excused in accordance with the Federal Claims Collections Standards at 4
CFR 101.1;
(5) The employee's right to inspect, request, and receive a copy of
government records relating to the debt;
(6) The employee's opportunity to establish a written schedule for
the voluntary repayment of the debt in lieu of offset;
(7) The employee's right to an oral hearing or a determination based
on a review of the written record (``paper hearing'') conducted by an
impartial hearing official concerning the existence or the amount of the
debt, or the terms of the repayment schedule;
(8) The procedures and time period for petitioning for a hearing;
(9) A statement that a timely filing of a petition for a hearing
will stay the commencement of collection proceedings;
(10) A statement that a final decision on the hearing (if requested)
will be issued by the hearing official not later than 60 days after the
filing of the petition requesting the hearing unless the employee
requests and the hearing official grants a delay in the proceedings;
(11) A statement that knowingly false or frivolous statements,
representations, or evidence may subject the employee to appropriate
disciplinary procedures and/or statutory penalties;
(12) A statement of other rights and remedies available to the
employee under statutes or regulations governing the program for which
the collection is being made;
(13) Unless there are contractual or statutory provisions to the
contrary, a statement that amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee; and
(14) A statement that the proceedings regarding such debt are
governed by section 5 of the Debt Collection Act of 1982 (5 U.S.C.
5514).
Sec. 607.5 Hearing.
(a) Request for hearing. (1) An employee may file a petition for an
oral or paper hearing in accordance with the instructions outlined in
the agency's notice to offset.
(2) A hearing may be requested by filing a written petition
addressed to the Chief Financial Officer stating why the employee
disputes the existence or amount of the debt or, in the case of an
individual whose repayment schedule has been established other than by a
written agreement, concerning the terms of the repayment schedule. The
petition for a hearing must be received by the Chief Financial Officer
not later than fifteen (15) calendar days after the employee's receipt
of the offset notice, or notice of the terms of the payment schedule,
unless the employee can show
[[Page 80]]
good cause for failing to meet the filing deadline.
(b) Hearing procedures. (1) The hearing will be presided over by an
impartial hearing official.
(2) The hearing shall conform to procedures contained in the Federal
Claims Collection Standards, 4 CFR 102.3(c). The burden shall be on the
employee to demonstrate that the existence or the amount of the debt is
in error.
Sec. 607.6 Written decision.
(a) The hearing official shall issue a final written opinion no
later than 60 days after the filing of the petition.
(b) The written opinion will include a statement of the facts
presented to demonstrate the nature and origin of the alleged debt; the
hearing official's analysis, findings, and conclusions; the amount and
validity of the debt, if any; and the repayment schedule, if any.
Sec. 607.7 Coordinating offset with another Federal agency.
(a) When the NSF is the creditor agency and the Chief Financial
Officer determines that an employee of another agency (i.e., the paying
agency) owes a debt to the NSF, the Chief Financial Officer shall, as
appropriate:
(1) Certify in writing to the paying agency that the employee owes
the debt, the amount and basis of the debt, the date on which payment
was due, and the date the Government's right to collect the debt
accrued, and that this part 607 has been approved by the Office of
Personnel Management.
(2) Unless the employee has consented to salary offset in writing or
signed a statement acknowledging receipt of the required procedures, and
the written consent is sent to the paying agency, the Chief Financial
Officer must advise the paying agency of the action(s) taken under this
part 607, and the date(s) they were taken.
(3) Request the paying agency to collect the debt by salary offset.
If deductions must be made in installments, the Chief Financial Officer
may recommend to the paying agency the amount or percentage of
disposable pay to be collected in each installment;
(4) Arrange for a hearing upon the proper petitioning by the
employee.
(b) When the NSF is the creditor agency and the employee is in the
process of separating from the Federal service, the NSF must submit its
debt claim to the paying agency as provided in this part. The paying
agency must certify the total amount collected, give a copy of the
certification to the employee, and send a copy of the certification and
notice of the employee's separation to the NSF. If the paying agency is
aware that the employee is entitled to Civil Service Retirement and
Disability Fund or other similar payments, it must certify to the agency
responsible for making such payments that the debtor owes a debt,
including the amount of the debt, and that the provisions of 5 CFR
550.1108 have been followed.
(c) When the NSF is the creditor agency and the employee has already
separated from Federal service and all payments due from the paying
agency have been paid, the Chief Financial Officer may request, unless
otherwise prohibited, that money payable to the employee from the Civil
Service Retirement and Disability Fund or other similar funds be
collected by administrative offset.
(d) When the NSF is the paying agency, upon receipt of a properly
certified debt claim from another agency, deductions will be scheduled
to begin at the next established pay interval. The employee must receive
written notice that NSF has received a certified debt claim from the
creditor agency, the amount of the debt, the date salary offset will
begin, and the amount of the deduction(s). NSF shall not review the
merits of the creditor agency's determination of the validity or the
amount of the certified claim. If the employee transfers to another
agency after the creditor agency has submitted its debt claim to NSF and
before the debt is collected completely, NSF must certify the amount
collected. One copy of the certification must be furnished to the
employee. A copy must be furnished to the creditor agency with notice of
the employee's transfer.
Sec. 607.8 Procedures for salary offset.
(a) Deductions to liquidate an employee's debt will be by the method
and
[[Page 81]]
in the amount stated in the Chief Financial Officer's notice of
intention to offset as provided in Sec. 607.4. Debts will be collected
in one lump sum where possible. If the employee is financially unable to
pay in one lump sum, collection must be made in installments.
(b) Debts will be collected by deduction at officially established
pay intervals from an employee's current pay account unless alternative
arrangements for repayment are made.
(c) Installment deductions will be made over a period not greater
than the anticipated period of employment. The size of installment
deductions must bear a reasonable relationship to the size of the debt
and the employee's ability to pay. The deduction for the pay intervals
for any period must not exceed 15% of disposable pay unless the employee
has agreed in writing to a deduction of a greater amount.
(d) Unliquidated debts may be offset against any financial payment
due to a separated employee including but not limited to final salary or
leave payment in accordance with 31 U.S.C. 3716.
Sec. 607.9 Refunds.
(a) NSF will promptly refund to an employee any amounts deducted to
satisfy debts owed to NSF when the debt is waived, found not owed to
NSF, or when directed by an administrative or judicial order.
(b) Another creditor agency will promptly return to NSF any amounts
deducted by NSF to satisfy debts owed to the creditor agency when the
debt is waived, found not owed, or when directed by an administrative or
judicial order.
(c) Unless required by law, refunds under this section shall not
bear interest.
Sec. 607.10 Statute of limitations.
If a debt has been outstanding for more than 10 years after NSF's
right to collect the debt first accrued, the agency may not collect by
salary offset unless facts material to the Government's right to collect
were not known and could not reasonably have been known by the official
or officials who were charged with the responsibility for discovery and
collection of such debts.
Sec. 607.11 Non-waiver of rights.
An employee's involuntary payment of all or any part of a debt
collected under the regulations in this part will not be construed as a
waiver of any rights that the employee may have under 5 U.S.C. 5514 or
any other provision of law.
Sec. 607.12 Interest, penalties, and administrative costs.
Charges may be assessed on a debt for interest, penalties, and
administrative costs in accordance with 31 U.S.C. 3717 and the Federal
Claims Collection Standards, 4 CFR 101.1.
PART 608_CLAIMS COLLECTION AND ADMINISTRATIVE OFFSET--Table of Contents
Sec.
608.1 Purpose and scope.
608.2 Collection, compromise, and use of consumer reporting agencies.
608.3 Administrative offset.
608.4 Reductions of tax refunds.
Authority: 31 U.S.C. 3711, 3716, 3718 and 3720A.
Source: 58 FR 68772, Dec. 29, 1993, unless otherwise noted.
Sec. 608.1 Purpose and scope.
(a) This part sets forth policies and procedures for the collection
and compromise claims and the administrative offset of claims by the
National Science Foundation (NSF) pursuant to 31 U.S.C. 3711, 3716, 3718
and 3720A. It is not intended to limit or govern the rights of the NSF
or the United States to collect, compromise, or administratively offset
debts or claims under other authority and procedures that may be legally
available to it.
(b) Matters not addressed in this part should be reviewed and
handled in accordance with applicable statutory provisions and the
Federal Claims Collection Standards issued jointly by the Attorney
General and the Comptroller General (4 CFR parts 101 through 105).
(c) Any action other than the issuance of regulations specifically
required to be done by the head of the agency by any of the statutes or
regulations referred to in paragraphs (a) and (b) of this section shall
be done on behalf of NSF by its Chief Financial
[[Page 82]]
Officer or by those to whom the Chief Financial Officer delegates
authority. This is not intended to prevent the Chief Financial Officer
from issuing additional internal procedures and guidance consistent with
this part.
Sec. 608.2 Collection, compromise, and use of consumer reporting agencies.
(a) Subject to the specific limitations and procedures of 31 U.S.C.
3711 and in accordance with the applicable provisions of the Federal
Claims Collection Standards, NSF, acting through its Chief Financial
Officer or those to whom he or she delegates authority or assigns
responsibilities, shall try to collect claims of the United States
Government for money or property arising out of the activities of NSF or
that are referred to NSF and may compromise or suspend or end collection
action of certain claims. In making demands for payment, NSF will follow
the guidance set forth at 4 CFR 102.2. In appropriate cases, as
authorized by and subject to 31 U.S.C. 3718 and 4 CFR 102.6, NSF may
contract for collection services. Before compromising or suspending or
ending the collection of a claim in excess of $5,000, the matter shall
be referred to the NSF Office of General Counsel for legal review.
(b) When trying to collect a claim of the Government (except for
claims under the Internal Revenue Code of 1986, 26 U.S.C. 1 et seq.),
NSF may disclose to a consumer reporting agency information from a
system of records that an individual is responsible for a claim if (1) a
notice published pursuant to 5 U.S.C. 552a(3)(4) indicates that
information in the system of records may be disclosed to a consumer
reporting agency that an individual is responsible for a claim and (2)
if the Chief Financial Officer of NSF decides that the claim is valid
and overdue. Such disclosures to a consumer reporting agency will be
done only under the conditions and procedures specified in 31 U.S.C.
3711(f) and in the Federal Claims Collections Standards. Specifically,
before NSF provides the information to the consumer reporting agency,
the individual will be given the notice required by 31 U.S.C.
3711(f)(1)(C); and in accordance with 4 CFR 102.5(c), the right of
administrative review to be provided to the individual shall be
consistent with the provisions of 4 CFR 102.3(c). If NSF does not have a
current address for the individual in its files, it will take reasonable
action to locate the individual, but if unsuccessful will mail the
notice to the individual's last known address. NSF will disclose
information only to a consumer reporting agency that gives satisfactory
assurances that it is complying with all laws of the United States
relating to providing consumer credit information. The information
provided by NSF shall be limited to the type of information described in
31 U.S.C. 3711(f)(1)(F). Moreover, NSF will not provide such information
until it has established internal procedures to disclose promptly to a
consumer reporting agency to which disclosure is made of any substantial
changes in the condition or amount of the claim and to verify or correct
promptly information about the claim on request of a consumer reporting
agency for verification of information disclosed.
(c) If in response to the notice referred to in paragraph (b) of
this section, the individual repays or agrees in writing with NSF to a
repayment plan, the information will not be disclosed to a consumer
reporting agency. If in response to the notice referred to in paragraph
(b) the individual requests a review or reconsideration of the claim,
information shall not be disclosed to the consumer reporting agency
until such a review is provided.
(d) The review referred to in paragraph (c) of this section shall be
based only on the written documentation in the file, including any
additional written information provided by the individual in response to
the notice referred to in paragraph (b). A written summary briefly
describing the nature of the review performed and the conclusion reached
shall be made. The written summary and conclusion shall be referred to
the NSF Office of General Counsel for legal review. After legal review,
a copy of the written summary shall be sent to the individual.